People v. Kelly

Decision Date09 November 1990
Docket NumberDocket No. 107657
Citation186 Mich.App. 524,465 N.W.2d 569
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert Steven KELLY, Defendant-Appellant. 186 Mich.App. 524, 465 N.W.2d 569
CourtCourt of Appeal of Michigan — District of US

[186 MICHAPP 525] Frank J. Kelley, Atty. Gen., Gay Secor Hardy, Sol. Gen., Tony Tague, Pros. Atty., and Stuart L. Fenton, Asst. Pros. Atty., for People.

State Appellate Defender by Ronald J. Bretz, for defendant-appellant on appeal.

Before REILLY, P.J., and MacKENZIE and SULLIVAN, JJ.

[186 MICHAPP 526] PER CURIAM.

Following a bench trial, defendant was convicted of indecent exposure, M.C.L. Sec. 750.335a; M.S.A. Sec. 28.567(1), and of being a sexually delinquent person, M.C.L. Sec. 750.10a; M.S.A. Sec. 28.200(1). He was sentenced to life imprisonment. He now appeals as of right, raising three issues: (1) whether his trial attorneys' failure to file a timely notice of an alibi defense deprived him of effective assistance of counsel, (2) whether the sentence of life imprisonment is a valid sentence, and (3) even if the sentence is valid, whether it shocks our conscience. Although we affirm defendant's conviction, we remand this matter for resentencing because the sentence imposed is invalid under the indecent exposure-sexual delinquency statute.

I

Defendant's first argument is that his trial attorneys' failure to file a timely notice of an alibi defense deprived him of effective assistance of counsel, U.S. Const., Am. VI; Const.1963, art. 1, Sec. 20, because such failure amounted to a serious mistake which prevented defendant from presenting a substantial defense. A defendant is entitled to have his counsel prepare, investigate, and present all substantial defenses. People v. Hubbard, 156 Mich.App. 712, 714, 402 N.W.2d 79 (1986); People v. Lewis, 64 Mich.App. 175, 183-184, 235 N.W.2d 100 (1975), lv. den. 395 Mich. 810 (1975). At a posttrial evidentiary hearing, however, a defendant must show that he made a good-faith effort to avail himself of this right and that the defense of which he was deprived was substantial. Hubbard, supra, 156 Mich.App. at pp. 714-715, 402 N.W.2d 79; Lewis, supra, 64 Mich.App. at pp. 183-184, 235 N.W.2d 100. A substantial defense is one that might have made a difference in the outcome of the trial. People v. Foster, 77 [186 MICHAPP 527] Mich.App. 604, 609, 259 N.W.2d 153 (1977), lv. den. 406 Mich. 88 (1979). Here, a substantial alibi defense would be one in which defendant's proposed alibi witnesses verified his version. Lewis, supra, 64 Mich.App. at p. 185, 235 N.W.2d 100.

Trial counsel here filed a notice of an alibi defense, listing three proposed witnesses, including defendant's wife. However, it was untimely under M.C.L. Sec. 768.20; M.S.A. Sec. 28.1043 and, therefore, the trial court excluded any evidence offered to support defendant's alibi under M.C.L. Sec. 768.21; M.S.A. Sec. 28.1044.

Even if defendant's trial attorneys were ineffective by failing to file a timely notice, we nevertheless decline to reverse defendant's conviction. Defendant brought a posttrial motion for a new trial on the basis of his trial attorneys' performance in this regard. At the hearing on that motion, however, defendant failed to show that he was deprived of a substantial defense. There is nothing in the record showing what the proposed alibi witnesses' testimony would have been had they been permitted to testify on the matter and, thus, whether they would have, in fact, provided an alibi for defendant. See, e.g., People v. Hopson, 178 Mich.App. 406, 412-413, 444 N.W.2d 167 (1989). Also cf., e.g., People v. Wilson, 159 Mich.App. 345, 354, 406 N.W.2d 294 (1987), and People v. Watkins, 54 Mich.App. 576, 583, 221 N.W.2d 437 (1974).

On this same issue, defendant also urges that the trial court should have granted sua sponte a continuance so that he could have filed a timely notice of alibi. We disagree. A trial court has no duty to grant a continuance on its own motion, and, thus, absent a motion for a continuance at trial, we will not review the issue on appeal. People v. Kvam, 160 Mich.App. 189, 200, 408 N.W.2d 71 (1987).

II

[186 MICHAPP 528] Defendant's second argument is that the sentence of life imprisonment is invalid because it is not authorized by the statute under which he was convicted. Instead of life imprisonment, defendant argues, the court should have imposed an indeterminate sentence of from one day to life. We agree that life imprisonment is not a valid sentence in this case.

The statute under which defendant was convicted provides an alternate sentence if the person convicted of indecent exposure was sexually delinquent at the time he committed the offense:

Any person who shall knowingly make any open or indecent exposure of his or her person or of the person of another shall be guilty of a misdemeanor, punishable by imprisonment in the county jail for not more than 1 year, or by a fine of not more than $500.00, or if such person was at the time of the said offense a sexually delinquent person, may be punishable by imprisonment in the state prison for an indeterminate term, the minimum of which shall be 1 day and the maximum of which shall be life: Provided, That any other provision of any other statute notwithstanding, said offense shall be triable only in a court of record. [M.C.L. Sec. 750.335a; M.S.A. Sec. 28.567(1).]

Sexual delinquency is not merely a penalty enhancement provision related to the principal charge; it is an alternate sentencing provision tied to a larger statutory scheme. See People v. Helzer, 404 Mich. 410, 419, 273 N.W.2d 44 (1978).

We conclude that the alternate sentence is an indeterminate term of one day to life imprisonment. In interpreting a statute, we apply the rule of ordinary usage and common sense. People v. Wyngaard, 159 Mich.App. 304, 311, 406 N.W.2d 280[186 MICHAPP 529] (1987), lv. den. 430 Mich. 893 (1988). Applying such a rule, the word "shall" generally denotes a mandatory duty. State Highway Comm. v. Vanderkloot, 392 Mich. 159, 180, 220 N.W.2d 416 (1974); Hadley v. Ramah, 134 Mich.App. 380, 387, 351 N.W.2d 305 (1984). Because the statute at issue provides that the minimum of the indeterminate term shall be one day and the maximum shall be life, we conclude that that is the prescribed length of the indeterminate term. Moreover, M.C.L. Sec. 767.61a; M.S.A. Sec. 28.1001(1) also provides in pertinent part:

In any prosecution for an offense committed by a sexually delinquent person for which may be imposed an alternate sentence to imprisonment for an indeterminate term, the minimum of which is 1 day and the maximum of which is life, the indictment shall charge the offense and may also charge that the defendant was, at the time said offense was committed, a sexually delinquent person. [Emphasis added.]

Therefore, defendant's sentence of life imprisonment is invalid under sexual delinquency sentencing.

We decline to hold that the sexually delinquent indeterminate sentence of one day to life is invalid under the indeterminate sentence act, specifically M.C.L. Sec. 769.9(2); M.S.A. Sec. 28.1081(2), which provides:

In all cases where the maximum sentence in the discretion of the court may be imprisonment for life or any number or term of years, the court may impose a sentence for life or may impose a sentence for any terms of years. If the sentence imposed by the court is for any term of years, the court shall fix both the minimum and the maximum of that sentence in terms of years or fraction thereof, and sentences so imposed shall be considered indeterminate sentences. The court shall not impose a sentence in which the maximum penalty is life imprisonment with a minimum for a term of years included in the same sentence.

[186 MICHAPP 530] This provision, by its own terms, applies only to cases in which the maximum sentence authorized by statute is life imprisonment or any term of years. In those cases, the court shall not impose a minimum sentence for a term of years if it imposes a maximum sentence of life imprisonment. That is not the case here. Under the statute at issue here, the only maximum sentence authorized is life imprisonment. Moreover, the minimum sentence has been set by statu...

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