People v. Kneiding

• Decision Date: 24 August 1984
• Docket Number: No. 73808,73808
• Citation: 353 N.W.2d 111,419 Mich. 910
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. James Joseph KNEIDING, Defendant-Appellee. 419 Mich. 910, 353 N.W.2d 111
• Court: Michigan Supreme Court

Page 111

353 N.W.2d 111

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. James Joseph KNEIDING, Defendant-Appellee.

No. 73808.

419 Mich. 910, 353 N.W.2d 111

Supreme Court of Michigan.

Aug. 24, 1984.

ORDER

On order of the Court, the application for leave to appeal is considered, and it is DENIED, because the Court is not persuaded that the question presented should be reviewed by this Court.

RYAN and BOYLE, JJ., dissent and state as follows:

In People v. Urynowicz, 412 Mich. 137, 312 N.W.2d 625 (1981), this Court stated that the sentence enhancement provision for a second or subsequent sexual conduct conviction found in M.C.L. Sec. 750.520f; M.S.A. Sec. 28.788(6) could not be applied unless the current charge contained allegations of the previous conviction. In this case, the Court of Appeals remanded for resentencing citing Urynowicz despite the fact that the defendant here was sentenced prior to our decision in that case. The prosecutor has sought leave to appeal, which a majority of this Court has denied.

We disagree with the retroactive application of Urynowicz by the Court of Appeals, although we recognize that the Court of Appeals may be acting upon the implicit message found in the peremptory reversal of People v. Lester, 417 Mich. 927, 330 N.W.2d 854 (1983). Such an application not only flies in the face of the principles of retroactivity articulated by this Court, see e.g., Tebo v. Havlik, 418 Mich. 350, 343 N.W.2d 181 (1984), but also is inappropriate under the particular facts of this case.

Defendant pled guilty to a charge of first-degree criminal sexual conduct. In exchange for the plea, the prosecutor agreed to dismiss a supplemental information charging defendant as a fourth felony offender as well as three other pending first-degree criminal sexual conduct charges. The plea transcript clearly reveals the defendant had notice of and understood the sentence enhancement provision of M.C.L. Sec. 750.520f; M.S.A. Sec. 28.788(6). We fail to see any principled reason why the rule of Urynowicz should be retroactively applied to the facts of this case.

If this Court is inclined to apply Urynowicz retroactively, it ought to say so through more than a peremptory reversal.