People v. Leroy
| Decision Date | 04 May 1987 |
| Docket Number | Docket No. 86996 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. David Joseph LEROY, a/k/a Joseph David Leroy, Defendant-Appellant. |
| Court | Court of Appeal of Michigan — District of US |
Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., L. Brooks Patterson, Pros. Atty., Robert C. Williams, Chief, Appellate Div., and John L. Kroneman, Asst. Pros. Atty., for the People.
Barbara J. Satran, Southfield, for defendant-appellant on appeal.
Before KELLY, P.J., and BEASLEY and CYNAR, JJ.
Defendant, David Joseph Leroy, pled guilty to breaking and entering, in violation of M.C.L. Sec. 750.110; M.S.A. Sec. 28.305, and to being an habitual offender, third offense, in violation of M.C.L. Sec. 769.11; M.S.A. Sec. 28.1083, on January 23, 1983. He was sentenced to serve not less than three nor more than ten years in prison on the former charge, which sentence was vacated in favor of a sentence of not less than five nor more than twenty years on the habitual offender charge. Defendant appealed, and this Court, although otherwise affirming, remanded because the trial judge had failed to properly inform defendant of the maximum sentence possible for the habitual offender charge. 1 On remand, defendant again pled guilty to the habitual offender charge and was again sentenced to not less than five nor more than twenty years in prison. Defendant appeals as of right.
Defendant's sole argument on appeal is that the delay between our decision and the later plea-taking violated the 180-day rule, 2 so that the circuit court lost jurisdiction over him and should have dismissed the case. The prosecutor raises several counterarguments, each of which needs to be addressed.
Our earlier decision in this case was dated April 4, 1984. On May 7, 1984, the record was returned to the circuit court. On January 11, 1985, defendant moved to dismiss for violation of the 180-day rule. On January 31, 1985, the circuit court denied the motion and defendant pled guilty to the habitual offender charge. Defendant was in jail during this entire period.
The prosecutor first argues that defendant waived any recourse to the 180-day rule by later pleading guilty. While there are a few cases that perhaps support this argument, 3 there are also cases holding otherwise. As we observed in People v. Wolak, 4 the 180-day rule is explicitly a jurisdictional bar to further prosecution under M.C.L. Sec. 780.133; M.S.A. Sec. 28.969(3), and usually jurisdictional defects are not deemed waived by guilty pleas. 5 In the within case, we decline to hold that defendant's guilty plea operated to waive the 180-day rule.
The prosecutor also raises an argument which, if legally sound, would nonetheless be unsupported by the facts of this case. He argues that delays attributable to the defendant are not included in the accumulation of time leading to a violation of the 180-day rule and that the statute did not begin to run until the record was returned to the circuit court on May 7, 1984. Even if we assume the prosecutor is correct on this point, the period of time between May 7, 1984, and defendant's motion to dismiss on January 11, 1985, is 249 days, substantially longer than the 180-day limit.
In his brief, the prosecutor makes the following allegation in support of the proposition that much of the delay was attributable to defendant:
"After that date [May 7, 1984], the remand hearing was delayed largely to accommodate Defendant, who, according to assistant prosecutor James Mitchell, was attempting to arrange a favorable plea agreement in exchange for helping police agencies resolve some unsolved cases."
However, the only support found for this allegation in the record is in Mitchell's unilluminating statements in the transcript cited by the prosecutor:
These statements of the assistant prosecutor, standing alone without support in the record, are not sufficient to stop the running of the 180 days. The remainder of the record and lower court file is devoid of any indication that defendant did anything whatever which might lengthen the time before his plea was taken. Thus, the prosecutor's argument that delays attributable to defendant defeat application of the 180-day rule are without basis in the record.
The prosecutor also argues that the habitual offender information here was not an "untried charge" and, therefore, the 180-day rule does not apply. By this the prosecutor means that the habitual offender information had already been "tried": that is, the defendant had already pleaded guilty to it. Because our earlier decision did not explicitly reverse defendant's habitual offender conviction, but merely remanded to the trial court for defendant to affirm or withdraw his guilty plea, the prosecutor argues that there was no pending, untried information. The prosecutor maintains that defendant's status as a convicted habitual offender remained intact.
The prosecutor cites People v. Woodruff 6 for the proposition that the purpose of M.C.L. Sec. 780.131; M.S.A. Sec. 28.969(1) is to dispose of untried informations and not to further its numerous other salutary effects, such as protecting concurrent sentences, clearing court dockets of stale charges, or fostering the right to a speedy trial. We do not agree, however, that the information here was already "tried" at the time of the 249-day delay. Our decision explicitly gave defendant the power to withdraw his plea if he so chose. Had he decided to plead not guilty, as was his right, he would have been entitled to a full jury trial on the habitual offender charge, as provided by M.C.L. Sec. 769.13; M.S.A. Sec. 28.1085. Obviously, this would not be a trial to decide an issue "already tried." The prosecutor argues, however, that defendant did not face an untried charge until the moment he withdrew his plea. If this is the case, and indeed defendant's affirmance of his plea was merely an acknowledgment that the prior "trial" of the case was valid and accurate, then much of the accompanying procedure was superfluous. We need not have directed the trial court to resentence defendant after his plea, and the trial court need not have gone through the litany of rights waived before accepting the plea. Indeed, the trial court need not have "accepted" the plea at all, because defendant would merely be affirming an already accepted plea. A holding to that effect would permit the prosecutor to wait for an unlimited period of time before bringing an information like this to trial. It would clearly thwart the purpose of the Legislature for a defendant to remain incarcerated without the opportunity to even enter his plea in a case like this, especially where this Court has ordered that that plea be retaken. In other words, the prosecutor or the court was obligated under our opinion to bring defendant promptly before the trial judge to exercise one of the alternatives afforded him in our decision.
Finally, the prosecutor argues that the 180-day rule does not apply to habitual offender informations at all, and so does not apply in this case. The only cases addressing this point directly are twelve-year-old People v. Ungurean 7 and eleven-year-old People v. Holbrook. 8 In Ungurean, the defendant's habitual offender information was not brought to trial within the required 180-day period, and the panel agreed that this would be a clear violation of the 180-day rule if it applied. It held however, that the rule did not apply. The panel's reasoning was that the statute specifies that untried charges "setting forth against any inmate of a penal institution of this state a criminal offense for which a prison sentence might be imposed upon conviction" shall be brought to trial within 180 days. The Ungurean Court held that being an habitual offender is not a separate criminal offense but merely a condition which allows the court to enhance a sentence. The panel buttressed its argument by reference to M.C.L. Sec. 769.13; M.S.A. Sec. 28.1085, which establishes the procedures for habitual offender informations and which distinguishes between "conviction" for the underlying offense and "sentencing" for habitual offender status. 9
Holbrook was decided by a panel nearly identical to that which decided Ungurean. The panel explicitly declined to change its earlier holding, reiterating as its central reason the fact that an information under the habitual offender statute does not charge a separate criminal offense. 10 Ungurean and Holbrook were cited by the Supreme Court in People v. Hendrick, 11 but only for the proposition that an habitual offender information does not charge a separate criminal offense. Hendrick held that a prosecutor could properly delay until after sentencing of a convicted felon to file a supplemental information under the habitual offender statute, but only when the delay is due to the fact that the defendant's prior convictions occurred out-of-state.
Unlike the felony-firearm statute, 12 the habitual offender statute contains no...
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