People v. Levandoski

• Decision Date: 10 January 2000
• Docket Number: Docket No. 207299.
• Citation: 237 Mich. App. 612,603 N.W.2d 831
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Joseph Edward LEVANDOSKI, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

603 N.W.2d 831

237 Mich. App. 612

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Joseph Edward LEVANDOSKI, Defendant-Appellant.

Docket No. 207299.

Court of Appeals of Michigan.

Submitted July 7, 1999, at Grand Rapids.

Decided September 21, 1999, at 9:05 a.m.

Released for Publication January 10, 2000.

Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, William A. Forsyth, Prosecuting Attorney, and David M. LaGrand, Assistant Prosecuting Attorney, for the people.

Robert J. Riley, Grand Rapids, for the defendant.

Before: McDONALD, P.J., and MICHAEL J. KELLY and MARK J CAVANAGH, JJ.

MARK J. CAVANAGH, J.

Defendant appeals by leave granted from the circuit court order affirming the judgment and sentence entered in the district court. The circuit court found that defendant's constitutional rights were not violated by a delay of more than five years between the time defendant was sentenced to serve ninety days in jail and the execution of the sentence. We reverse.

On April 19, 1991, defendant pleaded guilty of operating a motor vehicle while having an unlawful blood alcohol level, M.C.L. § 257.625; MSA 9.2325, in the Sixty-Third District Court. Because defendant had two 1986 convictions for driving while impaired, the district court sentenced him to ninety days in jail. In addition, defendant was ordered to pay fines and costs of $800, and his driver's license was suspended for two years.

Defendant was instructed to return home until further notice because of a shortage of jail space. In April 1992, defendant was notified that he had been denied work release. Soon afterward, defendant, who was unemployed at the time, contacted the court and requested that he be allowed to serve his sentence. However, the court told him that it was not possible for him to serve his sentence at that time.¹

Over four years later, defendant received a letter dated May 20, 1996, informing him that he was to report to the jail on July 15, 1996, to serve his ninety-day sentence. Attached to the letter was the judgment of sentence, which was dated June 22, 1994. On receipt of this notice, defendant retained counsel and appealed to the Kent Circuit Court. Defendant contended that the district court lacked jurisdiction to enforce the sentence and that the implementation of the sentence after so long a time violated his constitutional rights to due process and a speedy trial. Defendant requested that the circuit court enter an order nullifying the district court's order of jail confinement. The circuit court remanded the matter to the district court for an explanation of the delay in the execution of defendant's sentence.

At an October 7, 1996, hearing, the district court explained that, as a result of a prisoner lawsuit precipitated by overcrowding, in August 1990 a federal court order closed the county jail to misdemeanor offenders sentenced in Kent County's district courts. The district court noted that during the three years the jail was closed to misdemeanor offenders, other district courts in the county secured alternate jail sites. The Sixty-Third District Court, however, did not procure substitute jail space and, as a result, accumulated a backlog of offenders whose sentences had not been executed. The district court stated that its understanding was that, because the Sixty-Third District Court also serves as the county district court, county administrators refused to arrange for alternative jail accommodations for the district's misdemeanor offenders because they feared that other districts in the county would seek to have the county pay for the jail space obtained for their misdemeanor offenders. When the federal order was lifted in July 1993, the district judges began to work through the backlog of offenders who had not served their jail time. However, because the judges wanted to ensure that current offenders served their time promptly, there was still a large number of misdemeanor offenders from the early 1990s who had yet to serve their sentences.

Defendant informed the court that he is now married and has obtained full-time employment with the National Guard. Defendant stated that he would likely lose his job if he were compelled to serve his jail time. Defendant presented the court with a copy of his driving record to show that he had not incurred any additional alcohol related violations. Defendant offered to do community service or pay an additional fine in lieu of serving the ninety days in jail. The district court conceded that the delay between the imposition of the sentence and the time defendant was being required to serve the sentence was "extreme," but refused to reconsider the sentence because it feared that it then would have to do the same for the other offenders left waiting while the federal order was in effect. However, the district court sought guidance from the circuit court regarding whether there were any constitutional considerations in connection with the delayed enforcement of the sentences.

In a hearing on March 7, 1997, the circuit court rejected defendant's arguments that he was entitled to relief under MCR 6.427, M.C.L. § 771.1(2); MSA 28.1131(2), and M.C.L. § 801.107; MSA 28.1757. The circuit court further concluded that incarceration would not violate defendant's constitutional rights. Accordingly, the circuit court affirmed the judgment and sentence entered in the district court. The order incorporating the circuit court's opinion was entered on October 13, 1997. This Court subsequently granted defendant's application for leave to appeal.

I

We first review defendant's various claims that the court lost jurisdiction to implement defendant's sentence by its violations of several statutes and a court rule. This Court reviews de novo questions of law regarding statutory interpretation. People v. Fox (After Remand), 232 Mich.App. 541, 553, 591 N.W.2d 384 (1998). Likewise, the construction of court rules is a question of law that this Court reviews de novo. People v. Valeck, 223 Mich.App. 48, 50, 566 N.W.2d 26 (1997).

Defendant argues that the district court lost jurisdiction to enforce the jail sentence because of its failure to comply with MCR 6.427, which provides that "[w]ithin 7 days after sentencing, the court must date and sign a written judgment of sentence" containing certain specified information. In the instant case, the judgment of sentence was dated June 6, 1994, more than three years after the date of sentencing. The district court could not recall when the judgment of sentence had been signed; however, the prosecutor concedes that the requirement that a written order be entered within seven days after sentencing was not met.

The court rules provide no sanction for a court's failure to complete a judgment of sentence within seven days after sentencing. In the absence of any indication from our Supreme Court that such a result was intended, we cannot accept defendant's contention that a court's failure to sign a judgment of sentence within seven days has the drastic consequence of divesting the court of jurisdiction to execute the sentence.²

Defendant next asserts that the district court lost jurisdiction to execute the jail sentence by its violation of M.C.L. § 771.1(2); MSA 28.1131(2), which permits a court to place a defendant on probation while delaying the imposition of sentence for up to one year to give the defendant an opportunity to prove to the court his eligibility for probation or other leniency. We reject defendant's claim that this statutory provision applies in the present case. There is no suggestion in the record that probation was ever a consideration. Moreover, defendant's sentencing was not delayed. Rather, defendant was sentenced promptly, but was not required or permitted to serve his sentence for more than five years.

Finally, defendant maintains that he is entitled to relief because of the district court's violation of M.C.L. § 801.107; MSA 28.1757, which permits a county to confine its prisoners in a jail in another county when it has no jail of its own or its jail is unfit or unsafe. Defendant contends that, pursuant to M.C.L. § 801.107; MSA 28.1757, Kent County was required to secure alternative placement for misdemeanor offenders who had been sentenced to jail terms. Defendant's argument fails, however, because this Court has already stated that the statute "was intended to address the situation where a county jail becomes completely unfit for the incarceration of inmates and must be closed, or for some other reason a county finds itself without a jail at all. It was not enacted as a mechanism to relieve jail overcrowding. " In re Muskegon Co. Bd. of Comm'rs, 188 Mich.App. 270, 290, 469 N.W.2d 441 (1991) (emphasis added).

II

Defendant next maintains that the district court's failure to enforce the sentence for more than five years constitutes violations of his rights to due process of law and a speedy trial. This issue presents questions of constitutional law, which we review de novo. See People v. Echavarria, 233 Mich.App. 356, 358, 592 N.W.2d 737 (1999)

.

The Ninth Circuit Court of Appeals discussed the constitutional concerns implicated in the delayed execution of a sentence in United States v. Martinez, 837 F.2d 861 (C.A.9, 1988). Martinez was sentenced to four years' imprisonment on April 11, 1973, but remained free on bond while his appeal was pending. The United States Supreme Court denied his petition for certiorari in 1976, but Martinez was never ordered to surrender to begin serving his sentence. Martinez was aware that a mistake of some kind had been made, but he made no effort to contact the authorities regarding the error. However, he did not attempt to flee or to conceal his identity. Eventually, the government discovered that Martinez had never served his sentence and ordered him to report to prison on October 31, 1983. Martinez filed a motion to vacate or set aside his sentence.

Martinez...