People v. Lotze
| Decision Date | 24 May 1973 |
| Docket Number | Docket No. 14411,No. 3,3 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Theodore LOTZE, Defendant-Appellant |
| Court | Court of Appeal of Michigan — District of US |
James R. Neuhard, State Appellate Defender, Detroit, for defendant-appellant.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Donald E. Zimmer, Pros. Atty., for plaintiff-appellee.
Before R. B. BURNS, P.J., and T. M. BURNS and PETERSON, * JJ.
Defendant pled guilty to breaking and entering with intent to commit larceny, M.C.L.A. § 750.110; M.S.A. § 28.305, and was sentenced to a term of 6 to 10 years. At sentencing, the dialogue between court and defendant did not deal with the specifics of defendant's prior criminal record, but was one of generalities about defendant's attitudes and poor record. Thereafter, establishing that defendant was 35 year old, the following transpired:
'THE COURT: I wish I knew the answers of some way to help you.
'You have been getting involved in violation of criminal laws of this state since the age of what.
(T. 3, 4)
The sole question stated on appeal is whether the sentence should be vacated 'because in determining that sentence the trial judge relied upon mere arrests which had not resulted in convictions'?
The question as stated assumes facts not supported by the record. The court's statement only indicates knowledge that there were pending cases against the defendant. It does not disclose any opinion as to defendant's guilt or innocence in such cases, or that such knowledge was a factor in determining sentence. The case is thus distinguishable from those cases in which a due process question was apparent because it affirmatively appeared that a factor relied upon in sentencing was the report or record of other criminal behavior which was false, 1 or derived from proceedings constitutionally suspect, 2 or denied and never (or not yet) judicially tried. 3
From statements in open court by the accused, his counsel or the prosecuting attorney, from other proceedings in the same court, from pretrial conference, from plea bargaining discussions, from disclosures during trial, from a variety of sources compiled in the presence report such as a confession, statements by the defendant or others to the probation officer, etc., the sentencing court will invariably know if there are other pending charges against the convicted felon. We are cited to no authority that such knowledge on the part of the sentencing judge is in itself violative of the defendant's rights to due process. To so hold would, in most cases, require separation of the sentencing function from all other judicial proceedings in the same case, substituting a different judge to determine sentence. 4 We decline to do so.
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People v. Hall
...v. Pettis, 49 Mich.App. 503, 212 N.W.2d 266 (1973); People v. Martin, 48 Mich.App. 437, 210 N.W.2d 461 (1973); People v. Lotze, 47 Mich.App. 460, 209 N.W.2d 497 (1973). Defendant's claim that reference to an incident to which defendant was connected merely by insinuation was improperly incl......
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People v. Clark
...v. Pettis, 49 Mich.App. 503, 212 N.W.2d 266 (1973), People v. Martin, 48 Mich.App. 437, 210 N.W.2d 461 (1973), People v. Lotze, 47 Mich.App. 460, 209 N.W.2d 497 (1973). Finally, we have carefully considered defendants' remaining assignments of error. No error warranting or requiring reversa......
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People v. James
...mere awareness of pending cases against a defendant has been held not to be reversible error. In so holding, People v. Lotze, 47 Mich.App. 460, 461, 209 N.W.2d 497, 498 (1973), noted that a statement made by the trial court had failed '* * * disclose any opinion as to defendant's guilt or i......