People v. McLott, Docket No. 25877--8

• Decision Date: 04 August 1976
• Docket Number: Docket No. 25877--8
• Citation: 245 N.W.2d 814,70 Mich.App. 524
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Frederick J. McLOTT, and Sidney R. Gross, Defendants-Appellants.
• Court: Court of Appeal of Michigan — District of US

Page 814

245 N.W.2d 814

70 Mich.App. 524

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Frederick J. McLOTT, and Sidney R. Gross, Defendants-Appellants.

Docket No. 25877--8.

Court of Appeals of Michigan.

Aug. 4, 1976.

Released for Publication Oct. 8, 1976.

Merritt, Kwetcher & Burnard by Maurice A. Merritt, Bloomfield Hills, for McLott.

John I. Bain, Southfield, for Gross.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., L. Brooks Patterson, Pros. Atty., for plaintiff-appellee.

Before ALLEN, P.J., and D. E. HOLBROOK, Jr. and PAPP, ^* ELZA H. PAPP, former Circuit Court Judge, sitting on the Court of Appeals by assignment pursuant to Const.1963, art. 6, § 23 as amended in 1968.

ALLEN, Presiding Judge.

Where imposition of sentence is delayed one year pursuant to the delayed sentence statute, M.C.L.A. § 771.1; M.S.A. § 28.1131, is jurisdiction to sentence lost when the sentence is imposed 13 days beyond the one-year period?

This question of first impression comes to us after defendants' convictions by jury December 7, 1972, of receiving and concealing stolen property, M.C.L.A. § 750.535; M.S.A. § 28.803, and of conspiracy to receive and conceal stolen property, M.C.L.A. § 750.157a; M.S.A. § 28.354(1), were affirmed by this Court in People v. McLott, 55 Mich.App. 198, 222 N.W.2d 178 (1974), but the case was remanded for resentencing. ¹ At the resentencing hearing September 12, 1974, sentencing was deferred under the delayed sentencing statute, Supra, until Thursday, September 4, 1975. The reason given by the trial court for delaying sentence was to permit the prosecutor to request a rehearing of the sentencing decision in People v. McLott, supra, and to secure a more complete report from the probation department. On September 4, 1975, the trial court was unable to hold court session and the court clerk informed defendants that resentencing was adjourned until Thursday, September 18, 1975. ² Due to the illness of one of defense counsel, the September 18 date was adjourned until September 25, at the request of defendants. On September 25, defendant McLott was sentenced on both counts to a concurrent term of 3 to 5 years in prison and defendant Gross was sentenced on both counts to a concurrent term in prison of 1 1/2 to 5 years.

In addition to the central claim of error that the trial court was without jurisdiction to impose any sentence subsequent to September 12, 1975, defendants assert two other errors. As to both defendants the probation officer recommended to the trial judge that probation be given rather than a prison sentence. Full restitution was made to General Motors by the return of the 'stolen' spark plugs. Defendant McLott had no prior offenses and no weapons or threats were used in the commission of the offense for which defendants were found guilty. Yet defendant McLott was given a sentence twice that given to defendant Gross. This action, claims McLott, is an abuse of the trial court's discretion, is arbitrary, and is in violation of the rule laid down in Burns v. United States, 287 U.S. 216, 220--223, 53 S.Ct. 154, 77 L.Ed. 266 (1932). This Court has recently considered and rejected a similar claim of error. People v. Dupuie, 52 Mich.App. 510, 217 N.W.2d 902 (1974). When a sentence is within the maximum provided by statute--in the instant case five years, the trial court is given wide discretion and the appellate court does not possess supervisory control over the punishment. People v. Pate, 2 Mich.App. 66, 68, 138 N.W.2d 553 (1965), People v. Alsteens, 49 Mich.App. 467, 212 N.W.2d 243 (1973).

Relying on People v. Kennedy, 58 Mich. 372, 25 N.W. 318 (1885), both defendants claim error in sentencing since, had each been sentenced properly following the first trial, each would have served his minimum sentence by November 30, 1975. ³ Counsel misread Kennedy. There, the Court first stated that a defendant 'is entitled to have his liberty as soon as the limit of the law, reasonably administered, will permit'. 58 Mich. at 377, 25 N.W. at 320. Based upon this principle the Court then noted that the maximum punishment which could be imposed was 90 days and thus the trial court lost jurisdiction to sentence following the expiration of:

'the utmost length of his imprisonment on account of not paying fine and costs, namely, 90 days.' 58 Mich. at 376, 25 N.W. at 320.

Since the maximum penalty which could be imposed in the case before us is five years the trial court still retains jurisdiction under the rule announced in Kennedy, supra.

We now turn to the main issue. With considerable persuasiveness, defendants point out that the dominant person in the delay of sentence was the trial judge and not the defendants. It was the trial judge who erred in sentence in the first place and it was the trial judge who delayed sentence in September 1974 because he disagreed with the decision of this Court and wanted the prosecutor to consider a rehearing. Although one of the defendants did contribute to the delay of sentence on September 18, 1975, the one-year period had already expired September 12, 1975. ⁴ Furthermore, argue defendants, the statute plainly and unambiguously restricts the time for imposing a delayed sentence to one year. Where the intent is plainly expressed there is no room for construction varying the plain meaning of the statute. Dussia v. Monroe County Employees Retirement System, 386 Mich. 244, 248, 191 N.W.2d 307 (1971). We are impressed but not persuaded.

The deferred sentencing statute ⁵ is not as plain and unambiguous as defendant would have us believe. It states that the court Does not lose jurisdiction to sentence if sentencing is completed within one year. It does not forthrightly state that jurisdiction is lost if for some reason, particularly if the reason be sound or unavoidable, sentencing is postponed beyond the year deadline. Thus, it is only inferentially that one arrives at a conclusion that in every instance jurisdiction is lost. We also note that when carefully read the statute grants a one-year delay 'for the purpose of giving the defendant an opportunity to prove to the court his eligibility for probation or such other leniency as may be compatible with the ends of justice'. Thus, the statute does not speak to whether an additional delay can be granted for some other purposes such as allowing a trial judge to recover from illness. Accordingly, there is room for construction of the statute. Neither logic nor precedent based upon analogous situations leads us to conclude that the Legislature intended that jurisdiction is irretrievably lost in every situation where the delay in sentencing exceeds one year. Assume for example, that one found guilty of a serious offense is placed on deferred sentence in a single-member judicial district and that on the date set for the deferred sentence the single member judge dies or becomes seriously ill. In such example it would be impossible to fill the vacancy or appoint an acting successor within the allowable time frame. If jurisdiction is lost in such case the offender would go totally unpunished. We doubt that this was the legislative intent.

An analogous situation is found in the Court's construction of the statutory 180-day rule in M.C.L.A. § 780.131; M.S.A. § 28.969(1). That statute requires that where charges are pending against an inmate in the Department of Corrections 'such inmate shall be brought to trial within 180 days' and M.C.L.A. § 780.133; ...