People v. Parshay, Docket No. 43074

• Decision Date: 05 March 1981
• Docket Number: Docket No. 43074
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Fred PARSHAY, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 593

304 N.W.2d 593

104 Mich.App. 411

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Fred PARSHAY, Defendant-Appellant.

Docket No. 43074.

Court of Appeals of Michigan.

March 5, 1981.

Released for Publication April 30, 1981.

James R. Neuhard, State Appellate Defender, James Krogsrud, Asst. State Appellate Defender, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Edward Reilly Wilson, III, Chief Appellate Atty., Asst. Pros. Atty., Andrea L. Solak, Asst. Pros. Atty., for plaintiff-appellee.

Before BRONSON, P. J., and J. H. GILLIS and CYNAR, JJ.

PER CURIAM.

Defendant was convicted, upon his plea of guilty, of criminal sexual conduct in the first degree (CSCI), M.C.L. § 750.520b(1)(b); M.S.A. § 28.788(2)(1)(b). Pursuant to a sentencing agreement, defendant was sentenced from 61/2 to 10 years imprisonment. Two counts of CSC III and a second count of CSC I pending against defendant, arising from the same criminal transaction, were dismissed in exchange for defendant's plea. Defendant now appeals as of right.

Defendant first argues that he was denied due process of law as a result of a five-month delay from the time a complaint was received by the Detroit police to the date the prosecutor's office issued a warrant for defendant's arrest. On the facts of this case, we find defendant's argument to be without merit. United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977); People v. Hernandez, 15 Mich.App. 141, 170 N.W.2d 851 (1968).

Defendant's claim regarding a denial of his right to a speedy trial was waived for purposes of appeal by his tendering of a plea of guilty. Speed v. United States, 518 F.2d 75, 77 (CA 8, 1975), cert. den. sub nom. Camp v. United States, 423 U.S. 988, 96 S.Ct. 398, 46 L.Ed.2d 306 (1975); United States v. Lee, 500 F.2d 586 (CA 8, 1974), cert. den. 419 U.S. 1003, 95 S.Ct. 322, 42 L.Ed.2d 279 (1974).

Next, we address the question of whether defendant is entitled to additional credit against the sentence imposed by the trial court.

It is well settled that Michigan's credit statute, M.C.L. § 769.11b; M.S.A. § 28.1083(2), is remedial and is to be liberally construed. People v. Stange, 91 Mich.App. 596, 600, 283 N.W.2d 806 (1979), and cases cited therein. The only recognized exception to this rule is where a liberal construction would defeat the purpose of a consecutive sentencing statute. Brinson v. Genesee Circuit Judge, 403 Mich. 676, 686, 272 N.W.2d 513 (1978). Additionally absent explicit statutory authorization to the contrary, sentences must run concurrently and not consecutively. People v. Lawson, 75 Mich.App. 726, 730, 255 N.W.2d 748 (1977); People v. Face, 88 Mich.App. 435, 441, 276 N.W.2d 916 (1979).

The complaint against defendant on the CSI I of which he was convicted was filed on February 25, 1977. On March 1, 1977, defendant was incarcerated in the Oakland County Jail on an unrelated charge. However, not until August 8, 1977, was an arrest warrant issued. Officer Cheryl Friday of the Detroit Police Department was assigned to investigate the allegations of the two complainants. The police were apparently unsatisfied with the prospect of pursuing the case on the statements of the complainants, themselves. Thus, they did not immediately seek a warrant. Instead, the police hoped to find an alleged res gestae witness named "Lee" to corroborate the victims' allegations. With these actions by the Detroit Police Department we have no complaint. Indeed, we commend the department for taking the time to investigate the complainants' assertions prior to seeking a warrant.

The problem here, however, is that Officer Friday made not attempt to locate the missing witness until some time after June 28, 1977. At this time, Officer Friday discovered that Lee had been evicted two or three months earlier and had left no forwarding address. Although the testimony is not entirely clear, it appears that had Officer Friday immediately begun her investigation of the complaints, she would have located Lee without problem. Assuming Lee had been evicted before or within a few days of the time the complaints were filed so that even had Officer Friday acted promptly she would have had difficulty finding him, it is a probability that Lee's trail would have been easier to pursue. As it was, the warrant was issued without Lee ever being located.

Officer Friday's explanation for failing to act quicker in her search for Lee was that she had a heavy case load, a week of night duty, and possibly some vacation time. In our opinion, a liberal and reasonable construction of the credit statute would require the police to act with due diligence in pursuing their investigation prior to the issuance of a warrant. What constitutes "due diligence" should be considered in the same light as a prosecutor's duty to exercise due diligence in securing a witness for trial. See, for instance, People v. Barker, 18 Mich.App. 544, 171 N.W.2d 574 (1969), lv. den. 383 Mich. 813 (1970); People v. Eugene Harris, 43 Mich.App. 531, 204 N.W.2d 549 (1972); People v. James, 51 Mich.App. 777, 216 N.W.2d 473 (1974), lv. den. 394 Mich. 756 (1975); People v. McPherson, 84 Mich.App. 81, 269 N.W.2d 313 (1978), lv. den. 407 Mich. 896 (1979). Where the police have failed to live up to this standard and delay in the issuance of an arrest warrant is the result, if defendant is incarcerated on another offense, unless that other offense precludes concurrent sentencing, we believe defendant must be given credit from the beginning of his incarceration and not just from the date upon which the arrest warrant is issued.

We fear that a contrary resolution would encourage police to be lackadaisical in their approach to investigating crimes allegedly committed by those they know to be in custody. To the extent that the police desire to keep a defendant incarcerated as long as possible, the contrary approach affirmatively fosters dubious practices by making the date the arrest warrant is issued the sole date of any significance in relation to credit. While it is true that the trial court found the delay here explainable and not deliberate, the reasons given by Officer Friday for the delay do not make out a...