People v. Pate

• Court: Court of Appeal of Michigan
• Writing for the Court: BURNS
• Citation: People v. Pate, 2 Mich.App. 66, 138 N.W.2d 553 (Mich. App. 1965)
• Decision Date: 20 December 1965
• Docket Number: No. 536,No. 3,536,3
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Charles PATE, Defendant-Appellant. Cal

Page 553

138 N.W.2d 553

2 Mich.App. 66

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Charles PATE, Defendant-Appellant.

Cal. No. 536.

Court of Appeals of Michigan, Division No. 3.

Dec. 20, 1965.

R. Neal Stanton, of Scholten & Fant, Grand Haven, for appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, James W. Bussard, Pros. Atty., Ottawa County, Grand Haven, for appellee.

Before BURNS, P. J., and HOLBROOK and T. G. KAVANAGH, JJ.

BURNS, Presiding Judge.

The defendant appeals a sentence of 5 to 10 years for breaking and entering.

The defendant entered a plea of guilty to the charge of breaking and entering and was sentenced to the jurisdiction of the state prison of southern Michigan at Jackson for a period of not less than 5 nor more than 10 years. The court recommended the minimum.

According to the appellant's brief (the facts do not appear in the record and the prosecuting attorney did not file a brief), a co-defendant was sentenced to a term of 2 to 10 years, although this offense was the appellant's second felony conviction while said offense was the co-defendant's third felony conviction. The appellant neglected to mention that he was on probation at the time of this offense.

The defendant claims that he was denied equal protection of law guaranteed by both the state constitution ¹ and the federal constitution. ²

The fourteenth amendment of the Constitution of the United States of America does prohibit a state from arbitrary deprivation of life, liverty or propety, and requires equal and impartial justice under the law; but it does not limit the powers of a state to deal with crimes committed within its own borders or with the punishment. In re Converse (1890), 137 U.S. 624, 11 S.Ct. 191, 34 L.Ed. 796. Also, Ughbanks v. Armstrong (1908), 208 U.S. 481, 28 S.Ct. 372, 52 L.Ed. 582.

C.L.1948, § 769.1 (Stat.Ann.1954 Rev. § 28.1072) states in part as follows: '[A]ny of the several circuit judges in the respective circuits, * * * are hereby authorized and empowered to pronounce judgment against and pass sentence upon all persons heretofore convicted.'

When a sentence is within the meximum provided by statute, the trial court has wife discretion and an Appellate Court does not have supervisory control over the punishment. See Cummins v. People (1879), 42 Mich. 142, 3 N.W. 305; People v. Kelly (1894), 99 Mich. 82, 57 N.W. 1090; People v. Guillett (1955), 342 Mich. 1, 69 N.W.2d 140.

The fact that this conviction was the defendant's second felony conviction and the co-defendant's third felony conviction, does not by itself inform us of the entire history of the record of the defendant and the co-defendant. At the time of sentencing the trial judge made the following statement:

'Your record is such, Mr....