People v. Pettis

• Decision Date: 25 September 1973
• Docket Number: No. 1,Docket No. 11688,1
• Citation: People v. Pettis, 212 N.W.2d 266, 49 Mich.App. 503 (Mich. App. 1973)
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Larry PETTIS, Defendant-Appellant
• Court: Court of Appeal of Michigan

Page 266

212 N.W.2d 266

49 Mich.App. 503

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Larry PETTIS, Defendant-Appellant.

Docket No. 11688.

Court of Appeals of Michigan, Division No. 1.

Sept. 25, 1973.

Released for Publication Nov. 27, 1973.

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

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Div., Edward R. Wilson, Asst. Pros. Atty., for plaintiff-appellee.

Before FITZGERALD, P.J., and McGREGOR and TARGONSKI*, JJ.

McGREGOR, Judge.

In an information filed July 17, 1970, defendant was charged with armed robbery, M.C.L.A. § 750.529; M.S.A. § 28.797. On February 25, 1971, he pled guilty to a charge of assault with intent to rob being armed, a violation of M.C.L.A. § 750.89; M.S.A. § 28.284. Defendant was sentenced to 10 to 15 years in prison.

The charge arose from a claim that defendant, in the company of an accomplice, and while armed with a pistol, forcibly took $900 from the complainant in the robbery of a junkyard.

At the pleataking, defendant was properly advised of the constitutional rights he was waiving by pleading guilty. At sentencing, the trial judge noted that defendant, then 23 years of age, had been convicted of five crimes since he was 18 years old.

Defendant later filed a delayed motion for a new trial and a motion to vacate the sentence, which were supported by an affidavit contending that defendant's plea of guilty was coerced. After hearing extensive testimony including that of defendant, the court denied these motions.

In his primary and supplemental briefs on appeal, defendant raises a total of seven issues. In our view, the first six issues raised are simply groundwork for the frontal assault on his sentence, embodied in the seventh issue. Consequently, rather than evaluating the validity of each of defendant's contentions separately, we deem it proper to consider only the seventh issue.

As pointedly stated in defendant's supplemental brief, that issue is 'whether consideration at sentencing at higher felony charges when appellant had been convicted of lesser misdemeanors requires remand for resentencing'.

The basis of defendant's contention is found in the following statement by the trial judge at sentencing:

'The Court: He's got five convictions at the age of 23; as an adult, one for each year of his adulthood. He was charged with breaking and entering back in 1965 and was convicted of attempted larceny in a building and got two years probation. Ninety days in the Wayne County Jail for malicious destruction of property after being charged with attempted breaking and entering coin box. He was charged with possession of a stolen motor vehicle which carries a ten-year maximum penalty, if convicted, and was convicted of Unlawfully Taking and Having a Motor Vehicle and received two-years probation. He was convicted of Unlawful Use and Addiction to Narcotics...