People v. Quintero, Docket No. 22286

• Decision Date: 26 February 1976
• Docket Number: Docket No. 22286
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Milagro QUINTERO, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 251

241 N.W.2d 251

67 Mich.App. 481

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Milagro QUINTERO, Defendant-Appellant.

Docket No. 22286.

Court of Appeals of Michigan.

Feb. 26, 1976.

Released for Publication May 5, 1976.

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

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Dale D. Ruohomaki, Pros. Atty., for plaintiff-appellee.

Before QUINN, P.J., and J. H. GILLIS and ALLEN, JJ.

QUINN, Presiding Judge.

Defendant's nonjury trial resulted in his conviction of prison escape, M.C.L.A. § 750.193; M.S.A. § 28.390, for which he received an additional sentence of six months added to his minimum and maximum sentence. He appeals, contending the trial judge erred by applying an incorrect legal standard in finding escape on this record; that the proof failed to meet the 'beyond a reasonable doubt standard'; and that the sentence subjects him to double punishment.

The key to a solution of this appeal lies in the meaning of 'escape' as contained in M.C.L.A. § 750.193, Supra. We have been cited to no case factually identical to this case nor has independent research disclosed such authority. The record here establishes beyond question that defendant was where he had no right to be without permission. It is not clear whether this was within or without the area owned by the prison.

We recognize that People v. Richards, 247 Mich. 608, 226 N.W. 651 (1929), is not factually the case at bar. However, we believe the definition of 'escape' therein contained is the most appropriate for maintenance of proper authority and discipline by the prison officials. That definition is 'he escapes if he removes himself from the imposed restraint over his person and volition', and we adopt it.

This conclusion disposes of the second issue which is based on a different concept of escape. The third issue does not merit discussion.

Affirmed.

ALLEN, Judge (concurring in result).

I am constrained to concur in the result reached in this case because I cannot accept the view of the majority that one may be convicted of the felony of prison escape simply by being 'where he had no right to be without permission.' True, a prisoner need not cross any prison boundaries before he is subject to prosecution under M.C.L.A. § 750.193; M.S.A. § 28.390. ¹ Nonetheless, there must be some indication that the prisoner had leaving on his mind. People v. Noble, 18 Mich.App. 300, 303, 170 N.W.2d 916 (1969). It is my belief that the definition in People v. Richards, 247 Mich. 608, 226 N.W. 651 (1929), was never meant to cover entering an 'off limits' area of the prison without permission. ² Moreover, if all the record in this case showed was that defendant entered an unauthorized area of the prison to consume alcohol and smoke marihuana, I would not vote to affirm his conviction. However, there is record evidence indicating that defendant intended to leave the confines of the...