People v. Reynolds

• Decision Date: 21 November 1989
• Docket Number: Docket No. 112255
• Citation: 448 N.W.2d 774,181 Mich.App. 185
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Mario Darcel REYNOLDS, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 774

448 N.W.2d 774

181 Mich.App. 185

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Mario Darcel REYNOLDS, Defendant-Appellee.

Docket No. 112255.

Court of Appeals of Michigan.

Submitted Aug. 17, 1989.

Decided Nov. 7, 1989.

Released For Publication Nov. 21, 1989.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., John D. O'Hair, Pros. Atty., Timothy A. Baughman, Chief of the Crim. Div., and Don W. Atkins, Asst. Pros. Atty., for the People.

Clarence H. Ledwon, Southfield, for defendant-appellee.

Before MacKENZIE, P.J., and MARILYN KELLY and BURNS, ^* JJ.

PER CURIAM.

Defendant pled guilty to breaking and entering an occupied dwelling with intent to commit larceny, M.C.L. Sec. 750.110; M.S.A. Sec. 28.305. He was sentenced to 1 1/2 to 15 years imprisonment, to be served concurrently with sentences previously imposed in four other cases. The people appeal this sentence.

I

The threshold issue in this case is whether M.C.L. Sec. 770.12; M.S.A. Sec. 28.1109, as amended by 1988 P.A. 66, grants the prosecution the authority to appeal a sentence as of right. We conclude that it does.

In People v. Cooke, 419 Mich. 420, 427, 355 N.W.2d 88 (1984), the Supreme Court held that the people do not have a right to appeal outside the express provisions of Sec. 12 of Chapter X of the Code of Criminal Procedure, M.C.L. Sec. 770.12; M.S.A. Sec. 28.1109. Prior to 1988 P.A. 66, and when Cooke was decided, M.C.L. Sec. 770.12; M.S.A. Sec. 28.1109 provided no authorization for appeals of sentences by the prosecution. See People v. Larkins, 142 Mich.App. 679, 680, 369 N.W.2d 882 (1985); People v. Wilkins, 121 Mich.App. 813, 816, 329 N.W.2d 500 (1982). However, pursuant to People v. Coles, 417 Mich. 523, 339 N.W.2d 440 (1983), appellate review of sentencing was available to criminal defendants.

1988 P.A. 66 was introduced in the Legislature as HB 4719. A review of the House Legislative Analysis of HB 4719 makes it apparent that the purpose of the amendment to M.C.L. Sec. 770.12; M.S.A. Sec. 28.1109 was to give prosecutors the right to appeal sentences. According to the analysis, the amendment was designed to address the following problem:

Prosecutors and others assert that Cooke and Coles combined put the people, whom the prosecutor represents in a criminal case, at a disadvantage. They note that Cooke placed new limits on the ability of the prosecutor to appeal, and Coles granted defendants the right to appeal sentencing decisions. Many believe that in order to make for a more impartial and evenhanded administration of justice, prosecutors should be able to appeal sentencing decisions and other matters when it is believed the court has made an error.

1988 P.A. 66 amended M.C.L. Sec. 770.12; M.S.A. Sec. 28.1109 to provide in relevant part:

(1) The people of this state may take an appeal of right in a criminal case, if the protection against double jeopardy under section 15 of article I of the state constitution of 1963 and amendment V of the constitution of the United States would not bar further proceedings against the defendant, from either of the following:

(a) A final judgment or final order of the circuit court or recorder's court, except a judgment or order of the circuit court or recorder's court on appeal from any other court.

(b) A final judgment or order of a court or tribunal from which appeal of right has been established by law.

A sentence imposed in a criminal case is part of the final judgment of the trial court. People v. Coles, supra, 417 Mich. at p. 535, 339 N.W.2d 440. A prosecutor's appeal of a sentence does not subject the defendant to a second trial, but only a correction of the judgment, and thus does not present double jeopardy implications. See People v. Rehkopf, 422 Mich. 198, 226, 370 N.W.2d 296 (1985) (dissenting opinion of Boyle, J.). Accord: United States v. DiFrancesco, 449 U.S. 117, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980); Serfass v. United States, 420 U.S. 377, 95 S.Ct. 1055, 43 L.Ed.2d 265 (1975); United States v. Jenkins, 420 U.S. 358, 95 S.Ct. 1006, 43 L.Ed.2d 250 (1975); United States v. Wilson, 420 U.S. 332, 95 S.Ct. 1013, 43 L.Ed.2d 232 (1975). M.C.L. Sec. 770.12(1)(a); M.S.A. Sec. 28.1109(1)(a), as amended by 1988 P.A. 66, must therefore be read as authorizing the people to take an appeal as of right from a defendant's sentence.

1988 P.A. 66 took effect on March 30, 1988, and applies to crimes committed on or after that date. 1988 P.A. 66, Sec. 2. Since the instant offense occurred on May 29, 1988, an appeal as of right is available to the people in this case.

II

The people contend that the trial court, in sentencing defendant, committed an error of law in denying the prosecutor's request that defendant's sentence run consecutively to his previously imposed sentences. We agree.

M.C.L. Sec. 768.7b(1); M.S.A. Sec. 28.1030(2)(1), as amended by 1988 P.A. 31, provides:

(1) Beginning April 1, 1988, and through December 31, 1991, if a person who has been charged with a felony, pending the disposition of the charge, commits a subsequent offense that is a felony, upon conviction of the subsequent offense or acceptance of a plea of guilty, guilty but mentally ill, or nolo contendere to the subsequent offense, the sentences imposed for the prior charged offense and the subsequent offense shall run consecutively.

A review of the record in this case reveals that defendant was arraigned in Recorder's Court on May 27, 1988, in another felony matter, Recorder's Court Docket No. 88-07186. The instant offense, also a felony, was committed two days later. Recorder's Court Docket No. 88-07186 was resolved when defendant pled guilty in that case on June 20, 1988, and was sentenced on July 22, 1988.

Applying the clear language of M.C.L. Sec. 768.7b(1); M.S.A. Sec. 28.1030(2)(1), as amended by 1988 P.A. 31, to the above chronology, defendant's sentence in this case should run consecutively to his sentence in Recorder's Court Docket No. 88-07186. The felony charge in docket no. 88-07186 was pending against defendant at the time of the instant felony offense. The instant offense was committed after April 1, 1988. Therefore, under M.C.L. Sec. 768.7b(1); M.S.A. Sec. 28.1030(2)(1), a consecutive sentence was mandatory.

The trial court in this case refused to impose a consecutive sentence because of an agreement in docket no. 88-07186, that the sentence in that case would run concurrently with defendant's sentences in three other...