People v. Risher

• Decision Date: 20 September 1977
• Docket Number: Docket No. 28201
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Sammy Lynn RISHER and Robert Lee Hopkins, Defendants-Appellants. ; 28911. 78 Mich.App. 431, 260 N.W.2d 121
• Court: Court of Appeal of Michigan — District of US

Page 121

260 N.W.2d 121

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Sammy Lynn RISHER and Robert Lee Hopkins Defendants-Appellants.

Docket No. 28201; 28911.

78 Mich.App. 431, 260 N.W.2d 121

Court of Appeals of Michigan.

Sept. 20, 1977.

Released for Publication Dec. 8, 1977.

[78 MICHAPP 432] Jan Armon, Bay City, for Risher.

James R. Neuhard, State Appellate Defender, Detroit, for Hopkins.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Eugene C. Penzien, Pros. Atty., for plaintiff-appellee.

Before D. E. HOLBROOK, QUINN and ALLEN, JJ.

ALLEN, Judge.

These cases were consolidated on appeal because both defendants were involved in the robbery of a service station in Bay County on November 2, 1975. Both defendants ultimately pled guilty to a reduced charge of assault with intent to rob while armed. M.C.L.A. § 750.89; M.S.A. § 28.284. The appeals raise no common issues. Therefore, we will discuss the appeal of each defendant separately.

APPEAL OF SAMMY LYNN RISHER

Defendant Risher pled guilty in this case on December 1, 1975, and was released on bond pending sentencing. On December 23, 1975, he pled guilty in the juvenile division of Genesee County Probate Court to an unrelated armed robbery charge. The probate judge ordered that the defendant be placed immediately in a juvenile detention facility. He was so held until after February 9, 1976, when the Bay County circuit judge imposed [78 MICHAPP 433] a sentence of 4 to 10 years for the conviction which led to the present appeal.

Defendant contends that he should have received credit against his Bay County sentence for the time he spent in the juvenile detention facilities pursuant to the Genesee County sentence. He bases his claim on M.C.L.A. § 769.11b; M.S.A. § 28.1083(2) which states:

"Whenever any person is hereafter convicted of any crime within this state and has served any time in jail prior to sentencing because of being denied or unable to furnish bond for the offense of which he is convicted, the trial court in imposing sentence shall specifically grant credit against the sentence for such time served in jail prior to sentencing." (Emphasis added.)

Defendant did not spend time in jail "for the offense of which he is convicted" until after he was sentenced. He was free on bond until sentencing. The time he spent in jail was a consequence of his Genesee County juvenile conviction. As we read the statute, especially the emphasized portion, the defendant is not entitled to the claimed credit. Several cases have granted questionable credits in the name of a "liberal reading" of the statute. See, e. g., People v. Donkers, 70 Mich.App. 692, 247 N.W.2d 330 (1976). But we do not believe that we may disregard the clear language of the statute. We choose to follow People v. Finn, 74 Mich.App. 580, 254 N.W.2d 585

(1977), which, on nearly identical facts, denied the requested credit. See also People v. Patterson, 392 Mich. 83, 219 N.W.2d 31 (1974).

APPEAL OF ROBERT LEE HOPKINS

Defendant Hopkins pled guilty to an added [78 MICHAPP 434] count of assault with intent to rob while armed. As part of the plea bargain, the prosecutor dismissed the original five-count information which had charged armed robbery, M.C.L.A. § 750.529; M.S.A. § 28.797, larceny in a service station, M.C.L.A. § 750.360; M.S.A. § 28.592, carrying a pistol with intent to use the same unlawfully, M.C.L.A. § 750.226; M.S.A. § 28.423, carrying a concealed weapon, M.C.L.A. § 750.227; M.S.A. § 28.424, and larceny over $100, M.C.L.A. § 750.356; M.S.A. § 28.588. On appeal, the defendant argues that his plea must be set aside as involuntarily and unknowingly made because it was motivated by the promise to dismiss the other charges when, in fact, the prosecutor could not have proceeded to try and convict the defendant on all five of the original charges. See People v. Goins, 54 Mich.App. 456, 221 N.W.2d 187 (1974).

We first examine the argument that the defendant could not have been convicted on all five of the original charges. A defendant may not be convicted of both a principal charge and a necessarily included offense. People v. Guidry, 67 Mich.App. 653, 242 N.W.2d 461 (1976), rev'd on other grounds399 Mich. 803 (1977). But the defendant concedes that the offenses charged in Counts 2 to 5 were not necessarily included offenses of the armed robbery charged in Count 1. This is because each requires proof of some element which is not an element of armed robbery.

But the defendant does argue that each of the charges in Counts 2 to 5 was a cognate lesser included offense of the armed robbery charge. People v. Jones, 395 Mich. 379, 236 N.W.2d 461 (1975). He argues that, now that cognate included offenses have been recognized, the rule barring conviction of both a principal charge and a necessarily included offense should also apply in the realm of cognate included offenses.

[78 MICHAPP 435] We decline to adopt such a sweeping rule without guidance from the Supreme Court. As the Jones opinion points out, Michigan has long treated cognate included offenses as if they were necessarily included offenses. But express recognition of the distinction between necessarily included and cognate included offenses began with Jones. While Jones offers helpful definitions, ¹ the Supreme Court has not yet fully defined the concept of cognate included offenses. Nor has it indicated the extent to which cognate included offenses and necessarily included offenses should be treated identically.

People v. White, 390 Mich. 245, 212 N.W.2d 222 (1973), held that a defendant could not be separately prosecuted for kidnapping, rape and felonious assault where all the charges arose out of the same criminal transaction; but the same opinion also stated that all three charges could have been charged in one information and brought to trial at the same time. On the facts of White, it appears that felonious assault was a cognate included offense of rape and/or kidnapping. Thus White must be at least partially overruled if the rule suggested by this defendant is to be adopted.

Two more recent decisions by the Supreme Court support the defendant's position although neither expressly addresses the cognate included offense problem. In both People v. Martin, 398 Mich. 303, 247 N.W.2d 303 (1976), and People v. Stewart (On Rehearing ), 400 Mich. 540, 256 N.W.2d [78 MICHAPP 436] 31 (1977), the Court held that a defendant could not be convicted of both delivery of heroin, M.C.L.A. § 335.341(1)(a); M.S.A. § 18.1070(41)(1)(a), and possession of the same heroin, M.C.L.A. § 335.341(1)(a); M.S.A. § 18.1070(41)(1)(a). Stewart states that "(i)n a given case, sale may be found without possession". 400 Mich. at 548, 256 N.W.2d at 33. Given the definitions in Jones and fn. 1, supra, that statement would mean that possession may be a cognate included offense within a sale charge but it is not a necessarily included offense. Stewart therefore supports the defendant's argument that he could not have been convicted of both a principal offense and cognate included offense. However, neither Stewart nor Martin ever mentions Jones or the concept of cognate included offenses.

Even if Martin and Stewart do not establish a double jeopardy rule applicable to all cognate included offenses, they do call into question the propriety of the prosecution tactics in the present case. Both opinions relied on State v. Allen, 292 A.2d 167, 172 (Me.1972):

"It is elementary that the State cannot divide a single offense into several parts according to time and conduct and base separate prosecutions upon and impose separate punishments for the various necessary divisions of that single crime."

That quotation exactly describes the prosecutor's tactics in the present case. The separate charges were obviously contrived. The crime in the present case was armed robbery. The multiple charges were possible only if that offense was artificially divided "into several parts according to time and conduct". 292 A.2d at 172. Martin and Stewart both expressly condemn that practice. See also People v. Guidry, 399 Mich. 803 (1977), People v. [78 MICHAPP 437] Longuemire, 77 Mich.App. 17, 257 N.W.2d 273 (1977), ² and People v. Fossey, 41 Mich.App. 174, 199 N.W.2d 849 (1972).

Despite the suggestions that the Supreme Court may be inclined to adopt the defendant's argument, we cannot reverse his conviction on the strength of Martin and Stewart alone. Those cases left undisturbed a long line of Michigan decisions which have approved...