People v. Ruff
| Decision Date | 18 August 1981 |
| Docket Number | Docket No. 51946 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Bradford Lee RUFF, Defendant-Appellant. 108 Mich.App. 716, 310 N.W.2d 852 |
| Court | Court of Appeal of Michigan — District of US |
[108 MICHAPP 717] Mary C. Smith, Lansing, Frank R. Del Vero, Pros. Atty., Howell, for plaintiff-appellee.
John S. Lobur, Howell, for defendant-appellant.
Before CYNAR, P. J., and BRONSON and WALSH, JJ.
On March 5, 1981, defendant pled guilty to the offense of unlawfully driving away a motor vehicle (UDAA), M.C.L. § 750.413; M.S.A. § 28.645, and to being a second felony offender, M.C.L. § 769.10; M.S.A. § 28.1082. He was sentenced to from 5 to 71/2 years in prison.
Defendant argues that his plea-based conviction should be set aside because an earlier, tentative plea-bargain agreement was not fulfilled by the prosecutor.
On December 18, 1979, defendant was arraigned in district court on the charge of unlawfully driving away a motor vehicle. At a proceeding in the district court on December 28, 1979, defense counsel indicated that a tentative plea-bargain agreement had been reached in which defendant agreed to give a statement to the police concerning uncharged offenses involving defendant or other individuals. Defendant agreed to submit to a polygraph examination to verify his statement. If verification was established, the prosecution agreed to charge defendant with the violation of an offense carrying a maximum sentence of four years imprisonment. If the polygraph results were negative, the prosecutor could proceed on the original [108 MICHAPP 718] charge. Defendant also was granted immunity from prosecution for any information contained in the statement and agreed to an unconditional waiver of preliminary examination on any charge arising from the agreement.
Defendant then was bound over to the circuit court for an arraignment on January 21, 1980. The arraignment was subsequently waived by defendant. On January 22, 1980, the prosecutor filed a supplemental information charging defendant as a fourth felony offender, M.C.L. § 769.12; M.S.A. § 28.1084.
On March 5, 1980, defendant entered into another, totally separate plea agreement pursuant to which the instant plea of guilty was offered and accepted by the circuit court. The record of the March 5, 1980, plea-taking proceeding indicates that the court fully complied with the court rule. GCR 1963, 785.7. Defendant voluntarily entered his plea of guilty and admitted that he was guilty of the offenses. Defendant's contention that this March 5, 1980, guilty plea should be set aside because of an alleged failure on the part of the prosecutor to fulfill the earlier tentative plea agreement is without merit. Defendant abandoned that claim in the circuit court. The record before us is devoid of any evidentiary support for it. We are precluded from considering it. People v. Serr, 73 Mich.App. 19, 250 N.W.2d 535 (1976). Moreover, by entering a valid, knowing, and voluntary guilty plea, defendant waived any alleged defect with respect to the prior tentative agreement.
Defendant next contends that the circuit court erred in failing to quash the supplemental information charging him as a fourth felony offender which was filed by the prosecutor on January 22, 1980. This supplemental information was filed (a) [108 MICHAPP 719] 25 days after the filing of the information charging the principal offense of UDAA and one day after the date scheduled for the arraignment on that information in the circuit court, (b) 43 days prior to defendant's plea-based conviction on the UDAA charge, and (c) 35 days after defendant's arraignment on the UDAA warrant in the district court. During this 35-day period prior to the filing of the supplemental information, plea negotiations were carried on which resulted in the original tentative plea-bargain agreement.
At issue is whether, under these circumstances, the supplemental information was filed "promptly" as required by People v. Fountain, and its companion case, People v. Jones, 407 Mich. 96, 98, 282 N.W.2d 168 (1979). More precisely the issue is whether Fountain's prompt filing requirement mandates that the supplemental information be filed "with the information which charged the last felony * * * ", Id., 99, 282 N.W.2d 168, or "prior to the initiation of any plea negotiations", People v. Martin, 100 Mich.App. 447, 459, 298 N.W.2d 900 (1980), or "prior to conviction on the current charge * * * ", People v. Stratton, 13 Mich.App. 350, 356, 164 N.W.2d 555 (1968).
We rule that Fountain requires that a prosecutor who has notice of a defendant's previous convictions must file a supplemental information charging the defendant as an habitual offender prior to the defendant's trial on a current felony charge. The effect of the Fountain decision was to make mandatory the procedure first announced in Stratton, supra, and later approved by the Supreme Court in People v. Hatt, 384 Mich. 302, 309, 181 N.W.2d 912 (1970).
In Stratton, supra, 13 Mich.App. 356, 164 N.W.2d 555, a panel of this Court declared that:
[108 MICHAPP 720] "(W)here it appears to the prosecutor before conviction of the current charge that the accused person is a prior felon, the accused person is to be informed against as a prior offender prior to conviction on the current charge * * *." (Emphasis supplied.)
In Hatt, supra, the Supreme Court "approved" the Stratton procedure. In People v. Marshall, 41 Mich.App. 66, 71-74, 199 N.W.2d 521 (1972), a panel of this Court held that it was not mandatory for a prosecutor to follow the Stratton-Hatt procedure unless failure to do so would deny the defendant due process of law. 1 This set the stage for Fountain.
The precise issue to be decided in Fountain was clearly stated by the Supreme Court at the very outset of its opinion:
"Is it permissible to enhance sentence under the habitual offenders act if the prosecutor has reliable information pertaining to a person's prior felony record before trial but does not charge the person as an habitual offender until after conviction is entered on the current felony charge? " (Footnote omitted.) (Emphasis supplied.) Fountain, supra, 407 Mich. 97, 282 N.W.2d 168.
[108 MICHAPP 721] The Court resolved this issue in the negative. As authority for its decision, the Court cited Hatt, supra, and Stratton, supra.
Although later in the opinion the Court stated nondecisionally that in the cases of Fountain and Jones the "habitual offender charges should have been filed with the information which charged the last felony * * * " (emphasis supplied), Fountain, supra, 99, 282 N.W.2d 168, the Court did not rule that it was mandatory to do so. Moreover, we find nothing in the Fountain decision or in any of the decisions upon which it is premised which would preclude a prosecutor from proceeding on recidivist charges against a defendant because the supplemental information containing those charges was not filed simultaneously with the information charging the current offense as long as the supplemental information is filed before trial on the current offense. 2
Further support for this interpretation of Fountain's prompt filing requirement can be found in the following statement from Justice Levin's concurring and dissenting opinion in People v. Young, 410 Mich. 363, 368, 301 N.W.2d 803 (1981), in which the Supreme Court ruled on the retroactivity of the Fountain rule:
"I would vacate the habitual offender charge and reinstate the original sentence or remand for resentencing in any case where a defendant with prior felony convictions was not charged as an habitual offender until after conviction of the current felony, subject to the prosecutor's right to show that he did not know, and should not have been on notice, of the prior convictions." (Emphasis supplied.)
[108 MICHAPP 722] In Martin, supra, a panel of this Court, which included this writer, attempted to reconcile Fountain with Marshall and other pre-Fountain cases which related to the Fountain issue. We held that the purpose for the Fountain rule was two-fold, first, to provide fair notice to the accused and, second, to avoid the appearance of prosecutorial impropriety. We further held that with respect to the fair notice aspect of the Fountain decision, Fountain merely restated prior law.
That holding was based upon the premise that the fair notice purpose of Fountain referred to the notice required to be given to any defendant, both pre-Fountain and post-Fountain, by virtue of the right of every citizen to due process of law. 3 We concluded that insofar as the Fountain decision required that type of notice, it merely restated what had always been the law. 4
With respect to the second purpose for the rule, i. e., to avoid the appearance of prosecutorial impropriety,[108 MICHAPP 723] we concluded that this purpose was...
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