People v. Sanders

• Decision Date: 20 January 1984
• Docket Number: Docket No. 62918
• Citation: 343 N.W.2d 513,130 Mich.App. 246
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Sam Daniel SANDERS, Defendant-Appellant. 130 Mich.App. 246, 343 N.W.2d 513
• Court: Court of Appeal of Michigan — District of US

Page 513

343 N.W.2d 513

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Sam Daniel SANDERS, Defendant-Appellant.

Docket No. 62918.

130 Mich.App. 246, 343 N.W.2d 513

Court of Appeals of Michigan.

Submitted June 16, 1983.

Decided Nov. 7, 1983.

Released for Publication Jan. 20, 1984.

[130 MICHAPP 248] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Conrad J. Sindt, Pros. Atty., and Jon R. Sahli, Asst. Pros. Atty., for the people.

James R. Neuhard, State Appellate Defender by P.E. Bennett, Asst. State Appellate Defender, for defendant-appellant.

Before KELLY, P.J., and SHEPHERD and COOPER ^*, JJ.

KELLY, Presiding Judge.

Defendant was convicted by a jury of armed robbery, M.C.L. Sec. 750.529; M.S.A. Sec. 28.797, and felony-firearm, M.C.L. Sec. 750.227b; M.S.A. Sec. 28.424(2). He was sentenced to a term of from one to five years in prison on the armed robbery conviction and to a consecutive term of two years on the [130 MICHAPP 249] felony-firearm conviction. Defendant appeals his convictions as of right, raising four issues.

I

Defendant first contends that his convictions should be vacated and the charges against him dismissed with prejudice for failure of the prosecutor to comply with Michigan's 180-day rule. M.C.L. Sec. 780.131; M.S.A. 28.969(1).

Defendant was arrested on March 26, 1980, while on parole from the Department of Corrections. Approximately six months after his arrest, the Department of Corrections issued a parole hold against defendant, who was at that time detained in the local jail awaiting prosecution both on the instant charges and on another unrelated charge. Defendant was first tried and convicted on the other charge and began serving a sentence at Jackson Prison on April 14, 1981. Defendant's parole was revoked one week later.

The first trial on the instant charges commenced in March of 1981 and ended in a mistrial. A second trial in November of 1981 resulted in defendant's convictions as charged. Thus, defendant was not tried and convicted on the instant charges until nearly 20 months after his arrest, 14 months after the Department of Corrections issued its parole hold and approximately 7 months after defendant was incarcerated at Jackson Prison.

Defendant contends on appeal, as he did at the trial, that the 180-day period began to run on the day of his arrest since he was at that time under the jurisdiction of the Department of Corrections as a parolee. Alternatively, defendant argues that the 180-day period began to run on the day that the Department of Corrections issued its parole [130 MICHAPP 250] hold. We disagree with both of defendant's arguments.

The clear and unambiguous language of M.C.L. Sec. 780.131; M.S.A. Sec. 28.969(1) is that the untried charge must be pending against "any inmate of a penal institution of this state". See People v. Woodruff, 414 Mich. 130, 135-136, 323 N.W.2d 923 (1982). In construing this statutory language, the Supreme Court has held that the 180-day period runs from the day the defendant in "incarcerated in a state prison" or detained in a local prison "awaiting incarceration in a state prison" when there is an untried charge pending against the defendant and when the prosecutor or the Department of Corrections knows or should know that the untried charge is pending. People v. Hill, 402 Mich. 272, 280-281, 262 N.W.2d 641 (1978). The question presented here is whether a person on parole is an inmate of a state penal institution or incarcerated in a state prison for purposes of the 180-day rule.

This Court has held that the term "penal institution" or "state prison" is not limited to facilities such as the Southeastern Michigan Prison at Jackson. In People v. Hegwood, 109 Mich.App. 438, 442, 311 N.W.2d 383 (1981), for example, it was held that the 180-day rule applies to persons participating in transitional corrections programs such as the one at Valley Inn in Kalamazoo.

In deciding People v. Hegwood, this Court relied upon the rationale employed by other panels of this Court in construing the consecutive sentencing statute, M.C.L. Sec. 768.7a; M.S.A. Sec. 28.1030(1). That statute applies when a person commits a crime punishable by imprisonment while "incarcerated in a penal or reformatory institution in this state". For consecutive sentencing purposes, the term "penal or reformatory institution" is broadly construed[130 MICHAPP 251] to include any "grounds under the control of any person authorized by the Department of Corrections to have a prison inmate under care, custody or supervision either in an institution or outside an institution". People v. Lakin, 118 Mich.App. 471, 474, 325 N.W.2d 460 (1982). Thus, consecutive sentencing will be imposed where a person commits a crime while assigned to a halfway house, People v. Jennings, 121 Mich.App. 318, 329 N.W.2d 25 (1982); People v. Mayes, 95 Mich.App. 188, 290 N.W.2d 119 (1980), or while assigned to a community corrections program, People v. Shirley Johnson, 96 Mich.App. 84, 292 N.W.2d 489 (1980), or where a person is on extended furlough, People v. Lakin, supra.

We believe that this Court justifiably relied on the holdings in the consecutive-sentencing cases in deciding People v. Hegwood, supra. Defendants in People v. Hegwood and in the consecutive-sentencing cases were all on preparole status with the Department of Corrections when they committed their crimes. In the instant case, however, defendant was on parole at the time he committed the offenses for which he was subsequently convicted. Although every parolee remains in the legal custody and under the jurisdiction of the Department of Corrections, that parolee is free from the enclosures of a prison facility. M.C.L. Sec. 791.238; M.S.A. Sec. 28.2308.

We find that in the parole context the 180-day rule applies only where a person is assigned to a state correctional facility on preparole status. The prosecutor in this case did not violate the 180-day rule by failing to prosecute the defendant within 180 days of his arrest or within 180 days of the issuance of a parole hold.

Finally, we note that the second trial in this [130 MICHAPP 252] case did not commence until seven months after defendant had been incarcerated at Jackson Prison and that the first trial which resulted in a mistrial commenced a month before the defendant was sentenced to Jackson. Defendant does not claim on appeal that the seven-month delay violated the 180-day rule and our review of the record reveals that the prosecution established to the satisfaction of the trial court that good-faith action had been taken to ready the case for trial within the 180-day period. People v. Hill, supra; People v. Castelli, 370 Mich. 147, 153, 121 N.W.2d 438 (1963); People v. Freeman, 122 Mich.App. 260, 263, 332 N.W.2d 460 (1983); People v. Tutton, 128 Mich.App. 412, 340 N.W.2d 649 (1983).

II

Defendant secondly argues on appeal that the trial court erred in refusing to suppress evidence of his prior conviction for unarmed robbery, M.C.L. Sec. 750.530; M.S.A. Sec. 28.798. Defendant did not testify at the trial and the evidence of the prior conviction was, therefore, not admitted.

We are not persuaded that the trial court abused its discretion by refusing to suppress evidence of defendant's prior conviction under MRE 609(a).

In ruling on the admissibility of this evidence, the trial court first recognized that defendant's prior conviction was for a crime of theft and was, therefore, particularly...