People v. Smith

• Decision Date: 08 January 1985
• Docket Number: Docket Nos. 73432,73941,70508,73433,73710
• Citation: People v. Smith, 378 N.W.2d 384, 423 Mich. 427 (Mich. 1985)
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Timothy Reid SMITH, Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Paul Franklin WALLACE, Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. David Lee SHOUP, Jr., Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jeffrey Leigh THOMPSON, Defendant-Appellant.
• Court: Michigan Supreme Court

Page 384

378 N.W.2d 384

423 Mich. 427

PEOPLE of the State of Michigan, Plaintiff-Appellee, v.Timothy Reid SMITH, Defendant-Appellant.

PEOPLE of the State of Michigan, Plaintiff-Appellee, v.Paul Franklin WALLACE, Defendant-Appellant.

PEOPLE of the State of Michigan, Plaintiff-Appellee, v.David Lee SHOUP, Jr., Defendant-Appellant.

PEOPLE of the State of Michigan, Plaintiff-Appellee, v.Jeffrey Leigh THOMPSON, Defendant-Appellant.

Docket Nos. 73432, 73433, 73710, 73941, 70508.

Supreme Court of Michigan.

Argued in Calendar No. 4 Jan. 8, 1985.

Argued in Calendar Nos. 18-20June 6, 1985.

Decided Nov. 20, 1985.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol.Gen., Judy A.H. Hughes, Cris J. Van Oosterum, Nathan T. Fairchild, Pros.Attys., Michael A. Nickerson, Asst. Atty. Gen., Dept. of Atty. Gen., Pros.Attys.Appellate Service, Lansing, Robert H. Cleland, St. Clair County Pros.Atty. by Peter R. George, Chief Appellate Atty., Port Huron, for the People.

State Appellate Defender Office by Herb Jordan, Asst. Defender, Detroit, Mary L. Sawnick, Legal Secretary, for Timothy Reid Smith.

State Appellate Defender Office by Sheila N. Robertson, Asst. Defender, Detroit, Lavenia Cook, Legal Secretary, for Paul Franklin Wallace.

State Appellate Defender Office by Richard B. Ginsberg, Asst. Defender, Detroit, Mary L. Sawnick, Legal Secretary, for David Lee Shoup, Jr.

R. Steven Whalen, Detroit, for Jeffrey Leigh Thompson.

WILLIAMS, Chief Justice.

INTRODUCTION

The primary issue in this case is whether offenses defined in the Penal Code as misdemeanors punishable by up to two years in prison may be considered "felonies" for the purposes of the habitual-offender, probation, and consecutive sentencing provisions of the Code of Criminal Procedure, where the code defines "felony" as an offense punishable by more than one year in the state prison.Two-year misdemeanors, of course, fall within the Code of Criminal Procedure's definition of felony.

The plain language of the statutes involved, considered in light of the purposes sought to be accomplished, leads us to conclude that the Legislature intended two-year misdemeanors to be considered as misdemeanors for purposes of the Penal Code, but as felonies for purposes of the Code of Criminal Procedure's habitual-offender, probation, and consecutive sentencing statutes.

People v. Thompson also raises two questions regarding the interpretation given other language in the consecutive sentencing statute in the Code of Criminal Procedure.The first question is whether one must be convicted of the particular "prior charged" felony as a first offense in order to receive consecutive sentencing for a second offense.We hold that a two-year misdemeanor conviction arising out of the first felony charge may serve as the "conviction of the prior charged offense" required for consecutive sentencing.SeeM.C.L. Sec. 768.7b(a);M.S.A. Sec. 28.1030(2)(a).

The second question is whether the disposition of a charge remains "pending" after a defendant pleads guilty to a lesser charge, but before the defendant is sentenced on the lesser charge and before the original charge is formally dismissed.We hold that a charge remains "pending" for purposes of this statute until a defendant is sentenced on a conviction arising out of the offense, and until the original charge arising out of the offense is dismissed.

The final question raised in Thompson is whether an ex parte conference between a sentencing judge and a probation officer regarding a presentence report violates a defendant's right to counsel.We hold that the right to counsel is violated, and a defendant must be resentenced, if the sentencing judge obtains information about the defendant from the probation officer that is not included in the written presentence report.

The application of these rules to the facts presented by the cases at bar leads us to conclude that the convictions and sentences received by the defendants should be upheld.We also hold that Thompson need not be resentenced because the information obtained ex parte by the sentencing judge from the probation officer was not about Thompson.

I.FACTS

People v. Smith

Timothy Smith pled guilty in the Lenawee Circuit Court to breaking and entering an unoccupied dwelling, M.C.L. Sec. 750.110;M.S.A. Sec. 28.305, and to resisting an officer in the discharge of his duty, M.C.L. Sec. 750.479;M.S.A. Sec. 28.747.At the same proceeding, he pled guilty of being a third felony offender, M.C.L. Sec. 769.11;M.S.A. Sec. 28.1083, with the breaking and entering serving as the principal felony.He also pled guilty of being a fourth felony offender, M.C.L. Sec. 769.12;M.S.A. Sec. 28.1084, with the resisting and obstructing charge serving as the principal offense.

The prior convictions serving as the bases for Smith's habitual-offender charges included breaking and entering, joyriding, and resisting and obstructing an officer in the discharge of his duty.The joyriding and resisting and obstructing statutes provide that commission of the offense shall be a misdemeanor punishable by a maximum of two years in the state prison.M.C.L. Secs. 750.414,750.479;M.S.A. Secs. 28.646,28.747.Smith was sentenced to serve terms of ten to twenty years and from ten to fifteen years for the habitual-offender convictions.

The Court of Appeals affirmed Smith's convictions in an unpublished opinion, with Judge Maher dissenting.On September 19, 1984, we granted leave to appeal.419 Mich. 922(1984).

People v. Wallace

Paul Wallace pled guilty in the Barry Circuit Court to joyriding, M.C.L. Sec. 750.414;M.S.A. Sec. 28.646.As stated above, the joyriding statute provides that commission of the offense is a misdemeanor punishable by a maximum of two years in the state prison.Wallace was sentenced to serve five years probation, with the first year to be served in the Barry County Jail.

The Court of Appeals affirmed in an unpublished opinion, with Judge Wahls dissenting.On September 19, 1984, we granted leave to appeal.419 Mich. 923(1984).

People v. Shoup

David Shoup pled guilty in the Mason Circuit Court to joyriding, M.C.L. Sec. 750.414;M.S.A. Sec. 28.646.As stated above, the joyriding statute provides that commission of the offense is a misdemeanor punishable by a maximum of two years in the state prison.Shoup was sentenced to serve three years probation, with the first nine months to be served in the Mason County Jail.

The Court of Appeals affirmed in an unpublished opinion, with Judge Wahls dissenting.On September 19, 1984, we granted leave to appeal.419 Mich. 923(1984).

People v. Thompson

Jeffrey Thompson was charged with arson of personal property over $50 on September 18, 1980.The offense is a four-year felony.M.C.L. Sec. 750.74;M.S.A. Sec. 28.269.On September 29, 1980, Thompson pled guilty in the St. Clair Circuit Court to a reduced charge of attempted arson of personal property over $50.The statute proscribing attempted arson, M.C.L. Sec. 750.92;M.S.A. Sec. 28.287, provides that the offense is a misdemeanor punishable by a maximum of two years in the state prison.

On October 3, 1980, while awaiting sentencing on his misdemeanor conviction, Thompson attempted a breaking and entering.

Thompson eventually pled guilty to the charge of attempted breaking and entering.He was sentenced for both convictions at the same proceeding.He received sixteen to twenty-four months for attempted arson, and three years, four months to five years for attempted breaking and entering.He was ordered to serve the sentences consecutively.At the sentencing, the prosecutor dismissed the original felony charge.

The Court of Appeals affirmed.117 Mich.App. 210, 323 N.W.2d 656(1982).On February 28, 1984, we granted leave to appeal.418 Mich. 946, 343 N.W.2d 494(1984).

II.THE ALLEGED STATUTORY CONFLICT

Defendants allege that provisions of the Penal Code which label particular offenses which are punishable by up to two years in state prison as "misdemeanors" conflict with provisions of the Code of Criminal Procedure which define offenses punishable by more than one year in the state prison as "felonies" and that the Penal Code label should control.The relevant provisions of each code are set forth below.

A.The Statutes

1.The Penal Code

The purpose of the Penal Code is to "define crimes and prescribe the penalties therefore."Preamble, M.C.L. Sec. 750.1 et seq.;M.S.A. Sec. 28.191 et seq.The Penal Code includes its own definitional provisions.Crimes are divided into "felonies" and "misdemeanors,"M.C.L. Sec. 750.6;M.S.A. Sec. 28.196.A "felony" is an "offense for which the offender, on conviction may be punished by death, or by imprisonment in state prison."M.C.L. Sec. 750.7;M.S.A. Sec. 28.197.A "misdemeanor" is an act or omission that is not a felony, which is punishable by fine, penalty, forfeiture, or imprisonment, M.C.L. Sec. 750.8;M.S.A. Sec. 28.198, or an act prohibited by a statute which imposes no penalty for the violation, M.C.L. Sec. 750.9;M.S.A. Sec. 28.199.

In some instances, the same provision of the Penal Code labels a crime a felony or misdemeanor and also sets the maximum penalty.See, e.g., M.C.L. Sec. 750.75;M.S.A. Sec. 28.270andM.C.L. Sec. 750.81a;M.S.A. Sec. 28.276(1).In other instances, one provision labels the crime, and another supplies the penalty.A person convicted of a misdemeanor for which the penalty is not specifically designated is punishable by a maximum of ninety days in the county jail or a $100 fine, or both.M.C.L. Sec. 750.504;M.S.A. Sec. 28.772.A person convicted of a felony for which the penalty is not specifically designated is punishable by a maximum of four years in state prison or a $2,000 fine, or both.M.C.L. Sec. 750.503;M.S.A. Sec. 28.771.

The defendants in the cases at bar have all been convicted of offenses which are labeled "misdemeanors" and which are punishable by a maximum of two years imprisonment under...