People v. Snow, Docket No. 6805

• Decision Date: 29 September 1970
• Docket Number: No. 2,Docket No. 6805,2
• Citation: 182 N.W.2d 820,26 Mich.App. 510
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Charles C. SNOW, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 820

182 N.W.2d 820

26 Mich.App. 510

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Charles C. SNOW, Defendant-Appellant.

Docket No. 6805.

Court of Appeals of Michigan, Division No. 2.

Sept. 29, 1970.

Rehearing Denied Nov. 18, 1970. ^*

Released for Publication Jan. 21, 1971.

Robert M. Grover, Jackson, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Bruce A. Barton, Pros. Atty., for plaintiff-appellee.

Before LEVIN, P.J., and HOLBROOK and BRONSON, JJ.

LEVIN, Presiding Judge.

The defendant was convicted by a jury in Jackson county of escaping from prison. ¹ He was sentenced to a term of two to five years. On appeal, he challenges the legality of the sentence, claiming that the judge penalized him for exercising his right to a trial by jury.

The defendant's attorney has submitted an affidavit which purports to record the disposition of every escape case filed in the Jackson county circuit court from January 1, 1967 through February 28, 1969. During oral argument in our Court, the chief assistant prosecuting attorney said that the people do not challenge the accuracy of the figures in the affidavit. ²

During this period, 234 prison escape cases were filed in Jackson county circuit court: ³

207 defendants pled guilty;

13 were convicted by a jury;

1 was convicted by a judge who sat without a jury.

The remaining 13 cases were either dismissed or were still pending at the time the affidavit was prepared.

The sentences imposed in the decided cases display a clear pattern. Of the 207 defendants who pled guilty, all but five received minimum sentences of 1 1/2 years or less. Three of these five were charged with other crimes. One had two prior convictions in Jackson county. In the remaining case, the defendant's sentence was made retroactive to July 17, 1967, although he was sentenced on October 7, 1968.

The defendants who exercised their right to trial by jury fared differently. Twelve of the thirteen defendants convicted by a jury received minimum sentences of 2 or more years. ⁴ The thirteenth defendant attempted to enter a plea of guilty during his trial; he received a minimum sentence of 1 1/2 years. The lone defendant tried by the court also received a 1 1/2 year minimum sentence.

The defendant's attorney contended, both in his brief and during oral argument, that it is 'common knowledge' among members of the bar in Jackson county that a defendant who pleads guilty to escape will receive no more than a 1 1/2 year minimum sentence, while one who requests a trial by jury will receive at least a two-year minimum. Although the statistics alone are persuasive evidence of such a sentencing practice, in this case we have a tacit admission by the people that judges in Jackson county do, in fact, pass sentence according to the 'common knowledge' described by the defendant's attorney; during oral argument in our Court the following colloquy ensued:

'The Court: Counsel (for defendant) in his main argument suggested, in fact I don't even think it was a suggestion, I think it was a direct and clear statement, that it was common knowledge amongst the practitioners in Jackson county, and was indeed common knowledge in your own office, that those individuals who pled guilty would in fact receive a lesser minimum sentence than those who demanded a jury trial. Now are you stating that counsel for appellant misstated that and that it is not common knowledge?

'Chief assistant prosecuting attorney: No, your Honor, I am not saying it's not common knowledge. * * *

'The Court: I would ask you whether (the defendant's attorney's) statement is an accurate one? Is it generally felt by members of the profession that guilty pleaders will receive minimum sentences of 1 1/2 years while those who exercise their right to a jury trial will propably be sentenced to a minimum of 2 years?

'Chief assistant prosecuting attorney: I would not disagree with the statement provided that the pleader waived his right to a presentence investigation.'

I.

In escape cases the factual issues are, indeed, rarely in dispute. The desire of the Jackson county circuit judges to expedite the disposition of the relatively large number of escape cases filed in their county is, therefore, understandable. This does not, however, gainsay the grim fact that a defendant charged with prison escape in Jackson county faces a heavier sentence if he exercises his constitutional right to trial by jury. This clearly is impermissible. A price may not be exacted, a penalty may not be imposed, for exercising a fundamental right.

The traditional unwillingness of appellate courts to intrude upon the sentencing process ⁵ yields when sentence is based upon impermissible considerations, ⁶ or is passed in violation of statute. ⁷ In People v. Earegood (1968), 12 Mich.App. 256, 162 N.W.2d 802, we dealt at length with the issue of impermissible factors in the sentencing process. We held that (p. 260, 162 N.W.2d p. 804):

'Because a sentence may not be enlarged or reduced depending on the alacrity with which the defendant pleads guilty, the sentence must be set aside.'

Although the Michigan Supreme Court reversed that portion of our Earegood opinion which held that Earegood's decision to plead guilty had been wrongfully influenced by the trial judge, ⁸ the Court expressly (People v. Earegood (1970), 383 Mich. 82, 84, 173 N.W.2d 205) approved the above-quoted language of our Earegood opinion, adding (p. 85, 173 N.W.2d p. 207):

'We limit our holding in this case to the proposition that it is impermissible for a judge in imposing sentence to take into consideration as a factor in determining the term of the sentence the fact that defendant pled or waived a jury at the last minute and we remand for resentencing.'

Just as a judge may not consider the timing of a guilty plea in passing sentence, so, too, he may not consider the absence of a plea when sentencing.

'(A) defendant, whatever his character, may not be punished for exercising his right to trial and, therefore, the fact that he had done so should be given no weight in determining his sentence.' Letters v. Commonwealth (1963), 346 Mass. 403, 405, 193 N.E.2d 578, 580.

'When Thomas received harsher punishment than the court would have decreed had he waived his Fifth Amendment rights, he paid a judicially imposed penalty for exercising his constitutionally guaranteed rights. Upon that ground alone, we think that his sentence is 'subject to collateral attack." Thomas v. United States (CA 5, 1966), 368 F.2d 941, 946. ⁹

In North Carolina v. Pearce (1969), 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656, the United States Supreme Court declared that it would violate the Fourteenth Amendment for a State court, when sentencing convicted persons, to penalize those who choose to exercise their constitutional rights. ¹⁰

We are mindful that judges of the Jackson county circuit court have not publicly articulated their sentencing policy. Yet the policy is no less real for being unspoken. ¹¹ The record demonstrates, the people concede, that the defendant was sentenced in accordance with a policy designed to induce guilty pleas by imposing heavier sentences on those who demand a jury trial. That the defendant in this case was not deterred from the exercise of his constitutional rights does not validate the criterion by which he was subsequently sentenced.

II.

This sentencing policy of the Jackson county circuit court is also violative of the spirit and intent of the indeterminate sentence law. ¹²

In People v. Lessard (1970), 22 Mich.App. 342, 177 N.W.2d 208, we vacated sentences of 4 years, 364 days to 5 years in prison and 9 years, 364 days to 10 years in prison. Citing In re Southard (1941), 298 Mich. 75, 82, 298 N.W. 457, we said that (p. 350, 177 N.W.2d p. 212):

'(T)he legislature intended that the sentencing court fit an indeterminates sentence, in the exercise of its discretion, to the needs of the particular case and the requirements of society.'

Our holding was clear (p. 350, 177 N.W.2d p. 212):

'The trial court is required to impose sentence within his sound discretion in accord with his evaluation of the defendant as an individual.'

It is manifest that the judges of the Jackson county circuit court have neglected their statutory responsibility to individualize the sentencing process. It strains credulity far past the breaking point to suggest that the near-identical minimum sentences meted out to the 207 defendants who pled guilty resulted from a coincidental similarity in their individual backgrounds, characters, and rehabilitative potentials. It is even more unlikely that each of the 207 defendants who pled guilty and received minimum sentences of 1 1/2 years or less was more deserving of a shorter sentence than each of the 12 individuals convicted by a jury and sentenced to minimum terms of 2 years or more.

By far the most telling evidence of the Jackson county circuit court's failure to comply with the intent of the indeterminate sentence law is the requirement that a guilty pleader in an escape case waive a presentence investigation ¹³ as a precondition to the 1 1/2 year minimum sentence. ¹⁴ While a waiver of presentence investigation may be proper under some circumstances, systematic solicitation of such waivers in literally hundreds of cases bespeaks a clear intention to forsake consideration of precisely those factors which form the statutory basis for sentencing.

III.

In addition to alleging defects in the sentencing process, the defendant contends that his conviction itself should be reversed. Specifically, the defendant claims that the trial court abused its discretion by permitting the people to indorse two additional witnesses immediately before trial, and by denying a defense motion for a continuance after permission to make the indorsement had been granted. We find no merit in these contentions.

The department of correction initially misinformed the ...