People v. Stewart, Docket No. 26090

• Decision Date: 15 June 1976
• Docket Number: Docket No. 26090
• Citation: 69 Mich.App. 528,245 N.W.2d 121
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Toney STEWART, Defendant-Appellant. 69 Mich.App. 528, 245 N.W.2d 121
• Court: Court of Appeal of Michigan — District of US

Page 121

245 N.W.2d 121

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Toney STEWART, Defendant-Appellant.

Docket No. 26090.

69 Mich.App. 528, 245 N.W.2d 121

Court of Appeals of Michigan.

June 15, 1976.

Released for Publication Sept. 9, 1976.

[69 MICHAPP 529] Renfrew, Moir & Burgett, P.C. by James W. Heckman, Royal Oak, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., L. Brooks Patterson, Pros. Atty., for plaintiff-appellee.

Before WALSH, P.J., and J. H. GILLIS and MAHER, JJ.

MAHER, Judge.

Defendant pled guilty to a charge of breaking and entering a gasoline service station with the intent to commit larceny. M.C.L.A. § 750.110; M.S.A. § 28.305, and on January 7, 1975 was sentenced to a term of 2 1/2 to 10 years in prison with credit given for 157 days awaiting trial and sentence.

The sentencing took place at approximately 2 p.m. in the afternoon and defendant was allowed to report to the Oakland County Jail at 5 p.m. so that he could clear up some business affairs. The trial judge informed defendant that if he failed to appear his $5,000 bond would be cancelled and a bench warrant would issue.

Defendant failed to appear at the jail, was arrested on a bench warrant and on April 11, 1975 [69 MICHAPP 530] was resentenced to a term of 3 to 10 years in prison and given credit for three additional days.

On appeal defendant first claims that the trial court erred in accepting his guilty plea because defendant's statement to the court did not provide an adequate factual basis for the crime to which the plea was offered. We agree.

GCR 1963, 785.7(3)(c) reads as follows:

'If defendant's description of his actions and any otherwise admissible evidence presented to the court on the record during the plea taking proceedings would not substantially support a finding that defendant is in fact guilty of the charged offense or the offense to which he is pleading, the plea shall be rejected by the court.'

In the instant case, defendant stated to the court that he and two companions entered the gasoline service station with an intent to commit a larceny. However the defendant denied that he and his companions committed any breaking which is a necessary element of the offense. People v. Keatts, 54 Mich.App. 618, 221 N.W.2d 455 (1974).

The colloquy between the court and the defendant is as follows:

'THE COURT: All right. What you--would you state in your own words what you did?

'DEFENDANT STEWART: Well, I remember that we were coming from a party that morning and We pulled up in this gas station and we didn't break no doors to gain entry, but we did go inside of it.

'THE COURT: How did you get in?

'DEFENDANT STEWART: Went through a window.

'THE COURT: All right. In other words you had to open the window to get in?

'DEFENDANT STEWART: Not really, it was kind of open a little way.

[69 MICHAPP 531] 'THE COURT: Was it opened wide enough for you to crawl in?

'DEFENDANT STEWART: No, we didn't have to raise the window.

'THE COURT: But, you did cross through the window?

'DEFENDANT STEWART: Yes.

'THE COURT: The window was already wide open?

'DEFENDANT STEWART: It wasn't exactly wide open, it was about that wide (indicating).

'THE COURT: You didn't have to touch the window to get in?

'And what was the purpose of going through the window?

'DEFENDANT STEWART: Well--well, I guess we was just looking for something, I guess.

'THE COURT: You stated to the Court for the purpose of committing a larceny?

'DEFENDANT STEWART: Well, yes.

'THE COURT: I assume that it was a.m. and the station doors were locked?

'DEFENDANT STEWART: The doors?

'THE COURT: Yes.

'DEFENDANT STEWART: Well, I don't know. I never did touch one of the doors.

'THE COURT: The lights on inside?

'DEFENDANT STEWART: Some possibility, some part of it the lights was off.

'THE COURT: Mr. McCarthy?

'MR. McCARTHY: Can we approach the bench?

'THE COURT: You may. (Whereupon a discussion was held at the bench.)

'THE COURT: Mr. Stewart, as I understand it there were about three of you involved in this?

'DEFENDANT STEWART: Yes, your Honor.

'THE COURT: And, I understand that there is a possibility of there being a hole in the window, it is true that maybe one of your companions broke a window and raised it?

'DEFENDANT STEWART: No, they didn't.

'THE COURT: In other words, it is your statement that the window was up already?

[69 MICHAPP 532] 'DEFENDANT STEWART: Yes, your Honor.

'THE COURT: And, you didn't see any of the Other two break the window or raise the window?

'DEFENDANT STEWART: No, your Honor.' (Emphasis supplied.)

In Guilty Plea Cases, 395 Mich. 96, 113, 235 N.W.2d 132 (1975), the Supreme Court stated:

'Noncompliance with a requirement of rule 785.7 may but does not necessarily require reversal.

'Whether a particular departure from rule 785.7 justifies or requires reversal or remand for additional proceedings will depend on the nature of the noncompliance.'

This case does not present us with facts admitted by the defendant from which both an inculpatory and exculpatory inference can be drawn, with defendant asserting that the latter is the correct inference. See Guilty Plea Cases, supra, at 129, 235 N.W.2d 132, Cf. People v. Haack, 396 Mich. 367, 240 N.W.2d 704 (1976). Here the defendant admits no facts from which any breaking by the defendant or his companions can be inferred.

A remand to allow the prosecutor to supply evidence of a breaking is in order. If he is unable to do so, the judgment of conviction shall be set aside. If evidence of a breaking is produced, since defendant at the plea taking denied any breaking, the matter shall be treated as a motion to withdraw the guilty plea and the court shall decide the matter in the exercise of its discretion. GCR 1963, 785.7(4); Guilty Plea Cases, supra, at 129, 235 N.W.2d 132.

The defendant's second claim on appeal is that the trial court erred in setting aside its original sentence and resentencing defendant to a longer minimum term because he failed to report to the [69 MICHAPP 533] county jail to commence serving his original sentence. This argument is without merit.

2 Gillespie, Michigan Criminal Law & Procedure (2d ed.), § 751, p. 954 reads as follows:

'Where a sentence has been imposed which is within the range of punishment fixed by statute, and the respondent has been remanded to jail to await removal to prison, the sentence goes into effect and the court thereafter has no power to vacate it and to impose a second sentence. The authority of the trial judge over the respondent ceases when a valid sentence has been pronounced and the respondent enters upon his imprisonment.'

See People v. Fox, 312 Mich. 577, 20 N.W.2d 732 (1945); People v. Chivas, 322 Mich. 384, 34 N.W.2d 22 (1948). Here the defendant had not yet commenced serving his sentence. He was free on bond and not in the custody of jail officials. He certainly could not have been, and was not, charged with the offense of escape.

Remanded for proceedings consistent with this opinion.

J. H. GILLIS, Judge (concurring in part, dissenting in part).

Although I agree with my brothers' decision regarding defendant's first claim on appeal (inadequate factual basis for the guilty plea), I disagree with their conclusion that the trial court did not err in setting aside its original sentence and resentencing defendant. My brothers apparently read that portion of the Gillespie statement of the general rule that says 'authority of the trial judge * * * ceases when * * * the respondent enters upon his imprisonment' to mean that the trial court loses authority to modify a sentence only [69 MICHAPP 534] where the defendant has actually been incarcerated. I do not, however, subscribe to that interpretation because case law indicates that the sentencing court's authority to modify a valid sentence ceases when the court issues its sentencing order. Furthermore, I am not convinced that either the above-quoted or other similar language remains as a part of the general rule.

Early cases deciding the resentencing issue usually stated the general rule in the following terms: a sentencing judge cannot set aside a valid sentence and resentence the defendant after the defendant 'has been remanded to jail to await the execution of the sentence'. In re Richards, 150 Mich. 421, 426, 114 N.W. 348, 350 (1907). See also People v. Fox, 312 Mich. 577, 20 N.W.2d 732 (1945); People v. Chivas, 322 Mich. 384, 34 N.W.2d 22 (1948). In each of those cases, the defendant apparently had been physically incarcerated pursuant to the original sentence prior to resentencing. Therefore, it is not surprising that the Court pointed to that circumstance in announcing the rule. Nevertheless, the fact that the rule against modification of a valid sentence applies where defendant has been incarcerated does not necessarily mean that it does not apply where defendant has not been incarcerated. In fact, the rationale for the above-mentioned cases, which was explained in the earlier case of People v. Meservey, 76 Mich. 223, 42 N.W. 1133 (1889), ¹ suggests that the rule could apply where defendant was not incarcerated before resentencing. Meservey, supra, explained its holding as follows:

'The circuit judge had no power at that time to [69 MICHAPP 535] vacate the sentences, because the authority over the prisoners had passed out of his hands by his own order.' 76 Mich. at 226, 42 N.W. at...