People v. Tilliard

• Decision Date: 03 June 1980
• Docket Number: Docket No. 46040
• Citation: 98 Mich.App. 17,296 N.W.2d 180
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Donald C. TILLIARD, Defendant-Appellant. 98 Mich.App. 17, 296 N.W.2d 180
• Court: Court of Appeal of Michigan — District of US

Page 180

296 N.W.2d 180

PEOPLE of the State of Michigan, Plaintiff-Appellee, v.Donald C. TILLIARD, Defendant-Appellant.

Docket No. 46040.

98 Mich.App. 17, 296 N.W.2d 180

Court of Appeals of Michigan.

June 3, 1980.

Released for Publication Sept. 24, 1980.

[98 MICHAPP 18]Karl E. Kraus, Bad Axe, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol.Gen., Peter B. Capling, Pros.Atty., Leonard J. Malinowski, Pros.Attys.App. Service, for plaintiff-appellee.

Before RILEY, P. J., and R. B. BURNS and HOLBROOK, JJ.

RILEY, Presiding Judge.

Defendant was convicted, on his plea of guilty, of breaking and entering an unoccupied dwelling house with the intent to commit the crime of larceny therein, contrary to M.C.L. § 750.110;M.S.A. § 28.305.He was sentenced to 6 to 10 years with credit for 48 days already served and now appeals as of right.

Defendant first contends that there was an insufficient factual basis, under GCR 1963, 785.7(3), to support his breaking and entering plea.Specifically, he challenges the proof of his intent to commit larceny, an element that must exist at the [98 MICHAPP 19] time of the breaking and entering.SeePeople v. Kochan, 55 Mich.App. 326, 329, 222 N.W.2d 317(1974).

A judge may accept a plea if, after careful examination, he concludes, from the defendant's recitation of the facts, that he could be convicted and that the defendant is knowingly and voluntarily entering his plea.People v. Haack, 396 Mich. 367, 378, 240 N.W.2d 704(1976).A factual basis exists if an inculpatory inference can be drawn from the defendant's statements even if an exculpatory inference can be drawn as well.Guilty Plea Cases, 395 Mich. 96, 130, 235 N.W.2d 132(1975).

In the present case, defendant initially denied his larcenous intent and then moments later admitted it.The judge properly pointed out this inconsistency to defendant and questioned him further about it.We believe that defendant's repeated acknowledgement of the requisite intent was sufficient to provide a valid factual basis for his plea.

Defendant was incarcerated for 48 days between the time of the crime and the date of arraignment.He was also in jail for 112 days between arraignment and sentencing.Defendant alleges that it was error for the trial judge to credit defendant for the former time served and not for the latter.

M.C.L. § 769.11b;M.S.A. § 28.1083(2) allows credit for presentence incarceration under certain circumstances:

"Whenever any person is hereafter convicted of any crime within this state and has served any time in jail prior to sentencing because of being denied or unable to furnish bond for the offense of which he is convicted, the trial court in imposing sentence shall specifically grant credit against the sentence for such time served in jail prior to sentencing."

[98 MICHAPP 20]This statute should be construed liberally, People v. Stange, 91 Mich.App. 596, 600, 283 N.W.2d 806(1979), but with proper regard for its limited remedial intent.People v. Risher, 78 Mich.App. 431, 433, 260 N.W.2d 121(1977).There has been extensive disagreement about the statute's coverage, particularly the construction of the phrase "for the offense of which he is convicted".In some cases, the courts have passively credited defendants with presentence time served for both related or unrelated offenses.SeePeople v. Donkers, 70 Mich.App. 692, 695, 247 N.W.2d 330(1976);People v. Lewis, 42 Mich.App. 121, 201 N.W.2d 341(1972);People v. Haines, 24 Mich.App. 240, 180 N.W.2d 107(1970).In other cases, such credit has been disallowed.SeePeople v. Patterson, 392 Mich. 83, 219 N.W.2d 31(1974);Risher, supra, People v. Finn, 74 Mich.App. 580, 254 N.W.2d 585(1977).

In cases like the instant one where the defendant seeks presentence credit for time served for a different but related offense, we believe that a middle approach should govern.¹It is inappropriate to apply this analysis to postconviction time served on a related offense as this is time a defendant is already obligated to serve.SeePatterson, supra, 392 Mich. at 88-90, 219 N.W.2d 31.However, the approach may be utilized where a defendant seeks credit for time served on a related charge for which there has not yet been a conviction.SeeBrinson v. Genesee [98 MICHAPP 21] Circuit Judge, 403 Mich. 676, 687, 272 N.W.2d 513(1978).

To receive this credit, the imprisonment must "bear an intimate and substantial relationship to the crime for which such person is subsequently convicted".People v. Groeneveld, 54 Mich.App. 424, 427-428, 221 N.W.2d 254, 256(1974).A defendant must prove a rational nexus between his prior confinement and the offense for which he now faces sentencing.People v. Face, 88 Mich.App. 435, 439, 276 N.W.2d 916(1979).

In the case sub judice, this interrelationship is readily apparent.Defendant received a personal recognizance bond for the present breaking and entering charge but was "unable to furnish bond" within the meaning of the statute because of a Michigan Department of Corrections detainer.This detainer, issued for possible parole violations stemming from the present charge, caused defendant to remain in jail for the 112 days between arraignment and...