People v. Turner

• Decision Date: 06 February 1984
• Docket Number: Docket No. 66454
• Citation: 130 Mich.App. 646,344 N.W.2d 34
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Thomas Joseph TURNER, Defendant-Appellant. 130 Mich.App. 646, 344 N.W.2d 34
• Court: Court of Appeal of Michigan — District of US

Page 34

344 N.W.2d 34

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Thomas Joseph TURNER, Defendant-Appellant.

Docket No. 66454.

130 Mich.App. 646, 344 N.W.2d 34

Court of Appeals of Michigan.

Submitted Sept. 7, 1983.

Decided Nov. 22, 1983.

Released for Publication Feb. 6, 1984.

[130 MICHAPP 648] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Paul L. Maloney, Pros. Atty. and Brian S. Berger, Asst. Pros. Atty., for the People.

Jesse & Jesse by James K. Jesse, Buchanan, for defendant-appellant.

Before T.M. BURNS, P.J., and WALSH and MacKENZIE, JJ.

PER CURIAM.

Defendant appeals as of right from his plea-based conviction of prison escape, M.C.L. Sec. 750.193; M.S.A. Sec. 28.390. While serving a prison sentence on a previous conviction for breaking and entering, defendant escaped on September 29, 1981. A complaint and warrant were issued on October 2, 1981. On November 3, 1981 (according to the prosecution), defendant was arrested in Indiana on another charge and incarcerated. Sometime during defendant's incarceration in Indiana, the Berrien County prosecutor's office placed a "hold" on defendant in connection with the pending escape charge. The Indiana charge against defendant was ultimately dismissed, and defendant was returned to Michigan on May 10, 1982, and incarcerated. On June 1, 1982, defendant pled guilty to the escape charge, and on July [130 MICHAPP 649] 6, 1982, defendant was sentenced to two to five years, to run consecutively to his sentence on the previous breaking and entering conviction, and without credit for any presentence time served.

Defendant's first claim on appeal is that the Berrien County court lost jurisdiction to convict defendant of escape under the statutory 180-day rule, M.C.L. Sec. 780.131; M.S.A. Sec. 28.969(1). The language of the statute itself provides that the 180-day rule applies to untried charges against "any inmate of a penal institution of this state", and this Court has held that the rule does not apply to defendants who are incarcerated outside of Michigan or in federal institutions. People v. Hoye, 105 Mich.App. 768, 772-773, 307 N.W.2d 723 (1981), lv. den. 412 Mich. 898 (1982); People v. Fossey, 41 Mich.App. 174, 180, 199 N.W.2d 849 (1972), lv. den. 390 Mich. 757 (1973). Thus, the relevant period of incarceration herein is from May 10, 1982, when defendant was transferred to Michigan, until June 1, 1982, when defendant pled guilty. Since less than 180 days elapsed during that period of time, there was no violation of the statute. Therefore, we affirm defendant's plea-based conviction.

Defendant also claims that the court erred in denying him credit against his escape sentence for the presentence time served in Indiana and then in Michigan. The sentence credit statute, M.C.L. Sec. 769.11b; M.S.A. Sec. 28.1083(2), is to be read to benefit defendants unless to do so would frustrate the intent of a consecutive sentencing statute. Brinson v. Genesee Circuit Judge, 403 Mich. 676, 686, 272 N.W.2d 513 (1978). Where a consecutive sentence is imposed, a defendant is not entitled to credit for presentence time served which he was already obliged to serve under a prior sentence. People v. Patterson, 392 Mich. 83, 90, 219 N.W.2d 31 (1974). [130 MICHAPP 650] Thus, generally there is no credit for presentence time served against a prison escape sentence because such a sentence must be consecutive, M.C.L. Sec. 750.193; M.S.A. Sec. 28.390, and the defendant was already obliged to serve that time under his uncompleted sentence for the earlier conviction. People v. Andrews # 2, 52 Mich.App. 728, 218 N.W.2d 383 (1974); People v. Bachman, 50 Mich.App. 682, 213 N.W.2d 800 (1973), lv. den. 392 Mich. 776 (1974); People v. Passalacqua, 48 Mich.App. 634, 211 N.W.2d 59 (1973), lv. den. 392 Mich. 816 (1974).

However, the general rule of no credit against a prison escape sentence does not apply to the time served in Indiana by defendant. The presentence time served by defendant in Indiana was not in connection with his uncompleted sentence for his previous breaking and entering conviction in Michigan, and defendant received no credit for that time against the prior sentence for breaking and entering. Also, the time served by defendant in Indiana was not obliged to be served under any sentence imposed by the Indiana courts; rather, defendant was never convicted of any charge in Indiana. See Brinson, supra, 403 Mich. p. 687, 272 N.W.2d 513.

It is clear that credit may be given for time served in prisons or jails of another jurisdiction. People v. Gibson, 101 Mich.App. 205, 300 N.W.2d 500 (1980); People v. Havey, 11 Mich.App. 69, 81-83, 160 N.W.2d 629 (1968), lv. den. 381 Mich. 756 (1968). However, it is still necessary to determine to what extent defendant is entitled to credit for the presentence time served in Indiana. In People v. Pruitt, 23 Mich.App. 510, 514-515, 179 N.W.2d 22 (1970), this Court held that the defendant was not entitled to credit against his escape sentence for the entire presentence time served, but rather only from the date his incarceration became attributable[130 MICHAPP 651] to the pending prison escape charge. While Pruitt involved a factual context different from that in the present case, that decision still provides some guidance, and we conclude that defendant is entitled to credit for time served in Indiana only to the extent that that time was attributable to the pending prison escape charge.

Defendant was arrested and initially incarcerated in Indiana on a charge unrelated to the escape charge. However, once the Michigan authorities placed a "hold" on defendant pursuant to the escape charge, defendant could not be released on bond vis-a-vis the Indiana charge and the time served in Indiana from that date on was attributable to the pending escape charge. See People v. Manifee, 112 Mich.App. 705, 317 N.W.2d 232 (1982); People v. Major, 106 Mich.App. 226, 230-232, 307 N.W.2d 451 (1981). Consequently, defendant is entitled to credit for time served in Indiana at least from the date Michigan...