People v. Urynowicz
Decision Date | 23 November 1981 |
Docket Number | Docket No. 66737 |
Citation | 412 Mich. 137,312 N.W.2d 625 |
Parties | PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Alphonse J. URYNOWICZ, Defendant-Appellee. 412 Mich. 137, 312 N.W.2d 625 |
Court | Michigan Supreme Court |
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Edward J. Grant, Pros. Atty., and John L. Wildeboer, Chief Appellate Atty., Jackson, for the People.
Myron E. Sanderson, Jackson, for defendant-appellee.
The question before us in this criminal sexual conduct case is the failure of the trial judge to advise the defendant, while taking his guilty plea, of a mandatory minimum sentence, as required by GCR 1963, 785.7(1)(d). While it is conceded that the advice was not given, the prosecutor maintains that it was not necessary in this case because the defendant must first have been charged as a second offender under M.C.L. § 750.520f; M.S.A. § 28.788(6) before the mandatory minimum could be imposed. Since the defendant was not so charged, says the prosecutor, there was no mandatory minimum of which to advise him. We agree.
The defendant was convicted of gross indecency in Jackson Circuit Court on May 4, 1973. The information in this case charged that the defendant:
"did engage in sexual penetration with another person, * * * said person being under 13 years of age; contrary to (MCL 750.520b(1)(a); MSA 28.788(2)(1) (a))."
The defendant was also charged as a second felony offender under the habitual criminal statute, M.C.L. § 769.10; M.S.A. § 28.1082. He pled guilty of first-degree criminal sexual conduct on July 13, 1979, in return for dismissal of the supplemental information charging him as an habitual offender and the prosecutor's promise not to proceed against him as to other acts which the state police investigation disclosed might give rise to further criminal sexual conduct charges. The defendant was sentenced to life imprisonment.
The defendant was told that the offense of which he pled guilty carried a maximum sentence of life imprisonment. The Court of Appeals initially reversed in a memorandum opinion of October 9, 1980 because of the trial court's failure to advise the defendant of the mandatory minimum five-year sentence under M.C.L. § 750.520f; M.S.A. § 28.788(6), as required by GCR 1963, 785.7(1)(d). On November 20, 1980, the Court of Appeals granted the prosecutor's application for rehearing to consider the question of "whether defendant must be charged as a second or subsequent offender in order to be subject to the mandatory five-year penalty of MCL 750.520f; MSA 28.788(6)". In an unpublished per curiam opinion of February 10, 1981, the Court of Appeals adhered to its earlier decision:
The statute in question provides:
"(1) If a person is convicted of a second or subsequent offense under section 520b, 520c, or 520d (first-, second-, or third-degree criminal sexual conduct), the sentence imposed under those sections for the second or subsequent offense shall provide for a mandatory minimum sentence of at least 5 years.
"(2) For purposes of this section, an offense is considered a second or subsequent offense if, prior to conviction of the second or subsequent offense, the actor has at any time been convicted under section 520b, 520c, or 520d or under any similar statute of the United States or any state for a criminal sexual offense including rape, carnal knowledge, indecent liberties, gross indecency, or an attempt to commit such an offense." M.C.L. § 750.520f; M.S.A. § 28.788(6).
The defendant's 1973 conviction of gross indecency would bring him within the definition of a second offender in § 520f(2).
We have said in the past that second offender provisions with mandatory sentence enhancement require that the information must charge the earlier conviction before a defendant may be liable for the additional punishment. For example, in People v. McDonald, 233 Mich. 98, 206 N.W. 516 (1925), the Court reviewed a case in which the charge was possession of intoxicating liquor, second offense. The statute provided "and for every second and subsequent offense * * * he shall * * * be sentenced to imprisonment * * *." 1919 (Ex.Sess.) P.A. 3. On appeal, McDonald alleged that proof had not been offered at the examination that he had been earlier convicted of a similar offense. The Court said:
233 Mich. 100-101, 206 N.W. 516.
In People v. Butler, 122 Mich. 35, 80 N.W. 883 (1899), the defendant was sentenced under 1897 CL 11786, which provided that had he been twice before sentenced to imprisonment, "he shall be sentenced to imprisonment at hard labor for life, or for a term of not less than seven years in addition to the punishment prescribed by law for the offense of which he shall then be convicted". The prosecutor had charged in the information only the fact of former convictions, not stating the times and places of the prior convictions, and the defendant thought the latter omission to be error. The Court said that the information was sufficient. The statute in that case did specifically require pleading of the prior offenses in the information, but the Court said the statute . 122 Mich. 37, 80 N.W. 883.
More recently, in People v. Mellor, 302 Mich. 537, 5 N.W.2d 455 (1942), this Court departed from the Butler and McDonald path. The prosecution was for driving under the influence of liquor, and Mellor was sentenced as a second offender. His claim was that the aggravation of sentence for a 1941 offense by a 1935 conviction violated the six-year statute of limitations. In the course of rejecting this argument, the Court said:
In People v. Miller, 357 Mich. 400, 98 N.W.2d 524 (1959), the prosecutor charged driving under the influence of liquor, second offense, and...
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