People v. Voss, Docket No. 69763

• Decision Date: 04 May 1984
• Docket Number: Docket No. 69763
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Timothy Joseph VOSS, Defendant-Appellant. 133 Mich.App. 73, 348 N.W.2d 37
• Court: Court of Appeal of Michigan — District of US

Page 37

348 N.W.2d 37

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Timothy Joseph VOSS, Defendant-Appellant.

Docket No. 69763.

133 Mich.App. 73, 348 N.W.2d 37

Court of Appeals of Michigan.

Submitted Jan. 5, 1984.

Decided March 21, 1984.

Released for Publication May 4, 1984.

[133 MICHAPP 74] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., John D. Foresman, Pros. Atty., and Leonard J. Malinowski, Asst. Atty. Gen., for the People.

Coulter, Cunningham, Davison & Read by Terrence J. Raven, Traverse City, for defendant-appellant on appeal.

Before R.B. BURNS, P.J., and V.J. BRENNAN and KALLMAN, ^* JJ.

V.J. BRENNAN, Judge.

Defendant, Timothy Joseph Voss, was originally charged with first-degree criminal sexual conduct, M.C.L. Sec. 750.520b(1)(c); M.S.A. Sec. 28.788(2)(1)(c). The information was amended to [133 MICHAPP 75] add one count of third-degree criminal sexual conduct, M.C.L. Sec. 750.520d(1)(b); M.S.A. Sec. 28.788(4)(1)(b). A habitual offender supplemental information was also filed, M.C.L. Sec. 769.10; M.S.A. Sec. 28.1082. Pursuant to a plea bargain, defendant pled guilty to third-degree criminal sexual conduct and to the habitual offender charge. He was sentenced to a term of 10 to 22 1/2 years in prison and appeals as of right.

Defendant's first claim is that the trial court failed to comply with the mandates of GCR 1963, 785.7(1) and 785.7(2) because the trial court did not inform him of his constitutional rights before taking defendant's plea on the supplemental charge.

When a court accepts a defendant's plea of guilty to a habitual offender charge, the court must comply with GCR 1963, 785.7. People v. Brownridge, 414 Mich. 393, 397-398, 325 N.W.2d 125 (1982) (785.7[c] and 785.7[e] need not be given); People v. Bender, 124 Mich.App. 571, 576, 335 N.W.2d 85 (1983).

There is no dispute that, in association with the criminal sexual conduct charge, the trial court complied with the requirements of GCR 1963, 785.7 and fully informed defendant of his rights. After so doing, the prosecutor mentioned to the court that defendant should be advised that these rights apply to both the supplemental and the original charges. The court agreed.

After the factual basis for the original charge was established, the trial court informed defendant that:

"All the constitutional rights that I have gone over with you also apply to the supplemental charge. Do you understand that Mr. Voss?"

The defendant replied affirmatively.

[133 MICHAPP 76] Defendant now claims that the trial court's statement was not sufficient to apprise him of his rights under GCR 1963, 785.7. We disagree.

In Bender, supra, while the jury was deliberating on the principal charges, defendant informed the court that he would plead guilty to the habitual offender charge if the jury returned a verdict of guilty. The Court stated:

"Although defendant was not personally advised of a number of his rights by the trial court, defense counsel's on-the-record statement of some of defendant's rights satisfied the requirement that the trial court "personally address" the defendant as to those rights. See Guilty Plea Cases, 395 Mich 96, 114; 235 NW2d 132 (1975), cert den sub nom Sanders v Michigan 429 US 1108; 97 S Ct 1142; 51 L Ed 2d 561 (1977). As long as defendant is orally informed in open court of his rights and the trial court can personally observe defendant's demeanor and responses, the purpose of the personally address requirement is achieved. See Guilty Plea Cases, supra, [395 Mich.] p 114 . Nor is it fatal to the plea that defendant was informed of his rights before the jury returned a guilty verdict on the principal charge. As noted by our Supreme Court:

" '[A] recital of rights to one defendant by one judge on one day, may suffice as a recital of rights to that same defendant by the same judge on that same day in another case.' Guilty Plea Cases, supra pp 121-122 .

"The fact that the recital of rights was made to the defendant hours before his formal plea was accepted would not constitute noncompliance with GCR 1963, 785.7 if the recital contained a sufficiently complete list of rights." 124 Mich.App. 577-578, 335 N.W.2d 85.

In the case at bar, we believe that the single full recital of rights to defendant and the court's statement to defendant that those rights applied to the supplemental charge constituted compliance with [133 MICHAPP 77] the mandates of Brownridge, supra. There was no error.

Defendant's second claim is that he was improperly charged under the habitual offender statute rather than under the provision in the criminal sexual conduct statute providing for sentence enhancement, M.C.L. Sec. 750.520f; M.S.A. Sec. 28.788(6), which states:

"Second or subsequent offenses

"(1) If a person is convicted of a second or subsequent offense under section 520b, 520c, or 520d, 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 550d 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." (Footnote omitted.)

Defendant failed to object to the supplemental charge before, or at, the plea proceedings. In People v. Hatch, 126 Mich.App. 399, 406, 337 N.W.2d 79 (1983), the Court applied the manifest injustice standard to review such an allegation of error in the absence of an objection.

"It is a rule of statutory construction that where two statutes are or appear to be in conflict, the specific statute, enacted subsequent to the more general statute, prevails." People v. McFadden, 73 Mich.App. 232, 235, 251 N.W.2d 297 (1977).

The habitual offender statute, M.C.L. Sec. 769.10; M.S.A. Sec. [133 MICHAPP 78] 28.1082, under which defendant was charged, allows sentence augmentation of the maximum prison term. The criminal sexual conduct statute only provides enhancement of the minimum term with a five-year mandatory minimum sentence. However, this statute is silent on enhancement of the maximum sentence. Therefore, we do not believe that the Legislature intended M.C.L. Sec. 750.520f; M.S.A. Sec. 28.788(6) to be the exclusive statute governing enhancement of sentences when a defendant has a prior record of criminal sexual conduct convictions. In our...