People v. Whiteside

• Decision Date: 29 April 1991
• Docket Number: No. 87630,87630
• Citation: 437 Mich. 188,468 N.W.2d 504
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Joseph Westley WHITESIDE, Defendant-Appellee. 437 Mich. 188, 468 N.W.2d 504
• Court: Michigan Supreme Court

Page 504

468 N.W.2d 504

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Joseph Westley WHITESIDE, Defendant-Appellee.

No. 87630.

437 Mich. 188, 468 N.W.2d 504

Supreme Court of Michigan.

Argued Nov. 9, 1990.

Decided April 29, 1991.

Frank J. Kelley, Atty. Gen., Gay Secor Hardy, Sol. Gen., Robert E. Weiss, Pros. Atty., Donald A. Kuebler, Chief, Appellate Div., G.L. Christopherson, Asst. Pros. Atty., Flint, for plaintiff-appellant.

Joseph K. Sheeran, Bay City, for defendant-appellee.

OPINION

GRIFFIN, Justice.

We must decide in this appeal whether a convicted criminal defendant, who is sentenced to prison after violating the terms of his probation, is entitled to sentence credit for time he spent in residence in a private drug treatment program as a condition of probation. Our answer turns on the construction and applicability of probation and sentence credit statutes, ¹ as well as the constitutional guarantee against double jeopardy. ² Because we conclude that the circuit court did not err in failing to award the claimed sentence credit under the circumstances of this case, we reverse the decision of the Court of Appeals.

I

On January 12, 1983, defendant Joseph Westley Whiteside was arrested and placed in the Genesee County Jail. He pled guilty and was convicted on March 10, 1983, of breaking and entering an occupied dwelling with intent to commit larceny. ³ Defendant remained in the county jail until May 24, 1983, when he posted a $1,500 bond and was released under a circuit court order which delayed sentencing, ⁴ conditioned upon his participation in a private rehabilitation program for substance abusers operated by New Paths, Inc.

After he had been a resident in the program for a little over three months, the circuit judge held a hearing on September 8, 1983, and sentenced defendant to five years probation. In addition to other terms and conditions, the probation order required defendant to "[r]emain a participant in the New Paths, Inc. In-Residence Program ... subject to rules, regulations and other controls of the duly authorized personnel of said program...." Defendant continued to reside at the New Paths, Inc., facility until January 30, 1984, and completed the program on April 4, 1984. ⁵

Later, but prior to expiration of the five-year probationary period, defendant violated the terms of his probation when he was charged with and convicted of committing another criminal offense. ⁶ After admitting at a hearing that he had violated probation, defendant was resentenced for the underlying conviction to a prison term of nine to fifteen years. The trial court awarded credit against the sentence for 143 days served by defendant in the county jail. ⁷

On appeal, the Court of Appeals ruled that the circuit court erred in failing to award credit also for the time defendant spent as a resident in the drug treatment program as a condition of probation. ⁸ The panel certified that its decision conflicts with People v. Morin, 159 Mich.App. 582, 407 N.W.2d 43 (1987), which denied sentence credit in a similar situation. We then granted leave to appeal. 434 Mich. 901 (1990). ⁹

II

It is well settled that probation is a matter of grace, not of right. Whether probation is to be granted, and its conditions, are determinations that rest in the sound discretion of the trial court based upon authority provided by the Legislature. People v. McLeod, 407 Mich. 632, 660, 288 N.W.2d 909 (1980).

That a court may require participation in a drug treatment program as a condition of probation is not being challenged in this appeal. In addition to authority to impose one or more of a number of specific conditions listed in M.C.L. Sec. 771.3(4); M.S.A. Sec. 28.1133(4), the probation statute confers upon the trial court broad discretion to "impose other lawful conditions of probation as the circumstances of the case may require or warrant, or as in its judgment may be proper."

Similarly, wide discretion is given the granting court to determine when and if probation shall be revoked. After reciting that "[i]t is the intent of the legislature that the granting of probation shall be a matter of grace conferring no vested right to its continuance," M.C.L. Sec. 771.4; M.S.A. Sec. 28.1134 provides that probation orders are revocable for "violation or attempted violation of a condition of probation or for any other type of antisocial conduct or action on the part of the probationer which shall satisfy the court that revocation is proper in the public interest."

Finally, M.C.L. Sec. 771.4; M.S.A. Sec. 28.1134, the probation revocation statute, provides:

"If a probation order is revoked, the court may proceed to sentence the probationer in the same manner and to the same penalty as the court might have done if the probation order had never been made."

Looking to this sentence in particular, the Morin Court determined that, to the extent of any conflict, the probation revocation statute controls over M.C.L. Sec. 769.11b; M.S.A. Sec. 28.1083(2), the sentence credit statute, and evinces an intent on the part of the Legislature to permit, "upon revocation of probation, the imposition of full punishment absent consideration of any previously imposed condition of probation." 159 Mich.App. at 588, 407 N.W.2d 43.

Notwithstanding the broad grant of authority set forth in the probation revocation statute, defendant Whiteside successfully contended in the Court of Appeals that the trial court was required to award credit against the prison sentence imposed following probation revocation for the time he had been a resident in the New Paths treatment program as a condition of probation. Defendant's claim was based upon two grounds, one statutory and the other constitutional.

III

First, defendant contends that he is entitled to such credit by virtue of the sentence credit statute:

"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." M.C.L. Sec. 769.11b; M.S.A. Sec. 28.1083(2).

When a related but different issue was presented in People v. Prieskorn, 424 Mich. 327, 381 N.W.2d 646 (1985), this Court examined the history and purpose of the sentence credit statute (Sec. 11b). We noted then that, before enactment of Sec. 11b in 1965, ¹⁰ "a criminal defendant had no right to sentence credit for the period he was confined before sentence was imposed." Id. at 333, 381 N.W.2d 646. We also indicated agreement with the Court of Appeals in People v. Pruitt, 23 Mich.App. 510, 513, 179 N.W.2d 22 (1970), that the primary purpose of the credit statute is to "equalize as far as possible the status of the indigent and the less financially well-circumstanced accused with the status of the accused who can afford to furnish bail." 424 Mich. at 340, 381 N.W.2d 646.

However, after surveying a number of the conflicting interpretations of Sec. 11b issued by panels of the Court of Appeals, the Prieskorn Court made clear that

"our role is not to determine whether we prefer to deal with the problem of presentence confinement liberally, conservatively, or in some intermediate fashion, or even to adopt a judicially preferred policy of fairness in the matter. The Legislature has made the policy decision, and our function is to apply it according to the language of the statute as that language enlightens us concerning the Legislature's intention." Id., 424 Mich. at 339, 381 N.W.2d 646. ¹¹

In People v. Adkins, 433 Mich. 732, 449 N.W.2d 400 (1989), attention focused again on the variety of conflicting interpretations of Sec. 11b provided by the lower courts, many of which, it was said, appeared to turn on "policy considerations, or some notion of judicial fairness." Id. at 737, 449 N.W.2d 400. Echoing Prieskorn, the Adkins Court reiterated that such "policy decisions were generally the province of the Legislature, which had made its decision regarding sentence credit by adopting Sec. 11b, andthat our function was merely to apply the language of that statute in order to effectuate the Legislature's intentions." Id., 433 Mich. at 737-738, 449 N.W.2d 400. In addition, we said, "Prieskorn makes clear our conclusion that application of the sentencing credit statute is to be limited to situations in which the language of the statute 'commands' such credit." Id. at 747, n. 8, 449 N.W.2d 400.

Returning to the words of Sec. 11b, ¹² it is readily apparent that the claimed credit is not authorized in the instant case unless defendant Whiteside served time "in jail" prior to sentencing "because of being denied or unable to furnish bond for the offense of which he [was] convicted...." Given that the primary purpose of Sec. 11b is to equalize the position of one who cannot post bond with that of a person who is financially able to do so, a showing that presentence confinement was the result of inability to post bond is an essential prerequisite to the award of sentence credit under the statute.

Defendant has not met this requirement. It cannot be said that he participated in the New Paths private drug treatment program because he was denied, or was unable to furnish, bond for the offense of which he was convicted. At the time of his entrance into the program under a delay of sentence order, defendant was required to post a bond, and he did so, to provide assurance that he would return to court on September 8, 1983, for sentencing. When he later appeared and was sentenced to probation, instead of prison, the posting of bond was not required. ¹³

Moreover, there has been no assertion or showing by defendant that, at the point of sentencing, he was entitled to, but was denied, the opportunity to avoid incarceration or any of the conditions of probation by furnishing a...