People v. Williams

• Decision Date: 21 March 1968
• Docket Number: No. 2,Docket No. 3529,2
• Citation: 9 Mich.App. 676,158 N.W.2d 42
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Melvin R. WILLIAMS, Defendant-Appellee
• Court: Court of Appeal of Michigan — District of US

Page 42

158 N.W.2d 42

9 Mich.App. 676

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Melvin R. WILLIAMS, Defendant-Appellee.

Docket No. 3529.

Court of Appeals of Michigan, Division No. 2.

March 21, 1968.

Released for Publication April 26, 1968.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, S. Jerome Bronson, Pros. Atty., Oakland County, Pontiac, for appellant.

Parvin C. Lee, Jr., Birmingham, for appellee.

Before McGREGOR, P.J., and LEVIN and QUINN, JJ.

LEVIN, Judge.

The trial judge concluded that there was a failure to comply with the requirements of C.L.S.1961, § 780.131 (Stat.Ann.1968, Cum.Supp. § 28.969(1)) ¹ and C.L.S.1961, § 780.133 (Stat.Ann.1968 Cum.Supp. § 28.969(3)) (see footnote 3) which require that whenever the department of corrections receives notice of an untried warrant, indictment, information, or complaint affecting an inmate, the inmate shall be brought to trial within 180 days after the department delivers to the prosecuting attorney notice of the inmate's imprisonment and a request for final disposition of the untried charges.

Defendant was arrested on a complaint and warrant dated April 1, 1966, charging that he sold or dispensed marijuana (count 1), heroin (count 2), and cocaine (count 3) in violation of P.A.1937, No. 343 (C.L.1948, § 335.152 (Stat.Ann.1957 Rev. § 18.1122)). The offenses were alleged to have been committed at different times.

On April 22, 1966, the defendant was examined and bound over for trial on all three counts. On May 12, 1966, the defendant was arraigned on the third count, cocaine, and counts 1 and 2 were dismissed at the people's request. ² Also on May 12, 1966, a hearing was held on defendant's application for a writ of habeas corpus. The writ was denied and the defendant was returned to the State prison for a hearing upon alleged violations of his parole.

On June 14, 1966, the trial date of June 16, 1966, was adjourned at defense counsel's request. On July 21, 1966, defendant was not ready for a trial scheduled to begin on July 27, 1966, and the matter was again adjourned.

On August 22, 1966, the defendant was taken before a circuit judge. The defendant had become dissatisfied with one lawyer he retained and that lawyer had been permitted to withdraw. Defendant retained a second lawyer who, at the conclusion of the August 22 hearing, was allowed to withdraw. The court then assigned counsel to the defendant as an indigent.

On September 23, 1966, the matter again camp up and the defendant waived trial by jury.

On November 22, 1966, the prosecuting attorney moved for an order of Nolle prosequi as to count 3, stating that the people's expert was no longer able to identify the sample substance as cocaine. The order was entered.

On November 23, 1966, the people filed an amended information charging defendant with dispensing heroin (count 1) and possession of heroin (count 2). On December 7, 1966, defendant moved to quash the information on the ground that the requirements of the statutory provision previously mentioned had not been complied with and that the 180-day period therein prescribed had expired without the defendant having been brought to trial.

The trial judge quashed the information on March 7, 1967, pursuant to C.L.S.1961, § 780.133 (Stat.Ann.1965 Cum.Supp. § 28.969(3)) ³ on the basis of our opinion in People v. Haynes (1967), 5 Mich.App. 641, 147 N.W.2d 714.

The people ask us to reconsider Haynes, and assert that the defendant should not be permitted to profit from his 'dilatory tactics.' Defendant counters that Haynes was correctly decided, that the Haynes rule was here properly applied by the trial judge, and that even if it were to be found that defendant delayed commencement of trial on the cocaine count and the statute could not properly be relied on by the defendant as to the cocaine count, the defendant did not delay trial on the heroin charge at one time dismissed at the request of the people and, therefore, any defendant's delay in respect to the cocaine charge should not affect that matter.

We find it unnecessary to consider whether Haynes was correctly decided because we do not think that this case presents the question that divided our Court in Haynes. Haynes pled guilty to one charge, and was thereupon sentenced and delivered to the State prison. The issue of compliance with the statutory requirement concerned an untried charge which was pending at the time that Haynes was convicted on his plea of guilty. In Haynes, our Court, led by Judge Gillis, Judge Quinn dissenting, ruled that a prosecutor will be deemed to have received notice from the department of corrections even though there was no formal notice from the department in a case where both the department and the prosecutor were aware of the facts and there had been inaction on the untried charge throughout the 180-day period. In Haynes the prosecutor obtained a number of adjournments of which Haynes was not aware.

In formulating the statutory language the legislature sought to protect those who face multiple charges against undue delay in trial when they are held in State prison while untried charges are still pending. The statute seeks to secure to those serving sentence in a State prison the enjoyment of the rule of law which, in the absence of a statute otherwise providing, ⁴ prohibits imposition of a sentence to commence upon completion or expiration of another sentence. In re Carey (1964), 372 Mich. 378, 380, 126 N.W.2d 727.

The defendant in this case had not been convicted of any of the multiple charges lodged against him when he was confined in State prison. He was returned to the State prison as an alleged parole violator.

The statute in question was considered by our Supreme Court in People v. Hendershot (1959), 357 Mich. 300, 304, 98 N.W.2d 568, and People v. Castelli (1963), 370 Mich. 147, 121 N.W.2d 438. In Hendershot the defendant was arraigned, his preliminary examination was held, and he was bound over and a date for a sanity hearing set within the 180-day period. The Supreme Court declared (357 Mich. p. 304, 98 N.W.2d p. 571):

'If, as here, apparent good-faith action is taken (by the people) well within the period and the people proceed promptly and with dispatch thereafter toward readying the case for trial, the condition of the statute for the court's retention of jurisdiction is met. When the people have moved the case to the point of readiness for trial and stand ready for trial within the 180-day period, defendant's delaying motions, carrying the matter beyond that period before the trial can occur, may not be said to have brought the statute into operation, barring trial thereafter.'

Later, in Castelli, the court explained that Hendershot 'held that the statutory requirement that the accused 'shall be brought to trial' within 180 days does not require actual trial within that time, but only the taking of good faith action to start the proceedings in motion.' (370 Mich. p. 153, 121 N.W.2d p. 441) In Castelli the court rejected a defense based on alleged noncompliance with the 180-day requirement. If there appeared that the warrant on the untried charge had been issued after the defendant entered the State prison, and that within the 180-day period the defendant had been brought back to the charging county and the preliminary examination held. ⁵

It is manifest on the record before us that the defendant in this case could not have properly raised the statutory defense as to the cocaine count. The people took good-faith action to start the cocaine count proceedings in motion and proceeded promptly and with dispatch toward readying that case for trial.

However, the cocaine count was Nolle prossed. Defendant asserts that even if the people proceeded diligently on the cocaine count the people's failure to have done anything at all to bring the heroin count to trial within the 180-day period prescribed by the statute requires dismissal with prejudice as to the untried heroin charge.

The unstated assumption of the statute relied on by the defendant is that a prosecutor may properly try less than all the multiple offenses facing an accused and after such trial proceed against the accused on some or all the remaining charges. The statutory provision here relied on cannot become applicable prior to incarceration in the State prison and, thus, had defendant remained in the county jail either because bond had been denied or because he could not make bond set by the court, or had he been freed on bond while awaiting trial the defense asserted here would not be applicable.

'The legislative intent and meaning in its use of the term 'brought to trial' is to be gathered from the entire act.' People v. Hendershot, supra, 357 Mich. p. 303, 98 N.W.2d p. 570.

That which is required to be 'brought to trial' within 180 days is 'any untried warrant, indictment, information or complaint' pending against the inmate. Defendant must therefore concede, in order to assert the defense, that the heroin charge was part of an 'untried warrant, indictment, information or complaint' even though count 1 (marijuana) and count 2 (heroin) were dismissed on May 12, 1966, at the people's request, shortly Before the defendant was returned to the State prison as a parole violator.

We do not think that the operative effect of the statute depends on the technical posture of the case--e.g., whether the untried charge has been 'dismissed'--but rather on the substance of the matter. Here, although counts 1 and 2 had been formally dismissed shortly before defendant was returned to State prison, the people could bring those charges again and, thus, in practical effect and in substance, the heroin count was still pending 'untried' when defendant was returned to State prison.

We add that even though counts 1 and 2 of the information were formally dismissed the court retained jurisdiction of the defendant on the complaint, which was thus an ...