People v. Wright

• Decision Date: 02 May 1974
• Docket Number: Docket No. 16652,No. 1,1
• Citation: 218 N.W.2d 796,53 Mich.App. 309
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Leroy WRIGHT, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 796

218 N.W.2d 796

53 Mich.App. 309

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Leroy WRIGHT, Defendant-Appellant.

Docket No. 16652.

Court of Appeals of Michigan, Division No. 1.

May 2, 1974.

Released for Publication June 19, 1974.

Leave to Appeal Denied July 24, 1974.

Carl Ziemba, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Div., Arthur N. Bishop, Asst. Pros. Atty., for plaintiff-appellee.

Before LESINKI, C.J., and McGREGOR and T. M. BURNS, JJ.

PER CURIAM.

On November 2, 1967, defendant pled guilty to manslaughter pursuant to M.C.L.A. § 750.321; M.S.A. § 28.553. He was sentenced to a term of 14 to 15 years on November 16, 1967, and appealed. On appeal defendant alleged that his sentence was in violation of M.C.L.A. § 769.8; M.S.A. § 28.1080, the indeterminate sentence law. This Court affirmed. See People v. Wright, 14 Mich.App. 242, 165 N.W.2d 487 (1968).

On January 19, 1973, defendant brought a post-conviction motion in the trial court to set aside his plea alleging failure to comply with People v. Butler, 387 Mich. 1, 195 N.W.2d 268 (1972), and People v. Jaworski 387 Mich. 21, 194 N.W.2d 868 (1972), which motion was denied. Delayed leave to appeal was granted on May 31, 1973, by this Court, limited to the question of whether or not defendant's sentence of 14 to 15 years is in violation of the indeterminate sentence law, M.C.L.A. § 769.8; M.S.A. § 28.1080 and People v. Tanner, 387 Mich. 683, 199 N.W.2d 202 (1972).

Defendant contends that the principle enunciated in Tanner should be applied retroactively to invalidate his sentence of 14 to 15 years.

In People v. Tanner, Supra, the Court said:

'Based upon the principles analyzed and discussed in People v. Hampton, 384 Mich. 669, 187 N.W.2d 404 (1971), we hold that the decision herein is prospectively limited to those cases in which sentence is to be or has been imposed after date of filing of this opinion and to those cases which on date of filing this opinion are pending on appeal and which have properly raised and preserved the issue for appeal. Sentences imposed prior to date of this decision and not pending on appeal upon properly preserved specific issue shall not be affected by the rule herein adopted.'

In People v. Knopek, 47 Mich.App. 530, 534, 209 N.W.2d 722, 725 (1973), quoting People v. Reed, 43 Mich.App. 556, 558, 204 N.W.2d 319 (1972), we stated as follows:

"It is our opinion that Tanner is applicable to any sentence imposed after July 26, 1972, and to any case in which an appeal was pending on July 26, 1972, and the Tanner issue was briefed at any time during pendency of the appeal."

The Michigan Supreme Court declared in Tanner that its decision in ...