People v. Young

• Decision Date: 23 February 1981
• Docket Number: Docket Nos. 64444,64563
• Citation: 301 N.W.2d 803,410 Mich. 363
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Donald YOUNG, Defendant-Appellee. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Donald YOUNG, Defendant-Appellant.
• Court: Michigan Supreme Court

Page 803

301 N.W.2d 803

410 Mich. 363

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Donald YOUNG, Defendant-Appellee.

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Donald YOUNG, Defendant-Appellant.

Docket Nos. 64444, 64563.

Supreme Court of Michigan.

Feb. 23, 1981.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Edward Reilly Wilson, Principal Atty., Appeals, and Anne B. Wetherholt, Asst. Pros. Atty., Detroit, for the people.

James R. Neuhard, State Appellate Defender (by Lynn Chard, Detroit), for defendant-appellee.

PER CURIAM.

Defendant was tried for second-degree murder in Detroit Recorder's Court. On March 18, 1977, the jury found him guilty of manslaughter. The trial judge sentenced defendant to 10 to 15 years in prison on March 25, 1977.

Defendant subsequently filed a claim of appeal. The Court of Appeals granted the prosecutor's motion to affirm on May 11, 1978, and this Court denied defendant's request for review on March 29, 1979. The validity of defendant's manslaughter conviction is not at issue today.

On May 19, 1977, seven weeks subsequent to defendant's sentencing, the prosecutor filed a supplemental information charging defendant as a fourth felony habitual offender pursuant to M.C.L. § 769.12; M.S.A. § 28.1084.

On October 7, 1977, a jury found defendant's March 18, 1977, manslaughter conviction to be his third felony and found him guilty as a third offender, M.C.L. § 769.11; M.S.A. § 28.1083. ¹ The trial judge sentenced defendant to 20 to 30 years for the habitual offender charge which enhanced the manslaughter sentence of 10 to 15 years.

The Court of Appeals in an unpublished per curiam opinion vacated defendant's habitual offender conviction and reinstated the 10-to-15-year manslaughter sentence. The Court relied upon our holding in People v. Fountain, 407 Mich. 96, 98-99, 282 N.W.2d 168 (1979).

In Fountain, we held:

"A prosecutor who knows a person has a prior felony record must promptly proceed, if at all, against the person as an habitual offender. People v. Hatt, 384 Mich. 302, 181 N.W.2d 912 (1970); People v. Stratton, 13 Mich.App. 350, 164 N.W.2d 555 (1968). The prosecutor is not foreclosed from proceeding against a person as an habitual offender after conviction on the current offense provided he is unaware of a prior felony record until after the conviction. M.C.L. § 769.13; M.S.A. § 28.1085. The only recognized exception to this rule is when the delay is due to the need to verify out-of-state felony convictions based on the 'rap sheet'. People v. Hendrick, 398 Mich. 410, 247 N.W.2d 840 (1976)." ²

The dispositive issue in this case is whether the holding in People v. Fountain should be given retroactive or prospective application.

"When the issue of retroactivity arises, the case of Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965), is often used to determine a solution." People v. Rich, 397 Mich. 399, 402-403, 245 N.W.2d 24 (1976); People v. Hampton, 384 Mich. 669, 187 N.W.2d 404 (1971). The three key factors in the Linkletter test are: (a) the purpose of the new rule; (b) the general reliance on the old rule; and (c) the effect of retroactive application of the new rule on the administration of justice.

It is clear that the primary purpose of the rule established in People v. Fountain is to provide fair notice to the accused of the supplemental charge so as to avoid the appearance of prosecutorial impropriety. As noted in the concurring opinion in Fountain, the decision requiring the prosecutor to proceed in this manner is based on this Court's supervisory powers over the practices and procedures used in our courts.

When a decision of this Court involves a rule which concerns the ascertainment of guilt or innocence, retroactive application may be appropriate. People v. Hampton, supra. Conversely, a new rule of procedure adopted by this Court which does not affect the integrity of the fact-finding process should be given prospective effect.

We consider the latter two Linkletter factors together because the amount of past reliance will often have a profound effect upon the administration of justice.

The former practice of filing the habitual offender information only after conviction on the current felony was widespread. Retroactive application of the Fountain policy would have an adverse effect on the administration of justice. The rule established in Fountain is procedural in nature, mandating how a prosecutor must proceed when charging a defendant as an habitual offender pursuant to a supplemental information. The guilt or innocence of the accused is not at issue. Since the purpose of the rule is to avoid an appearance of prosecutorial impropriety, it would not serve that purpose to apply the rule to past conduct.

We conclude that People v. Fountain is applicable to cases pending on appeal on August 28, 1979, the date of decision in People v. Fountain, provided the issue was raised during the pendency of the appeal; and in cases, the original trial or guilty plea hearing of which concluded 20 days after the date of decision in People v. Fountain. ³

In lieu of granting leave to appeal, pursuant to GCR 1963, 853.2(4), we affirm the Court of Appeals decision which vacated defendant's habitual offender conviction and reinstated the conviction and 10-to-15-year sentence for manslaughter. ⁴

COLEMAN, C. J., FITZGERALD, Deputy C. J., and MOODY and WILLIAMS, JJ., concur.

LEVIN, Justice (concurring and dissenting).

I agree with the Court that the rule stated in People v. Fountain ¹ should be applied in cases pending on appeal on the date Fountain was decided, and therefore concur in the Court's disposition of this case.

I write separately to indicate my differences with some aspects of the Court's analysis and to state that I would not limit the application of that rule to cases in which the issue was raised. I would vacate the habitual offender charge and reinstate the original sentence or remand for resentencing in any case where a defendant with prior felony convictions was not charged as an habitual offender until after conviction of the current felony, subject to the prosecutor's right to show that he did not know, and should not have been on notice, of the prior convictions.

People v. Fountain, rather than innovating a new procedure, reaffirmed a procedure announced by the Court of Appeals in 1968 and approved by this Court in 1970. Although in the interim other Court of Appeals panels took the position that that procedure was not mandatory, the directive laid down in Fountain was not novel. Prosecutors could have determined that the procedure approved in 1970 might be unequivocally reaffirmed, as it was subsequently in Fountain, and could have complied with the prescribed procedures at any time without surrendering any legitimate tactical advantage or assuming any burden. Since prosecutors would not have been prejudiced or burdened by compliance with those procedures, and non-compliance may result in prejudice to the accused, the balance favors retroactivity. This Court should not, at the expense of defendants, protect prosecutors from the consequences of their failure to guard against the eventuality that those procedures might someday be made mandatory.

I

The opinion of the Court in Fountain states:

"A prosecutor who knows a person has a prior felony record must promptly proceed, if at all, against the person as an habitual offender. People v. Hatt, 384 Mich. 302, 181 N.W.2d 912 (1970); People v. Stratton, 13 Mich.App. 350, 164 N.W.2d 555 (1968). The prosecutor is not foreclosed from proceeding against a person as an habitual offender after conviction on the current offense provided he is unaware of a prior felony record until after the conviction. M.C.L. § 769.13; M.S.A. § 28.1085. The only recognized exception to this rule is when the delay is due to the need to verify out-of-state felony convictions based on the 'rap sheet.' People v. Hendrick, 398 Mich. 410, 247 N.W.2d 840 (1976)." ²

The opinion of the Court does not purport to establish a new rule. The citations to People v. Hatt and People v. Stratton suggest that the stated rule originated in or was articulated in those cases. The reference to People v. Hendrick as establishing the "only recognized exception to this rule" indicates that the rule antedates Hendrick.

Four sections of the code of criminal procedure address the procedures to be utilized by a prosecutor in charging a defendant as an habitual offender in order to obtain enhancement of the defendant's sentence upon conviction of a further felony. ³

In People v. Stratton, ⁴ decided in 1968, the Court of Appeals, reading those sections together and finding guidance in a 1940 decision of this Court, ⁵ declared that "they contemplate(d) two separate situations and procedures to be followed when the prosecutor desires to make possible the meting out of an increased penalty * * *. The procedure set forth in section 13 (M.C.L. § 769.13; M.S.A. § 28.1085) is to be followed whenever it appears to the prosecutor 'after conviction' of the current charge that the felon has a prior felony record. However, where it appears to the prosecutor before conviction of the current charge that the accused person is a prior felon, the accused person is to be informed against as a prior offender prior to conviction on the current charge; the procedure set forth in section 13 need not be followed." (Emphasis in original.)

In People v. Hatt, ⁶ decided in 1970, this Court declared that the procedures for dealing with a recidivistic charge, as delineated in Stratton, "are approved".

In People v. Marshall, ⁷ decided in 1972, the Court of Appeals reversed the defendant's habitual offender conviction on the ground that the prosecutor's failure to file the supplemental information until after the period allowed to take a timely appeal from the most recent...