People of Michigan v. Tammy Louise Harbin

Michigan Court of Appeals

People of Michigan v. Tammy Louise Harbin

DecidedAugust 4, 2015

Docket322857

StatusUnpublished

This text of People of Michigan v. Tammy Louise Harbin (People of Michigan v. Tammy Louise Harbin) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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People of Michigan v. Tammy Louise Harbin, (Mich. Ct. App. 2015).

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Opinion

STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED August 4, 2015 Plaintiff-Appellant,

v No. 322857 Tuscola Circuit Court TAMMY LOUISE HARBIN, LC No. 13-012672-FH

Defendant-Appellee.

Before: WILDER, P.J., and SHAPIRO and RONAYNE KRAUSE, JJ.

SHAPIRO, J. (concurring).

I do not agree with the majority’s analysis as I believe it is inconsistent with the United States Supreme Court’s decision in Alabama v Shelton, 535 US 654; 122 S Ct 1764; 152 L Ed 2d 888 (2002), which must be read as applying to both suspended and probationary sentences. For the same reason, I question whether People v Reichenbach, 459 Mich 109; 587 NW2d 1 (1998), remains good law given that it was decided before Shelton and is inconsistent with it.

I nevertheless concur in affirming the sentence in light of Shelton’s discussion of Nichols v United States, 511 US 738, 746; 114 S Ct 1921; 128 L Ed 2d 745 (1994), in which the Court distinguished the use of a prior uncounseled misdemeanor sentence as a general sentence consideration from the use of the same sentence to elevate defendant’s new conduct to a more serious crime than it would otherwise constitute. Shelton, 535 US at 663.

Nichols is further distinguishable for the related reason that the Court there applied a “less exacting” standard “consistent with the traditional understanding of the sentencing process.” Once guilt has been established, we noted in Nichols, sentencing courts may take into account not only “a defendant’s prior convictions, but . . . also [his] past criminal behavior, even if not conviction resulted from that behavior.” Thus, in accord with due process, Nichols “could have been sentenced more severely based simply on evidence of the underlying conduct that gave rise” to his previous conviction, even if he had never been charged with that conduct, and even if he had been acquitted of the misdemeanor with the aid of appointed counsel. [Shelton, 535 US at 665 (citations omitted).]

Accordingly, I concur.

/s/ Douglas B. Shapiro

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STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED August 4, 2015 Plaintiff-Appellant,

v No. 322857 Tuscola Circuit Court TAMMY LOUISE HARBIN, LC No. 13-012672-FH

Defendant-Appellee.

Before: WILDER, P.J., and SHAPIRO and RONAYNE KRAUSE, JJ.

SHAPIRO, J. (concurring).

I do not agree with the majority’s analysis as I believe it is inconsistent with the United States Supreme Court’s decision in Alabama v Shelton, 535 US 654; 122 S Ct 1764; 152 L Ed 2d 888 (2002), which must be read as applying to both suspended and probationary sentences. For the same reason, I question whether People v Reichenbach, 459 Mich 109; 587 NW2d 1 (1998), remains good law given that it was decided before Shelton and is inconsistent with it.

I nevertheless concur in affirming the sentence in light of Shelton’s discussion of Nichols v United States, 511 US 738, 746; 114 S Ct 1921; 128 L Ed 2d 745 (1994), in which the Court distinguished the use of a prior uncounseled misdemeanor sentence as a general sentence consideration from the use of the same sentence to elevate defendant’s new conduct to a more serious crime than it would otherwise constitute. Shelton, 535 US at 663.

Nichols is further distinguishable for the related reason that the Court there applied a “less exacting” standard “consistent with the traditional understanding of the sentencing process.” Once guilt has been established, we noted in Nichols, sentencing courts may take into account not only “a defendant’s prior convictions, but . . . also [his] past criminal behavior, even if not conviction resulted from that behavior.” Thus, in accord with due process, Nichols “could have been sentenced more severely based simply on evidence of the underlying conduct that gave rise” to his previous conviction, even if he had never been charged with that conduct, and even if he had been acquitted of the misdemeanor with the aid of appointed counsel. [Shelton, 535 US at 665 (citations omitted).]

Accordingly, I concur.

/s/ Douglas B. Shapiro

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