People v. Chambers

421 N.W.2d 903, 430 Mich. 217

Opinions

Archer, J.

MCL 768.7b; MSA 28.1030(2) of the Michigan Code of Criminal Procedure authorizes consecutive sentencing where a defendant commits a felony while free on bond for a prior felony charge.¹ This Court granted plaintiff leave to appeal to determine whether the code’s qualified grant of consecutive sentencing authority extends to the trial court first in time to render sentence. We hold that MCL 768.7b; MSA 28.1030(2) accords the prerogative of consecutive sentencing solely to the court last in time to impose sentence. We affirm the Court of Appeals finding that the first-in-time sentencing court lacked discretionary consecutive sentencing authority. However, we vacate defendant’s sentences for both felony convictions and remand to the circuit court for resentencing in accord with this Court’s opinion.

FACTUAL AND PROCEDURAL BACKGROUND

On May 23, 1984, defendant Dwight Chambers was charged with breaking and entering with intent to commit larceny. MCL 750.110; MSA 28.305. Defendant appeared before Kent Circuit Court Judge Robert A. Benson and was released on personal recognizance bond on June 16, 1984. While free on bond, defendant was charged with larceny in a building, MCL 750.360; MSA 28.592. Defendant was arraigned before Kent Circuit Court Judge Roman J. Snow and subsequently detained.

On September 26, 1984, defendant pled guilty of both felonies in exchange for the dismissal of charges unrelated to this appeal. On October 17, 1984, Judge Benson sentenced defendant for the breaking and entering conviction to a term of two to ten years to run consecutively to whatever term Judge Snow had yet to impose for the larceny conviction.² At the sentencing hearing’s close, Judge Benson concluded:

Plus, I am not [sic] starting to get tougher on these people getting out and committing crimes on bond. I am very easy to let people out on bond; the jails are crowded. When people are out on bond and committing offenses, I think we ought to get the word out on the streets that they are going to do there [sic] time consecutively.

It is, therefore, the sentence of the Court, Mr. Chambers, that you be committed to the Michigan Department of Corrections to serve a period of time of not less than two nor more than ten years, this sentence to run consecutive to any sentence Judge Snow may give you in Case No. 35567. This will run consecutive to the sentence that Judge Snow may give you.

Judge Snow sentenced defendant the following day for the larceny conviction. At the hearing’s outset, defense counsel informed Judge Snow of Chambers’ prior imposed sentence and contested Judge Benson’s authority to impose a term running consecutively from a then nonexistent sentence:

I would care to inform the Court that yesterday Mr. Chambers was sentenced by Judge Benson in case number 35210-FH to a term of 2 to 10, as I recall, a consecutive sentence to this one. I do feel, however, that Judge Benson — I talked with him on that — I don’t believe he has the authority to sentence on a consecutive nature; rather that’s your discretion. I felt that I should mention that for your information because I do not feel Judge Benson can bind you in your discretion .... I haven’t had a chance to get back to him. But I would ask the Court in this case, understanding these circumstances, not to impose a consecutive sentence. [Emphasis added.]

Judge Snow subsequently sentenced defendant to a term of two to four years without comment on Judge Benson’s alleged infringement of his sentencing discretion.

On November 30, 1984, Judge Benson denied defendant’s postsentencing motion to void the consecutive sentence imposed at the October 17 hearing. Defendant appealed in the Court of Appeals. A unanimous Court of Appeals panel held, on the basis of its opinion in People v Rondon, 144 Mich App 410; 375 NW2d 761 (1985), rev’d 424 Mich 864; 380 NW2d 761 (1985), that MCL 768.7b; MSA 28.1030(2) did not grant the first-in-time sentencing court consecutive sentencing authority.³ The Court vacated the portion of Judge Benson’s sentence requiring it to run consecutively, affirmed the sentence imposed by Judge Snow, and ordered that both terms run concurrently.⁴ We granted plaintiff leave to appeal, 428 Mich 888 (1987).

i

Our task is one of statutory construction. In White v Ann Arbor, 406 Mich 554, 562; 281 NW2d 283 (1979), we succinctly defined our role with regard to legislative interpretation:

The primary and fundamental rule of constitutional or statutory construction is that the Court’s duty is to ascertain the purpose and intent as expressed in the constitutional or legislative provision in question. Also, while intent must be inferred from the language used, it is not the meaning of the particular words only in the abstract or their strictly grammatical construction alone that governs. The words are to be applied to the subject matter and to the general scope of the provision, and they are to be considered in light of the general purpose sought to be accomplished or the evil sought to be remedied by the constitution or statute.

Guided by these canons of statutory construction and the Legislature’s express mandate that provisions under the Code of Criminal Procedure be deemed remedial and be liberally construed to effectuate the intents and purposes of the act, MCL 760.2; MSA 28.842, we turn first to the historical and legislative development of consecutive sentencing in Michigan.

It is well settled in Michigan that in the absence of statutory authority the imposition of consecutive sentences is forbidden. See In re Bloom, 53 Mich 597; 19 NW 200 (1884); In re Allison, 322 Mich 491; 33 NW2d 917 (1948); In re Carey, 372 ; 126 NW2d 727 (1964). This Court, in In re Lamphere, 61 Mich 105, 108-110; 27 NW 882 (1886), attributed Michigan’s policy of concurrent sentencing to the absence of consecutive sentencing authority at English common law:⁵

The relations of this commonwealth to the common law are not altogether conformed to the holdings of some other states. In many of the states, statutes of parliament passed before or during the early days of the American colonies, as well as old colonial statutes and usages, have been recognized as part of the local common law, and have been construed and applied by the courts. But Michigan was never a common-law colony, and while we have recognized the common law as adopted into our jurisprudence, it is the English common law, unaffected by statute.

In 1810 an act was passed putting an end to all the written law of England, France, Canada, and the Northwest and Indiana territories, as well as the French and Canadian customs, leaving no statute or code law in force except that of Michigan territory and the United States: 1 Terr. Laws, 900. And while we have kept in our statute-books a general statute resorting to the common law for all non-enumerated crimes, there has always been a purpose in our legislation to have the whole ground of criminal law defined, as far as possible, by statute. There is no crime whatever punishable by our laws except by virtue of a statutory provision. The punishment of all undefined offenses is fixed within named limits, and beyond the unregulated discretion of the courts.

There is, however, no authority to be found, so far as our examinations have gone, and so far as the criminal law citations are found in the best elementary books, which holds that such a practice [i.e., consecutive sentencing] exists at common law in felonies. In Reg v Cutbush, L R 2 Q B 379 [1867], it is said distinctly that a statute was necessary to apply to felonies the practice in misdemeanors. That case points out how the British statutes have provided for it. That is a recent, and, beyond question, a correct, statement of the law.

Whatever elasticity there may be in civil matters, it is a safe and necessary rule that criminal law should not be tampered with except by legislation. Under our constitution this must be done by statutes clearly pointing out in their titles and provisions the precise purpose designed. ... As we have no statutes on the subject, we must, in our opinion, wait until the Legislature shall see fit to devise adequate means to avoid these difficulties.

It is clear that the Legislature has followed a conservative course of abrogating the common law with regard to consecutive sentencing. Prior to its adoption of MCL 768.7b; MSA 28.1030(2), the Michigan Legislature authorized discretionary consecutive sentencing in two instances: (1) where the defendant committed a felony while incarcerated⁶ and (2) where the defendant was convicted for escape from incarceration.⁷ The Legislature’s reluctance to deviate from the common law is further evidenced within its adoption of the instant statute.⁸ As originally enacted by 1971 PA 180, the consecutive sentencing statute extended discretionary consecutive sentencing authority in the instance where a defendant committed a felony while free on bond pending final disposition of a prior felony charge:

When a person, who has been charged with a felony and pending the disposition of the charge, commits a subsequent offense which is a felony, upon conviction or acceptance of a guilty plea of the subsequent offense, the sentences imposed for conviction of the prior charged offense and any subsequent offense, may run consecutively.

However, the Legislature rejected proposed amendments which would have authorized discretionary consecutive sentencing authority in regard to all multiple offenders⁹ or imposed mandatory consecutive sentencing upon previously convicted felony offenders.¹⁰ Although the Legislature rejected an amendment to allow for mandatory consecutive sentencing to all previously convicted felons, in 1978 PA 77, it amended the consecutive sentencing statute to allow for mandatory consecutive sentencing of defendants who commit a crime involving a major controlled substance while free on bond for a prior felony offense.¹¹ While it is obvious the Legislature intended to deny the trial court’s discretion with regard to imposing consecutive sentences which involve major controlled substances, we can find no indication that the Legislature’s latest amendment of the consecutive sentencing statute is indicative of its intent regarding who should exercise such sentencing discretion when it is in fact available under the statute.

Upon review of the consecutive sentencing statute’s legislative history, its evident purpose "is to deter those charged with one felony from committing another prior to final disposition of the first. Absent such a deterrent, a person could be assured of 'one free crime’ because of the usual policy of concurrent sentencing.” People v Smith, 423 Mich 427, 450; 378 NW2d 384 (1985). While the ture’s purpose is self-evident, its intention regarding who was to exercise consecutive sentencing authority is unanswered by the statute’s legislative development.¹² We, therefore, find that we must discern the construction which best effectuates the known ends sought by the Legislature.

n

Plaintiff argues that as the consecutive sentencing statute does not expressly state which court in time is authorized to issue consecutive sentences the prerogative falls to either sentencing court. We agree that this would unquestionably serve to maximize the statute’s deterrent effect upon felony commission while at liberty on bond as the defendant would encounter a double risk of consecutive sentencing which would in effect heighten the potential of receiving a cumulative sentence. In other words, should the first judge fail to impose a consecutive sentence the second would logically retain such discretion. However, the matter of deterrence is not the sole consideration present. This Court cannot ignore the troublesome question whether the imposition of a consecutive sentence on the basis of a sentence yet to be imposed constitutes sound sentencing practice.

In Commonwealth v Holz, 245 Pa Super 376; 369 A2d 452 (1976), aff'd as modified 483 Pa 405; 397 A2d 407 (1979), a divided panel of the Superior Court of Pennsylvania affirmed the consecutive sentencing of a defendant whose consecutive sentence on one felony was imposed to run from whatever sentence the defendant had yet to receive on a pending felony conviction.¹³ In that case, Pennsylvania Superior Court Judge Spaeth, concurring in part and dissenting in part, found that it violated sound sentencing practice to allow the first-in-time sentencing judge to impose a consecutive sentence. In his examination of defendant’s predicament, Judge Spaeth stated:

For Judge B to say, "My sentence shall be consecutive to whatever sentence Judge A some day decides to impose,” can accomplish nothing except an interference with Judge A. Suppose Judge B thinks the proper sentence for the offense he is concerned with is 5 to 10 years; then he should sentence the defendant to 5 to 10 years. Nothing can be gained so far as determining what is a fair sentence by making the sentence consecutive to whatever sentence Judge A decides to impose. The only result will be to deprive Judge A of the option of making his sentence concurrent with or consecutive to Judge B’s. Suppose that when the defendant appears before Judge A, Judge A is told that Judge B has imposed a sentence to run consecutive to whatever sentence Judge A imposes. This is the same as telling Judge A that he has been deprived of the ability that he would otherwise have had to provide that his sentence should run consecutive to Judge B’s. There is no reason why Judge A should be thus deprived; indeed, he should not be, for it can only interfere with his ability to frame a sentence appropriate to the case before him.

[T]o require Judge B to make his sentence concurrent with or consecutive to an existing sentence, complications will be avoided: Judge A will know, as he should know, what Judge B has done. He will therefore be able without interference to frame his sentence as seems to him just.[¹⁴] [245 Pa Super 386-387.]

We share the concerns raised by Judge Spaeth in his opinion in Holz. The purpose of consecutive sentencing is to "enhance the punishment imposed upon those who have been found guilty of more serious crimes and who repeatedly engage in criminal acts.”¹⁵ People v Smith, supra, 423 Mich 445 (emphasis added). In light of this jurisdiction’s clear preference for concurrent sentencing, we find that a defendant facing the specter of a cumulative term of imprisonment is at a minimum entitled to due consideration of the relationship between the proposed consecutive sentence and any other period of incarceration the defendant may be subject to. In the instant case, the defendant was deprived of a thorough examination of the effect of a consecutive sentence where the first-in-time trial court premised it upon a then nonexistent sentence. We therefore find that Judge Benson’s sentence at the first hearing is inconsistent with this Court’s notion of justice as it did not adequately examine the full punitive effect of a consecutive term.

In People v Williams, 89 Mich App 633, 637; 280 NW2d 617 (1979), the Court examined the deterrent effect sought by the Legislature:

The intended effect of § 7b can best be seen by analyzing the deterrence situation that exists before and after a felony has been charged. In general, once a criminal defendant has been charged with a felony, the level of deterrence against his commission of a second felony drops. Section 7b restores the level of deterrence to its pre-charge plateau. It does not, however, raise the level of deterrence above that plateau. [Emphasis added.]

While restricting the discretion for consecutive sentencing to the last-in-time sentencing court obviously does not afford the maximum amount of deterrence, neither does it reduce the level of deterrence from its precharge plateau. Thus, we conclude that our restriction of consecutive sentencing authority to the court last in time to impose sentence strikes the appropriate balance between the deterrence sought by the Legislature and the defendant’s right to be accorded due consideration of the effect of a cumulative sentence upon his period of incarceration.

CONCLUSION

The "[imposition of a consecutive sentence is strong medicine. It may well be warranted in some cases. But it should be used only after awareness of a sentence already imposed so that the punitive effect of the consecutive sentence is carefully considered at the time of its imposition.” Salley v United States, 786 F2d 546, 548 (CA 2, 1986) (Newman, J., concurring). (Citation omitted.) We therefore hold that the prerogative of consecutive sentencing is accorded only to the court last in time to impose sentence.¹⁶ Accordingly, while we affirm in part the decision of the Court of Appeals holding the first-in-time sentencing court lacked discretionary consecutive sentencing authority, we vacate defendant’s sentences for both felony convictions and remand to the trial court for resentencing in accordance with this opinion.

Riley, C.J., and Levin, Cavanagh, and Griffin, JJ., concurred with Archer, J.

1 When a person, who has been charged with a felony and pending the disposition of the charge, commits a subsequent offense which is a felony, upon conviction of the subsequent offense or acceptance of a plea of guilty, guilty but mentally ill, or nolo contendere for the subsequent offense, the following shall apply:

(a) The sentences imposed for conviction of the prior charged offense and a subsequent offense, other than a major controlled substance offense, may run consecutively.

(b) The sentences imposed for conviction of the prior charged offense and a subsequent offense which is a major controlled substance offense shall run consecutively.

2 The term consecutive or cumulative sentences mean those following in a train, succeeding one another in a regular order, with an uninterrupted course or succession, and having no interval or break. By contrast, the term concurrent sentences refer to sentences operating simultaneously. See 21 Am Jur 2d, Criminal Law, § 552, p 914.

3 People v Chambers, unpublished opinion per curiam of the Court of Appeals, decided March 31, 1986 (Docket Nos. 83137, 83209).

4 Id. at 3.

5 See, generally, Campbell, Law of Sentencing, § 73, p 238.

"At common law sentences for felonies could not be consecutive. A convicted felon under sentence could always plead autrefois attaint [a plea that the defendant has already been attainted for one felony, and therefore cannot be criminally prosecuted for another]. Since the sentence was generally invariably death the question was of no importance. However, cumulative punishments were not unknown and prisoners were sometimes hanged for one offense, drawn for another, and quartered for a third.” [Quoting Newark, Samuels & White, Sentencing the multiple offender: Concurrent and consecutive sentences, 23 N Ire L Q 133, 134 (1972).]

6 See MCL 768.7a; MSA 28.1030(1).

7 See MCL 750.193; MSA 28.390.

8 HB 4150 was passed by a majority of house members by a vote of 95 to 1. Representative Traxler, the sole dissenting vote, stated:

Mr. Speaker and members of the House:

I voted no on the passage of House Bill No. 4150 because in its amended form, it severely restricts the concept of consecutive sentencing. Presently, in Michigan, we have the concurrent sentencing provisions, and the bill as originally introduced provided that the judges would have the option of ordering consecutive sentences for crimes. As passed by the House, it restricted consecutive sentencing concept to those persons who committed a crime, while they were out on bond, released from custody, waiting trial or sentencing. I think this seriously damages the concept of consecutive sentencing. I disagree with that and I voted no, not because I am opposed to consecutive sentencing, but rather that the House by amending the bill, has limited to only those specific instances I’ve already enumerated. [1971 Journal of the House 456-457.]

9 As introduced by Representatives Kildee and J. F. Smith, HB 4150 would have provided:

The justices of the supreme court, or any of them, or any of the several circuit judges in the respective circuits, or any judge of a court having jurisdiction of criminal cases, in this state, may pronounce judgment against and pass sentence upon all persons heretofore convicted, or that may hereafter be convicted in any court held by such justices, or judges, or any of them, for any offense heretofore committed or that may hereafter be committed against the laws of this state. Sentences may be imposed to run consecutively. A sentence shall in no case or respect be greater than the penalty now or that may be prescribed hereafter by law. [Emphasis added.]

10 Representative O’Brien would have amended HB 4150 to provide:

Any sentence imposed upon a person previously convicted and sentenced to imprisonment for another crime shall be imposed to run consecutively with the previous imprisonment sentence. [Emphasis added. 1971 Journal of the House 393.]

11 See MCL 768.7b(b); MSA 28.1030(2)(b).

12 Several recent decisions of this Court have acknowledged that it is appropriate to infer legislative intent from the purpose of similar statutes enacted by other jurisdictions. See People v Stoudemire, 429 Mich 262; 414 NW2d 693 (1987); Wymer v Holmes, 429 Mich 66; 412 NW2d 213 (1987). Defendant argues the consecutive sentencing statutes of several other jurisdictions shed insight into the consecutive sentencing issue before us. See Minn Stat 609.15(1); Wash Rev Code Ann 9.94A.400; Wis Stat Ann 973.15; Alas Stat 12.55.025. However, we find the above-cited provisions are not comparable to the instant statute as they resemble the rejected version of HB 4150 introduced by Representatives Kildee and J. F. Smith and thus are not instructive on the problem before us today.

13 The defendant in Holz was sentenced pursuant to Pa R Crim P 1406(a), which provides:

(a) Whenever more than one sentence is imposed at the same time on a defendant, or whenever a sentence is imposed on a defendant who is incarcerated for another offense, such sentences shall be deemed to run concurrently unless the judge states otherwise. [Emphasis added.]

While incarcerated and awaiting sentencing for a felony conviction, Holz was sentenced for an unrelated felony conviction to a term running consecutively from whatever sentence he had yet to receive on the felony for which he was then incarcerated. Defendant argued, Pa R Crim P 1406(a) did not authorize consecutive sentencing where a defendant was incarcerated but not yet sentenced. The Superior Court disagreed and held that the statute granted the sentencing court the prerogative to impose sentence even where it was unaware of the sentence the defendant had yet to receive on a pending felony conviction.

14 On appeal to the Pennsylvania Supreme Court, the court vacated the portion of defendant’s sentence which ran consecutively. See 483 Pa 405, 408; 397 A2d 407 (1979).

15 See, generally, ABA Standards for Criminal Justice (Tentative Draft), Sentencing Alternatives and Procedures, Commentary (c) to § 3.4, p 177:

The function of the consecutive sentence should be similar to the function of the sentence imposed on habitual or dangerous offenders. Because of his repeated criminality the offender who has rendered himself subject to multiple sentences may pose the same type of unusual risk to the safety of the public. It would thus appear that he should be treated in a similar fashion.

16 Accord, People v Rondon, 144 Mich App 410; 375 NW2d 761 (1985) (Rondon I). In Rondon I, the defendant was sentenced by the first-in-time trial court to a term consecutively ("heretofore”) received on another felony charge. Defendant appealed in the Court of Appeals arguing that the sentencing judge was mistaken in believing that at the time the first sentence was issued he was subject to a felony conviction. The Court of Appeals reversed the defendant’s sentence and held that MCL 768.7b; MSA 28.1030(2) did not grant the first sentencing court consecutive sentencing authority. 144 Mich App at 415. At 424 Mich 864, we reversed and remanded to the trial court for resentencing, stating in relevant part:

Action was taken because of indications in the record that the sentencing judge in the instant case may have erroneously believed, in imposing a consecutive sentence, that the defendant had already been sentenced to a prison term in conjunction with another charge. On remand the sentencing judge may exercise his discretion concerning the imposition of a consecutive sentence since the defendant, who was charged with a felony, committed a subsequent offense which was a felony. [Emphasis added.]

On remand, the first-in-time sentencing court issued its original sentence. Rondon again appealed and in People v Rondon, unpublished opinion per curiam of the Court of Appeals, decided September 23, 1987 (Docket Nos. 94462, 96247) (Rondon II), the Court of Appeals construed our order to affirm the first-in-time trial court’s consecutive sentencing authority. Upon examination of the underscored language in Rondon, we find that our order could reasonably be construed to sanction consecutive sentencing by the first-in-time sentencing court. However, we now hold that to the extent the above language in Rondon is inconsistent with this opinion, it is hereby vacated.