People v. Haggitt

189 N.W.2d 842, 33 Mich. App. 95, 1971 Mich. App. LEXIS 1706

Opinions

Peterson, J.

During the November, 1970 session of Division 1, Panel III heard 3 cases in which the Court was asked to apply People v. Lessard (1970), 22 Mich App 342, a fortiori, to the situation in which a sentencing judge imposes a minimum sentence under the indeterminate sentence act¹ which is only one month less than the statutory maximum. All involved crimes of violence. All involved defendants with long records of criminal behavior including previous crimes of violence. All involved defendants who were at liberty under correctional supervision, two on parole and one on probation. And two of the three involved the typical plea bargain tolerated by our overcrowded courts under the sorry euphemism of docket convenience.

In People v. Jordan (1971), 33 Mich App 15, ante, an absconded probationer with a long record which'included acts of violence, while awaiting disposition of pending charges of auto theft, possession of stolen motor vehicles, forgery, and probation violation, held up a used car lot and shot and killed the fleeing salesman. Charged with first-degree murder, he was permitted to plead to the included offense of manslaughter and substantiated the plea by admissions factually establishing first-degree felony mnrder. He was sentenced to a minimum term of 14 years, 11 months, the statutory maximum being 15 years.²

In People v. Pollard (1971), 33 Mich App 114, post, defendant was charged with assault with intent to murder and convicted by jury of felonious assault. The trial record discloses prior felony convictions and that defendant was on parole at the time of the offense. He was sentenced to a minimum term of 3 years, 11 months, the statutory maximum being 4 years.³

Here, Bobby Joe Haggitt, charged with armed robbery, was permitted to plead to the lesser offense of robbery unarmed. His narrative of the offense was sufficiently vague, unlike that shown on the record of Jordan, supra, that the court was spared the embarrassment of having an account of the larger offense spread on the record.⁴ It appears that Haggitt has a serious criminal history which includes convictions for felonious assault and armed robbery, being on parole for the latter at the time of the present offense. As in J or dan, he was sentenced to a minimum term of 14 years, 11 months, the statutory maximum being 15 years.⁵

Michigan’s indeterminate sentence act provides as follows:

“When any person shall hereafter be convicted for the first time of crime committed after this act takes effect, the punishment for which prescribed by law may be imprisonment in the state prison at Jackson, the Michigan reformatory at Ionia, the state house of correction and branch of the state prison in the upper peninsula, the Detroit house of correction, or any other prison, the court imposing sentence shall not fix a definite term of imprisonment, but shall fix a minimum term except as hereinafter provided. The maximum penalty provided by law shall be the maximum sentence in all cases except as herein provided and shall be stated by the judge in passing sentence. He shall before or at the time of passing such sentence ascertain by examination of such convict on oath, or otherwise, and by such other evidence as can be obtained tending to indicate briefly the causes of the criminal character or conduct of such convict, which facts and such other facts as shall appear to be pertinent in the case, he shall cause to be entered upon the minutes of the court.”

The following sections of Chapter IX of the Code of Criminal Procedure (PA 1927, No. 175, as amended, MCLA §§ 769.10, 769.11, and 769.12; Stat Ann 1954 Eev §§ 28.1082, 28.1083, and 28.1084) dealing with the sentencing of repeat offenders do not use the same language, but § 769.12 indicates the legislative intent by stating,

“Offenders sentenced under this and the last 2 preceding sections shall not be eligible to parole before the expiration of the minimum term fixed by the sentencing judge at the time of sentence without the written approval of the judge of such court or any judge of such court if the sentencing judge is not then serving. A person to be punishable under this and the last 2 preceding sections need not have been indicted and convicted as a previous offender iii order to receive the increased punishment therein provided, but may be proceeded against as provided in the following’ section.”

Countless decisions have upheld long sentences as against the claim that they constituted unconstitu tionally cruel or unusual punishment, or reflected an abuse of discretion by the trial judge. In People v. Guillett (1955), 342 Mich 1, such a claim was summarily rejected in one sentence:

“It is sufficient to say that the sentence was within the maximum provided by statute.”

That is not to say that judicial discretion may not be abused as in People v. Earegood (1968), 12 Mich App 256, or People v. Snow (1970), 26 Mich App 510; or that it may be abdicated, as in People v. Lessard, supra. Defendant’s reliance on Lessard, however, is misplaced for it was not the length of the minimum sentence per se that was dispositive, but the policy of the trial judge, stated on the record, of denying any effect to the indeterminate sentence act in all cases before him. The Court said, at page 350:

“ * * * the action as it concerns the individual defendants constitutes reversible error in sentencing. The trial court failed to exercise^ discretion in setting the individual defendant’s minimum sentences.

“In remanding for new sentence, we do not intend to dictate to the trial court what the minimum sentence should be nor will we attempt to determine what sort of sentence complies with the requirements for an indeterminate sentence. The trial court is required to impose sentence within his sound discretion in accord with his evaluation of the defendant as an individual.”

If the Penal Code, setting the maximum penalty, and the indeterminate sentence act constituted the only legislative enactments affecting defendant, his argument that the long sentence defeats the rehabilitation purposes of the indeterminate sentence act would be more plausible. That is not the case, how ever. Thus, the Legislature has provided for the reduction of sentences hy good time and special good-time allowances (MCLA §§ 800.33, 800.103 [Stat Ann 1954 Rev §§28.1403, 28.1514]) and provided that prisoners shall be eligible for parole consideration at the expiration of the minimum sentence reduced by his good time and special good-time allowances. MCLA § 791.233(b) [Stat Ann 1954 Rev § 28.2303(b) ]. Thus, Haggitt may look forward to reducing his sentence by roughly four years by good behavior, still leaving a substantial period for post-release parole supervision. Even the serious offender, sentenced to life or a long term of years, excepting those convicted of first-degree murder, are eligible for parole consideration after ten years. MCLA § 791.234 (Stat Ann 1970 Cum Supp § 28-.2304). And the eligibility of repeat offenders for early parole with the consent of the sentencing judge or his successors, provided for under MCLA § 769-.12, quoted above, is equally available to those sentenced as first offenders by the proviso in MCLA § 791.233(b), supra6 Thus every prisoner knows that there is a fixed standard for reducing his time and moving up his parole eligibility, and that earlier release by special parole is also possible. The sentencing judge knows it also and must be presumed to take these factors into consideration in exercising his discretion.

It is argued that the indeterminate sentence act was intended by the Legislature to vest the parole board with a broad discretion and that a sentence depriving the parole hoard of that power constitutes an abuse of judicial discretion. But it is obvious that every sentence except the shortest possible term limits the area of discretion of the parole board in point of time, and the longer the minimum sentence the greater the limitation. But, assuming a prisoner who is not totally intractable, and entirely apart from special parole procedures, there is never a point at which the parole board is completely deprived of room to exercise its discretion under Michigan statutes.

We are further of the opinion, in any event, that it was not the intent of the Legislature to create a power in the parole board co-equal to the judicial power to sentence. The maxim, qui prior est tempore, potior est jure, is as applicable to criminal as to civil law. The power to sentence, and the exercise of judicial discretion therein, are not only first in time but superior to the exercise by the parole board of its statutory duties. That the Legislature has not subordinated that judicial power by the present indeterminate sentence act is clear from In re Southard (1941), 298 Mich 75:

“Objection to the delegation of the power of the judiciary over sentences was met by the constitutional amendment of 1902 (Const 1850, art 4, § 47, as amended, and Const 1908, art 5, § 28). The amendment did not take away the inherent judicial power to exercise discretion in the imposition of sentences. That power always resided in the judiciary and there it must remain until curtailed or removed by the legislature. Examination of the penalties imposed for various crimes, as shown in the penal code (Act No 328, Pub Acts 1931 [Comp Laws Supp 1940, § 17115-1 et seq., Stat Ann § 28.191 et seq.]), indicate legislative recognition and adherence to the policy of the exercise of discretion by the sentencing judge within the maximum limits therein imposed. This discretion extends to the amount of fine and imprisonment up to the statutory maximum and to the alternative of fine or imprisonment.

“Blackstone comments on the inherent discretionary power of courts over amount of fines and length of imprisonment. See 2 Cooley’s Blackstone (4th ed), hook 4, Chap 29, p 1510 et seq.

“Prior to Act No 175, Pub Acts 1927 (code of criminal procedure), the minimum sentence for those imprisoned in the State prison, et cetera, was not less than six months in any case. Compare 3 Comp Laws 1915, § 15859, and 3 Comp Laws 1929, § 17336 (Stat Ann § 28.1080). The 1927 act permitted the trial judge to exercise his discretion in fixing the minimum term except in a case where this discretion was specifically denied. This enactment of a code of criminal procedure of necessity imposed a duty upon the sentencing judge to consider the limitations placed by the legislature upon penalties for specific crimes.”

We reject the proposition that a minimum sentence approximating the statutory maximum is per se an abuse of judicial discretion. In the'absence of fact showing an abuse of discretion, as in Earegood or Snow, supra, or a refusal to exercise discretion as in Lessard, such a sentence must be presumed to be the product of the trial judge’s exercised discretion and will not be disturbed.⁷

Affirmed.

Y. J. Brennan, P. J., concurred.

Footnotes

1

HOLA § 769.8 (Stat Ann 1954 Rev § 28.1080).

2

MCLA § 750.321 (Stat Ann 1962 Rev § 28.553).

3

MCLA § 750.82 (Stat Ann 1962 Rev § 28.277); MCLA § 750.503 (Stat Ann 1954 Rev § 28.771).

4

In fact, Haggitt and the court not only avoided mention of a .38 special caliber revolver, but also any reference to facts showing the elements of robbery.

5

MCLA § 750.350 (Stat Ann 1954 Rev § 28.582).

6

Practical experience of trial judges in Michigan- has established the utility, as a sentencing technique, of long shock-effect sentences in selectively appropriate cases, coupled with efforts to motivate the offender to work toward such an early parole. Early or “special” paroles are understandably most common in the longer sentence categories, and statistics of the Michigan Department of Corrections indicate that these' special paroles are remarkably successful.

7

If a third approach, that such a sentence is presumptively an abuse of discretion, were taken, the result here would be the same, there being a more than adequate showing that the trial judge did exercise his discretion by giving careful attention to many factors bearing upon the “needs of the particular case.” In re Southard, supra, p 82. Such needs are not alone those of the defendant, but of the public as well. This approach is found in no cited authority and is inconsistent with traditional views of the discretion reposing in the sentencing judge.