People v. Hendrick

247 N.W.2d 840, 398 Mich. 410, 1976 Mich. LEXIS 193

• Court: Michigan Supreme Court
• Decided: December 21, 1976
• Docket: 56172, (Calendar No. 7)
• Status: Published

Opinions

Coleman, J.

Leave to appeal was granted in this case to determine what procedures are required when an individual is sentenced as a habitual offender. Because the procedures followed in this case were proper, we affirm defendant’s sentence.

On October 20, 1971, defendant was arrested at the scene of a breaking and entering. During the incident he seriously wounded a state policeman. He was charged with breaking and entering with intent to commit larceny and assault with intent to murder.

Defendant pled guilty to breaking and entering with intent to commit larceny on October 21, acknowledging that he would still have to answer for the assault. That charge went to a jury trial on December 15. He was convicted on December 20 of assault with intent to do great bodily harm less than murder.

On January 10, 1972, defendant was sentenced to a term of 9-1/2 to 10 years. On the same day the prosecutor filed a supplemental information asking that defendant be sentenced as a "fifth offender”. A copy was served on defendant at the sentencing.

On February 2, defendant’s attorney moved to quash the supplemental information. The attorney claimed the prosecutor had prior knowledge of defendant’s convictions. Under People v Stratton, 13 Mich App 350; 164 NW2d 555 (1968), he said the prosecutor was required to file the information when he became aware of the convictions.

The prosecutor said he "first became aware of his criminal record when I received his FBI rap sheet which is dated — received by our office on the 8th day of December”. Because the information was received only one week before the assault trial, there "was absolutely no time * * * to do all the checking that had to be done to determine whether or not * * * he did in fact have a record”:

"I think the prosecutor would be foolish to rely solely upon a rap sheet for information, and I did not. It took me some three weeks to track this down and find witnesses, whether he had these records and whether or not we could prove them; and I would say that I moved as speedily as I possibly could.”

The trial court felt "it was the intent of the Legislature and of our courts that the prosecuting attorney be given latitude in filing the supplemental information”. Because the prosecutor "has represented to the court that there was no knowledge on his part” until after defendant’s plea, the judge felt the filing of supplemental information after the jury trial "is much fairer and more protective of the rights of the defendant than if he were to be tried by the same jury that found him guilty on the last felony”. The motion was denied.

A jury was empaneled and the prosecution demonstrated that defendant had been convicted of five felonies. This required the production of records and witnesses from Washington and North Dakota as well as Michigan. The jury found defendant guilty. Defendant’s previous sentence was vacated and he was sentenced to life.

The Court of Appeals affirmed. It said defendant’s claim was controlled by People v Marshall, 41 Mich App 66, 72; 199 NW2d 521 (1972). That case said "the prosecutor has discretion to file a supplemental information” either before or after conviction despite his knowing about prior convictions.

When an individual is convicted of a felony, MCLA 769.10-769.12; MSA 28.1082-28.1084 permits the court to increase the sentence if the person has previous felony convictions. MCLA 769.12 provides that the person

"need not have been indicted and convicted as a previous offender in order to receive the increased punishment * * * but may be proceeded against as provided [in MCLA 769.13]”.

MCLA 769.13; MSA 28.1085 reads in part:

"If at any time after conviction and either before or after sentence it shall appear that a person convicted of a felony has previously been convicted of crimes as set forth in any of the 3 foregoing sections, the prosecuting attorney of the county in which such conviction was had, in his discretion, may file a separate or supplemental information in such cause accusing the said person of such previous convictions. Whereupon the court * * * shall inform him of the allegations contained in such information, and of his right to be tried as to the truth thereof according to law, and shall require such offender to say whether he is the same person as charged in such information or not. * * * The accused may waive trial by jury in the manner provided by this act. The usual practice in the trial of criminal cases shall be followed in the empanelling of such jury and the trial of said issue and the prosecuting officer and the accused shall each be allowed 5 peremptory challenges. If the accused shall plead guilty to such information or if the jury shall return a verdict of guilty, the court may sentence him to the punishment prescribed in the 3 preceding sections, as the case may be, and shall vacate the previous sentence, deducting from the new sentence all time actually served on the sentence so vacated if required.”

Legislation such as this increases punishment "because of the apparent persistence in the commission of crime by the person convicted and his indifference to the laws deemed necessary for the protection of the people and their property”. People v Palm, 245 Mich 396, 401; 223 NW 67 (1929). The same Court agreed that " 'in determining the amount or nature of the penalty to be inflicted, the legislature may require the courts to take in consideration the persistence of the defendant in his criminal course’ ”. Also see In re Southard, 298 Mich 75, 78; 298 NW 457 (1941) ("The habitual criminal act was passed to provide punishment for the repeated commissions of felonies.”).

In People v Shotwell, 352 Mich 42, 46; 88 NW2d 313 (1958), the Court said "the legislature did not intend to make a separate substantive crime out of being an habitual criminal but rather, for deterrent purposes, intended to augment the punishment for second or subsequent felonies”. See People v Ungurean, 51 Mich App 262; 214 NW2d 873 (1974) , and People v Holbrook, 60 Mich App 628; 231 NW2d 469 (1975), Iv granted, 395 Mich 752 (1975) . In People v Judge of Recorder’s Court, 251 Mich 626, 627; 232 NW 402 (1930), the Court said the legislation "merely provides a procedure after conviction for the determination of a fact which the court is required to consider in imposing sentence”.

At one time the Legislature required that allegations of prior felony convictions be included in the information and proved at the trial on the principal charge. This had to "be complied with in order to give the court jurisdiction to sentence the respondent as for a third offense”. People v Campbell, 173 Mich 381, 386; 139 NW 24 (1912). Also see People v Ancksornby, 231 Mich 271; 203 NW 864 (1925). The Court has required strict compliance with the statutory requirements. See People v Brown, 253 Mich 537; 235 NW 245 (1931), and People v Gunsell, 331 Mich 105; 49 NW2d 83 (1951).

In re Brazel, 293 Mich 632, 639-640, 641; 292 NW 664 (1940), discussed whether legislation similar to MCLA 769.13 required the prosecution to file a supplemental information after the principal case. The Court concluded that "prior convictions can be charged in an information for a subsequent offense where the prosecutor has knowledge thereof on filing the information, or later * * * by a supplemental information * * * where [he] acquires such knowledge * * * subsequent to conviction”. The Court said "it is not necessary to file a supplemental information” if the previous convictions "are known to the prosecuting attorney”. The legislation "was added to enable the prosecutor to file his supplemental information where he discovers such prior convictions so that a sentence might be revised to include augmented punishment prescribed by the statute for incorrigible criminals”.

The defendant in People v Burd, 1 Mich App 178, 183; 134 NW2d 843 (1965), was charged with escape and with being guilty of a second felony. He asked that references to his prior conviction be excluded.¹ The trial court denied the motion. The Court of Appeals said:

"The language of Smith will have to remain dictum. Keith Burd has not yet been tried; the minds of his jurors have not yet been exposed to any potentially poisonous information. Reference to his prior conviction may quite properly seep into the record of Burd’s trial on the issue of escaping prison. The jury may reasonably conclude that one charged with escaping prison was previously convicted of a criminal offense. The defendant may elect to testify in his own behalf and suffer the people’s efforts to impeach his credibility. We see, however, no valid reason for allowing the information to provide evidence of past criminality when to do so might jeopardize constitutional rights.”

The Smith language "is sufficiently strong to warrant granting the motion”. People v Cairns, 4 Mich App 633, 644; 145 NW2d 345 (1966), after quoting Burd, said "[i]t appears to this court that the better procedure to follow in the future would be to proceed after conviction * * * by filing a separate information charging the previous convictions”.

In People v Stratton, supra, 356, the Court said the statutes

"contemplate 2 separate situations and procedures to be followed when the prosecutor desires to make possible the meting out of an increased penalty pursuant to the habitual criminal sections of the code of criminal procedure. The procedure set forth in section 13 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.”

Compare People v Everson, 16 Mich App 739, 741; 168 NW2d 660 (1969), where Stratton was cited but the Court said if a prosecutor has prior knowledge, MCLA 769.13 "need not be followed”. It did not prohibit use of that section. Also see People v Mauch, 23 Mich App 723; 179 NW2d 184 (1970).

In People v Hatt, 384 Mich 302, 308, 309; 181 NW2d 912 (1970), the defendant was charged with breaking and entering and with having committed a second felony. The previous conviction was disclosed at trial. The Court acknowledged that Brazel approved the "practice of charging other offenses in a single information in accordance with statute”. However, the Court, citing Smith, Burd, and Cairns, made this analysis:

"The constitutional prohibition against self-incrimination will not permit a man’s past record of offenses to be used in such a manner as to imply guilt of the offense charged or to unfairly prejudice the jury against him. The procedures for dealing with a recidivistic charge, as delineated by Judge Levin in People v Stratton, are approved.”

In People v Marshall, supra, the prosecutor filed a supplemental information four months after the second conviction. Without mentioning Hatt, the Court analyzed Brazel and Stratton:

"The specific question as to whether the prosecutor could file his supplemental information after the conviction on the then pending current charge, where the prosecutor had knowledge of the prior convictions, was not before the Court in either of those cases, nor was it decided by the Court. Thus, while the language in both Stratton and Brazel may be persuasive, it is certainly not controlling, where the specific question herein was not before the Court in those cases and was not decided by those respective Courts.”

The Court said "the prosecutor had discretion to file a supplemental information under the Habitual Criminal Act after conviction and is not limited to filing such supplemental information prior to conviction of the current charge, where he has knowledge of the previous conviction”. However, defendant’s conviction was reversed because

"once the prosecutor was aware that defendant would not be sentenced to a mandatory life imprisonment, he should have acted promptly to file his supplemental information. Any delay was solely for his convenience. Therefore, where no good reason exists for the delay in filing a supplemental information .charging the defendant as a subsequent offender, and the delay on the part of the prosecutor substantially prejudices defendant’s rights, the filing of that supplemental information clearly denies defendant his right to due process of law.”

In this case the prosecutor had an FBI rap sheet indicating convictions in Washington and North Dakota. We agree it "would be foolish to rely solely upon a rap sheet for information”. The prosecutor acted properly in this case. The Court of Appeals is affirmed.

Kavanagh, C. J., and Williams, Fitzgerald, Lindemer, and Ryan, JJ., concurred with Coleman, J.

1 The Court’s decision in People v Smith, 296 Mich 176, 180; 295 NW 605 (1941), raised these concerns:

“We acknowledge some justification for the claim that reading to the jury the allegations of the information charging previous convictions might poison the minds of the jury at the outset of the trial. Its effect in swinging the balance toward conviction where the evidence on the merits of the new crime is weak or doubtful cannot be overlooked. Where the previous conduct has no circumstantial bearing on the crime charged, one may question whether the practice of alleging the previous convictions in the same indictment as is permitted by statute * * * conforms to the standard of fair play required by the due process clause of the Fourteenth Amendment to the Constitution of the United States or the comparable provision of the Constitution of the State of Michigan * * * .”

The Court did not discuss the question further because there was not a timely objection.