People v. Reese

268 N.W.2d 340, 83 Mich. App. 186, 1978 Mich. App. LEXIS 2291

• Court: Michigan Court of Appeals
• Decided: May 9, 1978
• Docket: Docket 77-1858, 77-1859
• Status: Published

Opinions

T. M. Burns, J.

Defendant pled guilty in Recorder’s Court for the City of Detroit to two informations charging him with receiving or concealing stolen property with a value in excess of $100. MCL 750.535; MSA 28.803. In each case, the property was an automobile. Defendant was sentenced to serve two consecutive five year terms for these offenses¹ which, in turn, were to be served concurrently with an 11 to 25 year sentence on an unrelated offense. In this appeal defendant claims it was error to sentence him to two flat five year terms rather than an indeterminate sentence under People v Tanner, 387 Mich 683; 199 NW2d 202 (1972).

The question of whether the indeterminate sentencing provision, MCL 769.8; MSA 28.1080, applies to an individual with a prior conviction has of late caused much division in this Court. The Supreme Court has applied Tanner in this type of case, but without discussion. See, e.g., People v Haggitt and People v Jordan, 388 Mich 773; 200 NW2d 321 (1972).

The first hint² that there might be three possible types of sentences—indeterminate (MCL 769.8; MSA 28.1080), habitual offenders (MCL 769.10, 769.11, 769.12; MSA 28.1082, 28.1083, 28.1084) and a nonstatvltory or common law nonfirst offender, nonhabitual criminal—appears to have come in People v Moore, 40 Mich App 383, 387; 198 NW2d 775 (1972). The case which has become the basis of approving this type of sentence is People v Ungurean, 51 Mich App 262; 214 NW2d 873 (1974), lv den, 395 Mich 805 (1975), where the panel approved a sentence of 14 to 15 years. However, Ungurean had been charged and was sentenced under the provisions of the habitual offender statute, something which was not done here.

As noted above, this Court has been divided on the question of whether one not charged as a habitual offender may receive a flat sentence or an indeterminate sentence which does not comply with Tanner if it appears from the presentence report or otherwise that he has been, previously convicted of crime. Compare, People v Redwine, 73 Mich App 83; 250 NW2d 550 (1976), People v Reginald Harris, 80 Mich App 228; 263 NW2d 40 (1977),³ with People v Banks, 73 Mich App 492; 252 NW2d 501 (1977), People v Malchi White, 81 Mich App 226; 265 NW2d 100 (1978).⁴

In our opinion, the better view, and the one most consistent with the statutory sentencing scheme, is that expressed by the majority in Redwine and People v Reginald Harris.

The sentencing scheme is set out in Chapter IX of the Code of Criminal Procedure, MCL 769.1 et seq.; MSA 28.1072, et seq. Section 8,⁵ the provision in question here, applies to those "convicted for the first time”. Sections 10,⁶ 11⁷ and 12,⁸ the habitual offender provisions, apply to defendant’s second and subsequent convictions. However, before the habitual offender penalties may be imposed, a defendant is entitled to the hearing and notice protections of § 13.⁹ To remove a defendant from the benefits of the indeterminate sentencing provision without charging him in a supplemental information as a habitual offender is both unwise and unfair.

The Legislature has created but two types of sentences—indeterminate and habitual—and, unless he is charged as a habitual offender, he must be sentenced as if he were "convicted for the first time”. That this is the legislative intent can be seen from the final phrase of § 1:¹⁰ " * * * such sentence shall in no case or respect be greater than the penalty * * * prescribed * * * by law”. (Emphasis added.) The people point to no statute authorizing the flat five year sentence as imposed here, without complying with the habitual offender provisions, and we have found none. Defendant must be sentenced under § 8 as interpreted by the Supreme Court in People v Tanner.

The convictions are affirmed with the sentences modified to 40 to 60 months each.

R. M. Maher, J., concurred.

1 The second offense occurred while defendant was awaiting trial on the first. Consecutive sentences are proper under the circumstances. MCL 768.7b; MSA 28.1030(2).

2 People v Biniecki, 35 Mich App 335; 192 NW2d 638 (1971), lv den 387 Mich 764 (1972), dealt with the distinct question of sentencing for escape from prison.

3 People v Bullock, 48 Mich App 700; 211 NW2d 108 (1973), applied Tanner to a case of the type under discussion here, but did not discuss the convicted for the first time language of the indeterminate sentencing provision.

4 People v McFadden, 73 Mich App 232; 251 NW2d 297 (1977), deals with the related problem of doubling a defendant’s sentence for a second drug conviction under MCL 335.348; MSA 18.1070(48) without a hearing or proof of the prior conviction. We express no view as to the correctness of that decision.

5 MCL 769.8; MSA 28.1080.

6 MCL 769.10; MSA 28.1082.

7 MCL 769.11; MSA 28.1083.

8 MCL 769.12; MSA 28.1084.

9 MCL 769.13; MSA 28.1085.

10 MCL 769.1; MSA 28.1072.