People v. Wilson

302 N.W.2d 303, 102 Mich. App. 626, 1981 Mich. App. LEXIS 2650

• Court: Michigan Court of Appeals
• Decided: January 6, 1981
• Docket: Docket 44576
• Status: Published

Opinions

D. R. Freeman, J.

Defendant appeals from his plea-based conviction as a fourth offender, MCL 769.12; MSA 28.1084. The information charging the defendant as an habitual offender was filed December 18, 1978, subsequent to his December 1, 1978, conviction for receiving or concealing stolen property with a value over $100. MCL 750.535(1); MSA 28.803(1). The trial court later sentenced the defendant to concurrent terms of imprisonment of 3 to 7 years as an habitual offender and 2 to 5 years for the underlying felony.

The defendant contends that the postconviction information charging him as an habitual offender violated the rule later announced by the Supreme Court in People v Fountain, 407 Mich 96, 98; 282 NW2d 168 (1979), requiring a prosecutor with knowledge of a defendant’s prior felony record to "promptly proceed” against such person. Examination of the supplemental information filed against the defendant indicates that each of the prior felony convictions was obtained in the Recorder’s Court. Thus, if applied retroactively to the instant case, Fountain’s presumption of prosecutorial knowledge of prior convictions in the same court would apply to make invalid the defendant’s habitual offender conviction.

Three factors for determining the retroactive application of a new rule of law were described in People v Hampton, 384 Mich 669, 674; 187 NW2d 404 (1971). These factors included: (1) the purpose of the new rule; (2) general reliance on the prior rule; and (3) the effect of retroactive application on the administration of justice. See also People v Kamin, 405 Mich 482; 275 NW2d 777 (1979).

Analysis of the Fountain opinion discloses two rules of law, the first previously settled upon and the second without prior recognition. The rule that a prosecutor with knowledge of a defendant’s prior conviction must proceed against a multiple offender "promptly” was noted in People v Hatt, 384 Mich 302; 181 NW2d 912 (1970), adopting the rationale of then Judge Levin in People v Stratton, 13 Mich App 350; 164 NW2d 555 (1968). However, the rule that the defendant’s recidivist charges should have been filed "with the information which charged the last felony”, based upon a presumption of prosecutorial knowledge of prior offenses, is without foundation in prior statutes or case law.

Applying the Hampton factors, it is first apparent that the intent behind the simultaneous filing rule was to protect defendants against unbridled prosecutorial discretion to file habitual offender charges and to avoid unfair surprise to a defendant. Further, while prosecutors may not have endeavored to file recidivist charges simultaneously in past cases, it is equally true that postconviction filings were not the general practice. Finally, where postconviction filings were not generally sought, the administration of justice will not be adversely affected by some retroactive application of its dictates.

A recent decision of this Court specifically addressed the retroactive effect of the Fountain presumption. In People v Reese, 97 Mich App 785; 296 NW2d 172 (1980), the Court balanced the factors bearing on retroactivity in a case where the habitual offender charge was filed after conviction for the principal offense. The Reese Court concluded:

"After balancing these considerations we believe that the rule of Fountain should be applied to future cases and to all cases which were pending on appeal at the date of the Fountain decision. The present case should therefore be judged by the requirements of Fountain in the interest of the administration of justice.” Id., 788.

To the Reese holding we would add an additional class of cases. To avoid the appearance of impropriety, the Fountain presumption of prosecutorial knowledge should extend to cases like the present, in which a recidivist charge is filed after conviction for the principal offense. Further, application of the presumption to cases of postconviction filings should not be restricted to any future case or cases pending on appeal on the day Fountain was decided. In balancing the Hampton considerations, we find that for pre-Fountain cases of postconviction filing, it is important to discourage improper prosecutor conduct. We hold the Fountain presumption of prosecutorial knowledge to be applicable to cases of postconviction filings decided prior to Fountain.

The conclusion is also supported by the Fountain language itself. The Supreme Court held:

"Here the prosecutors must be presumed to have known of the defendants’ prior felony records because their respective offices prosecuted the prior felonies. The habitual offender charges should have been filed with the information which charged the last felony to provide fair notice to the accused and avoid an appearanee of prosecutorial impropriety.” People v Fountain, supra, 99.

From this discussion, the Supreme Court’s intent that the rule have retroactive application is made apparent. Had the Court desired prospective application of its new rule, it would have exempted the case before it since the prosecutors in Fountain had no more notice of the rule than the prosecutor in the present case. For the Supreme Court to intend retroactive effect only to the cases before it would create an artificial distinction not warranted by the interest in effective administration of justice.

The defendant herein pled guilty to the supplemental information charging him as an habitual offender, based upon four prior convictions obtained in Recorder’s Court. Applying retroactively the Fountain presumption, the prosecutor is presumed to have known of the prior felonies at the time the information charging defendant with receiving and concealing stolen property was filed. Thus, the prosecutor should have charged the defendant as an habitual offender prior to his conviction for the principal offense. In the absence of such appropriately filed recidivist charges, we vacate the defendant’s habitual offender sentence and remand the case for sentencing on the underlying conviction.