People v. Hegwood , 109 Mich. App. 438 ( 1981 )

109 Mich. App. 438 (1981) 311 N.W.2d 383

PEOPLE
v.
HEGWOOD.

Docket No. 52480.

Michigan Court of Appeals.

Decided September 10, 1981.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, James J. Gregart, Prosecuting Attorney, and James A. Christopherson, Assistant Prosecuting Attorney, for the people.

Milton J. Marovich, for defendant on appeal.

Before: D.F. WALSH, P.J., and MacKENZIE and J.R. ERNST,^[*] JJ.

D.F. WALSH, P.J.

Defendant was convicted by a jury of tampering with property of a utility, MCL 750.383a; MSA 28.615(1). He was sentenced to a term of two years, eight months to four years in prison.

Defendant's conviction arose from the following set of facts. In the early morning hours of August 31, 1979, Officer Edward Hancox responded to a report that an alarm had been set off at the Bunkman Tire Company. As he drove into the unlighted parking lot, Hancox saw defendant crouching down next to the garage. When the officer turned on his headlights, defendant approached the police car. Hancox then left his vehicle and conducted a pat-down search of defendant for weapons. Hancox found two screwdrivers in defendant's front pocket. Defendant was placed in the back of the police car while other officers investigated the building and found that the electrical meters had been disturbed. Defendant was then placed under arrest.

At the time of the offense, defendant was in the custody of the Michigan Department of Corrections in the Valley Inn in Kalamazoo. Defendant was involved in a transitional corrections program. Defendant's arrest occurred on August 31, 1979, and he was subsequently arraigned and bound over to circuit court. In April, 1980, defendant filed a motion to dismiss based on the alleged violation of the 180-day rule. MCL 780.131; MSA 28.969(1). The court denied defendant's motion on April 14, 1980, and trial commenced on May 1, 1980, 244 days after defendant's arrest. Defendant contends on appeal that the trial court erred in refusing to dismiss the charge against him because of the prosecution's failure to comply with the 180-day rule.

MCL 780.131; MSA 28.969(1) provides:

"Whenever the department of corrections shall receive notice that there is pending in this state any untried warrant, indictment, information or complaint setting forth against any inmate of a penal institution of this state a criminal offense for which a prison sentence might be imposed upon conviction, such inmate shall be brought to trial within 180 days after the department of corrections shall cause to be delivered to the prosecuting attorney of the county in which such warrant, indictment, information or complaint is pending written notice of the place of imprisonment of such inmate and a request for final disposition of such warrant, indictment, information or complaint. The request shall be accompanied by a statement setting forth the term of commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good time earned, the time of parole eligibility of the prisoner and any decisions of the parole board relating to the prisoner. The written notice and statement provided herein shall be delivered by certified mail."

First, we must determine whether defendant was an "inmate of a penal institution of this state" while he was confined at the Valley Inn in a transitional corrections program. While admitting that "Valley Inn is technically an arm of the state penal system", the prosecution argues that the 180-day rule is inapplicable to defendant because he had freedom to travel in the community. We find this argument unpersuasive.

The consecutive sentencing statute, MCL 768.7a; MSA 28.1030(1), applies to a "person * * * incarcerated in a penal or reformatory institution in this state". In interpreting that statute, this Court has ruled that an individual participating in a community corrections program is "incarcerated in a penal or reformatory institution". People v Shirley Johnson, 96 Mich. App. 84; 292 NW2d 489 (1980), People v Mayes, 95 Mich. App. 188; 290 NW2d 119 (1980). The same logic applies in this case. The fact that an individual is not confined at the Southern Michigan Prison in Jackson is not a controlling factor if the person continues to be under the control of the Department of Corrections.

Second, we must consider whether the 180-day rule is applicable in a case in which defendant would not be entitled to concurrent sentencing. The prosecutor relies primarily on People v Loney, 12 Mich. App. 288; 162 NW2d 832 (1968), which held that the purpose of the 180-day rule was to preserve the inmate's right to concurrent sentencing. The Loney panel concluded that where consecutive sentencing is mandatory, the 180-day rule is inapplicable since its purpose cannot be served in such a case.

This analysis was recently rejected by several panels of this Court. In People v Moore, 96 Mich. App. 754, 761-762; 293 NW2d 700 (1980), this Court reasoned:

"We find no ambiguity in the 180-day rule statute that would permit us to make exceptions in the application of its plain language. Even if it were reasonable and otherwise valid to distinguish, as Loney did, between inmates who commit criminal offenses prior to incarceration and those who commit them subsequently, the distinction is one that the Legislature, not this Court, should make. However, our decision here rests not only on the concept of separation of powers, but also upon our belief that the rationale underlying Loney is no longer completely valid.

"The Loney Court justified its result on what it believed was the intent of the Legislature in passing this statute. Loney found this intent to be that inmates of state penal institutions should serve concurrent, rather than consecutive, sentences. Because inmates who commit criminal offenses while incarcerated are not entitled to concurrent sentencing, see MCL 768.7a; MSA 28.1030(1), an incarcerated defendant was not prejudiced by delay of trial. However, since Loney was decided the Michigan Supreme Court has recognized that the 180-day rule protects more than just a defendant's right to serve concurrent sentences.

"In People v Hill, 402 Mich. 272, 280; 262 NW2d 641 (1978), the Supreme Court found that the purpose of the 180-day rule was to ``secure to state prison inmates their constitutional right to a speedy trial'. As set forth in the United States Constitution, US Const, Am VI, and the Michigan Constitution, Const 1963, art 1, § 20, the right of an accused to a speedy trial does not depend upon whether the charged offense was committed prior to or during incarceration for another crime. Therefore, we hold that Loney was wrongly decided and that persons such as defendant who commit crimes while incarcerated are entitled to the protection of the 180-day rule." Accord, People v Woodruff, 105 Mich. App. 155; 306 NW2d 432 (1981), People v Pitsaroff, 102 Mich. App. 226; 301 NW2d 858 (1980), People v Anglin, 102 Mich. App. 118; 301 NW2d 470 (1980). Contra, People v Ewing, 101 Mich. App. 51; 301 NW2d 8 (1980).

We find the Moore reasoning convincing. Accordingly, we conclude that the 180-day rule applies to defendant in the present case.

Finally, we must determine whether the trial court erred in ruling that the prosecution had met its good faith requirement of readying the case for trial. The court noted that the prosecutor had filed the information 10 days after the offense and defendant was bound over 18 days later.

The 180-day rule does not mandate an actual trial within the six-month period. It obligates a prosecutor, however, to take good faith action on the case and to proceed promptly in readying the case for trial. People v Castelli, 370 Mich. 147; 121 NW2d 438 (1963). Where the prosecutor undertakes action to commence proceedings, jurisdiction thereafter will be lost only if the initial action is followed by an inexcusable delay evidencing an intent not to bring the case to trial promptly. People v Hendershot, 357 Mich. 300; 98 NW2d 568 (1959).

In this case, the prosecutor did file the information 10 days after the arrest and defendant was bound over for trial 18 days later. However, the mere commencement of an action is insufficient to satisfy the requirements of the statute. People v Hendershot, supra. The record before us contains absolutely no explanation for the subsequent delay in proceedings, well in excess of the 180-day period prescribed by the rule. We conclude that defendant's conviction must be reversed. Failure to comply with the statute deprived the trial court of jurisdiction to hear the matter.

Reversed.

J.R. ERNST, J., concurred.

MacKENZIE, J. (dissenting).

I respectfully dissent. I would follow the reasoning of this Court in People v Loney, 12 Mich. App. 288; 162 NW2d 832 (1968), and People v Ewing, 101 Mich. App. 51; 301 NW2d 8 (1980), and hold that the 180-day rule is inapplicable where, as here, defendant would not be entitled to concurrent sentencing.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.