People v. Ewing , 101 Mich. App. 51 ( 1980 )

101 Mich. App. 51 (1980) 301 N.W.2d 8

PEOPLE
v.
EWING

Docket No. 46140.

Michigan Court of Appeals.

Decided October 23, 1980.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Edward J. Grant, Prosecuting Attorney, and John L. Wildeboer, Chief Appellate Attorney, for the people.

Myron E. Sanderson, for defendant on appeal.

Before: DANHOF, C.J., and M.J. KELLY and G.R. CORSIGLIA,^[*] JJ.

M.J. KELLY, J.

Defendant pled guilty to the charge of assaulting a prison employee in violation of MCL 750.197c; MSA 28.394(3). Defendant was sentenced to a term of 1-1/2 to 4 years imprisonment and brings this appeal as of right.

On the day of the assault, defendant was assigned to Camp Waterloo and was enrolled in a work-pass program washing dishes in an Ann Arbor hotel. At the end of his work shift, defendant drank "a few beers" before being returned to the camp. When returned to the camp, defendant was told by a second inmate that prison officers wanted to see the defendant at the camp's main office. At the office, the complainant prison guard attempted a shakedown of defendant under a suspicion that the defendant had been drinking. Defendant refused the shakedown and tried to leave the office. As the complainant pursued defendant to return him to the office, defendant picked up a shovel and struck complainant on the side of the head. Pursuant to an agreement between the prosecutor and defendant, defendant pled guilty but was not charged as a second offender.

We reject as frivolous each of defendant's seven claims of error with regard to the guilty plea proceedings since our review of the record discloses full compliance with GCR 1963, 785.7.

The issue which merits extended treatment is defendant's claim that the unreasonable 373-day delay between the date of arrest and trial date violated his constitutional right to a speedy trial or, alternatively, violated the 180-day rule if that rule is applicable. Const 1963, art 1, § 20, MCL 768.1, 780.131; MSA 28.1024, 28.969(1).

I

Consideration of defendant's constitutional claim requires a balancing of four factors: (1) length of delay; (2) reason for delay; (3) whether defendant asserted his right to a speedy trial; and (4) prejudice to defendant caused by the delay. With respect to the first criterion, length of delay, no special formula exists; it has been held that a delay in excess of 18 months results in a presumption of prejudice, People v Bennett, 84 Mich. App. 408; 269 NW2d 618 (1978), and that less than six months is insufficient to trigger further investigation. The delay of approximately 12 months here necessitates further examination into the merits of defendant's claim.

The delay appears, from our review of relevant dates included in defendant's brief, to have been caused by court congestion. All pretrial proceedings were held at an orderly pace and were completed approximately four months after defendant's arraignment, which leads us to conclude, as the people submit, that delay was strictly the result of docket scheduling problems. While delay of this nature is attributable to the prosecution, it has a neutral tint and should be given only minimal weight in determining whether defendant's speedy trial right has been violated. People v Forrest, 72 Mich. App. 266; 249 NW2d 384 (1976), Barker v Wingo, 407 U.S. 514; 92 S. Ct. 2182; 33 L. Ed. 2d 101 (1972).

Further, defendant concedes that he never asserted his right to a speedy trial. While such failure does not automatically constitute a waiver of the right, it is strong evidentiary support for the conclusion that defendant's right was not violated. People v Hammond, 84 Mich. App. 60; 269 NW2d 488 (1978), United States v Mulligan, 520 F2d 1327 (CA 6, 1975), cert den 424 U.S. 919; 96 S. Ct. 1123; 47 L. Ed. 2d 325 (1975).

Finally, as to defendant's claim of prejudice, we conclude that in this particular case it is a factor of minimal import. The impairment to his defense, he alleges, was his inability to personally contact witnesses due to his incarceration and that his attorney could not perform this task as defendant knew the individuals by sight but not by names. Defendant also claims personal prejudice in the form of loss of privileges in that he was confined to a normal cell block following the assault, whereas he was formerly a member of a work crew and enjoyed more freedom of movement. We find these complaints unsubstantial.

With respect to the two categories of prejudice a defendant may suffer as a result of delay, impairment of defense is clearly the most serious. People v Chism, 390 Mich. 104; 211 NW2d 193 (1973). We simply do not accept defendant's argument that counsel could not obtain a list of names of other members on the work crew or other potential witnesses and contact them for interview. This was, after all, not a crime of great complexity and defendant's allegations of prejudice are purely speculative. They were not raised in the circuit court and this fact goes hand and glove with the lack of demand for a speedy trial. We think this same reasoning applies to defendant's claim of loss of personal privileges within the Department of Corrections. See People v Noble, 18 Mich. App. 300; 170 NW2d 916 (1969). We conclude that defendant was not denied the constitutional right to a speedy trial.

II

Since the original briefs in this case were filed, a recent decision of this Court has held that the 180-day rule specifically applies to offenses committed during incarceration. We think the panel which decided that case erred and we now examine whether the 180-day rule, a violation of which may result in dismissal of the charges against the defendant, is applicable under the present facts. 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."

It is defendant's position that the 180-day rule applies to offenses committed by a prison inmate even when any sentences for such offenses would be mandatorily consecutive. MCL 768.7a; MSA 28.1030(1). Defendant relies on a recent decision of this Court, People v Moore, 96 Mich. App. 754; 293 NW2d 700 (1980). After a careful review of the Moore opinion and People v Loney, 12 Mich App 288; 162 NW2d 832 (1968),^[1] we are convinced that Loney represents the better view. The Moore Court, in attempting to discredit the well-established rule of Loney, held that, absent any ambiguity in the language of the statute, its "plain meaning" must be given effect and therefore the rule applies equally to inmates who commit offenses prior to or during incarceration. We agree with the Loney Court's interpretation of the statute and perception of legislative intent that the 180-day rule:

"[W]as intended to give the inmate, who had pending offenses not yet tried, an opportunity to have the sentences run concurrently consistent with the principle of law disfavoring accumulations of sentences. This purpose, however, does not apply in the instance of a new offense committed after imprisonment, nor where the statute, as in the case of an escape or attempted escape, sets up a mandatory consecutive sentence. The legislature was not concerning itself with the need for dispatch in the handling of a charge brought against an inmate for offenses committed while in prison." 12 Mich. App. 288, 292. (Emphasis in original.)

As the people's brief so aptly points out, the language of the statute clearly indicates that it was not intended to cover the instant factual situation. When applied to an inmate who commits an offense during the period of incarceration, the notice provisions of the statute are rendered superfluous. Section I directs the Department of Corrections, upon first receiving notice of a pending untried warrant or information, to notify the appropriate prosecuting attorney's office of defendant's place of imprisonment. The 180-day limitation is to commence running upon delivery of such notice.^[2] When the defendant is charged with an offense committed after incarceration, the prosecutor is obviously aware of defendant's location when he authorizes issuance of the warrant and notice is unnecessary.

Where, as here, the language of a statute is clear and unambiguous, any inquiry into legislative intent is unnecessary and the statute will be applied as written. The Loney interpretation of MCL 780.131; MSA 28.969(1) reflects a reasonable legislative intent to preserve and encourage the practice of concurrent sentencing when appropriate. Acceptance of an across-the-board application to all inmates regardless of when the charged offense was committed, as promoted by the Moore decision, would lead to results not conceivably intended by the Legislature. All citizens are constitutionally entitled to a speedy trial. The 180-day rule assures inmates imprisoned on an earlier offense while other charges are pending that the right is equally applicable to them by discouraging the state from "holding back" or "forgetting" or otherwise losing them in the system. Inmates who commit crimes while imprisoned are not forgotten or lost. A warrant should promptly issue when the crime is discovered and venue established. As it is processed any constitutional speedy trial claim or defense (four factors listed above under Section I) would be available and tested by the applicable criteria. Such a situation should not trigger the imposition of the 180-day rule because any sentence imposed, being mandatorily consecutive, would ipso facto eliminate the element of personal prejudice due to additional time incarcerated as to the inmate. We therefore decline to follow the reasoning of Moore, supra.

Affirmed.

NOTES

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

[1] It is argued by the Jackson County Appellate Prosecutor that People v Loney, supra, has been followed many times in unpublished appellate opinions and is heavily relied upon by the bench and bar in that county. Whether the panel deciding People v Moore, supra, has weighted that intelligence or not, the State Court Administrator has furnished us with statistics for the three month period, March, April and May, 1980, of filings in Jackson Circuit Court which encompasses the county containing the State Prison of Southern Michigan at Jackson. These figures include:

Annual
Sample    Estimate
"Escapes (including attempts — usually
from the Trustee Division, SPSM)               9         32 [sic]
Escapes (from Correctional Camps)               25        100
Inmate Offenses (other than escape)             11         44
Visitor Offenses                                20         80
TOTAL                                         65        260"

[2] According to People v Wright, 89 Mich. App. 244; 280 NW2d 836 (1979), the period is commenced when defendant is incarcerated and the Department of Corrections knows or should know of the outstanding warrant, indictment, or complaint.