People of Michigan v. Cavin Deon Madison ( 2019 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
October 15, 2019
Plaintiff-Appellee,
v No. 345514
Kent Circuit Court
CAVIN DEON MADISON, LC No. 17-006305-FH
Defendant-Appellant.
Before: MARKEY, P.J., and BORRELLO and BOONSTRA, JJ.
PER CURIAM.
Defendant appeals by delayed leave granted1 his judgment of sentence entered after he
pleaded guilty to domestic violence, third offense, MCL 750.81(2); MCL 750.81(5). The trial
court sentenced him as a fourth-offense habitual offender, MCL 769.12, to a prison term of 4 to
20 years. The judgment of sentence indicates that defendant’s sentence is to be served
“consecutive with parole sentence” and does not credit defendant with any jail time served. We
remand for amendment of the judgment of sentence to reflect the proper amount of jail credit to
which defendant is entitled.
I. RELEVANT FACTS
Defendant committed the sentencing offense on June 27, 2017, while he was on parole
for a prior domestic violence conviction, and was arrested and jailed on that date. As of July 21,
2017, defendant had served his sentence for that prior conviction and he was discharged from
parole for that offense. But he remained jailed for the sentencing offense in this case and was
sentenced for that offense on April 5, 2018. Although the PSIR recommended that the trial court
1
People v Madison, unpublished order of the Court of Appeals, entered November 14, 2018
(Docket No. 345514).
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award 282 days of jail credit for time served, the parties did not discuss the issue of jail credit at
sentencing and no jail credit appears on the judgment of sentence.
This appeal followed.
II. STANDARD OF REVIEW
Because defendant did not raise the issue of jail credit before the trial court, this issue is
not preserved. “[S]entencing errors that have been not been preserved are reviewed for plain
error affecting substantial rights.” People v Callon, 256 Mich. App. 312, 332; 662 NW2d 501
(2003).
III. ANALYSIS
Defendant argues that he is entitled to 258 days of jail credit for the time he served after
the expiration of his prior sentence and before his sentencing in this matter. The prosecution
agrees.2 We also agree that defendant is entitled to jail credit for time served between the time
his parole was discharged and his sentencing in this case. We therefore remand for amendment
of the judgment of sentence to reflect the appropriate amount of jail credit.
MCL 769.11b states:
Whenever any person is hereafter convicted of any crime within this state
and has served any time in jail prior to sentencing because of being denied or
unable to furnish bond for the offense of which he is convicted, the trial court in
imposing sentence shall specifically grant credit against the sentence for such
time served in jail prior to sentencing.
“The enactment of [MCL 769.11b] reflects the Legislature’s intention to entitle every defendant
in a criminal case to the sentence credit described in the statute, instead of leaving the matter to
the discretion of sentencing courts.” People v Prieskorn, 424 Mich. 327, 333; 381 NW2d 646
(1985). See also People v Idziak, 484 Mich. 549, 569; 773 NW2d 616 (2009). “To be entitled to
sentence credit for presentence time served, a defendant must have been incarcerated ‘for the
offense of which he is convicted.’ ” Prieskorn, 424 Mich. at 344, quoting MCL 769.11b
(emphasis added). Accordingly, a defendant who commits a new offense while on parole for
another offense is not entitled to jail credit for time served after his or her arrest on the new
offense and before sentencing on that offense, if that time represents time served on his prior
conviction. Idziak, 484 Mich. at 552.
Defendant is therefore not entitled to jail credit for the period of his incarceration from
June 27, 2017, through July 21, 2017, because during that time he was serving the unexpired
2
The parties agree that, notwithstanding the recommendation in the PSIR that 282 days of jail
credit be awarded, defendant is entitled to 258 days of credit for time served. The prosecution
suggests that the reference to 282 days in the PSIR is a miscalculation.
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portion of his prior sentence. See Idziak, 484 Mich. at 562. However, after defendant’s parole
was discharged, defendant was entitled to credit for any time served before his sentencing in this
case. The parties agree that defendant is entitled to credit for the 258 days served from July 21,
2017 to the date of his sentencing in this case, April 5, 2018. However, the PSIR states that
defendant’s bond was “revoked” at some point before sentencing, suggesting that defendant may
have posted bond for some of the relevant period. We are unable to determine from the existing
record whether this statement is an error. On remand, the trial court should determine the
appropriate amount of jail credit and amend the judgment of sentence accordingly.
Defendant also argues, without elaboration or citation to authority, that the judgment of
sentence should be amended to strike the language indicating that the sentence was to be served
consecutively to his “parole sentence.” Because defendant has failed to adequately brief this
argument, it is abandoned. See People v Harris, 261 Mich. App. 44, 50; 680 NW2d 17 (2004). In
any event, the trial court possessed the power to order defendant serve his sentence consecutively
to any prior sentences for which he was on parole. MCL 768.7a(2). See also People v Seiders,
262 Mich. App. 702, 705; 686 NW2d 821 (2004). Although it in fact appears that defendant had
completed his parole by the time of sentencing in this case, the statement is not incorrect.
In light of our resolution of the jail credit issue, we need not address defendant’s
alternative argument that his trial counsel was ineffective for failing to raise the issue of jail
credit at sentencing.
We remand this case to the trial court for a determination of the appropriate amount of
jail credit and for the amendment of the judgment of sentence to reflect that amount of jail credit.
We do not retain jurisdiction.
/s/ Jane E. Markey
/s/ Stephen L. Borrello
/s/ Mark T. Boonstra
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