People v. Ovalle , 222 Mich. App. 463 ( 1997 )

564 N.W.2d 147 (1997) 222 Mich. App. 463

PEOPLE of the State of Michigan, Plaintiff-Appellee,
v.
John Clement OVALLE, Defendant-Appellant.

Docket Nos. 192770, 192845.

Court of Appeals of Michigan.

Submitted January 21, 1997, at Lansing. Decided March 25, 1997, at 9:20 a.m. Released for Publication June 6, 1997.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, James R. Reed, Prosecuting Attorney, and Jonathan C. Pierce, Assistant Attorney General, for People.

Joseph J. Farah, Flint, for Defendant-Appellant.

Before GRIFFIN, P.J., and McDONALD and C.W. JOHNSON^[*], JJ.

McDONALD, Judge.

Defendant pleaded guilty of being a prisoner in possession of marijuana, M.C.L. § 800.281(4); M.S.A. § 28.1621(4), and was sentenced to fourteen months' to five years' imprisonment. In Docket No. 192770, defendant filed an application for leave to appeal from his December 15, 1995, judgment of sentence. In Docket No. 192845 defendant filed an emergency application for leave to appeal from the February 6, 1996, opinion and order denying rehearing and resentencing. Both applications were granted by this Court. In both cases, defendant seeks relief, claiming he discovered after sentencing that at the time he committed this offense he mistakenly had remained incarcerated after having served the maximum term of the sentence for which he had previously been imprisoned. We affirm.

There is no absolute right to withdrawal of a guilty plea. People v. Rettelle, 173 Mich.App. 196, 433 N.W.2d 401 (1988). When first made after sentencing, a motion to withdraw a guilty plea is addressed to the sound discretion of the trial court, and the trial court's decision will not be disturbed unless there is a clear abuse of discretion resulting in a miscarriage of justice. People v. Jones, 190 Mich.App. 509, 476 N.W.2d 646 (1991). Although in this case the court in exercising its discretion was required to interpret a statute, we find no error in the court's interpretation or exercise of discretion. Heinz v. Chicago Rd. Investment Co., 216 Mich.App. 289, 549 N.W.2d 47 (1996).

Defendant pleaded guilty of violating M.C.L. § 800.281(4); M.S.A. § 28.1621(4). He now maintains the statute applies only to a prisoner who is "lawfully" incarcerated and, therefore, because it is undisputed he was not lawfully incarcerated at the time he committed the instant offense, his motion to withdraw his guilty plea should have been granted. Defendant also argues this same issue in the context of a motion for a new trial based on newly discovered evidence, the new evidence being the discovery after sentencing that his prior sentence had terminated some four years earlier, thereby establishing his incarceration on the date of the instant offense was unlawful.

M.C.L. § 800.281(4); M.S.A. § 28.1621(4) states in relevant part:

Except as provided in section 2, a prisoner shall not possess any alcoholic liquor, prescription drug, poison, or controlled substance.

The statute does not contain any requirement of "lawful" incarceration. Rather, the statute's applicability is dependent upon a person's status as a "prisoner." The term "prisoner" is expressly defined in M.C.L. § 800.281a; M.S.A. § 28.1621(1), which states:

As used in this act:

* * * * * *

(f) "Prisoner" means a person committed to the Michigan commission on corrections who has not been released on parole or discharged.

Under the foregoing definition, a person is a prisoner if that person has been committed to the Michigan commission on corrections and "has not been released on parole or discharged." The legality of the person's commitment is immaterial, apart from determining whether the person has been "released on parole or discharged." Here, defendant was committed to the commission of corrections and had not been released on parole or discharged when he was charged with possessing marijuana. He was therefore subject to prosecution for possession of marijuana by a prisoner, notwithstanding the alleged illegality of his incarceration.

We reject defendant's invitation to create a requirement that a person must be legally incarcerated in order to be convicted of being a prisoner in possession of a controlled substance. Defendant's reliance on People v. Alexander, 39 Mich.App. 607, 197 N.W.2d 831 (1972), for this proposition is misplaced. Alexander involved a prosecution for prison escape and was premised on the existence of a constitutional right to liberty. There is no corresponding right to possess a controlled substance. On the contrary, under M.C.L. § 333.7403; M.S.A. § 14.15(7403), possession of marijuana by a person who is not incarcerated is unlawful. Defendant was properly charged and convicted of being a prisoner in possession of a controlled substance.

We also reject defendant's contention the trial court erred in failing to amend defendant's judgment of sentence to reflect a commencement date consistent with the day after defendant's previous sentence expired or alternatively to award defendant sentence credit because of the Department of Corrections' delay in properly adjusting defendant's records.

Defendant asserts because consecutive sentencing was required under M.C.L. § 768.7a(1); M.S.A. § 28.1030(1)(1), and because that statute states a consecutive sentence "shall begin to run at the expiration of the term or terms of imprisonment which the person is serving or has become liable to serve," his judgment of sentence should be amended to reflect a sentence commencement date of November 15, 1991. We disagree. Defendant fails to distinguish the issue of consecutive sentencing from the issue of sentence commencement date. Apart from the issue of sentence credit, which is discussed below, it is axiomatic a sentence may not commence to run before it is imposed. See, e.g., People v. Johnson, 57 Mich.App. 117, 225 N.W.2d 704 (1974), and People v. Adkins, 433 Mich. 732, 449 N.W.2d 400 (1989). In order to adopt defendant's argument, this Court would have to conclude defendant's sentence began to run more than four years before it was ever imposed, and more than 3½ years before defendant committed the crime itself. To reach such a conclusion would be illogical.

We likewise reject defendant's argument he should receive additional sentence credit pursuant to M.C.L. § 769.11b; M.S.A. § 28.1083(2). Defendant's prior incarceration was not the result of being denied or unable to furnish bond for the offense of which he was convicted. Rather, defendant was incarcerated because of the circumstances of his prior 1987 conviction and sentence for possession of cocaine and an apparent record-keeping error by the Michigan Department of Corrections with respect to that sentence. As our Supreme Court noted in People v. Prieskorn, 424 Mich. 327, 340, 381 N.W.2d 646 (1985), § 11b "neither requires nor permits sentence credit" in cases where a defendant is incarcerated "as a result of charges arising out of an unrelated offense or circumstance" and then seeks credit in another case for the unrelated period of confinement. The trial court correctly concluded defendant was not entitled to sentencing credit.

Finally defendant's remaining claim, challenging the trial court's authority to countermand an order providing for his release from prison on a writ of habeas corpus pending a decision in this case, is now moot. In an order dated June 6, 1996, in Docket No. 192845, this Court ordered defendant released on bond pending decision of this appeal.

Defendant's conviction and sentence is affirmed and defendant is ordered remanded to the custody of the Department of Corrections.

NOTES

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