People v. Reese , 83 Mich. App. 186 ( 1978 )

83 Mich. App. 186 (1978) 268 N.W.2d 340

PEOPLE
v.
REESE

Docket Nos. 77-1858, 77-1859.

Michigan Court of Appeals.

Decided May 9, 1978.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward R. Wilson, Principal Attorney, Appeals, and Richard A. Neaton, Assistant Prosecuting Attorney, for the people.

Charles Burke, for defendant.

Before: M.J. KELLY, P.J., and T.M. BURNS and R.M. MAHER, JJ.

T.M. BURNS, J.

Defendant pled guilty in Recorder's Court for the City of Detroit to two informations charging him with receiving or concealing stolen property with a value in excess of $100. MCL 750.535; MSA 28.803. In each case, the property was an automobile. Defendant was sentenced to serve two consecutive five year terms for these offenses^[1] which, in turn, were to be served concurrently with an 11 to 25 year sentence on an unrelated offense. In this appeal defendant claims it was error to sentence him to two flat five year terms rather than an indeterminate sentence under People v Tanner, 387 Mich. 683; 199 NW2d 202 (1972).

The question of whether the indeterminate sentencing provision, MCL 769.8; MSA 28.1080, applies to an individual with a prior conviction has of late caused much division in this Court. The Supreme Court has applied Tanner in this type of case, but without discussion. See, e.g., People v Haggitt and People v Jordan, 388 Mich. 773; 200 NW2d 321 (1972).

The first hint^[2] that there might be three possible types of sentences — indeterminate (MCL 769.8; MSA 28.1080), habitual offenders (MCL 769.10, 769.11, 769.12; MSA 28.1082, 28.1083, 28.1084) and a nonstatutory or common law nonfirst offender, nonhabitual criminal — appears to have come in People v Moore, 40 Mich. App. 383, 387; 198 NW2d 775 (1972). The case which has become the basis of approving this type of sentence is People v Ungurean, 51 Mich. App. 262; 214 NW2d 873 (1974), lv den, 395 Mich. 805 (1975), where the panel approved a sentence of 14 to 15 years. However, Ungurean had been charged and was sentenced under the provisions of the habitual offender statute, something which was not done here.

As noted above, this Court has been divided on the question of whether one not charged as a habitual offender may receive a flat sentence or an indeterminate sentence which does not comply with Tanner if it appears from the presentence report or otherwise that he has been previously convicted of crime. Compare, People v Redwine, 73 Mich. App. 83; 250 NW2d 550 (1976), People v Reginald Harris, 80 Mich. App. 228; 263 NW2d 40 (1977),^[3] with People v Banks, 73 Mich. App. 492; 252 NW2d 501 (1977), People v Malchi White, 81 Mich. App. 226; 265 NW2d 100 (1978).^[4]

In our opinion, the better view, and the one most consistent with the statutory sentencing scheme, is that expressed by the majority in Redwine and People v Reginald Harris.

The sentencing scheme is set out in Chapter IX of the Code of Criminal Procedure, MCL 769.1 et seq.; MSA 28.1072, et seq. Section 8,^[5] the provision in question here, applies to those "convicted for the first time". Sections 10,^[6] 11^[7] and 12,^[8] the habitual offender provisions, apply to defendant's second and subsequent convictions. However, before the habitual offender penalties may be imposed, a defendant is entitled to the hearing and notice protections of § 13.^[9] To remove a defendant from the benefits of the indeterminate sentencing provision without charging him in a supplemental information as a habitual offender is both unwise and unfair.

The Legislature has created but two types of sentences — indeterminate and habitual — and, unless he is charged as a habitual offender, he must be sentenced as if he were "convicted for the first time". That this is the legislative intent can be seen from the final phrase of § 1:^[10] "* * * such sentence shall in no case or respect be greater than the penalty * * * prescribed * * * by law". (Emphasis added.) The people point to no statute authorizing the flat five year sentence as imposed here, without complying with the habitual offender provisions, and we have found none. Defendant must be sentenced under § 8 as interpreted by the Supreme Court in People v Tanner.

The convictions are affirmed with the sentences modified to 40 to 60 months each.

R.M. MAHER, J., concurred.

M.J. KELLY, J. (dissenting).

Two cases are consolidated for this appeal.

Defendant was bound over for trial after a preliminary examination was held on January 7, 1977, for the crime of receiving or concealing stolen property over $100 on January 1, 1977; specifically a Ford automobile (Docket No. 77-1859). MCL 750.535; MSA 28.803. On February 14, 1977, defendant was bound over for trial for a similar crime which occurred on February 6, 1977, involving a Pontiac automobile (Docket No. 77-1858). On April 19, 1977, defendant pled guilty to both offenses in the Recorder's Court for the City of Detroit. The trial court accepted his plea of guilty in both cases, and sentenced defendant to serve "five years flat" on both charges. The sentences were to run consecutively. Defendant appeals asserting that under People v Tanner, 387 Mich. 683; 199 NW2d 202 (1972), the trial court erred by not setting a minimum sentence.

The Tanner "two-thirds" rule does not apply to the defendant since he has been previously convicted of a felony. For the reasons set forth in People v Malchi White, 81 Mich. App. 226; 265 NW2d 100 (1978), I would hold that the trial court did not abuse its discretion in sentencing defendant to a term of five years without setting a minimum term in the present case.

I would affirm.

NOTES

[1] The second offense occurred while defendant was awaiting trial on the first. Consecutive sentences are proper under the circumstances. MCL 768.7b; MSA 28.1030(2).

[2] People v Biniecki, 35 Mich. App. 335; 192 NW2d 638 (1971), lv den 387 Mich. 764 (1972), dealt with the distinct question of sentencing for escape from prison.

[3] People v Bullock, 48 Mich. App. 700; 211 NW2d 108 (1973), applied Tanner to a case of the type under discussion here, but did not discuss the convicted for the first time language of the indeterminate sentencing provision.

[4] People v McFadden, 73 Mich. App. 232; 251 NW2d 297 (1977), deals with the related problem of doubling a defendant's sentence for a second drug conviction under MCL 335.348; MSA 18.1070(48) without a hearing or proof of the prior conviction. We express no view as to the correctness of that decision.

[5] MCL 769.8; MSA 28.1080.

[6] MCL 769.10; MSA 28.1082.

[7] MCL 769.11; MSA 28.1083.

[8] MCL 769.12; MSA 28.1084.

[9] MCL 769.13; MSA 28.1085.

[10] MCL 769.1; MSA 28.1072.