People v. Parshay , 104 Mich. App. 411 ( 1981 )

104 Mich. App. 411 (1981) 304 N.W.2d 593

PEOPLE
v.
PARSHAY

Docket No. 43074.

Michigan Court of Appeals.

Decided March 5, 1981.

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

James Krogsrud, Assistant State Appellate Defender, for defendant on appeal.

Before: BRONSON, P.J., and J.H. GILLIS and CYNAR, JJ.

PER CURIAM.

Defendant was convicted, upon his plea of guilty, of criminal sexual conduct in the first degree (CSC I), MCL 750.520b(1)(b); MSA 28.788(2)(1)(b). Pursuant to a sentencing agreement, defendant was sentenced to from 6-1/2 to 10 years imprisonment. Two counts of CSC III and a second count of CSC I pending against defendant, arising from the same criminal transaction, were dismissed in exchange for defendant's plea. Defendant now appeals as of right.

Defendant first argues that he was denied due process of law as a result a five-month delay from the time a complaint was received by the Detroit police to the date the prosecutor's office issued a warrant for defendant's arrest. On the facts of this case, we find defendant's argument to be without merit. United States v Lovasco, 431 U.S. 783; 97 S. Ct. 2044; 52 L. Ed. 2d 752 (1977), People v Hernandez, 15 Mich. App. 141; 170 NW2d 851 (1968).

Defendant's claim regarding a denial of his right to a speedy trial was waived for purposes of appeal by his tendering of a plea of guilty. Speed v United States, 518 F2d 75, 77 (CA 8, 1975), cert den sub nom Camp v United States, 423 U.S. 988; 96 S. Ct. 398; 46 L. Ed. 2d 306 (1975), United States v Lee, 500 F2d 586 (CA 8, 1974), cert den 419 U.S. 1003; 95 S. Ct. 322; 42 L. Ed. 2d 279 (1974).

Next, we address the question of whether defendant is entitled to additional credit against the sentence imposed by the trial court.

It is well settled that Michigan's credit statute, MCL 769.11b; MSA 28.1083(2), is remedial and is to be liberally construed. People v Stange, 91 Mich. App. 596, 600; 283 NW2d 806 (1979), and cases cited therein. The only recognized exception to this rule is where a liberal construction would defeat the purpose of a consecutive sentencing statute. Brinson v Genesee Circuit Judge, 403 Mich. 676, 686; 272 NW2d 513 (1978). Additionally, absent explicit statutory authorization to the contrary, sentences must run concurrently and not consecutively. People v Lawson, 75 Mich. App. 726, 730; 255 NW2d 748 (1977), People v Face, 88 Mich. App. 435, 441; 276 NW2d 916 (1979).

The complaint against defendant on the CSC I charge of which he was convicted was filed on February 25, 1977. On March 1, 1977, defendant was incarcerated in the Oakland County jail on an unrelated charge. However, not until August 8, 1977, was an arrest warrant issued. Officer Cheryl Friday of the Detroit Police Department was assigned to investigate the allegations of the two complainants. The police were apparently unsatisfied with the prospect of pursuing the case on the statements of the complainants, themselves. Thus, they did not immediately seek a warrant. Instead, the police hoped to find an alleged res gestae witness named "Lee" to corroborate the victims' allegations. With these actions by the Detroit Police Department we have no complaint. Indeed, we commend the department for taking the time to investigate the complainants' assertions prior to seeking a warrant.

The problem here, however, is that Officer Friday made no attempt to locate the missing witness until some time after June 28, 1977. At this time, Officer Friday discovered that Lee had been evicted two or three months earlier and had left no forwarding address. Although the testimony is not entirely clear, it appears that had Officer Friday immediately begun her investigation of the complaints, she would have located Lee without problem. Assuming Lee had been evicted before or within a few days of the time the complaints were filed so that even had Officer Friday acted promptly she would have had difficulty finding him, it is a probability that Lee's trail would have been easier to pursue. As it was, the warrant was issued without Lee ever being located.

Officer Friday's explanation for failing to act quicker in her search for Lee was that she had a heavy case load, a week of night duty, and possibly some vacation time. In our opinion, a liberal and reasonable construction of the credit statute would require the police to act with due diligence in pursuing their investigation prior to the issuance of a warrant. What constitutes "due diligence" should be considered in the same light as a prosecutor's duty to exercise due diligence in securing a witness for trial. See, for instance, People v Barker, 18 Mich. App. 544; 171 NW2d 574 (1969), lv den 383 Mich. 813 (1970), People v Eugene Harris, 43 Mich. App. 531; 204 NW2d 549 (1972), People v James, 51 Mich. App. 777; 216 NW2d 473 (1974), lv den 394 Mich. 756 (1975), People v McPherson, 84 Mich. App. 81; 269 NW2d 313 (1978), lv den 407 Mich. 896 (1979). Where the police have failed to live up to this standard and delay in the issuance of an arrest warrant is the result, if defendant is incarcerated on another offense, unless that other offense precludes concurrent sentencing, we believe defendant must be given credit from the beginning of his incarceration and not just from the date upon which the arrest warrant is issued.

We fear that a contrary resolution would encourage police to be lackadaisical in their approach to investigating crimes allegedly committed by those they know to be in custody. To the extent that the police desire to keep a defendant incarcerated as long as possible, the contrary approach affirmatively fosters dubious practices by making the date the arrest warrant is issued the sole date of any significance in relation to credit. While it is true that the trial court found the delay here explainable and not deliberate, the reasons given by Officer Friday for the delay do not make out a showing of due diligence in the investigation, and it is always difficult to prove that somebody acted deliberately instead of negligently. In the context of sentence credits and post-complaint investigation, we believe that the burden must be on the police to show that their actions were diligent to insure that the purpose of the credit statute is not defeated.

People v Coyle, 104 Mich. App. 636; 305 NW2d 275 (1981), involved the failure to "arrest" a defendant contemporaneously with the issuance of a warrant while he was already in jail on pending charges. There, this same panel held that defendant should not suffer the consequences of an "administrative delay in arresting him". We believe that Coyle supports our position on this issue. A police department's lack of diligence in post-complaint investigation is a form of "administrative delay". Had the investigation been better managed, the delay here would be nonexistent. Compare, Face, supra.

There are many good reasons to require a defendant to establish prejudice to his defense prior to reversing a conviction on due process grounds based upon a delay between the filing of a complaint and his arrest. On the facts of this case, no reversal is warranted on this basis. However, where there has been post-complaint procrastination in arrest and no showing of due diligence in the investigation, a defendant has shown sufficient prejudice to his person (although not necessarily his ability to defend against the charges) to entitle him to additional credits.

We, therefore, conclude that defendant is entitled to an additional 157 days credit on his sentence.

As a final issue, defendant contends that the trial court lost jurisdiction to try him because he was not brought to trial within 180 days of the issuance of the warrant in the case at bar, at which time he already was incarcerated pursuant to the command of MCL 780.131; MSA 28.969(1). We disagree, for we find that much of the delay in this case was attributable to defendant, himself, and that the prosecutor engaged in continued good-faith action and had readied the case for trial in a timely fashion under the 180-day rule. Any delay beyond the 180-day period was excusable on the facts of this case. People v Hendershot, 357 Mich. 300; 98 NW2d 568 (1959), People v Hill, 402 Mich. 272, 281-282; 262 NW2d 641 (1978), People v Ferguson, 94 Mich. App. 137, 142-144; 288 NW2d 587 (1979), lv den 409 Mich. 949 (1980).

We find no error necessitating remand or reversal and, therefore, affirm defendant's conviction. We modify defendant's sentence to reflect an additional 157 days credit thereon.

Affirmed as modified.