People v. Poole , 7 Mich. App. 237 ( 1967 )

7 Mich. App. 237 (1967) 151 N.W.2d 365

PEOPLE
v.
POOLE.

Docket No. 2,037.

Michigan Court of Appeals.

Decided June 27, 1967. Rehearing denied August 2, 1967. Leave to appeal granted December 12, 1967.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Clarence A. Sahlin, Prosecuting Attorney, for the people.

Calvin B. Talhelm, for defendant.

Leave to appeal granted December 12, 1967. See 379 Mich 790.

HOLBROOK, J.

Convicted on his own plea of guilty, defendant was sentenced for a term of 6 to 15 years for the crime of breaking and entering in the nighttime^[1] on January 31, 1964.

In September of 1965, defendant made claim of indigency and such claim being recognized, counsel was appointed by the trial court for post-conviction proceedings. Through counsel, defendant presented a motion for new trial on January 29, 1966. The motion for new trial, granted February 3, 1966, stated that defendant was indigent and was not advised at the preliminary examination of his right to court appointed counsel. Represented by court appointed counsel defendant was arraigned the same day. Defendant again entered a plea of guilty. The record reveals that defendant took this course of action in order to obtain a reconsideration of his sentence.

The trial judge accepted the plea of guilty and sentenced defendant to a term of 8 to 15 years on February 11, 1966. The minimum sentence of 8 years and the maximum sentence of 15 years were reduced at the time of sentence to allow a credit of 2-1/2 years for time already served.

Defendant appeals to this Court and raises 3 issues as follows: (1) Whether the trial judge properly sentenced defendant; (2) whether the maximum sentence should have been 10 years; (3) whether the maximum sentence as imposed was reduced by time already served.

Defendant asserts herein for the first time on appeal that the trial judge improperly sentenced him on his new plea of guilty because of what the trial judge stated concerning his granting defendant's motion for new trial. Defendant further asserts that the trial court should have vacated its order granting a new trial.

The following indicates what transpired on sentencing defendant:

"The Court. Well, I want to say this to you. You are here on a matter in which I am inclined to feel that I made a mistake and I am inclined to feel that in your hopes for a more lenient sentence you have taken advantage of the court. You have filed this motion for a new trial on the grounds that you were not advised by the justice of the peace of your right to counsel at public expense if you were indigent. I came down to Reed City without knowing anything about the case and the prosecutor did not oppose the granting of the motion, so I granted you a new trial and then in preparation for the disposition of this case today, when I looked through the file, I find that you were in fact represented by an attorney at the preliminary examination.

"Defendant. Sir, I was but I was not informed at the first arraignment by the justice of the peace that I was entitled to a lawyer provided for me by the State. In fact, the money that I retained the lawyer with was borrowed. I was indigent at the time.

"The Court. But if you did in fact have counsel at the preliminary examination, then how were you harmed by it?

"Defendant. (Nodding head in the affirmative.)

"The Court. At any rate, I had signed the order and I had made that mistake and if it was a mistake, I'm as much responsible for it as anyone because I didn't read the file before I accepted it."

The granting of a motion for new trial lies within the sound discretion of the trial court, and to establish error, a clear abuse of this discretion must be shown. People v. Dailey (1967), 6 Mich App 99. 66 CJS, New Trial, § 201, p 490 states that this discretion vested in a trial court is "a legal, judicial discretion, to be exercised according to, and within the bounds of, law and reason." "Abuse of discretion" with respect to granting a motion for new trial connotes more than an error of law or of judgment; it implies an unreasonable, arbitrary, or unconscionable attitude on the part of the trial court. Steiner v. Custer (1940), 137 Ohio St 448 (31 NE2d 855). We do not find from a review of the record any abuse of discretion on the part of the trial judge.

In the case of People v. Beath (1936), 277 Mich 473, Mr. Justice BUTZEL stated on p 479 as follows:

"It is further claimed that the trial court had no right to set aside an order granting a new trial, even though improvidently granted and under a misapprehension of facts. We find no statute governing the situation. There is authority in other States that in the absence of a statute precluding the revocation of an order granting a new trial, such an order improvidently granted may be revoked."

This case is authority for the principle of law that a trial court may set aside and vacate an order for new trial improvidently granted. The facts in the case at hand are not conclusive that the order granting new trial was improvidently granted. The failure of defendant to make a motion in the trial court for setting aside the order granting new trial precludes him from raising this issue on appeal.

We do not find the trial judge to have erred in sentencing defendant to a longer minimum term. Defendant knowingly took a risk in seeking a new trial and should not be heard to complain because the new minimum sentence may increase the time he might serve. This Court, in People v. Pate (1965), 2 Mich App 66, 68, stated:

"When a sentence is within the maximum provided by statute, the trial court has wide discretion and an appellate court does not have supervisory control over the punishment. See Cummins v. People (1879), 42 Mich 142; People v. Kelly (1894), 99 Mich 82; People v. Guillett (1955), 342 Mich 1."

See, also, People v. Doran (1967), 6 Mich App 86.

Defendant's second issue questions the maximum sentence of 15 years in view of the fact that CL 1948, § 750.110, as amended by PA 1964, No 133, effective August 28, 1964, to provide a maximum penalty of 10 years for the crime of breaking and entering a store.

The rule is that the sentence or punishment imposed is that prescribed by the statute in force at the time of the commission of a crime. 24B CJS, Criminal Law, § 1982, pp 571-573. People, ex rel. Liezert, v. Foster (1947), 67 NYS2d 556 (188 Misc 142), points out that as a general rule, amendments to criminal statutes with respect to sentence or punishment are not retroactive. The trial judge did not commit error in sentencing defendant according to the penalty set forth in the statute at the time of the offense.

Defendant asserts that the maximum sentence as imposed was not reduced by the time he had already served as required by statute.^[2]

In sentencing defendant the trial judge stated:

"on the record that I have before me, I have no alternative, in my judgment, except to impose a sentence which is essentially the same as that imposed by Judge Stephens and that is, that you be sentenced to the State prison of southern Michigan. The maximum period of the breaking and entering in the nighttime statute is 15 years, which is reduced under this new act, calling for the reduction of maximum sentences to give allowance for time previously served. And the minimum sentence of 8 years, which is also reduced, with no particular recommendation."

The indeterminate sentence record, record of sentence, and warrant for commitment state the minimum sentence as 5-1/2 years which was proper; however, they state the maximum sentence as 15 years with no showing of reduction for the time already served by defendant.

"The restraint of one convicted of crime is permitted only when there is an order, warrant, or judgment of a court or magistrate commanding it. And, if such order, warrant, or judgment is irregular merely, it may be in most cases corrected." In re Forscutt (1911), 167 Mich 438, 442.

The maximum sentence of 15 years should be corrected to read 12-1/2 years on the documents above mentioned to agree with the trial judge's sentence appearing in the record.

Affirmed as modified.

FITZGERALD, P.J., and BURNS, J., concurred.

NOTES

[1] CL 1948 § 750.110 (Stat Ann 1962 Rev § 28.305). See, currently, CL 1948, § 750.110, as amended by PA 1964, No 133 (Stat Ann 1965 Cum Supp, § 28.305).

[2] CLS 1961, § 769.11a, since amended by PA 1965, No 67 (Stat Ann 1965 Cum Supp § 28.1083[1]).