People v. Evans ( 1995 )

213 Mich. App. 671 (1995) 540 N.W.2d 489

PEOPLE
v.
EVANS

Docket No. 167716.

Michigan Court of Appeals.

Submitted September 6, 1995, at Detroit. Decided October 3, 1995, at 9:00 A.M.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, John D. O'Hair, Prosecuting Attorney, Timothy A. Baughman, Chief of Research, Training, and Appeals, and Douglas P. Dwyer, Assistant Prosecuting Attorney, for the people.

John R. Minock, for the defendant.

Before: TAYLOR, P.J., and BANDSTRA and J.R. JOHNSON,^[*] JJ.

AFTER REMAND

PER CURIAM.

Defendant was charged with various felonies committed in August 1990 (Recorder's Court Docket Nos. 90-009817 and 90-009914). Pending the disposition of these charges, defendant committed subsequent felony offenses in October 1990 (Recorder's Court Docket No. 91-010887) while on bond for the August 1990 offenses. After defendant pleaded nolo contendere with regard to various felonies committed in Docket Nos. 90-009817 and 90-009914 and guilty with regard to felonies committed in Docket No. 91-010887, the trial court ordered that the sentences in Docket No. 91-010887 were to run concurrently with the sentences imposed in Docket Nos. 90-009817 and 90-009914.^[1] Defendant appealed. The Court of Appeals, SULLIVAN, P.J., and BRENNAN and REILLY, JJ., granted defendant's motion to remand to allow defendant to move to withdraw his pleas and for resentencing. Unpublished order of the Court of Appeals, entered December 16, 1992 (Docket No. 153837). The trial court again ordered that the sentences run concurrently, and defendant withdrew his motion to withdraw his pleas. The prosecutor appealed as of right. We reverse the trial court's order that the sentences imposed in Docket No. 91-010887 are to run concurrently with the sentences imposed in the two other cases.

The prosecutor argues that the trial court improperly ordered defendant's sentences for the subsequent convictions in Docket No. 91-010887 to run concurrently with, rather than consecutively to, his sentences in Docket Nos. 90-009817 and 90-009914. The prosecutor asserts that MCL 768.7b(1); MSA 28.1030(2)(1) mandates that defendant be sentenced to consecutive sentences for the prior and subsequent felony convictions because defendant committed the subsequent felony offense between April 1, 1988, and December 31, 1991, while the prior felony charges were pending. In contrast, defendant asserts, and the trial court agreed, that defendant could be sentenced to consecutive sentences only if the subsequent felony as well as the conviction and the sentencing with regard to the subsequent felony occurred between April 1, 1988, and December 31, 1991. We agree with the prosecutor and conclude that the trial court improperly ordered defendant's sentences in Docket No. 91-010887 to run concurrently with his sentences in Docket Nos. 90-009817 and 90-009914.

MCL 768.7b(1); MSA 28.1030(2)(1) provides:

Beginning April 1, 1988, and through December 31, 1991, if a person who has been charged with a felony, pending the disposition of the charge, commits a subsequent offense that is a felony, upon conviction of the subsequent offense or acceptance of a plea of guilty, guilty but mentally ill, or nolo contendere to the subsequent offense, the sentences imposed for the prior charged offense and the subsequent offense shall run consecutively.

The language of MCL 768.7b(1); MSA 28.1030(2)(1) clearly provides that a person who commits a felony within the described period pending the disposition of another felony shall be sentenced to consecutive sentences. The statute does not require that conviction and sentencing for the subsequent felony also occur within the described period. When the language of a statute is clear, as in this case, judicial interpretation is unnecessary and the Legislature is presumed to have intended the meaning plainly expressed in the statute. Turner v Auto Club Ins Ass'n, 448 Mich. 22, 27; 528 NW2d 681 (1995); Bommarito v Detroit Golf Club, 210 Mich. App. 287, 291; 532 NW2d 923 (1995). Courts may not speculate regarding the probable intent of the Legislature when the statutory language is clear and unambiguous. Goodridge v Ypsilanti Twp Bd, 209 Mich. App. 344, 347; 529 NW2d 665 (1995). When the language of a statute is clear, it must be enforced as written. Turner, supra.^[2]

Furthermore, other cases decided by this Court involving MCL 768.7b(1); MSA 28.1030(2)(1) also have focused only on when the subsequent felony offense was committed rather than, as emphasized by the trial court, when the conviction and sentencing occurred.^[3] See People v Alexander (After Remand), 207 Mich. App. 227, 229; 523 NW2d 653 (1994); People v Alvarado, 192 Mich. App. 718, 723; 481 NW2d 822 (1992); People v Mamon, 190 Mich. App. 124, 125-126; 475 NW2d 378 (1991); People v Brown, 184 Mich. App. 567, 572; 459 NW2d 19 (1990); People v Reynolds, 181 Mich. App. 185, 189; 448 NW2d 774 (1989).

Defendant withdrew his motion to withdraw his pleas on the basis of the trial court's erroneous order that the sentences imposed in Docket No. 91-010887 would be served concurrently with the sentences imposed in the two other cases. We remand to the trial court to allow defendant to move to withdraw his pleas.

We reverse and remand for proceedings consistent with this opinion. We do not retain jurisdiction.

NOTES

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

[1] We note that the February 28, 1992, plea hearing transcript and the trial court's May 21, 1993, opinion on remand state that defendant pleaded guilty of the offenses in Docket No. 91-010887, while the judgment of sentence states that defendant pleaded nolo contendere. In any event, whether defendant pleaded guilty or nolo contendere is irrelevant to the issue on appeal.

[2] Further, even assuming that the legislative intent was to test the effect of consecutive sentencing on prison populations as the trial court reasoned, our decision today establishes a limited time frame of consecutive sentences for purposes of that test, albeit slightly longer than the one resulting from the decision of the trial court.

[3] The sentence relied upon by the trial court from People v Sleet, 193 Mich. App. 604, 605; 484 NW2d 757 (1992) ("Before and after those dates, the sentencing court has discretion to decide whether to impose a consecutive rather than a concurrent sentence."), was misconstrued. This sentence immediately followed a reference to "felonies committed between April 1, 1988, and December 31, 1991," and we conclude that Sleet is best interpreted as allowing consecutive sentencing discretion only with regard to "felonies committed ... [b]efore and after those dates...." Id. If a crime occurs within these dates, then a defendant must be sentenced to consecutive sentences regardless of when sentencing and conviction occur.