People v. Makidon , 84 Mich. App. 287 ( 1978 )

84 Mich. App. 287 (1978) 269 N.W.2d 568

PEOPLE
v.
MAKIDON

Docket No. 77-2802.

Michigan Court of Appeals.

Decided June 20, 1978.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Gerald D. Lostracco, Prosecuting Attorney (by Thomas C. Nelson, Assistant Attorney General, Prosecuting Attorneys Appellate Service), for the people.

Hoschner & Kurrle, for defendant on appeal.

Before: BASHARA, P.J., and M.J. KELLY and ALLEN, JJ.

M.J. KELLY, J.

Defendant was convicted of rape, MCL 750.520; MSA 28.788, by a Shiawassee County Circuit Court jury on April 13, 1972. He was sentenced on May 8, 1972, to a prison term of 30 to 40 years. He appeals by leave granted September 22, 1977.

Defendant raises three issues on appeal. Our disposition of this case renders a discussion of the first issue unnecessary.

Defendant argues that the trial judge failed to exercise his discretion to exclude evidence of defendant's prior criminal convictions to be introduced at trial to impeach defendant's credibility. The present case was tried prior to People v Jackson, 391 Mich 323; 217 NW2d 22 (1974), and People v Cherry, 393 Mich 261; 224 NW2d 286 (1974), which held that a trial judge may refuse to permit impeachment by prior convictions, and that it is error to fail or refuse to recognize this discretionary power. The same rule had been adopted, however, by this Court in People v Farrar, 36 Mich App 294; 193 NW2d 363 (1971), prior to the instant trial.

The trial court was informed by both the defendant and the prosecutor that it was within its discretion to allow reference to prior convictions. The court was also informed of the nature of the prior convictions. Cf. People v Killebrew, 61 Mich App 129; 232 NW2d 329 (1975), lv den, 395 Mich 817 (1975).

Even though the trial court did not "positively indicate and identify its exercise of discretion" in the matter, People v Cherry, supra, at 261, it is clear from the record that the judge was aware that he had discretion. There is no need for the court to specifically state that it is exercising discretion. People v Pleasant, 69 Mich App 322, 328; 244 NW2d 464 (1976), lv den, 399 Mich 831 (1977). A review of the motion to suppress reference to prior convictions establishes that there was no abuse of discretion. Cf. People v Crawford, 83 Mich App 35; 268 NW2d 275 (1978).

Even if we were to assume that the trial judge did err by not indicating that he was acting in exercise of his discretion, the overwhelming evidence presented at trial indicates that any error was harmless. People v Killebrew, supra. See People v Johnson, 46 Mich App 212; 207 NW2d 914 (1973). The complainant's testimony was very strong, as was that of the neighbors, and the physical evidence connecting defendant with the crime was abundant. Under the facts presented reversal is not required.

As to defendant's final argument that he is entitled to a modification of his 30 to 40 year sentence in accordance with the two-thirds rule of People v Tanner, 387 Mich 683; 199 NW2d 202 (1972), there is a split on this Court.

Defendant is a repeat felony offender, and the Tanner two-thirds rule is inapplicable for the reasons set forth in People v Malchi White, 81 Mich App 226; 265 NW2d 100 (1978), lv held in abeyance (Docket #61014, Apr. 5, 1978). But see People v Redwine, 73 Mich App 83; 250 NW2d 550 (1976).

Our disposition of this case renders any error in the four-year delay in appointment of appellate counsel harmless, since the defendant has not been prejudiced.

Affirmed.

ALLEN, J., concurred.

BASHARA, P.J. (concurring in part, dissenting in part).

I am in concurrence with my brethren on all issues raised except that of the applicability of People v Tanner, 387 Mich 683; 199 NW2d 202 (1972). The fact that defendant is a repeat felony offender does not prevent Tanner from controlling.

In Tanner, the Supreme Court specifically stated: "Convinced as we are, that a sentence with too short an interval between minimum and maximum is not indeterminate, we hold that any sentence which provides for a minimum exceeding two-thirds of the maximum is improper as failing to comply with the indeterminate sentence act.

"Of course this holding has no application to sentencing under statutes by which the only punishment prescribed is imprisonment for life, or those providing for a mandatory minimum. See, MCLA 769.9; MSA 28.1081." 387 Mich at 690. (Emphasis supplied.)

This construction of the indeterminate sentence act was followed in People v Redwine, 73 Mich App 83; 250 NW2d 550 (1976), in which I concurred.

Frankly, the above quote from Tanner appears to fly directly in the face of the specific statutory language of the indeterminate sentencing act. MCL 769.8; MSA 28.1080. That statute clearly indicates that it applies only to persons "convicted for the first time". However, Tanner was decided long after the passage of the act and we are bound to follow the mandates of our Supreme Court.

I would, therefore, affirm the defendant's conviction but remand for modification of sentence under People v Tanner, supra.