People v. Czerwinski

99 Mich. App. 304 (1980) 298 N.W.2d 16

PEOPLE
v.
CZERWINSKI

Docket Nos. 44434, 44435.

Michigan Court of Appeals.

Decided August 11, 1980.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, George B. Mullison, Prosecuting Attorney, and David A. Hoort, Assistant Prosecuting Attorney, for the people.

Richard B. Ginsberg, Assistant State Appellate Defender, for defendant on appeal.

Before: CYNAR, P.J., and M.J. KELLY and T. GILLESPIE,^[*] JJ.

CYNAR, P.J.

Pursuant to a plea bargain, defendant pled guilty to carrying a concealed weapon (CCW), MCL 750.227; MSA 28.424, and also tendered a plea of nolo contendere to the charge of assault with a dangerous weapon, MCL 750.82; MSA 28.277. In exchange for defendant's pleas, the prosecutor agreed to dismiss supplemental informations filed in both cases and to dismiss separate charges of assault with a dangerous weapon and assault with intent to do great bodily harm less than the crime of murder. Defendant was sentenced to 30 months to 5 years on the CCW conviction and to 30 months to 4 years on the assault charge, said sentences to run concurrently. Defendant now appeals as of right.

Defendant first contends that his CCW conviction was violative of due process and in contravention of GCR 1963, 785.7(3)(a), in that no factual basis sufficient to support a finding of guilt was adduced. We disagree.

Initially, we are unpersuaded by defendant's argument that possession of a switchblade is, as a matter of law, a misdemeanor. Defendant claims that the Legislature intended that MCL 750.226a; MSA 28.423(1), a misdemeanor offense, would be the exclusive statute under which to charge a defendant in possession of a switchblade knife.

Assuming, arguendo, that mere possession is indeed a misdemeanor, the crime of carrying a concealed weapon as charged here requires proof of an additional element, namely concealment, over and above mere actual or constructive possession. See People v Kincade, 61 Mich. App. 498; 233 NW2d 54 (1975), inter alia. Thus, every concealed carrying of a switchblade constitutes commission of the lesser possessory offense, whereas the converse proposition is not true. As such, not every defendant found in possession of a switchblade can be charged with CCW. More importantly, there is nothing in the statute itself indicative of a legislative intent to make MCL 750.226a the exclusive statute under which to charge one in possession of a switchblade, where the facts support a different charge as well. Additionally, the two statutes in question do not prohibit the same conduct, given the different elements necessary for a conviction under each. See People v Sanford, 65 Mich. App. 101; 237 NW2d 201 (1975), aff'd 402 Mich. 460; 265 NW2d 1 (1978).

Since both statutes can be applied to conduct involving concealment of a switchblade on the person of a defendant, the prosecution may, in its discretion, properly institute prosecution under either. Genesee Prosecutor v Genesee Circuit Judge, 386 Mich. 672, 683; 194 NW2d 693 (1972).

In a related argument, defendant contends his conviction cannot stand, even assuming he was properly charged, where there was no showing the knife in question was a dangerous weapon per se or carried for purposes of assault or defense. At his plea-taking proceeding defendant admitted that the weapon which he was carrying was a switchblade, was concealed, had a 3-inch blade, and was a dangerous weapon capable of inflicting very serious injury to a person. This was a sufficient recitation of facts from which a trier of fact could draw an inculpatory inference that the weapon was per se a dangerous weapon within the meaning of the CCW statute. People v Haack, 396 Mich. 367, 377; 240 NW2d 704 (1976), Guilty Plea Cases, 395 Mich. 96, 130; 235 NW2d 132 (1975), People v Vaines, 310 Mich. 500, 504-506; 17 NW2d 729 (1945), People v Brown, 406 Mich. 215, 220-222; 277 NW2d 155 (1979). No more is required in this case. Accordingly, we find no infirmity in connection with defendant's plea of guilty to the CCW charge.

Having so concluded, we may reject summarily defendant's argument that, if we were to reverse his CCW conviction, he would be entitled to resentencing on the assault conviction.

Finally, defendant claims that he is entitled to resentencing because the trial court failed to adequately respond to defense challenges to information contained in the presentence report, and considered challenged inaccurate information in imposing sentence.

Defendant specifically takes exception to two letters contained in the presentence report, written at different times by two officers of the Bay City Police Department.

As to the letter written by officer Lochinski, no objection thereto was made at the time of sentencing, nor did defendant make a timely motion in the court below to have his sentence vacated. With regard to any claimed inaccuracies in this letter, defendant has failed to preserve the issue for appellate review. Guilty Plea Cases, 395 Mich. 96, 137; 235 NW2d 132 (1975), People v Powell, 87 Mich. App. 192, 194; 274 NW2d 16 (1978).

Defendant did, however, object at the time of sentencing to the second letter contained in the presentence report. That letter had been written by detective Monville and contained statements that "the defendant has been a problem * * * for the past several years" and that "he has no regard for anyone or the law of the State of Michigan". The detective indicated in the letter that he based his comments upon defendant's extensive juvenile record. It is worth noting that the presentence report contains an independent reference to defendant's extensive juvenile record which culminated in defendant's being waived over to the jurisdiction of the "adult" court.

Defense counsel's objection to the letter was that it contained, "certain conclusions regarding Mr. Czerwinski, without citing any basis for those conclusions". In response, the court indicated that, "the opinion of a police officer * * *, like any opinion of the general public, is a matter that may be of some interest to a court". The court went on to note that such opinions "have little direct impact" since the court ultimately has the obligation to determine what is a proper sentence.

We conclude that defendant was not denied due process as a result of this letter being contained in his presentence report. This case is controlled by People v Books, 95 Mich. App. 500, 503-504; 291 NW2d 94 (1980), where the Court stated:

"Information from agencies, including the police, with whom defendant has had contact in the past will be of assistance to the judge in determining the appropriate sentence to fit the individual offender as well as the offense. So long as a defendant has an opportunity to challenge the accuracy of the report and tell the court about any additional facts which might clarify or explain the information in the report, due process has been satisfied.

"``GCR 1963, 785.12 is consistent with the procedure in other states permitting consideration of any pertinent facts in the presentence report if the defendant has an opportunity to explain or controvert such facts. We are of the conclusion that a reasonable view of Grimmett [People v Grimmett, 388 Mich. 590; 202 NW2d 278 (1972)], in the light of Lee [People v Lee, 391 Mich 618, 636-639; 218 NW2d 655 (1974)] and Martin [People v Martin, 393 Mich. 145; 224 NW2d 36 (1974)], is that reference to other criminal activity, for which no conviction has resulted, may be included in the presentence report and considered by the Court, provided the defendant does have the opportunity for refutation provided by GCR 1963, 785.12. This is consistent with the Federal standards of due process set forth in Williams v New York and the decisions from other states.[4]

"[4] People v McIntosh, 62 Mich. App. 422, 445-446; 234 NW2d 157 (1975). Cases cited in the quotation are People v Grimmett, 388 Mich. 590; 202 NW2d 278 (1972), People v Lee, footnote 2, supra, People v Martin, 393 Mich. 145; 224 NW2d 36 (1974) and Williams v New York, 337 U.S. 241; 69 S. Ct. 1079; 93 L. Ed. 1337 (1949)."

Accordingly, we find no grounds for vacating defendant's sentence, as it appears from the record that due process dictates were satisfied in this case.

We find no grounds for reversing defendant's convictions and sentences and, therefore, affirm the same.

Affirmed.

NOTES

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