People v. Freeney

166 Mich. App. 128 (1988) 419 N.W.2d 754

PEOPLE
v.
FREENEY

Docket No. 96631.

Michigan Court of Appeals.

Decided February 1, 1988.

Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Joe Filip, Prosecuting Attorney, and Jerrold Schrotenboer, Chief Appellate Attorney, for the people.

Law Offices of Louis Demas, P.C. (by Thomas V. Wilhelm), for defendant on appeal.

Before: HOOD, P.J., and SAWYER and T.E. JACKSON,^[*] JJ.

HOOD, P.J.

Defendant was charged with assaulting a prison employee while incarcerated, MCL 750.197c; MSA 28.394(3), and with felonious assault, MCL 750.82; MSA 28.277. Both counts grew out of a single incident in which defendant struck a prison employee in the chest with a racquetball racket. A jury returned a guilty verdict as to only the first count. Defendant then entered a guilty plea as a third felony offender, MCL 769.11; MSA 28.1083, and was sentenced to from six to eight years in prison, to be served consecutively to any sentence then being served. Defendant appeals from his convictions and sentence as of right. We affirm.

Defendant first claims that the trial court erred in failing to instruct the jury on specific intent as an element of the assault on a prison employee charged in the first count, while charging the jury that specific intent was an element of the felonious assault charged in the second count.

Defendant concedes that it is unclear whether assault under MCL 750.197c; MSA 28.394(3) is a specific or general intent offense. People v Norwood, 123 Mich. App. 287, 295; 333 NW2d 255 (1983), lv den 417 Mich. 1006 (1983). However, defendant suggests that the jury may have been confused by the court's omission of a "specific intent" instruction under Count I similar to that employed for the felonious assault charged under Count II.

Defendant's challenge is unpreserved and unmeritorious. Not only was there no objection to the instruction given to the jury, but the record reflects that defendant specifically approved the instructions given. Failure to object to criminal jury instructions waives any claim of error in the absence of manifest injustice. People v Hilliard, 160 Mich. App. 484, 488; 408 NW2d 482 (1987). In the instant case, there is no such showing since the specific intent instruction was neither requested nor clearly required under the applicable statute. Assuming that such an instruction would have been appropriate, we would find that the court's explanation that defendant must have "tried to physically injure" or must have "intended to injure" the corrections officer was an adequate description of the requisite intent under any construction of the statute. Cf. People v Wilson, 159 Mich. App. 345, 352; 406 NW2d 294 (1987).

As his second claim of error, defendant claims that his six- to eight-year sentence as an habitual offender violates the rule of People v Tanner, 387 Mich. 683; 199 NW2d 202 (1972), and that resentencing is required. The prosecutor concedes that the sentence violates the rule of People v Tanner.

Tanner requires a sentencing court to set a minimum sentence at no more than two-thirds the maximum term imposed. Although the Michigan Supreme Court has neither affirmed nor disapproved the application of Tanner to habitual offender sentences, this Court has held that the rule should be utilized in habitual offender cases. See, e.g., People v VanderMel, 156 Mich. App. 231, 235, n 4; 401 NW2d 285 (1986). The Supreme Court declined to review the issue in People v Lester Jackson, 426 Mich. 874 (1986) (BOYLE, J., dissenting).

We disagree with those panels of this Court which have held that Tanner must apply to habitual offender sentences. As stated by Justice BOYLE in her dissent in People v Lester Jackson, supra:

By its terms the indeterminate sentencing act applies to persons "convicted for the first time for the commission of a felony...." (Emphasis added.) MCL 769.8; MSA 28.1080. The plain language of the statute indicates that the Legislature did not intend that the indeterminate sentencing statute apply to habitual offenders. Furthermore, the Legislature amended the habitual offender statutes in 1978 to make it clear that the Tanner rule should not apply to habitual offenders. MCL 769.11(2); MSA 28.1083(2), added by 1978 PA 77, provides that a "minimum and maximum sentence within any specified limits in terms of years or fraction thereof ... shall be considered an indeterminate sentence." Thus, for habitual offenders, the Legislature specifically rejected the Tanner definition of "indeterminate sentence" as a sentence with a minimum of not more than two-thirds of the maximum.

Affirmed.

NOTES

[*] Recorder's Court judge, sitting on the Court of Appeals by assignment.