People v. Reynolds

195 Mich. App. 182 (1992) 489 N.W.2d 128

PEOPLE
v.
REYNOLDS

Docket No. 134478.

Michigan Court of Appeals.

Decided July 20, 1992, at 10:10 A.M.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, James J. Gregart, Prosecuting Attorney, and David W. DeBack, Assistant Prosecuting Attorney, for the people.

James K. Jesse, for the defendant on appeal.

Before: HOLBROOK, JR., P.J., and BRENNAN and GRIFFIN, JJ.

BRENNAN, J.

Following a hearing, defendant was convicted of probation violation for testing positive for THC, a chemical found in marijuana, and for driving while his license was suspended. Defendant's probation was revoked and he was sentenced to 5 to 22 1/2 years in prison for his underlying convictions of breaking and entering an occupied dwelling with intent to commit a felony, MCL 750.110; MSA 28.305, and of being a second-felony offender, MCL 769.10; MSA 28.1082. He appeals as of right, and we affirm.

Defendant first argues that the court improperly denied him credit for time he spent in a tether program. Because defendant's participation in the tether program was not due to his being denied or unable to furnish bond for the offense of which he was convicted, he is not entitled to sentence credit under the sentence credit statute, MCL 769.11b; MSA 28.1083(2). People v Wagner, 193 Mich. App. 679; 485 NW2d 133 (1992); People v Whiteside, 437 Mich. 188, 196; 468 NW2d 504 (1991). Moreover, we note that the Double Jeopardy Clauses of the federal and state constitutions, US Const, Am V; Const 1963, art 1, § 15, do not mandate an award of sentence credit for the time defendant spent in the tether program. "Sentence credit under the double jeopardy clauses is only required for confinements amounting to time spent ``in jail' as that term is commonly used and understood." Wagner, supra, p 682, citing Whiteside, supra, p 202. The tether program is a restriction, not a confinement, and is not "jail" as that term is commonly used and understood.

Defendant next argues that there was insufficient evidence to establish a probation violation. The record reveals that defendant admitted driving during the time his license was suspended. Moreover, defendant tested positive for THC, even allowing for a margin of error. A prosecution witness testified that the test result was accurate. There was no evidence indicating otherwise. Viewing this evidence in a light most favorable to the prosecution, we find that a rational trier of fact would conclude that the preponderance of the evidence indicated that defendant violated his probation. People v Ison, 132 Mich. App. 61, 66; 346 NW2d 894 (1984).

Finally, defendant contends that his sentence was disproportionate. The sentencing guidelines do not apply to habitual offenders or to defendants convicted of probation violation. People v Randolph Warner, 190 Mich. App. 26, 29; 475 NW2d 397 (1991); People v Hoffer, 193 Mich. App. 624; 484 NW2d 781 (1992). However, we note that the guidelines recommended zero to eighteen months of imprisonment and defendant was sentenced to a prison term of 5 to 22 1/2 years. The trial court tried putting defendant into substance abuse programs, confining him to short jail periods totaling nine months, and finally tried to put him in the tether program. Despite the trial court's efforts, defendant came before the court three times, incurring five probation violations. Accordingly, we find that the sentence is proportionate to the circumstances surrounding the offense and the offender. People v Milbourn, 435 Mich. 630; 461 NW2d 1 (1990).

Affirmed.