People v. Reynolds

181 Mich. App. 185 (1989) 448 N.W.2d 774

PEOPLE
v.
REYNOLDS

Docket No. 112255.

Michigan Court of Appeals.

Decided November 7, 1989.

Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, John D. O'Hair, Prosecuting Attorney, Timothy A. Baughman, Chief of the Criminal Division, and Don W. Atkins, Assistant Prosecuting Attorney, for the people.

Clarence H. Ledwon, for defendant.

Before: MacKENZIE, P.J., and MARILYN KELLY and T.M. BURNS,^[*] JJ.

PER CURIAM.

Defendant pled guilty to breaking and entering an occupied dwelling with intent to commit larceny, MCL 750.110; MSA 28.305. He was sentenced to 1 1/2 to 15 years imprisonment, to be served concurrently with sentences previously imposed in four other cases. The people appeal this sentence.

I

The threshold issue in this case is whether MCL 770.12; MSA 28.1109, as amended by 1988 PA 66, grants the prosecution the authority to appeal a sentence as of right. We conclude that it does.

In People v Cooke, 419 Mich 420, 427; 355 NW2d 88 (1984), the Supreme Court held that the people do not have a right to appeal outside the express provisions of § 12 of Chapter X of the Code of Criminal Procedure, MCL 770.12; MSA 28.1109. Prior to 1988 PA 66, and when Cooke was decided, MCL 770.12; MSA 28.1109 provided no authorization for appeals of sentences by the prosecution. See People v Larkins, 142 Mich App 679, 680; 369 NW2d 882 (1985); People v Wilkins, 121 Mich App 813, 816; 329 NW2d 500 (1982). However, pursuant to People v Coles, 417 Mich 523; 339 NW2d 440 (1983), appellate review of sentencing was available to criminal defendants.

1988 PA 66 was introduced in the Legislature as HB 4719. A review of the House Legislative Analysis of HB 4719 makes it apparent that the purpose of the amendment to MCL 770.12; MSA 28.1109 was to give prosecutors the right to appeal sentences. According to the analysis, the amendment was designed to address the following problem:

Prosecutors and others assert that Cooke and Coles combined put the people, whom the prosecutor represents in a criminal case, at a disadvantage. They note that Cooke placed new limits on the ability of the prosecutor to appeal, and Coles granted defendants the right to appeal sentencing decisions. Many believe that in order to make for a more impartial and evenhanded administration of justice, prosecutors should be able to appeal sentencing decisions and other matters when it is believed the court has made an error.

1988 PA 66 amended MCL 770.12; MSA 28.1109 to provide in relevant part:

(1) The people of this state may take an appeal of right in a criminal case, if the protection against double jeopardy under section 15 of article I of the state constitution of 1963 and amendment V of the constitution of the United States would not bar further proceedings against the defendant, from either of the following:

(a) A final judgment or final order of the circuit court or recorder's court, except a judgment or order of the circuit court or recorder's court on appeal from any other court.

(b) A final judgment or order of a court or tribunal from which appeal of right has been established by law.

A sentence imposed in a criminal case is part of the final judgment of the trial court. People v Coles, supra, p 535. A prosecutor's appeal of a sentence does not subject the defendant to a second trial, but only a correction of the judgment, and thus does not present double jeopardy implications. See People v Rehkopf, 422 Mich 198, 226; 370 NW2d 296 (1985) (dissenting opinion of BOYLE, J.). Accord: United States v DeFrancesco, 449 US 117; 101 S Ct 426; 66 L Ed 2d 328 (1980); Serfass v United States, 420 US 377; 95 S Ct 1055; 43 L Ed 2d 265 (1975); United States v Jenkins, 420 US 358; 95 S Ct 1006; 43 L Ed 2d 250 (1975); United States v Wilson, 420 US 332; 95 S Ct 1013; 43 L Ed 2d 232 (1975). MCL 770.12(1)(a); MSA 28.1109(1)(a), as amended by 1988 PA 66, must therefore be read as authorizing the people to take an appeal as of right from a defendant's sentence.

1988 PA 66 took effect on March 30, 1988, and applies to crimes committed on or after that date. 1988 PA 66, § 2. Since the instant offense occurred on May 29, 1988, an appeal as of right is available to the people in this case.

II

The people contend that the trial court, in sentencing defendant, committed an error of law in denying the prosecutor's request that defendant's sentence run consecutively to his previously imposed sentences. We agree.

MCL 768.7b(1); MSA 28.1030(2)(1), as amended by 1988 PA 31, provides:

(1) 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.

A review of the record in this case reveals that defendant was arraigned in Recorder's Court on May 27, 1988, in another felony matter, Recorder's Court Docket No. 88-07186. The instant offense, also a felony, was committed two days later. Recorder's Court Docket No. 88-07186 was resolved when defendant pled guilty in that case on June 20, 1988, and was sentenced on July 22, 1988.

Applying the clear language of MCL 768.7b(1); MSA 28.1030(2)(1), as amended by 1988 PA 31, to the above chronology, defendant's sentence in this case should run consecutively to his sentence in Recorder's Court Docket No. 88-07186. The felony charge in docket no. 88-07186 was pending against defendant at the time of the instant felony offense. The instant offense was committed after April 1, 1988. Therefore, under MCL 768.7b(1); MSA 28.1030(2)(1), a consecutive sentence was mandatory.

The trial court in this case refused to impose a consecutive sentence because of an agreement in docket no. 88-07186, that the sentence in that case would run concurrently with defendant's sentences in three other cases. The terms of the agreement in docket no. 88-07186 could not include this case, however, since this case was not yet in existence; sentencing in docket no. 88-07186 took place three weeks before the complaint and warrant instituting this case were issued. The court's concern in this case that the prosecution was trying to renege on the agreement in docket no. 88-07186 was thus unfounded. The mandatory provisions of MCL 768.7b(1); MSA 28.1030(2)(1) control.

Vacated and remanded for entry of an amended judgment of sentence. We do not retain jurisdiction.

NOTES

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