People v. Turner

130 Mich. App. 646 (1983) 344 N.W.2d 34

PEOPLE
v.
TURNER

Docket No. 66454.

Michigan Court of Appeals.

Decided November 22, 1983.

Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Paul L. Maloney, Prosecuting Attorney, and Brian S. Berger, Assistant Prosecuting Attorney, for the people.

Jesse & Jesse (by James K. Jesse), for defendant on appeal.

Before: T.M. BURNS, P.J., and D.F. WALSH and MacKENZIE, JJ.

PER CURIAM.

Defendant appeals as of right from his plea-based conviction of prison escape, MCL 750.193; MSA 28.390. While serving a prison sentence on a previous conviction for breaking and entering, defendant escaped on September 29, 1981. A complaint and warrant were issued on October 2, 1981. On November 3, 1981 (according to the prosecution), defendant was arrested in Indiana on another charge and incarcerated. Sometime during defendant's incarceration in Indiana, the Berrien County prosecutor's office placed a "hold" on defendant in connection with the pending escape charge. The Indiana charge against defendant was ultimately dismissed, and defendant was returned to Michigan on May 10, 1982, and incarcerated. On June 1, 1982, defendant pled guilty to the escape charge, and on July 6, 1982, defendant was sentenced to two to five years, to run consecutively to his sentence on the previous breaking and entering conviction, and without credit for any presentence time served.

Defendant's first claim on appeal is that the Berrien County court lost jurisdiction to convict defendant of escape under the statutory 180-day rule, MCL 780.131; MSA 28.969(1). The language of the statute itself provides that the 180-day rule applies to untried charges against "any inmate of a penal institution of this state", and this Court has held that the rule does not apply to defendants who are incarcerated outside of Michigan or in federal institutions. People v Hoye, 105 Mich. App. 768, 772-773; 307 NW2d 723 (1981), lv den 412 Mich. 898 (1982); People v Fossey, 41 Mich. App. 174, 180; 199 NW2d 849 (1972), lv den 390 Mich. 757 (1973). Thus, the relevant period of incarceration herein is from May 10, 1982, when defendant was transferred to Michigan, until June 1, 1982, when defendant pled guilty. Since less than 180 days elapsed during that period of time, there was no violation of the statute. Therefore, we affirm defendant's plea-based conviction.

Defendant also claims that the court erred in denying him credit against his escape sentence for the presentence time served in Indiana and then in Michigan. The sentence credit statute, MCL 769.11b; MSA 28.1083(2), is to be read to benefit defendants unless to do so would frustrate the intent of a consecutive sentencing statute. Brinson v Genesee Circuit Judge, 403 Mich. 676, 686; 272 NW2d 513 (1978). Where a consecutive sentence is imposed, a defendant is not entitled to credit for presentence time served which he was already obliged to serve under a prior sentence. People v Patterson, 392 Mich. 83, 90; 219 NW2d 31 (1974). Thus, generally there is no credit for presentence time served against a prison escape sentence because such a sentence must be consecutive, MCL 750.193; MSA 28.390, and the defendant was already obliged to serve that time under his uncompleted sentence for the earlier conviction. People v Andrews #2, 52 Mich. App. 728; 218 NW2d 383 (1974); People v Bachman, 50 Mich. App. 682; 213 NW2d 800 (1973), lv den 392 Mich. 776 (1974); People v Passalacqua, 48 Mich. App. 634; 211 NW2d 59 (1973), lv den 392 Mich. 816 (1974).

However, the general rule of no credit against a prison escape sentence does not apply to the time served in Indiana by defendant. The presentence time served by defendant in Indiana was not in connection with his uncompleted sentence for his previous breaking and entering conviction in Michigan, and defendant received no credit for that time against the prior sentence for breaking and entering. Also, the time served by defendant in Indiana was not obliged to be served under any sentence imposed by the Indiana courts; rather, defendant was never convicted of any charge in Indiana. See Brinson, supra, p 687.

It is clear that credit may be given for time served in prisons or jails of another jurisdiction. People v Gibson, 101 Mich. App. 205; 300 NW2d 500 (1980); People v Havey, 11 Mich. App. 69, 81-83; 160 NW2d 629 (1968), lv den 381 Mich. 756 (1968). However, it is still necessary to determine to what extent defendant is entitled to credit for the presentence time served in Indiana. In People v Pruitt, 23 Mich. App. 510, 514-515; 179 NW2d 22 (1970), this Court held that the defendant was not entitled to credit against his escape sentence for the entire presentence time served, but rather only from the date his incarceration became attributable to the pending prison escape charge. While Pruitt involved a factual context different from that in the present case, that decision still provides some guidance, and we conclude that defendant is entitled to credit for time served in Indiana only to the extent that that time was attributable to the pending prison escape charge.

Defendant was arrested and initially incarcerated in Indiana on a charge unrelated to the escape charge. However, once the Michigan authorities placed a "hold" on defendant pursuant to the escape charge, defendant could not be released on bond vis-a-vis the Indiana charge and the time served in Indiana from that date on was attributable to the pending escape charge. See People v Manifee, 112 Mich. App. 705; 317 NW2d 232 (1982); People v Major, 106 Mich. App. 226, 230-232; 307 NW2d 451 (1981). Consequently, defendant is entitled to credit for time served in Indiana at least from the date Michigan authorities placed the "hold" on him, and the prosecution so admits on appeal.

We further hold, however, that defendant may be entitled to credit for time served in Indiana not only from the date when the "hold" was actually effected, but from when the "hold" could have been placed by the Michigan authorities. People v Coyle, 104 Mich. App. 636, 647-648; 305 NW2d 275 (1981), lv den 415 Mich. 851 (1982); People v Major, supra (dissenting opinion of CYNAR, J.). We decline to follow the majority opinion in People v Major, supra, on this matter, and instead follow People v Coyle, supra, as representing the better view. Once the Michigan authorities have issued a warrant and know where the defendant is being held, they should place a "hold" at that time; a defendant should not be penalized by any administrative delay in placing a "hold" through the loss of sentence credit which would have been received had a "hold" been promptly issued. People v Coyle, supra, p 647.

As in People v Coyle, supra, a remand is required in the present case for the purpose of determining the date from which defendant is to receive credit for the time served in Indiana. The lower court record does not contain any evidence as to when the hold was actually placed. Although the prosecution attached to its brief on appeal a copy of a letter appearing to indicate that the hold was placed on March 16, 1982, this Court may not properly consider documents which were not part of the lower court record. People v Willett, 110 Mich. App. 337, 346; 313 NW2d 117 (1981), remanded on other grounds 414 Mich. 970 (1982). Furthermore, there is nothing in the record before us from which we can determine whether a hold could have been issued at some date earlier than it actually was.

Finally, defendant is not entitled to credit for presentence time served in Michigan because defendant was already obliged to serve that time owing to his uncompleted sentence for breaking and entering. People v Passalacqua, supra; People v Patterson, supra. The sentencing transcript reflects that defendant's previous sentence for breaking and entering had not terminated prior to imposition of sentence on the escape conviction.

Conviction affirmed, remanded for resentencing.