People v. Payne

Quinn, P. J.

December 14,1962, defendant, represented by counsel, pleaded guilty to a charge of assault with intent to commit murder, CL 1948, § 750-.83 (Stat Ann 1962 Kev § 28.278). Thereafter, defendant was sentenced to prison for a term of 19 to 40 years. Judge Hadsell presided at the plea and sentence. Judge Hadsell’s term of office expired January 1, 1967 and he was replaced by Judge Byrns. 378 Mich (v).

Following a remand from the Court of Appeals for that purpose, a hearing was held June 15, 1967 to determine the voluntariness of confessions, admissions and statements against interest made by defendant prior to his plea. As a result of the hearing, the trial court suppressed all confessions, admissions and statements against interest, set aside the plea, vacated sentence and remanded the ease for preliminary examination.

At the conclusion of the examination, defendant was bound over for trial. His motion for change of venue was granted, and he was tried before Judge Byrns and a jury in Kent county. August 24, 1967, the jury returned a verdict of guilty as charged. Thereafter defendant was sentenced to prison for a term of 25 to 50 years, with credit for time already served. His appeal raises 5 issues, 4 of which do not merit discussion.

Defendant contends it was reversible error for Judge Byrns to impose a more severe sentence than did Judge Hadsell. In People v. Poole (1967), 7 Mich App 237, this Court held such action was not error. In People v. Mulier (1968), 12 Mich App 28, this Court held such action was reversible error. The eases are not in conflict, however; factual differences permit each pronouncement to stand without encroaching on the other. In Poole, a different judge imposed the harsher sentence and reason for such action appeared in the record. In Mulier, the same judge imposed the harsher sentence for no reason apparent on the record. The distinction is noted in Mulier at page 33:

“To allow the imposition of a harsher sentence after a rehearing, where the offense, the plea, and the sentencing judge are the same as in the prior proceeding and the record is barren of any grounds tending to support the harsher sentence, unduly infringes upon the constitutional right of appeal.”

This case of Payne is stronger than Poole, supra. In Poole, both convictions were by plea. In Payne, the first conviction was by plea and the second was by jury verdict. A trial affords more opportunity to hear all details, to observe and judge a defendant than does a summary plea proceeding, a fact noted by Judge Byrns. The trial judge noted the right of every citizen to seek appellate relief and the fact that obtaining such relief should in no way affect a subsequent sentence. The trial judge then stated that the sentence he was about to impose was not because defendant had appealed but by reason of the nature of the crime and impressions formed of defendant during 3 days of trial. The trial judge noted that the statute under which defendant was convicted authorized a life sentence or any term of years, and except for defendant’s past history (poor family background, good school, service and prison records), a life sentence would have been imposed.

On this record, we conclude that we do not have supervisory control over punishment within the provisions of the statute, Poole, supra, and that Mulier, supra, is inapplicable.

Affirmed.

Holbrook, J., concurred.

Addendum July 10, 1969:

Since the majority opinion and the dissent were written, the United States Supreme Court has decided North Carolina v. Pearce and Simpson v. Rice (1969), 395 US 711 (89 S Ct 2072, 23 L Ed 2d 656). A revised dissent has been filed citing these decisions as supporting the position expressed in the dissent. These same authorities are incorporated by reference in the majority opinion as supporting authority.