People v. Marcellis

105 Mich. App. 662 (1981) 307 N.W.2d 402

PEOPLE
v.
MARCELLIS

Docket No. 49796.

Michigan Court of Appeals.

Decided April 22, 1981.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Edward J. Grant, Prosecuting Attorney, and John L. Wildeboer, Chief Appellate Attorney, for the people.

Myron E. Sanderson, for defendant.

Before: M.F. CAVANAGH, P.J., and ALLEN and J.H. GILLIS, JJ.

M.F. CAVANAGH, P.J.

We adopt the statement of facts as set forth by our brother ALLEN but disagree that People v Loney, 12 Mich. App. 288; 162 NW2d 832 (1968), and People v Ewing, 101 Mich. App. 51; 301 NW2d 8 (1980), correctly interpret MCL 780.131; MSA 28.969(1). Following instead the rationale of People v Moore, 96 Mich. App. 754, 760-762; 293 NW2d 700 (1980), and People v Anglin, 102 Mich. App. 118; 301 NW2d 470 (1980), we hold that the 180-day rule was violated under the facts of this case.

We also disagree with our brother that this interpretation of the 180-day rule ought to be applied prospectively only. Moore, supra, and Anglin, supra, are simply interpretations of a statute. As such, they would be applicable to any case tried subsequent to the enactment of the statute. The instant case would certainly fall within this purview.

Accordingly, we would reverse defendant's conviction for carrying a concealed weapon, MCL 750.227; MSA 28.424. We note our agreement with our brother ALLEN'S discussion of the defective jury waiver. However, having reversed the principal conviction, we need not address further the validity of the habitual offender conviction.

J.H. GILLIS, J., concurred.

ALLEN, J. (dissenting).

On December 20, 1979, defendant was found guilty of carrying a concealed weapon while he was a resident of Jackson Prison, contrary to MCL 750.227; MSA 28.424, and of being an habitual offender under MCL 769.11; MSA 28.1083. Sentenced January 24, 1980, to three to ten years in prison, commencing at the termination of the sentence defendant was then serving, defendant appeals of right raising six grounds of error as to the charge of carrying a concealed weapon and one ground of error as to the charge of being an habitual offender.

I

The charge of carrying a concealed weapon stems from an incident occurring November 2, 1978, at Jackson Prison when defendant ran from a guard and allegedly threw an object, later found to be a knife, into a trash can. November 28, 1978, defendant was arrested, charged and arraigned in district court. Nearly 13 months passed before defendant was finally brought to trial. On February 5, 1979, defendant filed a demand for speedy trial. On December 19, 1979, one day before his trial, defendant filed a motion to dismiss, grounded on the alleged violation of the 180-day rule. MCL 780.131; MSA 28.969(1). The motion to dismiss was denied.

Defendant claims that the prosecution violated the 180-day rule, contrary to MCL 780.131; MSA 28.969(1), and thus, the trial court was without jurisdiction to hear the matter. MCL 780.133; MSA 28.969(3). The record discloses the defendant was not responsible for the delay. The prosecution, in good faith, relying upon this Court's decision in People v Loney, 12 Mich. App. 288, 292; 162 NW2d 832 (1968), placed this case at the bottom of the list of cases awaiting trial. On April 21, 1980, Loney was rejected by a panel of this Court in People v Moore, 96 Mich. App. 754, 761; 293 NW2d 700 (1980), which held:

"We find no ambiguity in the 180-day rule statute that would permit us to make exceptions in the application of its plain language. Even if it were reasonable and otherwise valid to distinguish, as Loney did, between inmates who commit criminal offenses prior to incarceration and those who commit them subsequently, the distinction is one that the Legislature, not this Court, should make. However, our decision here rests not only on the concept of separation of powers, but also upon our belief that the rationale underlying Loney is no longer completely valid."

On October 2, 1980, a different panel of this Court followed Moore on the basis that the statute does not distinguish between crimes committed prior to incarceration and those during incarceration. People v Anglin, 102 Mich. App. 118; 301 NW2d 470 (1980).^[1] On October 23, 1980, a third panel of this Court rejected Moore and reaffirmed Loney. People v Ewing, 101 Mich. App. 51, 58-59; 301 NW2d 8 (1980). The Ewing court reasoned:

"As the people's brief so aptly points out, the language of the statute clearly indicates that it was not intended to cover the instant factual situation. When applied to an inmate who commits an offense during the period of incarceration, the notice provisions of the statute are rendered superfluous. Section 1 directs the Department of Corrections, upon first receiving notice of a pending untried warrant or information, to notify the appropriate prosecuting attorney's office of defendant's place of imprisonment. The 180-day limitation is to commence running upon delivery of such notice. When the defendant is charged with an offense committed after incarceration, the prosecutor is obviously aware of defendant's location when he authorizes issuance of the warrant and notice is unnecessary.

"Where, as here, the language of a statute is clear and unambiguous, any inquiry into legislative intent is unnecessary and the statute will be applied as written. The Loney interpretation of MCL 780.131; MSA 28.969(1) reflects a reasonable legislative intent to preserve and encourage the practice of concurrent sentencing when appropriate."

It is this writer's opinion that Loney-Ewing represent the better rule. Where, as in the instant case and in Loney-Ewing, a defendant faces a mandatory consecutive sentence, personal prejudice in delay in trial is absent since any delay in trial does not result in the defendant having to serve more time. Further, even without the 180-day rule, all defendants serving time in prison and charged with an offense while so serving are protected by their constitutional right to a speedy trial. This writer agrees with the prosecution that application of the 180-day statute to such defendants "would simply provide them with a procedural escape hatch above and beyond any constitutional right to a speedy trial where, due to [the] mandatorially consecutive nature of their sentences, they are not harmed by the delay and yet must receive preferential treatment in scheduling over other cases".

If the ruling in Moore-Anglin is adopted, the ruling should not be given retroactive effect.^[2] Trial courts of this state had no reason to believe the Loney rule was suspect. It has been expressly followed or quoted with approval. People v Parker, 21 Mich. App. 399; 175 NW2d 879 (1970), and People v Theodore Williams, 66 Mich. App. 521; 239 NW2d 653 (1976). Defendant was convicted in December, 1979, and sentenced in January, 1980. Moore was not decided until April 21, 1980. As noted in footnote 1 of the opinion in Ewing, supra, the bench and bar in Jackson County had placed heavy reliance on the validity of Loney in scheduling cases for trial. To apply Moore retroactively would severely prejudice the proper administration of justice because it would divest the circuit court of Jackson County of jurisdiction to proceed to trial on all such scheduled cases. Under similar circumstances involving loss of jurisdiction because of the adoption of a new rule or statutory interpretation, it has been held that the new interpretation should not be applied retroactively. People v Fields, 391 Mich. 206; 216 NW2d 51 (1974), Gosa v Mayden, 413 U.S. 665; 93 S. Ct. 2926; 37 L. Ed. 2d 873 (1973).

II

Having decided that no error was committed in the trial on the charge of carrying a concealed weapon while in prison,^[3] this writer turns to the question of whether the trial court erred when it found defendant guilty of the habitual offender charge. On December 19, 1979, the day before trial on the underlying charge, defendant signed a single jury trial waiver form. After defendant was found guilty of carrying a concealed weapon, the prosecutor proceeded upon the supplemental information charging defendant as a third-felony offender. However, nowhere in the record does it appear that defendant signed a jury trial waiver form as to the supplemental charge. Defendant claims that the failure to sign a separate waiver is error, while plaintiff contends that a general waiver on the underlying offense constitutes an effective waiver on the supplemental charge. The question raised is of first impression.

Though defendant did not object to his nonjury trial on the supplemental charge, this Court has held that the failure to object will not preclude appellate review. People v Edwards, 51 Mich. App. 403, 405; 214 NW2d 909 (1974). In People v Hamm, 100 Mich. App. 429; 298 NW2d 896 (1980), the defendant waived a jury trial, but that trial resulted in a mistrial. This Court held that the defendant's initial waiver had relation only to the first trial. When the case was remanded for a second trial, the parties were returned to their original position and defendant's original waiver of jury trial was nullified. In the instant case, defendant never waived his right to trial by jury on the record. Thus, the waiver statute was not complied with. People v Henry Brown, 57 Mich. App. 568; 226 NW2d 563 (1975). The single waiver form contained in the court file does not indicate in which of the trials defendant wished to waive a jury. People v Rimmer, 59 Mich. App. 645; 230 NW2d 170 (1975), held that even though the court file contained a written waiver, the statute is not complied with unless the waiver of trial by jury is made in open court. Finally, a waiver of right to jury trial will not be presumed from a silent record. Edwards, supra.

Defendant was tried separately on the habitual offender charge. Even assuming arguendo that the waiver form was addressed to the habitual offender trial, that waiver never complied with the statute because it was not made a part of the record in open court. Rimmer, supra, Brown, supra. Therefore, I would reverse defendant's conviction and sentence under the habitual offender statute.

I would affirm the conviction for carrying a concealed weapon, MCL 750.227; MSA 28.424. I would reverse the conviction as a habitual offender, MCL 769.11; MSA 28.1083.

NOTES

[1] Anglin was originally an unpublished opinion, but a request for publication was subsequently granted.

[2] The question of whether Moore should be applied retroactively is of first impression. It was not addressed in either Moore or Anglin.

[3] In addition to claiming error because of noncompliance with the 180-day trial rule, defendant raised five other issues alleging error in the trial for carrying a concealed weapon. Careful examination of the record and briefs on these issues discloses that they are without merit. Therefore, they are not discussed in this opinion.