People v. Burks

559 N.W.2d 357 (1996) 220 Mich. App. 253

PEOPLE of the State of Michigan, Plaintiff-Appellee,
v.
Murone Ali BURKS, Defendant-Appellant.

Docket No. 182635.

Court of Appeals of Michigan.

Submitted October 8, 1996, at Grand Rapids. Decided November 26, 1996, at 9:10 a.m. Released for Publication February 25, 1996.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Ronald J. Frantz, Prosecuting Attorney, and Jon H. Hulsing, Assistant Prosecuting Attorney, for People.

State Appellate Defender by Amy Neville, for defendant-appellant on appeal.

Before NEFF, P.J., and HOEKSTRA and G.D. LOSTRACCO,^[*] JJ.

NEFF, Presiding Judge.

In this appeal as of right, defendant challenges the convictions and sentences he received following his guilty pleas to the various charges against him. We affirm.

I

On January 17,1994, in lower court Docket No. 94-017606-FH, defendant pleaded guilty of first-degree retail fraud, M.C.L. § 750.356c; M.S.A. § 28.588(3), and was sentenced to two years' probation, with the first six months to be served in the county jail. Defendant walked away from jail without permission and did not return. As a result, a bench warrant was issued charging defendant with violating the terms of his probation order by failing to comply with jail rules.

Defendant was subsequently arrested for delivering cocaine to an undercover informant. In October 1994, defendant pleaded guilty of violating his probation, of two counts of delivery of less than fifty grams of cocaine, M.C.L § 333.7401(1), (2)(a)(iv); M.S.A. § 14.15(7401)(1), (2)(a)(iv), lower court Docket Nos. 94-018148-FH and 94-018150-FH, and of one count of jail escape, M.C.L. § 750.195(2); M.S.A. § 28.392(2), lower court Docket No. 94-018149-FH. In exchange for defendant's pleas of guilty to these charges, the prosecution agreed to dismiss the habitual offender, second offense, charges to not seek sentence enhancement as a repeat drug offender, to not charge defendant with four additional counts of delivering cocaine, and to recommend a sentencing guidelines' grid classification of D-III. Defendant also agreed to cooperate with the prosecution and the police and to testify, if necessary, against his codefendants.

Following defendant's guilty pleas, the trial court sentenced him to sixteen to twenty-four months' imprisonment for the probation violation for the underlying retail fraud conviction, to two to four years' imprisonment for the jail escape conviction, and to four to twenty years' imprisonment for each of the drug convictions. All the sentences were ordered to run consecutively.

II

Defendant first argues that his double jeopardy rights were violated when he was convicted and sentenced for jail escape, as well as for violating the terms of his probation by escaping from jail. We find defendant's conviction to be proper.

Defendant has the right to be free from being placed twice in jeopardy for a single offense. U.S. Const., Am. V; Const. 1963, art. 1, § 15. For double jeopardy protections to apply, defendant must first have been put in jeopardy by a criminal prosecution in a court of justice. People v. Marrow, 210 Mich.App. 455, 465, 534 N.W.2d 153 (1995), aff'd 453 Mich. 902, 554 N.W.2d 901 (1996); People v. Johnson, 191 Mich.App. 222, 226-227, 477 N.W.2d 426 (1991). A probation violation hearing, however, is not a criminal prosecution. Id. at 226, 477 N.W.2d 426. Moreover, a determination by a trial court that a probationer has violated the terms of the probation order does not burden the probationer with a new conviction or expose the probationer to punishment other than that to which the probationer was already exposed as a result of the previous conviction for which the probationer was placed on probation. Id.

Accordingly, because defendant was not put in jeopardy when he pleaded guilty of violating his probation, the trial court properly accepted his guilty plea for escaping from jail.

III

Defendant next argues that the trial court erred in ordering his sentences for escaping jail and for the probation violation to run consecutively. We find no error in the trial court's ruling.

A sentencing court may impose a consecutive sentence only if specifically authorized to do so by statute. See People v. Nantelle, 215 Mich.App. 77, 79, 544 N.W.2d 667 (1996).

Although the trial court did not state the authority on which it relied to order consecutive sentences, defendant argues on appeal, and we agree, that if the authority exists, it is found in M.C.L. § 750.195(2); M.S.A. § 28.392(2), which provides:

A person lawfully imprisoned in a jail for a term imposed for a felony who breaks jail and escapes ... is guilty of a felony. A person who violates this subsection shall be imprisoned for the unexpired portion of the term of imprisonment the person was serving at the time of the violation, and any term of imprisonment imposed for the violation of this subsection shall begin to run at the expiration of that prior term of imprisonment.

Defendant argues that this statutory provision would only allow the trial court to make the sentence for escape run consecutively to the original jail and probationary sentence defendant received as a result of the retail fraud conviction. In other words, defendant argues that because he was not serving the sentence he received as a result of the probation violation when he escaped from prison but was serving the six-month jail term, the trial court exceeded its authority in ordering the sentence for the escape to run consecutively to the sentence received for the probation violation. Defendant's argument is creative, but not persuasive.

The flaw in defendant's logic stems from his failure to test his argument against this Court's interpretation of M.C.L. § 771.4; M.S.A. § 28.1134, the statute dealing with sentences following a probation violation. That provision provides in pertinent part:

It is the intent of the legislature that the granting of probation shall be a matter of grace conferring no vested right to its continuance. If during the period of probation it appears to the sentencing court's satisfaction ... that the public good requires revocation of probation the court may revoke probation. All probation orders shall be revocable in any manner which the court which imposed probation shall consider applicable ... for a violation or attempted violation of a condition of probation.... If a probation order is revoked, the court may proceed to sentence the probationer in the same manner and to the same penalty as the court might have done if the probation order had never been made. [MCL 771.4; MSA 28.1134 (emphasis added).]

In light of M.C.L. § 771.4; M.S.A. § 28.1134, this Court has concluded that a sentence imposed as a result of a probation violation essentially amounts to a revocation of the original probation order and a resentencing on the original offense as if the probation order had never existed. People v. Hardy, 212 Mich.App. 318, 323, 537 N.W.2d 267 (1995); People v. Jones, 207 Mich.App. 253, 258, 523 N.W.2d 888 (1994); see also People v. Alvarado, 192 Mich.App. 718, 722, 481 N.W.2d 822 (1992) (upon revocation of probation, it stands to reason that a defendant still remains to be sentenced on the underlying offense). In other words, the sentence imposed for the probation violation relates back to the underlying offense. Jones, supra.

Because the sentence defendant received as a result of the probation violation is entered nunc pro tunc, it is deemed to have been in existence at the time of the escape. That is, the original sentence of probation is rendered a nullity by the trial court's order, and the trial court properly ordered defendant's sentences for escape and probation violation to run consecutively under M.C.L. § 750.195(2); M.S.A. § 28.392(2).

IV

Finally, defendant argues that the cumulative nature of his sentences renders his punishment disproportionate to the crimes he committed. This Court, however, has held that the cumulative effect of the sentences should not be considered in determining the proportionality of the punishment. Hardy, supra at 320-321, 537 N.W.2d 267. Accordingly, because defendant's individual sentences are proportionate, see People v. Milbourn, 435 Mich. 630, 461 N.W.2d 1 (1990), we reject his argument and affirm the sentences imposed by the trial court.

Affirmed.

NOTES

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