Opinion
Docket No. 58868.
Decided March 22, 1983.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Deputy Chief, Civil and Appeals, and John Scavone, Assistant Prosecuting Attorney, for the people.
Bolden Blake, P.C. (by Benjamin F. Blake), for defendant on appeal.
Before: R.M. MAHER, P.J., and BRONSON and CYNAR, JJ.
After a bench trial, defendant was convicted on two counts of armed robbery, MCL 750.529; MSA 28.797. Sentenced to one to five years imprisonment, defendant appeals by right.
Shortly before midnight on July 18, 1980, two women were accosted on the street by the defendant and another young man. The men were riding a gray or beige bicycle; the defendant sat on the seat, the other rode on the handlebars carrying what appeared to be a sawed-off shotgun. After robbing the women, the men ordered their victims to walk away and fled.
The women later saw their assailants on the street and called the police. After he was arrested, defendant was taken to the police station where he was interviewed by Officer Terry Ford. Using a carbon copy of a preliminary complaint drafted by another officer to prepare his questions, Officer Ford misread the report to say that the crimes had occurred at 11:50 in the morning. As a result, Officer Ford asked defendant what he was doing around noon on July 18, 1980. In the course of his reply, defendant said that he had ridden to work that day on a gray ten-speed bicycle. Testimony concerning this statement of defendant was subsequently admitted into evidence at the trial.
On February 23, 1981, defendant was convicted of two counts of armed robbery. Sentencing was set for March 3, 1981. On that day, defendant requested to have sentencing deferred until he finished high school the following June. Instead, the court sentenced him to three years probation under the Holmes Youthful Trainee Act, MCL 762.11 et seq.; MSA 28.853(11) et seq. Two days later this sentence was set aside as contrary to law. The sentencing date was continued until June 22, 1981, so that defendant could complete high school. Neither defendant nor his counsel was present in court on that date, and sentencing was adjourned for three days. Finally, on June 25, 1981, defendant was sentenced to from one to five years imprisonment.
Defendant advances two reasons for reversing his conviction. He argues first that his statement to Officer Ford that on the day of the robberies he had ridden to work on a gray ten-speed racing bicycle was inadmissible hearsay. A party's own statement when offered against him is not hearsay. MRE 801(d)(2). Defendant's statement is, therefore, not hearsay. To be admissible, however, evidence must be relevant. MRE 402. Because Officer Ford misunderstood the time of the offenses, defendant argues, defendant's statement was not relevant. Relevant evidence is evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. MRE 401. Defendant's statement that he rode to work on a gray ten-speed bicycle was relevant because the robber rode a similar bicycle. Consequently, his statement tended to make it more probable that he was the robber on the gray ten-speed bicycle. It is unimportant that Officer Ford misunderstood the time of the offense. Even under such a misapprehension, the officer succeeded in eliciting relevant evidence.
Defendant also argues that Officer Ford's testimony suggested to the trial court that the defendant did not deny committing the offenses in violation of People v Bobo, 390 Mich. 355; 212 N.W.2d 190 (1973). The record, however, simply does not support defendant's contention.
Defendant next argues that his sentence should be vacated. First, he maintains that the trial court had no power to set aside his sentence to probation as a youthful trainee and impose a new sentence. A trial court may not set aside its original sentence and resentence a defendant unless the initial sentence was invalid. People v Whalen, 412 Mich. 166; 312 N.W.2d 638 (1981). Both parties agree that the trial court had no authority to sentence defendant under the Holmes Youthful Trainee Act, MCL 762.11 et seq.; MSA 28.853(11) et seq. The act applies to "a youth * * * alleged to have committed a criminal offense". Consequently, a youth who has been convicted of a crime is no longer eligible for treatment under the act because the offense is no longer merely "alleged". See People v Bandy, 35 Mich. App. 53; 192 N.W.2d 115 (1971), lv den 386 Mich. 753 (1971); People v Ridner, 88 Mich. App. 249; 276 N.W.2d 575 (1979). The trial court, therefore, had no power to sentence defendant to probation pursuant to the act. The sentence was void ab initio. Accordingly, the trial court had authority to resentence defendant. People v Whalen, supra.
Second, defendant asserts that the delay in his sentencing deprived the trial court of jurisdiction to sentence him on June 25, 1981. A delay in sentencing may bar a trial court from imposing sentence. People v Kennedy, 58 Mich. 372; 25 N.W. 318 (1885); People v Turner, 92 Mich. App. 485; 285 N.W.2d 340 (1979); People v West, 100 Mich. App. 498; 299 N.W.2d 59 (1980). No all delays, however, produce such a result. People v Reilly, 53 Mich. 260; 18 N.W. 849 (1884); People v Jagosz, 253 Mich. 290; 235 N.W. 160 (1931); People v McLott, 70 Mich. App. 524; 245 N.W.2d 814 (1976). Indeed, Michigan's probation statute allows sentencing to be postponed for one year:
"[I]n an action in which the court may place the defendant on probation, it may delay the imposing of sentence of the defendant for a period of not to exceed 1 year for the purpose of giving the defendant an opportunity to prove to the court his eligibility for probation or other leniency compatible with the ends of justice and the rehabilitation of the defendant. When the sentencing is delayed, the court shall make an order stating the reason for the delay, which order shall be entered upon the records of the court. The delay in passing sentence shall not deprive the court of jurisdiction to sentence the defendant at any time during the extended period." MCL 771.1(2); MSA 28.1131(2).
The statute has been interpreted to authorize a delay in sentencing of no more than one year "except in the most limited and unusual of circumstances". People v Turner, supra, p 489.
Citing People v West, supra, the defendant interprets the probation statute to prohibit all sentencing delays for offenders who have committed nonprobationable crimes such as armed robbery, defendant's offense. The probation statute, defendant contends, provides the trial court with its only authority to delay sentencing. Because that authority is limited to delaying sentencing for probationable offenses, the defendant concludes that the trial court has no power to postpone sentencing for nonprobationable offenses.
We disagree with defendant's interpretation of the probation statute. We, instead, hold that, while the statute permits a court to delay sentencing for probationable offenses, it does not forbid postponing sentencing for nonprobationable crimes.
The critical language that we must interpret is as follows: "[I]n an action in which the court may place the defendant on probation, it may delay the imposing of sentence of the defendant for a period not to exceed 1 year * * *." We begin by viewing this language from the plain meaning of the words in light of the statute's purpose. See General Motors Corp v Erves, 399 Mich. 241, 253; 249 N.W.2d 41 (1976). The above-quoted provision is found in MCL 771.1; MSA 28.1131, which establishes rules governing a defendant's eligibility and suitability for probation. Subsection (1) of that statute specifies the offenses for which a defendant may be sentenced to probation. Subsection (3) of the statute authorizes the court to impose life probation for certain offenses. The provision we must construe, subsection (2), must also be read as a probation provision. Its purpose is to encourage informed probation decisions. The provision furthers this purpose by authorizing a sentencing delay of no more than one year "for the purpose of giving the defendant an opportunity to prove to the court his eligibility for probation or other leniency compatible with the ends of justice and the rehabilitation of the defendant". Construing the statute to authorize delaying the sentencing of offenders eligible for probation furthers the statute's purpose of encouraging informed probation decisions. However, to read the statute to prohibit sentencing postponements for offenders not eligible for probation does not contribute to the statutory goal. In fact, this proffered prohibition is completely unrelated to the trial court's ability to make accurate probation dispositions. Accordingly, we decline to interpret the statute in this fashion. We conclude, therefore, that the probation statute permits a court to delay sentencing for probationable offenses but does not prohibit postponing sentencing for nonprobationable crimes.
A prohibition on postponing the sentencing of probation-ineligible offenders may function to place these defendants behind bars swiftly. The purpose of the probation statute, however, is not to expedite the incarceration of offenders ineligible for probation.
Under our reading, the probation statute does not dispose of a claim that a trial court improperly delayed sentencing for a nonprobationable offense. We are guided, however, by the case law covering sentencing delays in general. At the outset, we note that defendant's request for the delay is not dispositive. As the Court said in People v Turner, supra, p 489:
"Waiver of the right to be sentenced by consenting to a delay is meaningless. Such a consent is inherently unsound since a defendant, as a practical matter, will always opt for freedom. Furthermore, the question of retention or loss of jurisdiction should not depend solely on the consent or waiver of the defendant." Regardless of the defendant's consent, the same standard applies. Perhaps the best statement of this standard is found in People v Kennedy, supra, p 376:
"[A] court has power to defer sentence for a reasonable period for any proper purpose, such as allowing time for defendant to make a motion for a new trial or take exceptions to the [appellate court], or for the * * * judge to inform himself relative to the proper sentence to pass upon the defendant." (Emphasis supplied.)
In the case at bar, the trial court deferred the defendant's sentencing so that he could finish high school, resulting in a four-month delay. We find that sentencing was delayed for a proper purpose. A defendant who shows the perseverance necessary to complete high school is a likely candidate for rehabilitation and is unlikely to benefit from extended incarceration. Thus, a trial court may want a defendant to have an opportunity to demonstrate such persistence before passing sentence. Moreover, allowing the defendant four months to prove his commitment to his education is reasonable. Consequently, we hold that the trial court delayed the defendant's sentence for a reasonable period and for a proper purpose. The trial court had not lost jurisdiction to sentence the defendant when it pronounced sentence on June 25, 1981.
Affirmed.