Opinion
Docket No. 88324.
Decided October 27, 1986.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, L. Brooks Patterson, Prosecuting Attorney, Robert C. Williams, Chief, Appellate Division, and John L. Kroneman, Assistant Prosecuting Attorney, for the people.
Mark A. Chadwick, for defendant on appeal.
Before: M.J. KELLY, P.J., and BEASLEY and CYNAR, JJ.
Defendant, David Leigh King, pled guilty to breaking out of prison, in violation of MCL 750.193; MSA 28.390, and to being an habitual offender, fourth offense, in violation of MCL 769.12; MSA 28.1084. Defendant was sentenced in Oakland Circuit Court to not less than sixteen months nor more than five years in prison on the prison break charge. That sentence was then vacated in favor of an enhanced sentence of not less than sixteen months nor more than twenty years in prison on the habitual offender charge. Defendant appeals as of right.
Defendant raises two arguments on appeal. First, he claims that he should have received credit for some 146 days of time spent in jail between April 25, 1985, and his sentencing on September 18, 1985. He makes this claim under MCL 769.11b; MSA 28.1083(2), which reads:
Whenever any person is hereafter convicted of any crime within this state and has served any time in jail prior to sentencing because of being denied or unable to furnish bond for the offense of which he is convicted, the trial court in imposing sentence shall specifically grant credit against the sentence for such time served in jail prior to sentencing.
Defendant acknowledges that the reason bond was not granted in his case was because he had yet to serve the remainder of his sentence on an earlier offense of false pretenses, but argues that credit should, nonetheless, be granted under the statute.
The Supreme Court resolved conflicting interpretations of this statute in People v. Prieskorn, saying:
424 Mich. 327, 343; 381 N.W.2d 646 (1985).
In sum, we believe that in enacting the statute in question, the Legislature intended primarily to equalize the status of the defendants who, because of their inadequate financial resources, are "unable to furnish bond for the offense of which [they are] convicted," and those who are financially capable of posting bond, or are denied bond because they are charged with an offense for which there is no entitlement to bail. Const 1963, art 1, § 15.
The Court concluded that to be entitled to sentence credit for presentence time served, a defendant must have been incarcerated "for the offense of which he is convicted." In this case, defendant was not incarcerated for the offense of which he was convicted, but was serving time on a previous offense. His inability to furnish bond had nothing to do with financial resources, but with his outstanding obligations to the penal system. Irrespective of this interpretation, moreover, the older case of Jackson Co Prosecuting Attorney v. Jackson Circuit Judge, which does not conflict with Prieskorn, is exactly on point. The Jackson Court held that there can be no credit given in a case involving prison escape where prisoners seek credit for time they served which was still owing on their underlying offenses.
Id., p 344.
55 Mich. App. 121; 222 N.W.2d 57 (1974).
Defendant's second argument on appeal is that the habitual offender charge should be vacated because defendant did not receive notice of the supplemental information on that charge until August 28, 1985. The supplemental information was filed on August 12, 1985, thirteen days after the filing of the information on the prison break offense. The prosecutor did not inform defendant of the supplemental information until his arraignment on that charge on August 28, 1985. Defendant appeared in propria persona.
In People v. Terry, the Supreme Court reversed a decision of this Court, where we had upheld the dismissal of a supplemental information. The information had been filed within the fourteen-day rule of People v. Shelton, but the defendant had not received notice for twenty-eight days. The Supreme Court noted that the defendant had suffered no prejudice as a result of the delay and that he had personal notice well in advance of the date of his guilty plea.
424 Mich. 866; 380 N.W.2d 762 (1985).
412 Mich. 565; 315 N.W.2d 537 (1982).
A more extreme case is People v. Norwood, where there was a delay of 3 1/2 months before the defendant received notice of an habitual offender charge and that notice was only two weeks before the plea date. This Court held that since the Shelton rule had been complied with and a two-week period was sufficient for meaningful and effective engagement in the plea-bargaining process, no reversal was necessary. The clear rule seems to be that so long as a defendant is not prejudiced by his delayed notice of the habitual offender charge, the delayed notice is not grounds for reversal.
146 Mich. App. 259, 261; 379 N.W.2d 446 (1985).
Defendant contends, however, that even if such a delay does not violate the Shelton rule, it must offend the due process clause of US Const, Am XIV. He cites People v. William James, which held that a defendant may not be convicted of a crime with which he was not charged unless he has had adequate notice. The James Court based its decision on DeJonge v. Oregon. The James case is not an apt analogy to this one, however. There the defendant had not been charged at all with the crime of which he was eventually convicted; instead, the trial judge, upon finding that the evidence did not support the offense originally charged, convicted James of another one. That has no bearing on this case, where defendant had three weeks' notice of the supplemental information and ample opportunity to consider his options before pleading guilty.
142 Mich. App. 225; 369 N.W.2d 216 (1985).
299 U.S. 353; 57 S Ct 255; 81 L Ed 278 (1937).
We do not, however, condone the actions of the prosecutor in this case. A prosecutor is a lawyer like any other, with an absolute duty to promptly send copies of each and every pleading he files to his opposing counsel, or to the defendant himself where there is no counsel of record. The Code of Professional Responsibility, DR 7-110(B)(2), which provides as follows, applies to a prosecutor as well as other lawyers:
(B) In an adversary proceeding, a lawyer shall not communicate, or cause another to communicate, as to the merits of the cause with a judge or an official before whom the proceeding is pending, except: . . .
(2) In writing if he promptly delivers a copy of the writing to opposing counsel or to the adverse party if he is not represented by a lawyer.
In processing habitual offender charges, prosecutors must comply with DR 7-110(B)(2).
In addition, MCR 2.107(A)(1) provides:
(1) Unless otherwise stated in this rule, every party who has filed a pleading, an appearance, or a motion must be served with a copy of every paper later filed in the action. A nonparty who has filed a motion or appeared in response to a motion need only be served with papers that relate to that motion.
These requirements appear to be elementary.
Affirmed.