Opinion
357903
08-25-2022
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. KYLE RICHARD BEAUCHEMIN, Defendant-Appellant.
UNPUBLISHED
Tuscola Circuit Court LC No. 20-015256-FH
Before: JANSEN, P.J., and O'BRIEN and HOOD, JJ.
PER CURIAM.
Defendant appeals as of right his jury trial convictions of larceny, more than $200 and less than $1,000, MCL 750.356(4)(a); domestic violence, MCL 750.81(2); and assault and battery, MCL 750.81(1). Defendant was initially sentenced to 345 days' incarceration and two years' probation for larceny, 93 days' incarceration for domestic violence, and 93 days' incarceration for assault and battery. On July 29, 2021, the trial court amended defendant's sentence to no jail time, but two years' probation for larceny, with credit for 339 days served, and left his other sentences unchanged.
A related appeal between the same parties, originating from the same trial court case number, was denied by this Court on March 30, 2021, because it was premature. People v Beauchemin, unpublished order of the Court of Appeals, entered March 30, 2021, (Docket No. 356639). A second related appeal between these parties was dismissed by this Court on April 15, 2021. People v Beauchemin, unpublished order of the Court of Appeals, entered April 15, 2021 (Docket No. 356732).
Defendant specifically challenges the sentencing for his larceny conviction on appeal, arguing the trial court was not permitted to sentence defendant to probation when he: (1) already served the maximum statutory term of incarceration for his larceny conviction; and (2) objected to probation and requested incarceration. Defendant also contends that his larceny sentence and resentence violated the United States and Michigan Constitutions' protections against double jeopardy and due process. We vacate defendant's probation sentence for larceny only, and remand to the trial court to reinstate defendant's jail time sentence for larceny with credit for time served.
I. BACKGROUND
This case arises from an incident between defendant; Emma Spens (Emma); Emma's mother, Patricia Spens (Patricia); and Emma's and defendant's children, DS and SS, in August 2020. Emma and defendant had been dating for at least four years. In July 2020, Emma, defendant, and the children were driving to Marquette and were supposed to visit Patricia on the way, but they never arrived. Instead, Emma sent Patricia a text message informing Patricia that defendant was hurting her. Defendant and Emma had been arguing, which resulted in defendant kicking and punching Emma while he was driving. After arriving in Marquette, when defendant went to sleep, Emma left with the children and went to a woman's shelter near Patricia's house.
Ten days later, in August 2020, Patricia took Emma and the children from the shelter and drove them to Patricia's house. After a few hours, Patricia, Emma, and the children attempted to leave the house to go to the bank and deposit money that Patricia had in the truck owned by her fiancee. As they were leaving, defendant pulled into the driveway, ran from his vehicle, and indicated that he wanted to speak to Emma. Emma and Patricia told defendant to leave, but he would not. Defendant jumped on the hood of the truck, and Patricia began driving. Defendant ripped the windshield wipers off the truck, and Patricia swerved the truck from side to side in an effort to remove defendant from the truck.
As Patricia approached an intersection, she stopped at a stop sign, and turned onto the highway. Patricia drove down the highway at about 70 miles per hour while defendant was on the cover on the bed of the truck, banging on the back windows. Defendant attempted to break the back window where DS was sitting, so Emma took DS out of his car seat and held him. Patricia drove for another five miles to a gas station. About one mile from the gas station, defendant successfully used his feet to kick out the back window. Glass shattered over SS, who was sitting in a car seat in the back. SS's legs were covered in blood and cuts. After defendant broke the window, he climbed into the truck, wrapped his arm around Patricia's neck, called her expletives, and yelled at her to pull over.
Patricia pulled into a gas station, and Emma immediately exited the truck with DS. Defendant released Patricia, and moved to the front passenger seat, took the money Patricia intended to deposit at the bank, and kicked the passenger door until it was no longer able to close. Defendant exited the truck with SS, and demanded Emma walk with him and SS to a nearby church to talk. Emma complied, and at some point, officers with the Tuscola County Sheriff's Office arrived on the scene and investigated the incident.
Defendant was charged with: (1) assault of Patricia and Emma with intent to do great bodily harm less than murder or by strangulation (counts I and II), MCL 750.84; (2) larceny (count III); (3) malicious destruction of personal property (count IV), MCL 750.377a(1)(b)(i); (4) domestic violence (count V); and (5) assault or assault and battery (count VI). The felony complaint was later amended to add assault with intent to do great bodily harm less than murder or by strangulation of SS and DS (counts VII and VIII), and third-degree child abuse related to SS (count IX), MCL 750.136b(6). The felony complaint was amended again to remove counts VIII and IX, and change count VII from assault with intent to do great bodily harm less than murder to fourthdegree child abuse regarding SS, MCL 750.136b(7). The jury convicted defendant of assault and battery against Patricia, larceny, and domestic violence. The jury found defendant not guilty of fourth-degree child abuse and willful and malicious destruction of property. The prosecution dismissed the charges of assault with intent to do great bodily harm.
Defendant moved for personal bond or for immediate sentencing, and requested that the trial court sentence him to incarceration. Defendant was sentenced to two years' probation and 345 days' incarceration, with credit for 339 days served for the larceny conviction, and 93 days' incarceration, with credit for time served, for the domestic violence and assault and battery convictions. Defendant moved for resentencing or partial vacation of his sentence in the trial court, arguing that the probation term was illegal and unconstitutional, because defendant requested incarceration in lieu of probation, and because defendant already served the maximum sentence for his larceny conviction. The trial court resentenced defendant to no jail time and two years' probation on the larceny charge, with credit for 339 days served, and 93 days' incarceration for the domestic violence and assault and battery charges, with credit for time served. Defendant now appeals.
II. STANDARD OF REVIEW
"We review de novo constitutional challenges to sentencing decisions." People v Posey, 334 Mich.App. 338, 355; 964 N.W.2d 862 (2020). A "trial court's decision about the sentence imposed is reviewed for an abuse of discretion." People v Rydzewski, 331 Mich.App. 126, 132; 951 N.W.2d 356 (2020) (quotation marks and citations omitted). "Whether a defendant is entitled to credit for time served in jail before sentencing is a question of law that we review de novo." People v Armisted, 295 Mich.App. 32, 49; 811 N.W.2d 47 (2011). This Court also "review[s] de novo" questions of statutory construction. People v Bensch, 328 Mich.App. 1, 4 n 2; 935 N.W.2d 382 (2019).
III. ANALYSIS
Defendant argues that the trial court erred in sentencing defendant to probation because he did not consent to probation and requested incarceration, and he already served the maximum sentence permitted for his larceny conviction. Defendant also argues that his larceny sentence violates due process and is contrary to the principles of substantial justice.
As noted, defendant was originally sentenced to two years' probation and 345 days' incarceration, with credit for 339 days served for the larceny conviction. Defendant moved for resentencing or partial vacation of this sentence, arguing that the probation term was illegal because defendant requested incarceration, and because defendant already served the maximum sentence for his larceny conviction. Defendant asserted that he was entitled to 60 days of "good time" jail credit under MCL 51.282(2).
"Every prisoner whose record shows that there are no violations of the rules and regulations shall be entitled to a reduction from his or her sentence ...." MCL 51.282(2). Defendant attached as an exhibit to his brief on appeal a letter from the Tuscola County Sheriff Department indicating that as of August 28, 2021, defendant was entitled to 57 days good time credit.
Once a defendant has served a maximum incarceration sentence, he or she cannot be sentenced to probation. As explained in People v Bisogni, 132 Mich.App. 244, 246-247; 347 N.W.2d 739 (1984),
"Although published decisions of this Court issued before November 1, 1990, are not precedentially binding, MCR 7.215(J)(1), they may be considered as persuasive authority." People v Mathews, 324 Mich.App. 416, 428 n 4; 922 N.W.2d 371 (2018).
[O]nce defendant has served that one-year sentence, he will have served the maximum period of imprisonment authorized by statute. Therefore, even if defendant subsequently violates the terms of his probation, he cannot be punished with any additional imprisonment because, once he is given credit for the one year that he has served, People v Sturdivant, 412 Mich. 92; 312 N.W.2d 622 (1981), he will have already served the maximum imprisonment authorized by statute. The sentencing court's imposition of a period of probation to succeed defendant's completion of the one-year jail sentence, the statutory maximum, is meaningless since the terms of probation would not be enforceable. Once the maximum sentence has been served, any additional sentence imposed is void and must be vacated. People v Rose, 117 Mich.App. 530, 536-537; 324 N.W.2d 25 (1982) (one-year maximum sentence already served, so additional sentence of three years['] probation vacated); see also People v Dorsey, 107 Mich.App. 789, 792; 310 N.W.2d 244 (1981). Therefore, we vacate defendant's sentence to the extent it would impose a period of probation after defendant has completed serving the one year of imprisonment.
At the hearing on defendant's motion, the prosecution agreed with defendant that under Michigan law, a defendant cannot be sentenced to probation once he has served the maximum sentence. However, the prosecution indicated that defendant's sentence should be amended to impose no jail time, and only the probation term. Seemingly, in an attempt to avoid this rule of law, the trial court amended defendant's sentence to zero days' jail time for larceny, with credit for 339 days served, and two years' probation. The trial court explained its reasoning in an opinion and order as follows:
Defendant has cited People v Sturdivant, 412 Mich. 92 (1981)[,] which stands for the proposition that a term of probation cannot not [sic] be imposed when the defendant has already served the statutory maximum penalty as a term of probation. It is important to note here that the defendant has NOT served his statutory maximum penalty. Although the defendant is relying on the Jail'scalculation of good time in arguing that defendant has served his statutory maximum, there is a distinction. The time that defendant has served up until the date of sentencing was NOT due to a term of probation, but rather was due to his inability to post bond.
The trial court abused its discretion when it resentenced defendant to zero days' incarceration and two years' probation. There was nothing legally wrong with defendant's original sentence of 345 days' incarceration. The statutory maximum for misdemeanor larceny is one year. MCL 750.356(4)(a). And a trial court may only resentence a defendant when the previous sentence was invalid. People v Moore, 468 Mich. 573, 579; 664 N.W.2d 700 (2003). Defendant was awarded credit for 339 days toward his larceny sentence. When good time credit is applied, as it should be, Sturdivant, 412 Mich. at 94, 98, defendant will have served his maximum sentence, rendering the probation sentence invalid. Therefore, defendant's two-year probation sentence for larceny is vacated, and this matter is remanded to the trial court to reinstate defendant's jail sentence with credit for time served. Having resolved the issue on appeal, we need not address defendant's additional arguments.
Defendant's probation sentence for misdemeanor larceny is vacated, and this matter is remanded for the reinstatement of his original sentence for incarceration with credit for time served. We do not retain jurisdiction.
HOOD, J. (concurring)
I respectfully concur in the result only. I would reverse on the basis that defendant Kyle Richard Beauchemin's objection to a probationary sentence and demand for a jail term barred the trial court from sentencing him to a term of probation. People v Bensch, 328 Mich.App. 1, 7-12; 935 N.W.2d 382 (2019). The majority opinion would fault the sentencing court for failing to rely on anticipated "good time" credit to conclude that Beauchemin reached his statutory maximum jail term. Such sentencing considerations, however, are impermissible. See People v Fleming, 428 Mich. 408, 424-427; 410 N.W.2d 266 (1987) (holding that "enhancing a defendant's sentence on the basis of anticipated good-time reductions is . . . improper."). The trial court correctly concluded that Beauchemin had not reached his statutory maximum, which was 20 days beyond the sentence it imposed.
I. BACKGROUND
The majority opinion accurately describes the factual and procedural background. Critically, at Beauchemin's original sentencing hearing, he objected to probation and demanded that the trial court sentence him to a term of incarceration. Over his objection, the trial court sentenced Beauchemin to two years' probation and 345 days' incarceration, with credit for 339 days served for the larceny conviction, and 93 days' incarceration, with credit for time served, for the domestic violence and assault and battery convictions, before resentencing Beauchemin to two years' probation with no jail time.
II. LAW AND ANALYSIS
The trial court did not err in concluding that Beauchemin had not yet served the statutory maximum jail sentence for his larceny conviction. Although Beauchemin may have ultimately received a reduction for good behavior, see MCL 51.282, it would have been improper for the trial court to consider such possible reductions as a sentencing factor, Fleming, 428 Mich. at 424-427. The trial court, however, erred in both the original sentence and amended sentence by sentencing Beauchemin to a term of probation when he objected to probation and demanded a jail term. Bensch, 328 Mich.App. at 7-13.
"We review de novo constitutional challenges to sentencing decisions." People v Posey, 334 Mich.App. 338, 355; 964 N.W.2d 862 (2020). A "trial court's decision about the sentence imposed is reviewed for an abuse of discretion." People v Rydzewski, 331 Mich.App. 126, 132; 951 N.W.2d 356 (2020) (quotation marks and citations omitted). We review questions of law, such as issues of statutory construction, de novo. Bensch, 328 Mich.App. at 4 n 2.
A. IMPERMISSIBLE SENTENCING CONSIDERATIONS
At the threshold, I disagree with the majority's conclusion that the trial court erred by imposing a sentence of probation when, based on anticipated good time credits, Beauchemin would have already served the statutory maximum term of incarceration. This conclusion not only depends on this Court and the sentencing court accepting an estimate of Beauchemin's good time credits, but it also requires the trial court to rely on an impermissible sentencing factor. See Fleming, 428 Mich. at 424-427 (holding that the possibility of early release by virtue of good time credits may not be used to enhance a defendant's sentence).
The majority relies on People v Bisogni, 132 Mich.App. 244, 246-247; 347 N.W.2d 739 (1984), for the principle that a sentencing court may not sentence a defendant to probation when he has already served the statutory maximum jail term associated with his charge. In Bisogni, the defendant was convicted of conspiracy to commit larceny under $100, MCL 750.157a, and sentenced to two years' probation, with the first year in jail. Id. at 245. This Court partially vacated the defendant's sentence because once he served the one year of jail time imposed by the court- the statutory maximum jail term-he could not then be required to serve any additional probation. Id. at 246. As the majority correctly notes, the rationale was that even if the defendant violated his term of probation, the court could not impose additional punishment for the violation because such additional punishment would exceed the statute. Id. at 246-247, citing People v Sturdivant, 412 Mich. 92; 312 N.W.2d 622 (1981). This Court in Bisogni vacated the defendant's sentence to the extent it would impose a period of probation after the defendant completed serving the one year of imprisonment. Bisogni, 132 Mich.App. at 247.
As a decision issued on or before November 1, 1990, Bisogni is not binding on this Court, MCR 7.215(J)(1); People v Mathews, 324 Mich.App. 416, 428 n 4; 922 N.W.2d 371 (2018), and I am not convinced that it was correctly decided. Panels of this Court have applied Bisogni to reach different conclusions in factually similar cases. See, e.g., People v Jan, unpublished per curiam opinion of the Court of Appeals, issued January 13, 1998 (Docket No. 196492) (holding that sentence of two years' probation with 90 days in jail was void ab initio, where the statutory maximum jail term was 90 days); People v Trice, unpublished per curiam opinion of the Court of Appeals, issued September 23, 2004 (Docket No. 247537) (holding that sentence of two years' probation for a defendant convicted of a 90-day misdemeanor was valid, where defendant spent over 200 days in jail awaiting trial but jail was not a condition of his term of probation). Because Bisogni is not binding and the decisions applying it have reached various outcomes, I decline to rely on it as persuasive authority.
Beauchemin is differently situated than the defendant in Bisogni because, unlike that defendant, the jail term in Beauchemin's original sentence was not the statutory maximum. The sentencing court sentenced Beauchemin to two years' probation with 345 days in jail as a condition. His jail term was 20 days short of the statutory maximum. In Bisogni, the trial court had no authority to sanction the defendant for probation violations that occurred after his one-year jail term. Bisogni, 132 Mich.App. at 246-247. Here, Beauchemin would still be subject to up to 20 days in jail for a potential future probation violation. Therefore, his sentence could not be void until his total jail time reached 365 days. For this reason, Bisogni is distinguishable.
The majority appears to resolve this difference by relying on Beauchemin's anticipated good-time credit. Acknowledging that good-time credit for jail sentences is a determination left to the sheriff or jailor, see MCL 51.282, I also acknowledge that Beauchemin could effectively "bank" good-time credit that he had accumulated awaiting sentence, see People v Resler, 210 Mich.App. 24; 532 N.W.2d 907 (1995); see also People v Tyrpin, 268 Mich.App. 368; 710 N.W.2d 260 (2005). The sentencing court would have to apply this banked good-time credit toward sanctions for future misconduct. Resler, 210 Mich.App. at 27-28 (concluding that a defendant is entitled to good-time credit when his or her probation is revoked). This means that Beauchemin's sentence of two years' probation with 345 days in jail, though not immediately void under the principles in Bisogni, would become void as soon as Beauchemin violated probation and his banked good-time credit applied. In short, unlike the defendant in Bisogni, Beauchemin's sentence was not void on the day of sentencing, but it would become void once the court had to apply banked good-time credit toward a future probation violation. The majority opinion appears to expand Bisogni's application to include this situation.
The problem is that the majority opinion requires the sentencing court to consider anticipated good-time credit in fashioning its sentence, which is illegal. See Fleming, 428 Mich. at 424-427. The sentencing court could not have considered anticipated credit for good behavior in fashioning its sentence even if at a defendant's request. See id. It is unlawful for a sentencing court to rely on the possibility of good-time credits, early release, or disciplinary credits as an aggravating sentencing factor. See id.; see also People v Lundy, 145 Mich.App. 847; 378 N.W.2d 622 (1985) (holding that a sentencing judge may not consider the possibility of a prisoner's early release under the Prison Overcrowding Emergency Powers Act, 1980 PA 519; MCL 800.71, as a factor enhancing a sentence); People v Humble, 146 Mich.App. 198; 379 N.W.2d 422 (1985) (same). Here, Beauchemin had spent 339 days in custody at the time of his sentencing, 26 days short of the statutory maximum jail term for larceny. Because he had not yet served the statutory maximum, the original sentence was not invalid.
Acknowledging that Beauchemin requested-and apparently preferred-a jail sentence, a jail sentence is still harsher than probation. See Bensch, 328 Mich.App. at 7 (noting that probation is a matter of grace). The court cannot rely on anticipated credit for good behavior to impose a harsher sentence. To reach this conclusion, the trial court would have had to consider an impermissible sentencing consideration, which it correctly refused to do. This was not an error.
Because of the differences between Beauchemin's case and Bisogni, in order to fit Beauchemin into the Bisogni framework, the sentencing court would have to have considered anticipated good-time credit, which is unlawful. See Fleming, 428 Mich. at 424-427. This creates a Catch-22, where the sentencing court would have to choose between committing one of two errors. The sentencing court could follow Fleming and not consider how good-time credit would impact his sentence. This would likely eventually result in a sentence that is void under the Bisogni principles once Beauchemin's banked good-time credit kicked in. Or the sentencing court could consider anticipated good-time credit in contravention of Fleming and long-established precedent to avoid this result. In my view, it is unnecessary for us to resolve this potential paradox because Beauchemin's original and amended sentence were both unlawful under Bensch, 328 Mich.App. at 10-13.
B. DECLINING A PROBATIONARY SENTENCE
The trial court erred by imposing a probationary sentence because such a sentence was barred once Beauchemin objected to probation and requested incarceration. See Bensch, 328 Mich.App. at 13; MCL 771.4(1). MCL 771.4(1) states: "It is the intent of the legislature that the granting of probation is a matter of grace requiring the agreement of the probationer to its granting and continuance." In People v Peterson, 62 Mich.App. 258, 264-265; 233 N.W.2d 250 (1975), this Court examined an earlier version of MCL 771.4 to analyze whether a probationer may reject certain conditions of probation. After considering that statute, and the fact that "a probationer is no less deprived of all constitutional guarantees than the one incarcerated pursuant to sentence[,]" id. at 266, the Peterson Court determined that "[p]robation is a matter of grace and rejectable, we think, at the option of the probationer," id. at 265.
In applying the 2019 version of MCL 771.4(1), which merely stated "the granting of probation is a matter of grace conferring no vested right to its continuance[,]" this Court in Bensch relied on Peterson to conclude that a defendant may reject probation. Bensch, 328 Mich.App. at 7. When asked to abandon the rule iterated in Peterson regarding a defendant's ability to reject probation, this Court noted that "the rule that defendants may reject probation has been accepted and relied on in subsequent cases in which a defendant agreed to probation but objected to a particular condition." Id. Accordingly, this Court "decline[d] to simply abandon that rule without a compelling reason to do so." Id. at 9. This Court reaffirmed Peterson, and expressly stated that "a defendant may decline a sentence of probation and instead seek a sentence of incarceration." Id. at 13.
This Court's determination in Bensch is consistent with People v Oswald, 208 Mich.App. 444, 445-446; 528 N.W.2d 782 (1995), where this Court analyzed whether a fine imposed as a condition of probation was limited to the maximum fine authorized under the statute of which the defendant was convicted. The Oswald Court determined that the trial court was not limited to the maximum fine authorized by the applicable statute, and further determined "had [the] defendant found the term of probation to be overly onerous, he could have declined the grant of probation, . . . and submitted himself for sentencing directly under the . . . statute ...." Id. at 446.
The prosecution argues that this Court should overrule Peterson and Bensch, but Peterson is not binding on this Court, and this Court cannot overrule Bensch. Under MCR 7.215(J)(1), "A panel of the Court of Appeals must follow the rule of law established by a prior published decision of the Court of Appeals issued on or after November 1, 1990, that has not been reversed or modified by the Supreme Court, or by a special panel of the Court of Appeals as provided in this rule." Bensch was issued in 2019, our Supreme Court has not overruled Bensch, and there are no conflicts in this Court regarding that decision. Accordingly, this Court is bound by Bensch. MCR 7.215(J)(1).
The prosecution also appears to argue that trial court could simply ignore Bensch if there were a "compelling reason to do so." I disagree. The prosecution's argument relies on one sentence that appears to be misread or taken out of context. The Court in Bensch explained its reasoning for adopting a longstanding rule of law that was not binding on the Court, stating:
Unpublished decisions of this Court have also relied on the fact that a defendant agrees to probation in resolving challenges to orders of probation. These decisions are not binding precedent, MCR 7.215(C)(1), but it is clear that the rule that a defendant can elect to reject probation has been used by this Court (and others) to dispose of arguments made by defendants challenging the terms of their probation. Under these circumstances, we decline to simply abandon that rule without a compelling reason to do so. [Bensch, 328 Mich.App. at 9 (citations omitted; emphasis added).]
Later, the Court stated that the prosecution's arguments were "not compelling reasons to depart from the longstanding interpretation of MCL 771.1 ...." Id. at 13. In these statements, the Court was explaining the reasoning for affirming a rule of law in a published decision. It was not stating that trial courts could ignore this rule if there was a "compelling reason." See id. at 9, 13. The sentencing court in this case could not just ignore Bensch.
Under MCL 771.4(1), which expressly requires a defendant to agree to a grant of probation, Bensch, and Oswald, Beauchemin was permitted to reject probation and request incarceration. In a motion for personal bond or for immediate sentencing, which Beauchemin filed after the conclusion of his jury trial, Beauchemin explicitly requested that the trial court impose a sentence of incarceration. Although in his sentencing memorandum, which was filed after the motion for immediate sentencing, Beauchemin requested probation, he objected to probation at sentencing, in his motion for resentencing, and at the hearing on that motion. Because he objected to probation and requested incarceration, the trial court erred in imposing a term of probation on Beauchemin. Bensch, 328 Mich.App. at 13.
III. CONCLUSION
With respect, I agree with the result reached in the majority opinion that Beauchemin's sentence should be vacated and the court should sentence him to a term of incarceration, but on the basis that his objection to a probationary sentence and demand for a jail term barred the trial court from sentencing him to a term of probation.