Opinion
Docket No. 59831.
Decided March 9, 1983.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, David H. Sawyer, Prosecuting Attorney, and Carol S. Irons, Chief Appellate Attorney, for the people.
George S. Buth, for defendant on appeal.
Before: R.B. BURNS, P.J., and ALLEN and M.J. KELLY, JJ.
Defendant pled guilty to prison escape, MCL 750.193; MSA 28.390. He was sentenced to a three-to-five-year prison term, with the sentence to commence after completion of a sentence defendant was serving at the time of escape.
Defendant had been sentenced on December 8, 1976, to a 4-to-15-year prison term based upon his conviction for breaking and entering. Pursuant to that sentence, defendant was made a resident at the Grand Rapids Correction Center. On July 25, 1979, he left the center with permission to visit his parents' home in Grand Rapids. Defendant left the city without authority and absconded to Illinois.
In Illinois, defendant was arrested on November 17, 1979, and charged with theft from a person. An Illinois court sentenced defendant to two years imprisonment. On January 21, 1980, the Michigan Department of Corrections placed a detainer on defendant with Illinois authorities but made no effort to extradite him.
When defendant was paroled from the Illinois prison on October 31, 1980, the Michigan Department of Corrections took custody of him and returned him to this state to face the prison escape charge.
Defendant pled guilty to prison escape on May 21, 1981. He was sentenced on July 2, 1981. Defense counsel asked that credit be given under the Michigan sentence-credit statute, MCL 769.11b; MSA 28.1083(2), for the 349-day period from November 17, 1979, to October 31, 1980, which defendant spent in the Illinois prison. The trial court denied the credit. Defendant appeals and we affirm.
In People v Gasek, 122 Mich. App. 523; 332 N.W.2d 520 (1983), this Court held that, because a consecutive sentence is mandated by MCL 768.7a; MSA 28.1030(1) for persons who commit crimes while on escapee status and the defendant's sentence thus did not begin until the expiration of the prior sentence, no credit could be given.
Because MCL 768.7a; MSA 28.1030(1) requires that defendant serve a consecutive sentence for escape, the fact that he served nearly a year in prison in Illinois is irrelevant if the term of his prior Michigan sentence has not run. Credit on the Illinois sentence cannot be given when the sentence in the instant case does not start until after defendant completes his prior Michigan sentence. To grant credit under these circumstances would frustrate the consecutive sentencing policy promulgated by the Legislature and, in effect, nullify part of the original Michigan sentence. See People v Bonner, 49 Mich. App. 153; 211 N.W.2d 542 (1973). This Court has previously determined that the consecutive sentencing statute should be construed liberally to achieve its deterrent effect. People v Jeffrey Thompson, 117 Mich. App. 210; 323 N.W.2d 656 (1982); People v Williams, 89 Mich. App. 633; 280 N.W.2d 617 (1979), lv den 406 Mich. 995 (1979).
Affirmed.
I concur in the result only. I disagree that the intent of the consecutive sentencing statute, MCL 768.7a; MSA 28.1030(1), would be frustrated by granting defendant credit for time served in Illinois. Judge KELLY correctly concludes that, had defendant been charged and convicted in Michigan for both the prison escape and the subsequent felony committed while on escapee status, his sentences would have begun upon the expiration of the term he was then serving when he escaped and would have run concurrently. Thus, no consecutive sentencing provision would have been frustrated.
However, contrary to Judge KELLY'S, analysis the credit-for-time-served statute, MCL 769.11b; MSA 28.1083(2), should be read consistently with its clear language. See People v Risher, 78 Mich. App. 431; 260 N.W.2d 121 (1977). Also, People v Monasterski, 105 Mich. App. 645; 307 N.W.2d 394 (1981); People v Tilliard, 98 Mich. App. 17; 296 N.W.2d 180 (1980). Since, while in Illinois, defendant served no time "because of being denied or unable to furnish bond for the offense of which he is convicted", i.e., prison escape, he is entitled to no credit.
Defendant pled guilty to prison escape, MCL 750.193; MSA 28.390. He was sentenced to a term of from three to five years in prison, with the sentence to commence after completion of a sentence defendant was serving at the time of his escape. He appeals as of right.
The facts of this case are not in dispute. On December 8, 1976, defendant was sentenced to a term of from 4 to 15 years in prison after being convicted of breaking and entering. Pursuant to that sentence, defendant was made a resident at the Grand Rapids Correction Center. On July 25, 1979, he checked out of the center to go to his parents' home in Grand Rapids. Subsequently, he left the city without authority and traveled to Illinois. There, on November 17, 1979, he was arrested and charged with theft from a person. He was given a two-year sentence by Illinois authorities. On January 21, 1980, Michigan authorities placed a detainer on defendant with the Illinois authorities but made no effort to extradite him. When defendant was paroled from the Illinois prison on October 31, 1980, the Michigan Department of Corrections took custody of him and returned him to Michigan to face the charge of prison escape.
Defendant pled guilty to prison escape on May 21, 1981. Sentence was imposed on July 6, 1981. Defense counsel asked that credit be given under the Michigan sentence-credit statute, MCL 769.11b; MSA 28.1083(2), for the 349-day period from November 17, 1979, to October 31, 1980, which was spent in the Illinois prison. The trial court denied the credit. On appeal, the prosecutor disputes defendant's entitlement to this credit but not the amount of time requested.
MCL 769.11b; MSA 28.1083(2) provides:
"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."
The statute is to be construed to benefit defendants. Brinson v Genesee Circuit Judge, 403 Mich. 676, 686; 272 N.W.2d 513 (1978). It mandates that credit be granted in appropriate circumstances unless the intent of a consecutive sentencing statute would be frustrated by such a reading. Brinson, supra, p 686. The fact that a defendant cannot post bond because he has been sentenced in another case does not change the fact that the defendant was at first "unable" to furnish bond and later was "denied" bond in a case. People v Chattaway, 18 Mich. App. 538, 543; 171 N.W.2d 801 (1969). Even when a defendant has been denied bond in a case due solely to his serving a sentence imposed for an unrelated crime, he is entitled to credit for the time served between arrest and sentencing. The only exception to this rule is when a consecutive sentence is imposed. In such a case, no credit is to be given for time served for the previous sentence if the intent underlying the applicable consecutive sentencing statute would be frustrated.
Whether defendant is entitled to credit against his prison-escape sentence for the period which he served in an Illinois prison after his escape is governed, therefore, by the intent underlying the consecutive-sentencing provision of the prison-escape statute. That statute provides in part that the sentence received for prison escape "shall be served after the termination, pursuant to law, of the sentence or sentences then being served". MCL 750.193; MSA 28.390. While this is clearly a consecutive sentencing provision, my reading of the statute convinces me that its underlying intent is for the sentence imposed for prison escape to run consecutive only to the sentences being served at the time of the prison escape. Nothing in the prison-escape statute suggests that a prison-escape sentence shall be served consecutively to sentences imposed for crimes committed while a defendant is on escape status. In the absence of specific statutory authority, a sentence may not be imposed to run consecutive to another sentence. In re Carey, 372 Mich. 378, 380; 126 N.W.2d 727 (1964).
Sentences imposed for crimes committed while on escape status are required to be served consecutively to sentences which a defendant was serving at the time of his escape. MCL 768.7a; MSA 28.1030(1). Since statutory authority to the contrary is lacking, sentences imposed for prison escape should run concurrently with, and not consecutively to, sentences imposed for crimes committed while on escape status.
Crediting a defendant with time spent in an out-of-state prison for a crime committed while on escape status against a sentence subsequently imposed for the prison escape would not frustrate the intent of a consecutive sentencing statute. The defendant in the instant case was placed on a Michigan detainer for prison escape during the period he spent in an Illinois prison. He was unable to post bond on the Michigan prison-escape charge due to his Illinois sentence. Since he was unable to furnish bond on the prison-escape charge and granting him sentence credit would not frustrate the intent of the consecutive-sentencing provision of the prison-escape statute, the defendant should have received credit for the period of Illinois incarceration against the sentence he received for prison escape. As noted, the prosecutor has not disputed the dates of the Illinois incarceration, only the question of entitlement. Neither is the timeliness of the detainer raised by either party. Accordingly, pursuant to GCR 1963, 865.1(7), defendant should be given sentence credit of 349 days.
Notwithstanding this analysis, my brethren have written to deny defendant the appropriate credit. Rather than attempt to explain why the Supreme Court's decision in Brinson does not apply to this case, Judge ALLEN relies only on decisions of this Court. One of those decisions was written prior to the Supreme Court's decision in Brinson, another makes only passing mention of Brinson without discussing its operative language, and the third makes no mention of Brinson at all. This Court is bound by decisions of the Michigan Supreme Court. See Schwartz v Flint (After Remand), 120 Mich. App. 449; 329 N.W.2d 26 (1982). Judge ALLEN'S concession that the intent of the consecutive sentencing statute would not be frustrated by granting defendant credit for time served in Illinois, coupled with the failure of the majority to tackle Supreme Court precedent, invites that Court's review.