Opinion
Docket Nos. 98033; 98237.
Decided March 8, 1989. Leave to appeal denied, 433 Mich. ___.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Donald E. Martin, Prosecuting Attorney, Robert B. Ebersole, Chief Appellate Attorney, and Susan L. LeDuc, Assistant Prosecuting Attorney, for the people.
State Appellate Defender (by Susan Meinberg Thomas), for Alfonso Holguin.
Marian F. Komkowski, for Ernest G. Espinoza.
In this consolidated appeal, each defendant was convicted, following a jury trial, of assault with intent to do great bodily harm less than murder, MCL 750.84; MSA 28.279, and armed robbery, MCL 750.529; MSA 28.797. Additionally, defendant Holguin was convicted as a seventh-felony offender. MCL 769.12; MSA 28.1084. Defendant Holguin was sentenced to two terms of forty to sixty years in prison on his convictions, while defendant Espinoza received a sentence of twenty to forty years in prison on the armed robbery conviction and five to ten years in prison on the assault conviction. They both now appeal and we affirm in part and reverse in part.
Defendant Holguin raises one meritorious issue. Specifically, he challenges the validity of his habitual offender conviction. On October 12, 1976, defendant Holguin was convicted of four separate offenses, being one count of carrying a concealed weapon and three counts of attempted possession with intent to deliver heroin, with each of the four offenses arising from separate transactions on separate days. Additionally, the two remaining prior convictions listed on the supplemental information, for breaking and entering a motor vehicle and larceny in a building, occurred within one week of each other in March, 1981. Defendant argues that he should be treated only as a third-felony offender rather than a seventh-felony offender on the basis of the Supreme Court's decision in People v Stoudemire, 429 Mich. 262; 414 N.W.2d 693 (1987). We agree.
This Court in People v Ellis, 174 Mich. App. 139; 436 N.W.2d 383 (1988), concluded that the decision in Stoudemire, supra, also applies to situations where a defendant is convicted on the same day of multiple convictions arising out of separate transactions. The Ellis Court relied upon the Stoudemire Court's considerations of the "opportunity to reform" in interpreting the habitual offender statute. That is, in light of Stoudemire, supra, only one conviction may be counted for each opportunity to reform. Thus, defendant's first four convictions in 1976 count as only one conviction under the habitual offender statute since each of the four acts giving rise to the convictions occurred prior to his first conviction, and the two 1981 convictions together count as the second conviction under the habitual offender statute since, although both offenses occurred after the 1976 convictions, neither offense occurred prior to the conviction on the other. Thus, for habitual offender purposes, defendant has two prior felony convictions: one in 1976 and one in 1981. Accordingly, we conclude that defendant should have been convicted as a third-felony offender rather than as a seventh-felony offender. Accordingly, defendant's conviction as a seventh-felony offender is vacated and the matter is remanded to the trial court for entry of convictions as a third-felony offender and for resentencing as the same:
We have carefully considered the remaining arguments raised by both defendants and conclude that none merit either reversal or discussion.
Defendant Holguin's habitual offender conviction is reversed and the matter is remanded for resentencing. In all other respects, the convictions and sentences of both defendants are affirmed.