Opinion
No. 110670.
November 20, 1998.
Summary Dispositions November 20, 1998.
In lieu of granting leave to appeal, the order of the Court of Appeals is vacated, and the case is remanded to the trial court for a hearing at which that Court is to determine whether the defendant had notice of the charges in this case at the time he committed the offense charged in Case No. 93-7148. MCR 7.302(F)(1). If the Court determines that defendant did not have such notice, the Court may resentence the defendant. The trial court is directed to promptly file findings of fact and conclusions of law with the Supreme Court. Jurisdiction is retained. Court of Appeals No. 191774.
I respectfully disagree with today's order of the Court, because the Court of Appeals decisions it cites effectively limit application of the consecutive sentencing provision found in MCL 768.7b; MSA 28.1030(2) to those cases in which the trial court determined that the defendant had prior notice of charges pending at the time of the second offense. I would grant leave to appeal to determine whether such a narrow reading of the statute finds support in the language of the statute, or in the legislative purposes behind the consecutive sentencing provisions of MCL 768.7b; MSA 28.1030(2).
MCL 768.7b; MSA 28.1030(2) states in relevant part:
Beginning January 1, 1992, if a person who has been charged with a felony, pending the disposition of the charge, commits a subsequent offense that is a felony, upon conviction of the subsequent offense . . . the following shall apply:
(a) Unless the subsequent offense is a major controlled substance offense, the sentence imposed for the prior charged offense and the subsequent offense may run consecutively.
Nothing in this language purports to require that a defendant have notice of a the fact that a charge is pending before the section shall apply. Rather, it requires only that the person was charged with a felony and that disposition of the charge is still pending when the person commits the second offense in order for the consecutive sentencing provision to apply.
We are not bound to follow Court of Appeals decisions on this issue, and neither of the two cases cited by the Court's order provide persuasive reasoning for requiring notice to the defendant of a first charge before the second sentence may run consecutively. In both People v. Henry, 107 Mich. App. 632 (1981), and People v. Waterman, 140 Mich. App. 652 (1985), the Court of Appeals held that § 7b permits consecutive sentencing only if the defendant had notice of the pending criminal warrant at the time he committed the subsequent felony. The Court of Appeals rationale relied largely on its observation that "the purpose of the statute is to `deter persons accused of one crime from committing others by removing the security of concurrent sentences.'" Henry at 636. Because deterrence under § 7b would not occur absent notice of the pending charge, the Court of Appeals reasoned that the statute must require notice. Id. at 638.
I fail to understand how it is that the deterrent effect of § 7b cannot be realized whether or not the defendant actually knows that a warrant has been issued for his arrest. When a defendant knowingly engages in criminal activity, and faces only the risk of concurrent sentencing, he faces no increased penalty for further criminal activities, whether or not he has been charged with the first violation. This is precisely the "one free crime" situation the Legislature sought to avoid by enacting § 7b. When a defendant is faced with consecutive sentencing under § 7b, he will "know" that he is faced with the potential for longer terms of incarceration for subsequent offenses in the same sense that every defendant is presumed to know the law. Defendant's "knowledge" need not come from notice of the actual knowledge of a pending charge; but may come from the knowledge that he may have been charged, and that under § 7b continued violations of the law will result in increasingly harsh punishment.
The Court of Appeals rationale appears to assume that deterrence is the sole legislative purpose of the consecutive sentencing provision of § 7b. That is not the case. As this Court previously noted in People v. Chambers, 430 Mich. 217, 229 (1988), "[t]he purpose of consecutive sentencing is to `enhance the punishment imposed upon those who have been found guilty of more serious crimes and who repeatedly engage in criminal acts.'" Quoting People v. Smith, 423 Mich. 427, 445 (1985). Limitation of § 7b to only those cases in which the defendant has received notice of the pending charge elevates the deterrence purpose of the statute, while ignoring and in fact frustrating this equally important goal.
Under our jurisprudence, there is a longstanding presumption against consecutive sentencing. In re Carey, 372 Mich. 378, 380 (1964). "[I]n the absence of statutory authority, a sentence may not be imposed to commence at the completion or expiration of another sentence." In the present case, however, the Legislature has clearly expressed its intention, through § 7b, to authorize consecutive sentences for offenders who commit subsequent offenses while a first offense is pending. Defendants are presumed to know the law, and are thus presumed to know that under § 7b subsequent offenses may be punished consecutively. There is no additional requirement that defendant have actual knowledge or notice of the fact that his latest offense is "subsequent" within the meaning of the statute, or that his first offense is "pending."
I would grant leave to appeal.
WEAVER and TAYLOR, JJ.
We join in the statement of Justice BOYLE.
Reconsideration denied post, 959
Reconsideration denied as moot July 27, 1999, in light of the Supreme Court's order entered March 23, 1999, post 959.