Opinion
Docket No. 81210.
Decided August 9, 1985.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, John D. O'Hair, Prosecuting Attorney, Edward Reilly Wilson, Deputy Chief, Civil and Appeals, and Rosemary A. Gordon, Assistant Prosecuting Attorney, for the people.
Rose Mary C. Robinson, for defendant on appeal.
Before: HOOD, P.J., and V.J. BRENNAN and R.M. MAHER, JJ.
Defendant was convicted upon his plea of guilty of murder in the second degree, MCL 750.317; MSA 28.549, and felony-firearm, MCL 750.227b; MSA 28.424(2). Pursuant to a sentencing agreement, he was sentenced to from 7-1/2 to 15 years' imprisonment on the murder charge, plus 2 years' imprisonment on the felony-firearm charge. One count of murder in the first-degree and a second count of assault with intent to murder were dismissed in exchange for defendant's plea. Defendant appeals as of right.
Defendant first argues that resentencing is required because the trial court failed to articulate on the record its reasons for imposing the sentence recommended by the prosecutor. We find this argument to be without merit.
In People v Coles, 417 Mich. 523, 549; 339 N.W.2d 440 (1983), the Supreme Court held that, in order to facilitate appellate review of the sentencing process, the trial court must articulate on the record its reasons for imposing the sentence given. In the case at bar, we find the record sufficient to afford appellate review.
Initially we note that defendant received a substantial bargain in exchange for his guilty pleas. As originally charged, defendant faced mandatory life imprisonment under the murder count, MCL 750.316; MSA 28.548, and a possible life sentence under the count of assault with intent to murder, MCl 750.83; MSA 28.278. Pursuant to the plea bargain arranged by defendant's retained counsel, defendant received a term of imprisonment of from 7-1/2 to 15 years for second-degree murder, plus the mandatory 2-year term of imprisonment for felony-firearm.
The record reveals that the trial court reviewed the presentence report and indicated that based upon the information in the presentence report he would impose the sentence recommended by the prosecutor. We find no evidence of prejudice to the defendant. Therefore, we find a remand for resentencing under Coles unnecessary.
Defendant notes that the record is silent on the utilization of the sentencing guidelines, the use of which has been made mandatory by Michigan Supreme Court Administrative Order No. 1984-1, 418 Mich lxxx (1984). Defendant does not set this forth as ground for reversal, however, and understandably so: the sentence imposed is considerably less than the recommended guideline minimum and defendant can hardly claim prejudice.
No remand for resentencing is warranted under the circumstances in this case. See People v Good, 141 Mich. App. 351; 367 N.W.2d 863 (1985).
Defendant next argues that he was denied his constitutional right to a speedy trial because 13 months elapsed between the time of his arrest and his conviction.
Currently, there is a split in this Court concerning whether a plea of guilty waives this claim. Following federal authority this Court in People v Parshay, 104 Mich. App. 411, 414; 304 N.W.2d 593 (1981), lv den 411 Mich. 1081 (1981), held that a defendant's plea of guilty waives for purposes of appeal all nonjurisdictional defects in the court below including a claim of denial of the right to a speedy trial. In People v Davis, 123 Mich. App. 553, 558-559; 332 N.W.2d 606 (1983), another panel of this Court reasoned that a speedy trial claim is a complete and therefore jurisdictional defense which is not waived by a guilty plea.
We are inclined to follow the Parshay Court but find that under either view, the defendant's argument is without merit.
In People v Grimmett, 388 Mich. 590; 202 N.W.2d 278 (1972), the Michigan Supreme Court adopted the four factor test set forth in Barker v Wingo, 407 U.S. 514; 92 S Ct 2182; 33 L Ed 2d 101 (1972), for evaluating a claim of deprivation of the right to a speedy trial. The factors to be considered are: (1) length of delay; (2) reason for delay; (3) whether the defendant asserted his right to a speedy trial below; and (4) prejudice to the defendant.
According to the record, defendant was arraigned on April 12, 1983, and pled guilty on May 15, 1984. All pretrial motions were completed as of September 14, 1983. On October 19, 1983, a final conference was held wherein May 14, 1984, was established as the trial date. On May 10, 1984, trial was delayed until May 15, 1984, because the court was in trial on another matter. Thus, the record establishes an approximate 13-month delay between the time defendant was arrested and his guilty plea.
Concerning the length of delay factor, this Court has held that a delay between arrest and trial of over 18 months is presumptively prejudicial. People v Bennett, 84 Mich. App. 408, 411; 269 N.W.2d 618 (1978). However, a delay of six months is insufficient to trigger further investigation. People v Kilgore, 103 Mich. App. 812, 815; 304 N.W.2d 7 (1981). Because the delay in the present case was approximately 13 months, our inquiry will press further.
As to the reason for the delay, we note that defense motions were conducted during the first six months of the delay. Therefore, the first six months of the 13-month period can be reasonably attributed to defendant.
The prosecutor asserts the clogged condition of the court's dockets as the reason for the additional seven-month delay. This Court has held that "[w]hile delay of this nature is attributable to the prosecution, it has a neutral tint and should be given only minimal weight in determining whether defendant's speedy trial right has been violated." People v Ewing, 101 Mich. App. 51, 55; 301 N.W.2d 8 (1980).
Further, we find that defendant did not assert his right to a speedy trial in the proceedings below. While the failure to assert this right is not an automatic waiver of the right, it does weigh heavily against a finding that the right has been violated. Kilgore, supra; People v Collins, 388 Mich. 680, 688; 202 N.W.2d 769 (1972).
Finally, we find that defendant has failed to establish how this delay prejudiced his cause. Defendant contends that his oppressive pretrial incarceration caused him to lose his will to engage in adversary proceedings and to involuntarily plead guilty. We find this contention to be totally unsupported by the record.
Because the reason for the delay attributable to the state was not of a bad faith nature and because defendant failed to assert his right to a speedy trial below and, on appeal, has failed to demonstrate how the delay prejudiced his case, we hold that defendant was not denied his right to a speedy trial.
Defendant's convictions are affirmed.
R.M. MAHER, J., concurred in the result only.