People v. Walker , 143 Mich. App. 479 ( 1985 )

143 Mich. App. 479 (1985) 372 N.W.2d 596

PEOPLE
v.
WALKER

Docket No. 76085.

Michigan Court of Appeals.

Decided June 4, 1985.

Elliott D. Margolis, for defendant.

Before: WAHLS, P.J., and BRONSON and T.C. MEGARGLE,^[*] JJ.

PER CURIAM.

On September 30, 1983, defendant was convicted as charged with unlawfully driving away an automobile. MCL 750.413; MSA 28.645. On October 12, 1983, he was sentenced to a term of one to five years in prison, to run consecutively to a sentence defendant was then serving. Defendant appeals as of right and contends that he was entitled to concurrent sentencing. We agree.

At sentencing in the instant case, defense counsel noted for the record that defendant was then serving time for a parole violation. Subsequently, the court, in reviewing defendant's prior record, observed that defendant had "violated his parole and [was] back again". The court referred to defendant as being "out on parole and in inmate status". The statements made at sentencing persuade us to accept defendant's assertion that he was on parole at the time he committed the UDAA offense. The question is whether he, as a parolee, was "incarcerated" at that time within the meaning of the consecutive sentencing statute, MCL 768.7a; MSA 28.1030(1).

The statute provides in part:

"(1) A person who is incarcerated in a penal or reformatory institution in this state, or who escapes from that institution, and who commits a crime during that incarceration or escape which is punishable by imprisonment in a penal or reformatory institution in this state shall, upon conviction thereof, be subject to sentence therefor in the manner provided by law for such crimes. The term of sentence imposed for the crime shall commence at the expiration of the term or terms of sentence which the person is serving or has become liable to serve in a penal or reformatory institution in this state."

This Court has consistently read this statutory provision as in pari materia with MCL 750.193(2); MSA 28.390(2), which defines "prison" liberally. See People v Lakin, 118 Mich. App. 471, 474; 325 NW2d 460 (1982); People v Shirley Johnson, 96 Mich. App. 84, 86; 292 NW2d 489 (1980), and People v Mayes, 95 Mich. App. 188; 290 NW2d 119 (1980). Thus, one who commits a crime even while on authorized leave from a half-way house does so while "incarcerated" and is subject to consecutive sentencing. Mayes, supra.

The statute does have its limits, though, as recognized by this Court in Lakin, supra. In that case, defendant was on "extended furlough" when he committed a felony. This Court concluded:

"Since defendant was not on `parole' status, but `preparole' status at the time he committed the offense, he was subject to the consecutive sentencing statute." 118 Mich. App. 474.

The clear implication of the Court's statement is that a parolee is not subject to the consecutive sentencing statute. While dicta on the facts of Lakin, we accept it as the correct interpretation of the statute.

We find support for our interpretation in People v Sanders, 130 Mich. App. 246; 343 NW2d 513 (1983). That case involved the question of whether defendant was an inmate for purposes of the 180-day rule, MCL 780.131; MSA 28.969(1). This Court relied on the holdings in the consecutive-sentencing cases in determining "inmate" status under the 180-day rule and concluded:

"In the instant case, * * * defendant was on parole at the time he committed the offenses for which he was subsequently convicted. Although every parolee remains in the legal custody and under the jurisdiction of the Department of Corrections, that parolee is free from the enclosures of a prison facility. MCL 791.238; MSA 28.2308.

"We find that in the parole context the 180-day rule applies only where a person is assigned to a state correctional facility on preparole status." 130 Mich. App. 251.

We hold that, because defendant was on parole at the time of committing the instant offense, he was not "incarcerated" and not subject to consecutive sentencing pursuant to MCL 768.7a; MSA 28.1030(1). His consecutive sentence being erroneous, we are remanding for resentencing. People v Doss, 122 Mich. App. 571; 332 NW2d 541 (1983), lv den 417 Mich 1100.16 (1983).

Remanded for resentencing.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.