People v. Alexander , 234 Mich. App. 665 ( 1999 )

599 N.W.2d 749 (1999) 234 Mich. App. 665

PEOPLE of the State of Michigan, Plaintiff-Appellant/Cross-Appellee,
v.
Ronald Ramie ALEXANDER, Defendant-Appellee/Cross-Appellant.

Docket No. 207444.

Court of Appeals of Michigan.

Submitted March 10, 1999, at Lansing. Decided April 2, 1999, at 9:00 a.m. Released for Publication June 29, 1999.

Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, Jeffrey L. Souter, Prosecuting Attorney, and William M. Worden, Senior Assistant Prosecuting Attorney, for the people.

State Appellate Defender (by Sherrie P. Guess), for the defendant on appeal.

Before MARKMAN, P.J., and HOEKSTRA and ZAHRA, JJ.

MARKMAN, P.J.

The prosecutor appeals by leave granted the trial court's order granting defendant's motion for resentencing. Defendant also appeals by leave granted,^[1] challenging his sentence of 15 to 22½ years following his guilty plea of second-degree home invasion, M.C.L. § 750.110a(3); MSA 28.305(a)(3), and of being an habitual offender, second offense, M.C.L. § 769.12; MSA 28.1084. We reverse the order granting resentencing, vacate the portion of the judgment of sentence imposing a consecutive sentence, and remand for entry of a judgment of sentence providing that defendant's sentence is to be served concurrently with his Louisiana sentence.

On July 8, 1996, defendant entered a house in Eaton Rapids Township without permission. Defendant claimed that he entered the house because he was hungry and wanted to find food, but he admitted that he also took a canister full of coins from the top of the refrigerator, and he was also found in possession of credit cards and jewelry. Before accepting defendant's plea of guilty, the trial court advised defendant that he was facing the following penalty:

This is a crime commonly known as Home Invasion, Second Degree. It's a 15-year felony. That is, you can receive up to 15 years in prison and/or a fine of 3 thousand dollars.... [I]f you're convicted of being a second felony offender, the maximum of 15 years in prison goes up to a maximum of 22 and a half years in prison by being a second felony offender.

Defendant acknowledged that he understood the possible penalties he was facing and then pleaded guilty. On October 31, 1996, the trial court sentenced defendant to 15 to 22½ years, citing defendant's eleven prior felonies, the fact that defendant was on escape status from a Louisiana prison, the victim's desire that defendant receive the maximum penalty, and the court's opinion that defendant likely could not be rehabilitated.

Defendant moved for resentencing, contending, first, that the sentencing court failed to recognize its discretion in determining the maximum sentence that could be imposed for home invasion pursuant to the sentence enhancement provisions of the habitual offender statute and, second, that the sentencing court considered two juvenile felony adjudications that had been conducted without counsel. At a hearing before a different judge, defendant presented a letter from Calcasieu Parish Juvenile Court in Louisiana, indicating that defendant had waived counsel at one of the felony adjudications and that the prosecutor had rejected the charges regarding the other alleged felony. The trial court determined that it was unclear whether the sentencing court had considered defendant's juvenile record, but that because the six-page presentence investigation report included two pages of juvenile history, it must necessarily have been considered. The trial court noted that the juvenile adjudications had been without the benefit of counsel and that the burden thus shifted to the prosecutor to show a valid waiver. The trial court gave the prosecutor until December 1, 1997, to meet this burden. However, an order was entered on October 24, 1997, granting defendant's motion for resentencing. The trial court did not determine whether the sentencing court had recognized and exercised its discretion regarding the habitual offender sentence enhancement. The prosecutor and defendant subsequently moved respectively for leave to appeal the order granting resentencing and the original sentence. Defendant has not yet been resentenced.

First, the prosecutor argues that the trial court improperly granted defendant's motion for resentencing on the basis of the sentencing court's possible consideration of a juvenile adjudication secured without benefit of counsel. We agree. This Court reviews the trial court's determination of facts for clear error, People v. Swirles (After Remand), 218 Mich.App. 133, 136, 553 N.W.2d 357 (1996), and questions of law de novo, People v. Connor, 209 Mich.App. 419, 423, 531 N.W.2d 734 (1995). Prior convictions obtained in violation of the right to counsel, whether it is because of lack of counsel or because of lack of a proper waiver of counsel under Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), cannot be considered in determining punishment for another offense. People v. Moore, 391 Mich. 426, 436-438, 216 N.W.2d 770 (1974). A defendant who collaterally challenges a prior conviction bears the initial burden of establishing that the conviction was obtained without counsel or a proper waiver of counsel. People v. Carpentier, 446 Mich. 19, 31, 521 N.W.2d 195 (1994), citing Moore, supra at 440, 216 N.W.2d 770. Because proper waivers of counsel are far more frequent than unconstitutional deprivations of counsel, there is a presumption of regularity such that we presume that judicial proceedings were proper unless a defendant upholds the burden of demonstrating otherwise. See Carpentier, supra at 37, 57, 521 N.W.2d 195. Only where a defendant meets that burden is a Tucker^[2] hearing held, at which the burden shifts to the prosecutor to establish the constitutional validity of the prior conviction. Carpentier, supra at 31, 521 N.W.2d 195. However, a defendant is entitled to resentencing only where a sentencing court has relied on an invalid conviction in imposing sentence. Moore, supra at 440, 216 N.W.2d 770; People v. Haywood, 209 Mich.App. 217, 232, 530 N.W.2d 497 (1995).

In this case, the trial court determined at the hearing concerning the motion for resentencing that defendant had met his burden of establishing a prima facie case and that it was "at best unclear whether [the sentencing court] did or he didn't" consider defendant's juvenile record, because there were two pages in the presentence investigation report detailing defendant's juvenile record and, out of fifteen or sixteen entries, only one indicated that defendant was represented by counsel. However, in his motion for resentencing, defendant challenged only two of the juvenile record entries. One entry, which states as the charge, "Truancy; F/Theft" from October 28, 1982, was rejected by the district attorney. Thus, it did not result in incarceration and could have been properly considered by the court. People v. Daoust, 228 Mich.App. 1, 19, 577 N.W.2d 179 (1998) (there is no deprivation of the constitutional right to counsel where a juvenile adjudication does not result in incarceration). The second entry was the January 19, 1986, charge of "UUOM/Felony" which was adjudicated on January 22, 1986. However, regardless of whether defendant upheld his burden of showing that he was not represented by counsel and did not properly waive counsel at this adjudication, we find no evidence in our review of the record supporting the trial court's determination that the sentencing court relied on defendant's juvenile record at all.

The sentencing court made no mention of defendant's juvenile adjudications. When sentencing defendant, the sentencing court stated:

Victim states on Page 2 that he would hope the Defendant receives the most the law allows. And I would not expect that he's that familiar with your criminal history. If he knew your criminal history, he would probably be astonished because it is quite astonishing.

You have eleven prior felonies. You're on escape status off [sic] Louisiana. You've got—would make anybody's straight hair curl like mine.

These statements also do not indicate that the sentencing court considered defendant's juvenile record. To the contrary, the sentencing court specifically referred to defendant's eleven prior felonies, which is significant because the record shows that defendant had eleven adult felony convictions. If the sentencing court had considered the juvenile record, it presumably would have referred to defendant's twelve or thirteen prior felonies. Where there is a lack of any affirmative evidence that the sentencing court actually considered a possibly unconstitutional adjudication, we will not presume that the court must have considered it merely because the facts were before it. As in a bench trial where a trial court must both determine whether evidence is admissible and disregard all inadmissible evidence, we assume that the sentencing court knew the law and considered only the evidence properly before it. People v. Wofford, 196 Mich.App. 275, 282, 492 N.W.2d 747 (1992). This Court has said that "`a presumption of regularity exists with respect to official acts of public officers and, absent any evidence to the contrary, the court presumes that their official duties have been discharged properly.'" People v. White, 208 Mich.App. 126, 132, 527 N.W.2d 34 (1994), quoting United States v. Lott, 854 F.2d 244, 250 (C.A.7,1988); see also Carpentier, supra at 37, 521 N.W.2d 195. Therefore, regardless of whether defendant was represented by counsel at the January 22, 1986, adjudication, we believe that defendant was not entitled to resentencing on the basis of this issue, and, accordingly, we reverse.

Second, the prosecutor argues that the trial court improperly granted defendant's motion for resentencing to the extent that the court relied on defendant's argument that the sentencing court failed to recognize and exercise its discretion in sentencing defendant pursuant to the habitual offender statute. However, we find absolutely no evidence that the trial court did in fact rely on such argument in granting defendant's motion because the trial court did not make reference to the argument in its decision. Thus, this issue is not preserved for appeal. People v. Connor, 209 Mich.App. 419, 422, 531 N.W.2d 734 (1995). We choose to briefly address this issue to make clear that it does not form an independent basis for affirming the trial court's order granting resentencing. The habitual offender statute under which defendant was sentenced allows a court to enhance a defendant's sentence at the court's discretion for second and subsequent felonies, as follows: "[T]he court ... may place the person on probation or sentence the person to imprisonment for a maximum term which is not more than 1-1/2 times the longest term prescribed for a first conviction of that offense or for a lesser term." MCL 769.10(1)(a); MSA 28.1082(1)(a) (emphasis added).

At defendant's plea proceeding, the sentencing court instructed defendant regarding the sentences he was facing:

This is a felony, therein contrary to Michigan law. This is a crime commonly known has Home Invasion, Second Degree. It's a 15-year felony. That is, you can receive up to 15 years in prison and/or a fine of 3 thousand dollars....

[T]he Information further alleges that on on [sic] or about November 19, 1990, you were convicted of the offense of Breaking and Entering a building and unauthorized use of a motor vehicle in Circuit Court for Chambers County, Texas.

Therefore, if you're convicted of being a second felony offender, the maximum of 15 years in prison goes up to a maximum of 22 and a half years in prison by being a second felony offender.

This passage, read in its entirety, does not imply that the sentencing court believed that it was required to enhance defendant's home invasion sentence. The sentencing court informed defendant that second-degree home invasion is a fifteen-year felony, then went on to explain that this meant that defendant can "receive up to 15 years in prison." Then, the sentencing court explained the possible consequences of a conviction for being a second-time offender: "the maximum of 15 years in prison goes up to a maximum of 22 and a half years." This does not imply that the sentencing court failed to recognize its discretion. Rather, the sentencing court was informing defendant of the maximum term of imprisonment he could face by pleading guilty to each charge. See People v. Farah, 214 Mich.App. 156, 157, 542 N.W.2d 321 (1995). We believe that, as in People v. Beneson, 192 Mich.App. 469, 471, 481 N.W.2d 799 (1992), because there was no clear evidence that the sentencing court believed that it lacked discretion, the presumption that a trial court knows the law must prevail. People v. Garfield, 166 Mich.App. 66, 79, 420 N.W.2d 124 (1988). This Court is satisfied that the sentencing court had a clear understanding of its discretion in this sentencing.

Third, defendant argues that he was entitled to resentencing because the sentencing court improperly imposed a consecutive sentence. Whether consecutive sentencing is mandated by statute is a question of law, which this Court reviews de novo. People v. Denio, 454 Mich. 691, 698, 564 N.W.2d 13 (1997). The primary goal of judicial interpretation of statutes is to ascertain and give effect to the intent of the Legislature. People v. Stanaway, 446 Mich. 643, 658, 521 N.W.2d 557 (1994). The Legislature is presumed to have intended the meaning it plainly expressed. People v. Roseburgh, 215 Mich.App. 237, 239, 545 N.W.2d 14 (1996). Thus, the first step in statutory interpretation is to look to the plain meaning of the words. People v. Pitts, 216 Mich.App. 229, 232, 548 N.W.2d 688 (1996). "When the language of a statute is certain and unambiguous, judicial construction is neither required nor permitted, and courts must apply the statute as written." People v. Nantelle, 215 Mich.App. 77, 80, 544 N.W.2d 667 (1996), citing Turner v. Auto Club Ins. Ass'n, 448 Mich. 22, 27, 528 N.W.2d 681 (1995).

A consecutive sentence may be imposed only if specifically authorized by statute. People v. Chambers, 430 Mich. 217, 222, 421 N.W.2d 903 (1988). Thus, defendant may be sentenced consecutively only if mandated by M.C.L. § 768.7a(1); MSA 28.1030(1)(1), which provides, in relevant part:

A person who is incarcerated in a penal or reformatory institution in this state, or who escapes from such an 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 of that crime, be sentenced as provided by law. The term of imprisonment imposed for the crime shall begin to run at the expiration of the term or terms of imprisonment which the person is serving or has become liable to serve in a penal or reformatory institution in this state. [Emphasis added.]

Addressing the plain language of the statute, the term "such" as used in the phrase "such an institution" is defined in the following manner: "being the person or thing or the person or things indicated: If any member be late, such member shall be suspended. "Random House Webster's College Dictionary (1997). In addition, Black's Law Dictionary (6th ed, 1990) defines "such" as follows:

Of that kind, having particular quality or character specified. Identical with, being the same as what has been mentioned. Alike, similar, of the like kind. "Such" represents the object as already particularized in terms which are not mentioned, and is a descriptive and relative word, referring to the last antecedent.

These definitions suggest that "such an institution" was merely intended as a substitute for the longer "penal or reformatory institution in the state of Michigan." Using this definition of "such," the statute allows consecutive sentencing for those who commit crimes while in a penal or reformatory institution in Michigan or while on escape status from a penal or reformatory institution in the state of Michigan. In addition, the statute in question states that "[t]he term of imprisonment imposed for the crime shall begin to run at the expiration of the term or terms of imprisonment which the person is serving or has become liable to serve in a penal or reformatory institution in this state. "MCL 768.7a(1); MSA 28.1030(1)(1) (emphasis added). This indicates that a defendant is to begin his subsequent term when he has completed the previously imposed term "in this state." Defendant is not serving a term of imprisonment in an institution in this state, nor has he become liable to serve a term of imprisonment in an institution in this state (with the exception of the sentence imposed in the present case). The end of his term of imprisonment in Louisiana, therefore, is not included within the defined starting point of a subsequent consecutive sentence.

We understand the prosecutor's argument here that the consecutive sentencing statute's deterrent effect on convicted persons considering additional crimes would apply equally to prisoners in Michigan and in other states such as Louisiana. However, when considered in its entirety, the plain meaning of the statute is that consecutive sentencing is to be imposed only where a Michigan prisoner or an escapee from a Michigan institution commits a subsequent crime. In addition, there is at least arguably a rational basis for the distinction between Michigan prisoners and those from other states, because the Michigan Legislature would presumably have a greater interest in deterring Michigan prisoners from committing additional crimes, and in enforcing discipline among such prisoners, than it would have with regard to prisoners in other states. Therefore, the court improperly imposed a consecutive sentence on defendant.

Defendant argues that, pursuant to People v. Thomas, 223 Mich.App. 9, 566 N.W.2d 13 (1997), this Court must remand for a full resentencing hearing. However, defendant's case is significantly different from Thomas. In Thomas, after the defendant was sentenced concurrently, the trial court sua sponte imposed a corrected, consecutive sentence on the defendant without notice or a hearing. In contrast, defendant's sentence here must be amended from a consecutive to a concurrent sentence, which will benefit defendant, not increase his punishment. This is also not a case in which the trial court sua sponte corrected the original sentence without first providing the defendant with notice or a hearing. In addition, we find it extremely unlikely that the trial court here, faced with a shorter overall incarceration period because of the concurrent sentencing, would reduce defendant's sentence upon remand, as was reasonably conceivable in Thomas where the defendant faced a longer overall incarceration. Thus, because defendant raised and fully argued this issue on appeal, and our determination will decrease the overall time that defendant must spend in prison, the due process concerns addressed by the full resentencing in Thomas are not present in this case. Instead, we believe that a full resentencing would be unnecessary and would waste the resources of the courts. Therefore, that portion of defendant's sentence imposing a consecutive sentence should be vacated, and the case should be remanded for entry of a judgment reflecting that defendant's sentence is to be served concurrently with his Louisiana sentence. See People v. Randle-El, 444 Mich. 978, 518 N.W.2d 485 (1994); People v. Brown, 220 Mich.App. 680, 685, 560 N.W.2d 80 (1996).

Finally, we address defendant's appeal of his sentence. This Court reviews claims of disproportionality for an abuse of discretion. People v. Milbourn, 435 Mich. 630, 636, 461 N.W.2d 1 (1990). An abuse of discretion may be found where a sentence is disproportionate "to the seriousness of the circumstances surrounding the offense and the offender." Id. While a sentence that is within the sentencing guidelines range is considered presumptively proportionate, People v. Broden, 428 Mich. 343, 354-355, 408 N.W.2d 789 (1987), sentencing guidelines are not applicable to the sentencing of habitual offenders. Rather, this Court's inquiry is whether the lower court abused its discretion. People v. Hansford (After Remand), 454 Mich. 320, 323-324, 562 N.W.2d 460 (1997).^[3]

First, defendant contends that the sentence imposed was not tailored to fit him. He claims that because his criminal history was composed of relatively minor offenses and no violent offenses, the sentencing court should not have imposed the maximum sentence, particularly where he merely entered a house to get something to eat. However, the sentencing court did take defendant's claim that he was hungry into consideration: "You talk about, well, we went in for food. But yet you stole cash and took jewelry and credit cards. So I don't buy that. It's easy for anyone to say why they went in, but your actions speak louder than words." Further, the presentence investigation report indicates that "the victims in this case arrived home to discover that someone had entered their residence and ransacked a number of rooms in the home." Second, defendant suggests that he is only twenty-two years old, and that it is unrealistic to think that he lacks rehabilitative potential. Further, he asserts that his criminal behavior has not gotten worse over the years—he has simply committed several similar, nonviolent crimes. In our judgment, there is no evidence that the sentencing court abused its discretion in concluding: "You're a criminal. You're probably going to be a lifelong criminal. You're clearly an habitual criminal. Counseling isn't going to do anything for you." There is no indication that defendant will respond to rehabilitation as an adult when the judicial system has attempted to rehabilitate him for nearly sixty percent of his life. In fact, his record shows a history of fleeing institutions and a series of probation violations. There is no indication that defendant has any intention of complying with the courts' attempts to punish or rehabilitate him. Thus, defendant has not satisfied his burden of showing that the lower court abused its discretion in sentencing him to 15 to 22 ½ years. Consequently, the sentence imposed by the sentencing court should be affirmed except with regard to the consecutive sentencing originally imposed.

For these reasons, we reverse the trial court's order granting resentencing, vacate the portion of the judgment of sentence imposing a consecutive sentence, and remand for imposition of a concurrent sentence. We do not retain jurisdiction.

NOTES

[1] Defendant filed a delayed application for cross appeal in Docket No. 208733. This Court granted defendant's application and directed that all further filings be made in Docket No. 207444.

[2] United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972) (prior convictions that are invalid under Gideon v. Wainwright could not be considered at a subsequent criminal sentencing).

[3] Defendant suggested that this Court consider legislative guidelines developed for habitual offender sentences. 1998 P.A. 317. However, these newly promulgated guidelines apply only to felonies committed on or after January 1, 1999, and thus do not apply to defendant. MCL 769.34; MSA 28.1097(3.4). Accordingly, we do not address them.