People v. Wytcherly , 176 Mich. App. 714 ( 1989 )

176 Mich. App. 714 (1989) 440 N.W.2d 107

PEOPLE
v.
WYTCHERLY

Docket No. 94371.

Michigan Court of Appeals.

Decided May 1, 1989.

Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Harold F. Closz, III, Prosecuting Attorney, and Judith K. Simonson, Assistant Prosecuting Attorney, for the people.

State Appellate Defender (by F. Michael Schuck), for defendant on appeal.

Before: SULLIVAN, P.J., and MacKENZIE and G. SCHNELZ,^[*] JJ.

ON REHEARING

G. SCHNELZ, J.

We have granted the people's motion for rehearing of our decision set forth at 172 Mich App 213; 431 NW2d 463 (1988), in order to reconsider whether the trial judge made improper ex parte communications to the jury under People v Cain, 409 Mich 858; 294 NW2d 692 (1980), rev'g 94 Mich App 644; 288 NW2d 465 (1980).

On rehearing, we find that defense counsel and the prosecutor were present when the trial judge communicated with the jury during its deliberations. Moreover, the trial judge discussed the contents of notes from the jury with the prosecutor and defense counsel, who both agreed with the judge's responses to the jury. Since we now find that both counsel were present, we conclude that there was no error requiring reversal in the judge's response to the jury to "keep working." See People v Pannell, 170 Mich App 768, 770-771; 429 NW2d 233 (1988). Furthermore, no abuse of discretion resulted from the trial judge's denial of the jury's request to review transcripts since both counsel agreed to that denial.

Although we affirm the conviction of defendant, we find that this case must be remanded for resentencing. Our review of the record reveals that defendant's sentence was improperly based in part on time reductions that defendant would receive under the good-time credit statutes. Our Supreme Court has clearly mandated that the possibility of earlier release by virtue of good-time credits or disciplinary credits may not be used to enhance a defendant's sentence. See People v Fleming, 428 Mich 408, 428; 410 NW2d 266 (1987).

Affirmed in part and remanded for resentencing in accordance with this opinion. We do not retain jurisdiction.

NOTES

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