Opinion
Docket No. 69539.
Decided February 15, 1984.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Deputy Chief, Civil and Appeals, and Janice M. Joyce Bartee, Assistant Prosecuting Attorney, for the people.
State Appellate Defender (by Stuart B. Lev), for defendant.
AFTER REMAND
In November, 1982, defendant, Vernard Cohens, was convicted by a jury of second-degree murder, contrary to MCL 750.317; MSA 28.549, armed robbery, contrary to MCL 750.529; MSA 28.797, and felony-firearm, contrary to MCL 750.227b; MSA 28.424(2). Defendant was sentenced to life imprisonment for second-degree murder, not less than 40 nor more than 60 years in prison for armed robbery and the consecutive 2 years in prison for felony-firearm. He now appeals as of right.
In September, 1979, charged with two counts of felony murder (murder in the first degree) and accompanying felony-firearm charges arising out of two separate incidents, defendant pled guilty to two counts of murder in the second degree and felony-firearm, under a plea agreement which dismissed the first-degree murder charges. After sentence, defendant appealed to this Court.
In People v Cohens, we specifically provided that defendant's two convictions of second-degree murder were affirmed, but set aside the sentences and remanded the cause for resentencing. We held that the plea agreement under which defendant pled contemplated eligibility for parole after 10 years pursuant to MCL 791.234(4); MSA 28.2304(4).
111 Mich. App. 788, 797; 314 N.W.2d 756 (1981).
The conviction for felony-firearm was affirmed as to one of the incidents out of which the original charges arose and vacated as to the other.
Shortly after imposition of the sentences based on the guilty pleas, the Attorney General rendered an opinion construing Proposal B, which was an initiated law ratified in the November, 1978, general election, to preclude parole consideration for prisoners serving life sentences. Thus, in 111 Mich. App. 788 (1981), supra, we concluded that defendant's reliance on the possibility of parole after 10 years was illusory and set aside the sentences, saying:
"The trial judge and the prosecutor, on appeal, have stated their desire and intent that defendant be sentenced to parolable life terms. Because the Department of Corrections cannot presently honor that intent, defendant's sentences for second-degree murder are vacated, and the case is remanded for resentencing. In order to effectuate the trial court's intent, defendant may now be resentenced to a minimum of 10 years and a maximum of x number of years greater than 15 and less than life." People v Cohens, supra, p 795.
On remand, Judge Clarice M. Jobes disqualified herself, indicating that at the time of sentence, contrary to the subsequent opinion of the Attorney General, she did not believe Proposal B would affect those serving life sentences. Apparently she indicated that, while she had been considering a sentence with a minimum of around 30 years, she had been assuming she would have no control over when defendant might be reviewed for possible parole. Acknowledging that both she and defendant likely misunderstood the law relating to parole, she offered defendant the alternative of withdrawing his guilty plea to imposition of a sentence with a 30-year minimum. Obviously, she did not interpret this Court's opinion in 111 Mich. App. 788 (1981), as limiting the sentence she might impose to a 10-year minimum.
No transcript of that hearing has been filed.
Presumably all counsel.
Faced with this choice, defendant withdrew his plea. Then Judge Jobes disqualified herself, and the case was reassigned to Judge Edward M. Thomas for trial. Prior to trial, counsel for defendant objected at length to the choice given defendant and argued that defendant was entitled under the Court of Appeals opinion reported in 111 Mich. App. 788, 797 (1981), to be resentenced with a minimum sentence of 10 years. We agree with defendant.
We believe we are bound by the panel's decision reported in 111 Mich. App. 788 (1981), affirming defendant's convictions of two counts of second-degree murder and imposing a sentence with "a minimum of 10 years and a maximum of x number of years greater than 15 and less than life". We do not believe under the circumstances of this case that defendant waived his right to the benefit of our decision reported in 111 Mich. App. 788 (1981). Neither an appeal nor a motion for rehearing was made attacking that decision. It remains intact and is the law of this case.
Consistent decisions are People v Penn, 102 Mich. App. 731; 302 N.W.2d 298 (1981), and People v Lad Peete (Docket No. 57346, decided May 13, 1982 [unreported]).
In accordance with that decision, we modify defendant's sentences to provide two concurrent sentences of not less than 10 years nor more than 60 years in prison.