Opinion
Docket No. 80926.
Decided July 8, 1986.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Paul L. Maloney, Prosecuting Attorney, and Brian S. Berger, Assistant Prosecuting Attorney, for the people.
James K. Jesse, for defendant.
Before: R.M. MAHER, P.J., and BEASLEY and SHEPHERD, JJ.
Defendant was convicted following a jury trial on August 22, 1978 of delivery of heroin, contrary to MCL 335.341(1)(a); MSA 18.1070(41)(1)(a). On August 13, 1984, defendant was sentenced to a prison term of four to twenty years and received credit for 113 days of local confinement. On September 28, 1984, an amended judgment of sentence was filed giving defendant 477 days of sentence credit.
Repealed by 1978 PA 368, § 25101 and replaced by MCL 333.7401; MSA 14.15(7401).
After the jury returned its verdict in 1978, defendant was released on bond. Sentencing was scheduled for December 11, 1978. When defendant failed to appear for sentencing, a bench warrant for his arrest was issued on December 26, 1978. On December 15, 1982, defendant was incarcerated in Illinois on a charge of armed robbery. Michigan authorities learned of defendant's incarceration in Illinois on December 29, 1982. On May 18, 1984, defendant was sentenced by an Illinois court to a prison term of six years for the armed robbery conviction.
In June, 1984, defendant was returned to Michigan for sentencing on the drug conviction. On August 13, 1984, defendant was sentenced to a term of four to twenty years with credit for 113 days "spent in local confinement on both the minimum and maximum period of time." The sentencing court imposed this sentence to run concurrently with the Illinois sentence and returned defendant to Illinois for completion of his sentence there.
On September 28, 1984, an amended judgment of sentence was filed on an ex parte basis, giving defendant 477 days of sentence credit rather than 113 days as originally provided.
On appeal, defendant argues that he is entitled to sentence credit for the entire period he was incarcerated, i.e., from December 15, 1982, the date of his arrest for the armed robbery charge, until August 13, 1984, the date he was sentenced for the drug conviction.
The Legislature has authorized the grant of sentence credit by MCL 769.11b; MSA 28.1083(2) which provides:
Whenever any person is hereafter convicted of any crime within this state and has served any time in jail prior to sentencing because of being denied or unable to furnish bond for the offense of which he is convicted, the trial court in imposing sentence shall specifically grant credit against the sentence for such time served in jail prior to sentencing.
In People v Prieskorn, 424 Mich. 327, 344; 381 N.W.2d 646 (1985), our Supreme Court construed the statute and held:
To be entitled to sentence credit for presentence time served, a defendant must have been incarcerated "for the offense of which he is convicted."
Although Prieskorn provides us with a rule to follow when determining whether a defendant is entitled to sentence credit, the decision does not guide us in the application of the rule to the facts of this case.
In Prieskorn, while the defendant was free on bond awaiting trial on two drug charges, he was arrested, and subsequently convicted, for driving with a revoked license. He was sentenced to ninety days in jail for the traffic violation. On the fifty-first day of his incarceration, he was arrested on a third drug charge. Pursuant to plea negotiations, he pled guilty to the first drug offense in exchange for dismissal of the other two drug offenses. The defendant then sought credit, against his sentence on the drug conviction, for fifty-one days of the confinement he served under sentence for the driving offense. The Supreme Court held that the defendant was not entitled to such credit because he did not serve that time because of his inability to post bond for the drug offense. Prieskorn, supra, p 343.
Since the fifty-one days of incarceration for which the defendant seeks credit is unrelated to the offense before us for which he has been convicted, he is not entitled to sentence credit for that confinement. [ Prieskorn, supra, p 344.]
In the instant case, however, once the Michigan authorities placed a "hold" on defendant in Illinois, he was no longer incarcerated solely because of the armed robbery charge. Due to the "hold" placed on defendant, he could not have been released from incarceration vis-a-vis the armed robbery conviction. Consequently, we believe defendant is entitled to credit for time served in Illinois at least from the date that the Michigan authorities placed the "hold" on him.
We do not believe, however, that a defendant is entitled to credit for time served from the date when the "hold" could have been placed. Although this Court has split on this issue, the sounder view allows defendant credit only from the time the Michigan authorities actually placed a "detainer" and "hold" on him in Illinois pursuant to MCL 780.601 et seq.; MSA 4.147(1) et seq. People v Shipp, 141 Mich. App. 610; 367 N.W.2d 430 (1985), lv den 422 Mich. 1205 (1985); People v Major, 106 Mich. App. 226; 307 N.W.2d 451 (1981). Prior to the actual placing of a "hold" on defendant, the Michigan authorities had no control over his incarceration. He could have been released in Illinois and been totally free. Thus, until the "hold" was placed, defendant's incarceration in Illinois was wholly unrelated to the proceedings in Michigan.
Application of this sounder view to the facts of this case indicates that a remand for a recalculation of credit for time served is unnecessary. Defendant admits on appeal that the trial judge attempted to give him credit from the time Michigan authorities actually placed a "hold" on him in Illinois. The prosecution also acknowledges this, but recognizes that the trial judge erred in computing the number of days between the time the hold was placed on defendant and defendant's sentencing in Michigan.
The prosecutor admits that the Michigan authorities first learned of defendant's incarceration in Illinois on December 29, 1982. On that same day, the Michigan authorities forwarded certified copies of the Michigan complaint and warrant to Illinois officials, thus placing a "hold" on defendant. Consequently, defendant should have received credit for the time he served in Illinois from December 29, 1982, until the trial judge imposed sentence in Michigan on August 13, 1984. This will result in a credit of 592 days.
Defendant's claim of error regarding the violation of his constitutional rights by the denial of overcrowding time cuts where defendant is serving a sentence in Illinois concurrently with a Michigan sentence is before this Court on an inadequate record. An issue is deemed waived if an inadequate record is presented to this Court. Kingston v Markward Karafilis, Inc, 134 Mich. App. 164, 176; 350 N.W.2d 842 (1984).
We find no merit in defendant's remaining claim of error on the departure from the sentencing guidelines. People v Ridley, 142 Mich. App. 129, 134; 369 N.W.2d 274 (1985). Nor do we believe the court erred in its articulation of the reasons for the sentence on the record or its consideration of defendant's Illinois armed robbery conviction.
Affirmed. We modify defendant's sentence to provide credit for 592 days served by defendant in Illinois.
I respectfully dissent from that portion of the majority's opinion which holds that a defendant is entitled to sentence credit only from the time the Michigan authorities actually placed a "hold" on the defendant.
I believe a defendant is entitled to credit for time served from the date when a "hold" could have been placed, for the reason stated in People v Turner, 130 Mich. App. 646, 651-652; 344 N.W.2d 34 (1983):
Once the Michigan authorities have issued a warrant and know where the defendant is being held, they should place a "hold" at that time; a defendant should not be penalized by any administrative delay in placing a "hold" through the loss of sentence credit which would have been received had a "hold" been promptly issued. See also, People v Coyle, 104 Mich. App. 636, 647-648; 305 N.W.2d 275 (1981), lv den 415 Mich. 851 (1982).
I am convinced that the rule followed in Turner and Coyle remains viable notwithstanding the Supreme Court's decision in People v Prieskorn, 424 Mich. 327, 344; 381 N.W.2d 646 (1985).
In the instant case, however, the result is the same under either rule. As the majority notes, the "hold" was placed on the same day that the Michigan authorities learned of defendant's incarceration in Illinois. Thus, I agree with the majority's conclusion that defendant is entitled to a sentence credit of 592 days.