Opinion
Docket No. 45850.
Decided August 12, 1980.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William F. Delhey, Prosecuting Attorney, and Robert L. Cooper, Assistant Prosecuting Attorney, for the people.
Kitchen, Stringer Schmerberg, J.D., for defendant.
The defendant was arrested on December 11, 1978, and charged with possession of stolen property over $100 in violation of MCL 750.535; MSA 28.803. She pled guilty on March 19, 1979. She was told at pretrial on January 25, 1979, that a supplemental information would be filed against her charging her as a habitual offender. This was done on April 12, 1979. On April 19, 1979, she pled guilty to the charge of being a habitual offender, fourth or subsequent conviction (MCL 769.12; MSA 28.1084). She appeals from her sentence of three to five years at the Michigan Department of Corrections contending that, under the holding of the Supreme Court in People v Fountain, 407 Mich. 96; 282 N.W.2d 168 (1979), it was improper to delay the filing of the supplemental information until after the defendant had pled guilty to the principal charge against her.
The prosecutor contends that the bases for the holding in People v Fountain do not apply in this case as the defendant had fair notice and there was no prosecutorial impropriety. People v Fountain however is quite specific:
"A prosecutor who knows a person has a prior felony record must promptly proceed, if at all, against the person as an habitual offender. People v Hatt, 384 Mich. 302; 181 N.W.2d 912 (1970), People v Stratton, 13 Mich. App. 350; 164 N.W.2d 555 (1968). The prosecutor is not foreclosed from proceeding against a person as an habitual offender after conviction on the current offense provided he is unaware of a prior felony record until after the conviction. MCL 769.13; MSA 28.1085. The only recognized exception to this rule is when the delay is due to the need to verify out-of-state felony convictions based on the `rap sheet'. People v Hendrick, 398 Mich. 410; 247 N.W.2d 840 (1976)." Id., 98-99.
The supplementation in this case does not fall within the exception and therefore could not at the present time be sustained.
The other question is whether the rule announced in Fountain is retrospective. The date of the sentence was April 19, 1979. The Supreme Court decision was August 28, 1979. The Supreme Court did not announce whether the rule of Fountain was to be applied retrospectively or prospectively and is considering the determination of that question. People v Ronald Brown, 407 Mich. 913 (1979).
In a number of cases the Court recently has decided the question of retroactivity of decisions which change an established rule of law.
In People v Hampton, 384 Mich. 669; 187 N.W.2d 404 (1971), the Court did apply retroactively a requirement that instructions be given to the jury that a finding of not guilty by reason of insanity does not result in release of a defendant.
In People v Auer, 393 Mich. 667; 227 N.W.2d 528 (1975), the Court applied the "objective" test to evidence of entrapment dictated by People v Turner, 390 Mich. 7; 210 N.W.2d 336 (1973), prospectively only.
In People v Rich, 397 Mich. 399; 245 N.W.2d 24 (1976), the Court applied prospectively only the rule of People v Crittle, 390 Mich. 367; 212 N.W.2d 196 (1973), which overruled the capacity standard of intoxication in specific intent crimes which had been firmly established for many years.
In People v Markham, 397 Mich. 530; 245 N.W.2d 41 (1976), reh den 398 Mich. 952 (1976), the "same transaction" test in double jeopardy cases decided by People v White, 390 Mich. 245; 212 N.W.2d 222 (1973), was applied prospectively.
In People v Mauch, 397 Mich. 646; 247 N.W.2d 5 (1976), reh den 400 Mich. 951 (1977), the rule requiring a presentence report mandated by People v Brown, 393 Mich. 174; 224 N.W.2d 38 (1974), prior to sentencing was limited further by including only cases on direct appeal at the date of the Brown decision.
In People v Garcia, 398 Mich. 250; 247 N.W.2d 547 (1976), reh den 399 Mich. 1041 (1977), the Court refused retroactive effect to the rule that it is not permissible for a trial judge sitting without a jury to read the transcript taken at preliminary examination.
In People v Kamin, 405 Mich. 482, 494, 504-505; 275 N.W.2d 777 (1979), the Court did allow retroactive effect to the rule in People v Ora Jones, 395 Mich. 379; 236 N.W.2d 461 (1975), and People v Chamblis, 395 Mich. 408; 236 N.W.2d 473 (1975), requiring jury instructions on lesser included and cognate offenses.
In all of these cases the Supreme Court used the three-pronged test for retroactivity set out in Linkletter v Walker, 381 U.S. 618; 85 S.Ct. 1731; 14 L.Ed.2d 601 (1965): (1) the purpose of the new rule, (2) general reliance on the old rule, and (3) the effect on the administration of justice.
The Courts have usually followed the pattern that rules which assist in ascertainment of guilt or innocence or involve constitutional rights are applied retroactively. Procedural rules are applied prospectively. People v Hampton, supra, Tehan v United States ex rel Shott, 382 U.S. 406; 86 S Ct 459; 15 L.Ed.2d 453 (1966).
The procedural rule of Fountain was for the purposes of giving the accused fair notice at the time of filing of the information that supplementation would be sought and avoidance of appearance of prosecutorial impropriety by enhanced punishment of one who has exercised his or her right to trial.
The purpose is salutory; however, there had been general reliance by prosecutors for many years on the practice that supplementation should take place after a plea of guilty is entered or a verdict of guilt is found by a jury.
If retroactivity were ordered it would have a significant impact on the administration of justice. The enhanced sentences imposed upon many habitual criminals would have to be vacated. New sentence hearings, with the attendant problem of stale presentence information, would be required in some cases, while in others, sentences imposed after conviction of the principal offense would be reinstated resulting in disproportionately light penalties. A review would be required of all cases of habitual offenders sentenced prior to August 28, 1979, who could obtain an ingenious lawyer to process a delayed appeal. The result would be a clogging of appellate pipelines with many technical claims and there would be released into society many of the very people the Legislature saw fit to longer detain.
The sentence of the circuit court is affirmed.