People v. Johnson

769 N.W.2d 905

283 Mich. App. 303

PEOPLE v. JOHNSON.

Docket No. 279163.

Court of Appeals of Michigan.

Submitted October 7, 2008, at Lansing.

Decided April 14, 2009, at 9:00 a.m.

David G. Grunst, P.C. (by David G. Grunst), Traverse City, for the defendant.

Before: SERVITTO, P.J., and DONOFRIO and FORT HOOD, JJ.

DONOFRIO, J.

In Kent Circuit Court Docket No. 05-010285-FH, defendant pleaded no contest to a charge of breaking and entering a building with intent to commit a felony or larceny, MCL 750.110. The trial court sentenced defendant as an habitual offender, second offense, to a prison term of 2 to 15 years. In Kent Circuit Court Docket No. 05-011628-FH, defendant pleaded no contest to a charge of larceny in a building, MCL 750.360, and the trial court sentenced him to a concurrent prison term of 1-1/2 to 4 years. Defendant now appeals by delayed leave granted, challenging only the trial court's refusal to award him sentence credit for the time he served in the county jail while he was awaiting sentencing. Because defendant was on parole at the time he committed the current offenses, he was not entitled to sentence credit against the sentence for the new offenses. Rather, defendant was entitled to credit against only the prior sentence on the offense for which he enjoyed parole. We affirm. This appeal has been decided without oral argument pursuant to MCR 7.214(E).

I. BASIC FACTS AND PROCEDURAL HISTORY

In 1997, defendant was convicted of larceny from the person, MCL 750.357, and sentenced on December 3, 1997, to 5 to 10 years' imprisonment. After serving a portion of his sentence, he was granted parole. While still on parole, on September 28, 2005, defendant was arrested and charged with breaking and entering a building with intent to commit a felony or larceny, MCL 750.110. Defendant was additionally charged on an earlier offense of larceny in a building, MCL 750.360. After his arrest on the instant offenses, defendant was lodged in the county jail and not granted bail because of a parole detainer.

Defendant ultimately pleaded no contest to the instant charges and remained in jail awaiting sentencing. Defendant served 293 days in the county jail awaiting sentencing. At sentencing, because defendant was on parole for his prior conviction at the time he committed the instant offenses, the trial court declined to grant defendant sentence credit against the sentences for the instant convictions for the time he served in the county jail. Parole was revoked on the 1997 conviction, credit of 293 days was applied against the sentence on the conviction for which parole was revoked, and defendant has now served his maximum sentence on that conviction. Defendant now challenges the trial court's refusal to grant jail credit of 293 days served in the county jail against the sentences for the instant convictions. He essentially challenges the concept of "dead time," i.e., time not credited to his current prison sentences.

II. PAROLE DETAINEE'S ENTITLEMENT TO JAIL CREDIT

A. STANDARD OF REVIEW

The question before us is whether the trial court erred as a matter of law, in denying defendant, a parole detainee, 293 days of jail credit against the instant sentences. We review de novo questions of law concerning statutory interpretation. People v. Seiders, 262 Mich.App. 702, 705, 686 N.W.2d 821 (2004).

B. ANALYSIS

Defendant contends that he is entitled to sentence credit against the sentences for the instant offenses pursuant to MCL 769.11b, 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.

The primary goal in construing a statute is "to ascertain and give effect to the intent of the Legislature." People v. Pasha, 466 Mich. 378, 382, 645 N.W.2d 275 (2002). To achieve this goal, the Court must begin by examining the plain language of the statute. Id. If the language of the statute is clear and unambiguous, it is assumed that the Legislature intended its plain meaning and the statute is enforced as written. People v. Stone, 463 Mich. 558, 562, 621 N.W.2d 702 (2001). In discerning legislative intent, this Court gives effect to every word, phrase, and clause in the statute. People v. Hill, 269 Mich.App. 505, 515, 715 N.W.2d 301 (2006). The Court must avoid construing a statute in a manner that renders statutory language nugatory or surplusage. Id. "`We construe an act as a whole to harmonize its provisions and carry out the purpose of the Legislature.'" Id., quoting Macomb Co. Prosecutor v. Murphy, 464 Mich. 149, 159-160, 627 N.W.2d 247 (2001).

Here, defendant was on parole at the time he committed the instant offenses. In Seiders, this Court held that when a parolee commits a new offense while on parole, credit for time served in jail before sentencing on the new offense is not available. The Court explained that credit is available only when the defendant is "denied or unable to furnish bond" and that when a defendant is held in jail on a parole detainer, bond is neither set nor denied. Seiders, supra at 707, 686 N.W.2d 821 (emphasis in original). Furthermore, this Court in People v. Filip, 278 Mich.App. 635, 640, 754 N.W.2d 660 (2008),¹ quoting People v. Stead, 270 Mich.App. 550, 551-552, 716 N.W.2d 324 (2006), held:

"When a parolee is arrested for a new criminal offense, he is held on a parole detainer until he is convicted of that offense, and he is not entitled to credit for time served in jail on the sentence for the new offense." [Seiders, supra at 705, 686 N.W.2d 821, citing MCL 791.238(2).] Instead, a parole detainee convicted of a new offense is entitled to have jail credit applied exclusively to the sentence from which parole was granted. Credit is not available to a parole detainee for time spent in jail attendant to a new offense "because bond is neither set nor denied when a defendant is held in jail on a parole detainer." Id. at 707, 686 N.W.2d 821.

Defendant argues that Seiders is distinguishable because bond was set in these cases, but not posted. He relies on the reasoning of the Genesee Circuit Court in Filip in which the trial court granted credit. However, this Court rejected that reasoning and reversed the circuit court in Filip, supra at 643, 754 N.W.2d 660. As explained in Filip, MCL 791.238(1) provides that parole violators are not eligible for bond pending resolution of parole violation proceedings. Time served pending resolution of the parole proceedings is part of the sentence for the paroled offense and is to be credited against that sentence. Where, as here and in Filip, the trial court errs in setting bond, "the erroneously granted possibility of posting bond did not secure [defendant] any rights under MCL 769.11b." Id. at 642, 754 N.W.2d 660. Under those circumstances, a defendant awaiting trial or sentencing "shall remain incarcerated." MCL 769.11b.

C. RELATIONSHIP BETWEEN MCL 768.7A(2) AND MCL 791.238(1), (2), AND (6)

Despite the foregoing, defendant argues that the manner in which the trial court credited the time he served awaiting sentencing resulted in "dead time." Defendant, as well as other parolees, continue to argue that when parole is revoked or not revoked, they fail to receive jail credit for time served while in custody in jail awaiting sentence, a parole detainer notwithstanding. Here, defendant, like the defendant in Filip, claims that he is entitled to 293 days jail credit against the instant sentences by virtue of MCL 769.11b. In other words, defendant contends that failure to credit this jail time against the 2005 sentences at issue, rather than the previous 1997 sentence for which he was on parole, results in "dead time." The concept of "dead time," however, is a misnomer because defendant properly received credit against the sentence on which parole was granted and, as such, there is no "dead time." The interplay of MCL 768.7a(2) and MCL 791.238(1), (2), and (6) fully explains that the jail time is credited for defendant and is neither forfeited nor dead as he suggests.

MCL 768.7a(2) provides:

If a person is convicted and sentenced to a term of imprisonment for a felony committed while the person was on parole from a sentence for a previous offense, the term of imprisonment imposed for the later offense shall begin to run at the expiration of the remaining portion of the term of imprisonment imposed for the previous offense.

The relevant portions of MCL 791.238 provide in pertinent part:

(1) Each prisoner on parole shall remain in the legal custody and under the control of the department. The deputy director of the bureau of field services, upon a showing of probable violation of parole, may issue a warrant for the return of any paroled prisoner. Pending a hearing upon any charge of parole violation, the prisoner shall remain incarcerated.

(2) A prisoner violating the provisions of his or her parole and for whose return a warrant has been issued by the deputy director of the bureau of field services is treated as an escaped prisoner and is liable, when arrested, to serve out the unexpired portion of his or her maximum imprisonment. The time from the date of the declared violation to the date of the prisoner's availability for return to an institution shall not be counted as time served. The warrant of the deputy director of the bureau of field services is a sufficient warrant authorizing all officers named in the warrant to detain the paroled prisoner in any jail of the state until his or her return to the state penal institution.

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(6) A parole shall be construed as a permit to the prisoner to leave the prison, and not as a release. While at large, the paroled prisoner shall be considered to be serving out the sentence imposed...