State of Michigan v JOSEPH RYAN KADLEK
No. 285162
Michigan Court of Appeals
June 2, 2009, Decided
SUBSEQUENT HISTORY: Leave to appeal denied by People v Kadlek (Mich, Jan. 15, 2010)
Prior case history: Midland County Circuit Court. LC No. 07-003169-FH.
Before: Fitzgerald, P.J., and Talbot and Shapiro, JJ. SHAPIRO, J. (dissenting).
OPINION
PER CURIAM.
Defendant pleaded guilty to third-degree fleeing a police officer, MCL 257.602a(3)(a), and operating a motor vehicle while under the influence of a controlled substance, third offense, MCL 257.625(1)(a) and MCL 257.625(9)(c)(i). The trial court sentenced defendant as a third habitual offender, MCL 769.11, to serve concurrent sentences of 36 to 120 months' imprisonment, and also advised defendant that he would not receive credit for the time he spent in jail in connection with this case because he was on parole when he committed the instant crimes. Defendant challenges by delayed leave granted his habitual offender status, and also the decision to deny jail credit. We affirm. This appeal has been decided without oral argument pursuant to MCR 7.214(E).
In offering his guilty plea, defendant admitted that, in February 2007, in the City of Midland, he was driving a motor vehicle while intoxicated, and then attempted to flee when the police initiated a traffic stop.
Defendant conditioned his plea on his being able to challenge his habitual offender status on the ground that he received inadequate notice of the prosecutor's intent to subject him to enhanced sentencing as a habitual offender.
Defendant additionally argues that the trial court erred in declining to apply any jail credit to his instant sentences. 1 However, because defendant was advised that this would be the case before he offered his plea and defendant did not condition his guilty plea on retaining the right to appeal on this basis, this issue is waived. See People v New, 427 Mich 482, 490-493; 398 NW2d 358 (1986) (a person convicted upon a guilty plea, but for conditions stated on the record, may raise on appeal only such theories as would preclude the state from obtaining a valid conviction); MCR 6.301(C)(2). We therefore consider the habitual offender challenge only.
1 While we recognize that our Supreme Court has granted leave to appeal in People v Idziak, 483 Mich 885; 759 NW2d 401 (2009) to review the authority of a trial court to award jail credit to parolees pursuant to MCL 769.11b, we find that the issue raised in defendant's appeal in this matter is distinguishable and not dependent on the resolution in Idziak.
A prosecutor may seek to subject a criminal defendant to enhanced sentencing as a habitual offender "by filing a written notice of his or her intent to do so within 21 days after the defendant's arraignment on the information charging the underlying offense or, if arraignment is waived, within 21 days after the filing of the information charging the underlying offense." MCL 769.13(1). Such notice, "shall list the prior conviction or convictions that will or may be relied upon for purposes of sentence enhancement." MCL 769.13(2). The statute further provides that such notice
may be personally served upon the defendant or his or her attorney at the arraignment on the information charging the underlying offense, or may be served in the manner provided by law or court rule for service of written pleadings. The prosecuting attorney shall file a written proof of service with the clerk of the court. [Id.]
In this case, defendant waived the preliminary examination and was arraigned on April 17, 2007. The felony complaint and felony information, both filed the next day, included notice that the prosecutor would be seeking enhanced penalties on the ground that defendant was a habitual offender, and listed with particularity five earlier convictions. In the brief on appeal, plaintiff concedes that "a proof of service of the Information was no[t] filed in the Circuit Court," but argues that "the Complaint gave Defendant actual notice of the Prosecution's intent to seek sentencing enhancement . . . ."
Failure to provide timely notice of intent to seek sentence enhancement under the habitual offender statute precludes such enhancement. People v Morales, 240 Mich App 571, 574-575; 618 NW2d 10 (2000). However, where there is no dispute that the defendant did in fact timely receive the required notice, the failure to file proof of notice may be harmless error. People v Walker, 234 Mich App 299, 314-315; 593 NW2d 673 (1999).
Defendant complains that the register of actions lists no filing of notice of intent to seek sentence enhancement, but does not otherwise argue, let alone cite authority for the proposition, that written notice for this purpose may not be accomplished by providing the requisite information as part of the felony complaint or information.
Because the latter documents in this instance satisfied the notice requirements of MCL 769.13, but for the lack of proof of service, and because defendant does not argue that he was in fact not thereby apprised, in writing and within the required time, of the prosecutor's intent in this regard, defendant's challenge to his sentencing as a habitual offender must fail.
Affirmed.
/s/ E. Thomas Fitzgerald
/s/ Michael J. Talbot
DISSENT BY: Douglas B. Shapiro
DISSENT
SHAPIRO, J. (dissenting).
I respectfully dissent as to the majority's conclusions in both issues in this case. As to the first issue, the prosecution concedes that it did not comply with MCL 769.13(2); MSA 28.1085(2). I would therefore vacate the habitual offender conviction and order the lower court to resentence the defendant within the correct guidelines, namely, a minimum term of 12 to 24 months. As to the second issue, i.e., jail credit on a new sentence committed while on probation, I would hold this case in abeyance for the Michigan Supreme Court decision in People v Idziak, 483 Mich 885; 759 NW2d 401 (2009), where the Supreme Court is considering precisely this issue.
MCL 769.13(1) provides that the "prosecuting attorney may seek to enhance the sentence of defendant by filing a written notice of his or her intent to do so within 21 days after the defendant's arraignment on the information charging the underlying offense or, if arraignment is waived, within 21 days after the filing of the information charging the underlying offense." MCL 769.13(2) sets forth additional requirements and reads in pertinent part:
The notice shall be filed with the court and served upon the defendant or his or her attorney within the time provided in subsection (1). The notice may be personally served upon the defendant or his or her attorney at the arraignment on the information charged in the underline defense, or may be served in the matter provided by law or court rule or service or written pleadings. The prosecuting attorney shall file a written proof of service with the clerk of the court.
The requirement of subsection (1) is met in this case. The notice is present in the file and date stamped within the required time frame. As to subsection two, defendant alleges and the prosecutor concedes that the notice of intent was not "personally served upon the defendant or his or her attorney at the arraignment on the information charging the underline offense" and similarly that it was not "served in the matter provided by law or court rule for service or pleadings." The prosecution also admits that it did not "file a written proof of service with the clerk of the court."
The question then is whether the failure to comply with subsection (2) while complying with subsection (1) is grounds to strike the enhancement. Further, the prosecutor argues that the defense had actual notice of the intent to habitualize defendant and, therefore, any failure under subsection (2) is cured.
As a general rule, failures to comply with precise procedure requirements should not overcome substantive realities particularly where a party alleging a lack of written notice did, in fact, have actual notice. However, I conclude that the language of MCL 769.13 evidences a legislative requirement that the prosecutor serve the notice as set forth in the statute. The Legislature did not merely require that the notice be filed with the court, but specifically added that the prosecutor "shall" (a) serve the notice on defendant; 1 (b) serve the notice in a manner specifically defined; and (c) file a proof of that service with the court. I conclude that in setting forth these additional requirements, the Legislature addressed its concern that a notice might be filed with the court, but not served on the defendant and added subsection (2) to deter any error or oversight by the prosecution in this regard. As the Legislature has evidenced its intent to require not only filing of the notice, but also service of the notice, and it is conceded that service did not occur, I conclude that the sentence enhancement must be stricken in this case. 2
1 While the majority opinion quotes much of the statute, it fails to quote the language of subsection (2) which reads "the notice shall be filed with the court and served upon the defendant or his or attorney within the time provided in subsection (1). 2 The majority cites People v Walker, 234 Mich App 299; 593 NW2d 673 (1999), where the failure to file the proof of service was not found to require vacation of the enhancement. However, the Walker court specifically relied upon the fact "defendant makes no claim that he did not receive the notice of intent to enhance." By contrast, in the instant case not only does defense maintain that he never received the notice, but the prosecutor admits that the notice was never served.
On the issue of sentence credit during the period of parole, this issue is before the Michigan Supreme Court in Idziak, supra. While the majority states that the issue in this case is some how distinguishable from Idziak, I see no distinction nor does the majority articulate one. Accordingly, I believe the case should be held in abeyance in that regard.
/s/ Douglas B. Shapiro