People v. Jeffrey Thompson, 323 N.W.2d 656

People v. Jeffrey Thompson

323 N.W.2d 656

Mich. Ct. App.

1982

Check Treatment

Per Curiam.

Defendant appeals his plea-based conviction of attempted breaking and entering, MCL 750.110; MSA 28.305, MCL 750.92; MSA 28.287.

Following his plea, defendant was sentenced to serve from three years and four months to five years in prison. This sentence was to run consecu *212 tively to a sentence of from 16 to 24 months defendant was аlready serving as a result of a plea-based conviction of attempted setting fire to personal property over $50, MCL 750.77; MSA 28.272. This latter conviction is a misdemeanor conviction. 1

Defendant’s initial contention is that he should be resentenced because he was denied the effective assistаnce of counsel when the trial judge and the probation officer met to discuss the officer’s sentence recommendation outside the presence of defendant’s attorney.

Defendant relies on People v Oliver, 90 Mich App 144; 282 NW2d 262 (1979), rev’d on other grounds 407 Mich 857 (1979), where the Court granted resentencing after having determined that the trial court had obtained, through a conferеnce between the trial court and the probation officer, information about a defendant not equally available to defendant’s counsel, and on People v Black, 103 Mich App 109, 115; 302 NW2d 612 (1981), where a panel of this Court concluded that a criminal defendant is presumed to have been denied ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the effective assistance of counsel where the trial court has communicated with the probation officer ex parte regardless of whether the trial judge actually received any infоrmation not contained in the presentence report through this conference or not._

*213 We are not persuaded by defendant’s argument. First of аll, we note with approval Judge Gillis’s partial. dissent in Black, supra, 116, to the effect that such communication between the trial judge and a probation officer wоuld only be improper if it were prejudicial to defendant.

We are of the opinion that the better rule has been provided in People v Beal, 104 Mich App 159; 304 NW2d 513 (1981), where the Court rejected the contention that Oliver establishes a prophylactic rule prohibiting in-chambers conversations between the sentencing judge and the probation officer outside the presence of defense counsel. In Beal, the Court concluded that Oliver should be limited to prohibiting any presentence conference at which the sentencing judge is ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍given "information about a defendant, not equally available to the defendant’s counsel * * 104 Mich App 159, 167.

In the instant case, no information not contained in the presentence report wаs presented to the trial court at the conference in question nor did defendant suffer prejudice as a result of the conference. We thеrefore hold that the conference did not deny defendant effective assistance of counsel.

Defendant further argues that the trial court еrred in imposing sentence for the instant offense to run consecutively to that imposed for defendant’s earlier plea-based conviction of attempted burning of personal property. We disagree.

In general, concurrent sentences are the norm and consecutive sentencing is not to be employed except when specifically authorized by statute. In re Carey, 372 Mich 378, 380; 126 NW2d 727 (1964), People v Leal, 71 Mich App 319, 320; 248 NW2d 252 (1976), lv den 399 Mich 821 (1977), People v *214 Glenn Jones, 82 Mich App 403, 406; 266 NW2d 824 (1978). A specific statutory exception to the general rule which allows a trial court to impose consecutive sentences in appropriate circumstances is provided by MCL 768.7b; MSA 28.1030(2). 2 Id. The purpose of the stаtute is to deter persons accused of one crime from committing others by removing the security of concurrent sentences should conviction result on any or all of the crimes so committed. People v Bonner, 49 Mich App 153, 158; 211 NW2d 542 (1973), People v Mayes, 78 Mich App 618; 261 NW2d 22 (1977), People v Glenn Jones, supra.

This Court has determined that the statute should be construed liberally ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍to achieve the deterrent effect intended by the Legislature. People v Mayes, supra, People v Williams, 89 Mich App 633, 635; 280 NW2d 617 (1979), lv den 406 Mich 995 (1979).

In light of this, we find that the trial court’s after his guilty plea to a misdemeanor on the imposition of consecutive sentences on defendant was proper. Disposition of the original felony charge against defendant was still pending for purposes of the statute until he was sentenced on his plea of guilty to a misdemeanor on the original felony charge. Such a finding is consistent with the purpose of the statute and the recognized dеterrent effect intended for it by the Legislature. It is worthy of note that in the instant case defendant *215 was charged with a second felony just four days original felоny charge. 3 Removal of the possibility of consecutive sentences prior to sentencing on the plea eliminates the operation of any deterrent effect during that period.

We further find that defendant’s plea to a misdemeanor on the original felony charge does not insulate dеfendant from operation of the statute. We are aided in reaching this conclusion by the reasoning advanced in the dissent in People v Glenn Jones, supra. The dissent in Jones rejected the majority holding that a "close reading” of the statute indicated that consecutive sentencing is only appropriate where the defendant is convicted of the prior charged felony. Such an interpretation, the dissent concluded and we agree, circumvented the intent of the Legislature by an оver-technical interpretation. 82 Mich App 403, 407.

We are convinced that a liberal construction ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍of the statute, see People v Mayes, supra, People v Williams, supra, requires a holding that a plea оf guilty to a misdemeanor to the underlying felony offense does not forestall operation of the consecutive sentencing statute. The plea to a misdemeanor arises from the charged felony and is "of the prior charged offense”. for purposes of the statute. Applied in this manner, thе statute provides that measure of deterrence intended by the Legislature.

Affirmed.

Notes

Wilfully and maliciously setting fire to personal property over $50 in value, MCL 750.77; MSA 28.272, is a felony for which punishment is not fixed by the statute. In such a case, the maximum punishment on conviction is four years. MCL 750.503; MSA 28.771.

When pleading guilty to an attempt crime, a dеfendant is guilty of a misdemeanor where punishment for the underlying offense is for a term less than five years. MCL 750.92(3); MSA 28.287(3).

It follows that defendant was convicted of a misdemeanor in the instant case in that his plea was to an attempt of a crime punishable by a maximum term of four years in prison.

"Sec. 7b. When a person, who has been charged with a felony and pending the disposition of the charge, commits a subsequent offense which is a felony, upon conviction * * * of thе subsequent offense or acceptance of a plea of guilty, guilty but mentally ill, or nolo contendere for the subsequent offense, the following shall apply:

"(a) The sentences imposed for conviction of the prior charged offense and a subsequent ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍offense, other than a major controlled substance offense, may run consecutively.

"(b) The sentences imposed for conviction of the prior charged offense and a subsеquent offense which is a major controlled substance offense shall run consecutively.”

Defendant was charged with arson of personal proрerty over $50, MCL 750.74; MSA 28.269. The date of the offense was August 30, 1980. On September 29, 1980, he pled guilty to the misdemeanor offense of attempted arson of personal рroperty over $50, MCL 750.92; MSA 28.287. He was sentenced on this conviction on November 17, 1980. On October 3, 1980, while defendant was awaiting sentencing on the attempted arson conviction, he committed the breaking and entering offense which is the subject of this appeal. Defendant pled guilty to attempted breaking and entering, MCL 750.110; MSA 28.305, MCL 750.92; MSA 28.287, on January 26, 1981, and was sentenced to 16 to 24 months imprisonment on March 23, 1981. Accordingly, the disposition of the first felony charge was still pending at the time defendant committed the subsequent felony.