People v. Ovalle
564 N.W.2d 147
Mich. Ct. App.
1997
Check Treatment
McDonald, J.

Defendant pleaded guilty of being a prisoner in possession of marijuana, MCL 800.281(4); MSA 28.1621(4), and was sentenced to fourteen months’ to five years’ imprisonment. In Docket No. 192770, defendant filed an application for leave to appeal from his December 15, 1995, judgment of sentеnce. In Docket No. 192845 defendant filed an emergency application for leave to appeal from the February 6, 1996, оpinion and order denying rehearing and resentencing. Both applications were granted by this Court. In both cases, defendant seeks relief, claiming he discovered after sentencing that at the time he commited this offense he mistakenly had remained incarcerated after having served the maximum term of the sentence for which he had previously been imprisoned. We affirm.

There is no absolute right to withdrawal of a guilty plea. People v Rettelle, 173 Mich App 196; 433 NW2d 401 (1988). When first made after sentеncing, a motion to withdraw a guilty plea is addressed to the sound discretion of the trial court, and the trial court’s decision will not be disturbed unless there is a clear abuse of discretion resulting in a miscarriage of justice. People v Jones, 190 Mich App 509; 476 NW2d 646 (1991). Although in this case the court in exercising its discretion was required to interpret a statute, we find no error in the court’s interpretation or exercise of discretion. Heinz v Chicago Rd Investment Co, 216 Mich App 289; 549 NW2d 47 (1996).

*466 Defendant pleadеd guilty of violating MCL 800.281(4); MSA 28.1621(4). He now maintains the statute applies only to a prisoner who is “lawfully” incarcerated and, therefore, becаuse it is undisputed he was not lawfully incarcerated at the time he committed the instant offense, his motion to withdraw his guilty plea should have bеen ‍​​‌‌​​‌​​‌‌‌​​​​​​‌​​​‌​‌​‌​​‌‌‌​​‌​‌‌‌‌​​‌​​​‌​‍granted. Defendant also argues this same issue in the context of a motion for a new trial based on newly discovered evidence, the new evidence being the discovery after sentencing that his prior sentence had terminated some four years earlier, thereby establishing his incarceration on the date of the instant offense was unlawful.

MCL 800.281(4); MSA 28.1621(4) states in relevant part:

Except as provided in section 2, a prisoner shall not possess any alcoholic liquor, prescription drug, poison, or controlled substance.

The statute does not contain any requirement of “lawful” incarceration. Rather, the statute’s applicability is dependent upon a person’s status as a “prisoner.” The term “prisoner” is expressly defined in MCL 800.281a; MSA 28.1621(1), which states:

As used in this act:
* * H*
(f) “Prisoner” means a person committed to the Michigan commission on corrections who has not been released on parole or discharged.

Under the foregoing definition, a person is a рrisoner if that person has been ‍​​‌‌​​‌​​‌‌‌​​​​​​‌​​​‌​‌​‌​​‌‌‌​​‌​‌‌‌‌​​‌​​​‌​‍committed to the Michigan commission on corrections and “has not been *467 released on parole or discharged.” The legality of the person’s commitment is immaterial, apart from determining whether the person has been “released on parole or discharged.” Here, defendant was committed to the commission of corrections and had not been released on parole or discharged when he was charged with possessing marijuana. He was therefore subject tо prosecution for possession of marijuana by a prisoner, notwithstanding the alleged illegality of his incarceration.

We reject defendant’s invitation to create a requirement that a person must be legally incarcerated in order to be conviсted of being a prisoner in possession of a controlled substance. Defendant’s reliance on People v Alexander, 39 Mich App 607; 197 NW2d 831 (1972), for this proposition is misplaced. Alexander involved a prosecution for prison escape and was premised on the existence of a constitutional right to liberty. There is no corresponding right tо possess a controlled substance. On the contrary, under MCL 333.7403; MSA 14.15(7403), possession of marijuana by a person who is not incarcerated is unlawful. Defendant was properly charged and convicted of being a prisoner in possession of a controlled substance.

We also reject defendant’s contention the trial court erred in failing to amend defendant’s judgment of sentence to refleсt a commencement date consistent with the day after defendant’s ‍​​‌‌​​‌​​‌‌‌​​​​​​‌​​​‌​‌​‌​​‌‌‌​​‌​‌‌‌‌​​‌​​​‌​‍previous sentence expired or alternatively to аward defendant sentence credit because of the Department of Corrections’ delay in properly adjusting defendant’s rеcords.

Defendant asserts because consecutive sentencing was required under MCL 768.7a(1); MSA *468 28.1030(1)(1), and because that statute states a consecutive sentence “shall begin to run at the expiration of the term or terms of imprisonment which the person is serving or has become liable to serve,” his judgment of sentence should be amended to reflect a sentence commencement date оf November 15, 1991. We disagree. Defendant fails to distinguish the issue of consecutive sentencing from the issue of sentence commencement date. Apart from the issue of sentence credit, which is discussed below, it is axiomatic a sentence may not commencе to ran before it is imposed. See, e.g., People v Johnson, 57 Mich App 117; 225 NW2d 704 (1974), and People v Adkins, 433 Mich 732; 449 NW2d 400 (1989). In order to adopt defendant’s argument, this Court would have to conclude defendant’s sentеnce began to ran more than four years before it was ever imposed, and more than 3% years before defendant committеd the crime itself. To reach such a conclusion would be illogical.

We likewise reject defendant’s argument he should receivе additional sentence credit pursuant to MCL 769.11b; MSA 28.1083(2). Defendant’s prior incarceration was not the result of being denied or unable to furnish bond for the offense of which he was convicted. Rather, ‍​​‌‌​​‌​​‌‌‌​​​​​​‌​​​‌​‌​‌​​‌‌‌​​‌​‌‌‌‌​​‌​​​‌​‍defendant was incarcerated because of the circumstances of his prior 1987 conviction and sentence for possession of cocaine and an apparent record- keeрing error by the Michigan Department of Corrections with respect to that sentence. As our Supreme Court noted in People v Prieskorn, 424 Mich 327, 340; 381 NW2d 646 (1985), § lib “neither requires nor permits sentence credit” in cases where a defendant is incarcerated “as a result of charges arising out of an unrelated offense or circumstance” *469 and then seeks credit in another case for the unrelated period of confinement. The trial court correctly concluded defendant was not entitled to sentencing credit.

Finally defendant’s remaining claim, challenging thе trial court’s authority to countermand an order providing for his release from prison on a writ of habeas corpus pending a decision in this case, is now moot. In an order dated June 6, 1996, in Docket No. 192845, this Court ordered defendant released on bond pending decision of this appeal.

Defendant’s conviction and sentence is affirmed and defendant is ‍​​‌‌​​‌​​‌‌‌​​​​​​‌​​​‌​‌​‌​​‌‌‌​​‌​‌‌‌‌​​‌​​​‌​‍ordered remanded to the custody of the Department of Corrections.