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Docket Number

Docket No. 60663.

Attorney(S)

Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Paul F. Berger, Prosecuting Attorney, and C. Sherman Mowbray, Assistant Prosecuting Attorney, for the people. Sandborn Theophelis, P.C., for defendant.

Judges

CYNAR, J.

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Smart Summary

People v. Cantu, Michigan Court of Appeals, Docket No. 60663 (Dec. 22, 1982)

Factual and Procedural Background

Defendant was charged with delivery of marijuana (MCL 333.7401 (1), (2)(c); MSA 14.15 (7401)(1), (2)(c)), conspiracy to deliver marijuana (MCL 750.157a; MSA 28.354(1)), and felony-firearm (MCL 750.227b; MSA 28.424(2)). On September 10, 1981, defendant pleaded guilty to delivery and felony-firearm pursuant to a plea bargain under which the conspiracy charge and a supplemental information alleging defendant as a second-felony offender were dismissed. As part of the bargain, the prosecution agreed to contact Texas prosecuting officials to request dismissal of any pending Texas charges.

On October 1, 1981, the trial court sentenced defendant to the mandatory two-year term for the felony-firearm conviction, to be followed consecutively by a two-and-one-half to four-year term for the delivery conviction. The court expressly awarded credit for 119 days already spent in confinement, but applied that credit to the later delivery sentence rather than to the mandatory two-year felony-firearm term. Defense counsel objected to the court's allocation of credit. Defendant appealed as of right, contesting the trial court's handling of credit for time served.

Legal Issues Presented

Whether a defendant who served 119 days in jail prior to sentencing is entitled to receive that credit on each of his consecutive sentences (i.e., a total of 238 days credit under a literal reading of MCL 769.11b; MSA 28.1083(2)).
Whether, if only a single credit is to be awarded, the credit should be applied to the first (the mandatory felony-firearm) sentence rather than to the subsequent consecutive sentence.
Whether credit for time served is available against a mandatory felony-firearm sentence (as argued by the prosecution).

Arguments of the Parties

Defendant's Arguments

Under a literal reading of the credit-for-time-served statute (MCL 769.11b; MSA 28.1083(2)), defendant should receive 119 days credit on each consecutive sentence, resulting in a total of 238 days credit.
Even if only a single period of credit is allowed, the credit should have been applied to the first of the consecutive sentences (the mandatory two-year felony-firearm term), not to the later delivery sentence.
Defense counsel specifically asserted at sentencing that because defendant was incarcerated on both charges prior to sentencing, he should receive credit on both counts.

Prosecution's Arguments

The prosecution argued that credit for time served is not available for a mandatory felony-firearm sentence (i.e., that the mandatory nature of the two-year felony-firearm term precludes application of the credit).

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
People v. Davis, 87 Mich. App. 72; 273 N.W.2d 591 (1978)	Explaining the purpose of the credit-for-time-served statute: to place a defendant who cannot post bond on an equal footing with one who can, regarding the length of incarceration to which each is ultimately subject.	The court invoked Davis to support the proposition that the statute's purpose is equality, and that a literal reading producing double credit would frustrate that purpose by giving an advantage to defendants unable to post bail.
People v. Sturdivant, 97 Mich. App. 711, 713; 296 N.W.2d 157 (1980)	That the credit-for-time-served statute contemplates only a one-time credit for a given period of incarceration, not multiple credits for the same period.	The court relied on Sturdivant to conclude the statute envisions only a single credit for the period served, rejecting the defendant's interpretation that would allow double credit on consecutive terms.
People v. Pruitt, 23 Mich. App. 510; 179 N.W.2d 22 (1970)	That the credit-for-time-served statute should not be applied so as to defeat the purpose of a consecutive sentence.	The court cited Pruitt to justify avoiding an absurd result and to support allocating a single credit so as not to undermine the purpose of imposing consecutive sentences.

Court's Reasoning and Analysis

The court addressed the defendant's contentions in two parts. First, the court rejected the defendant's literal reading of MCL 769.11b; MSA 28.1083(2) that would grant the 119 days' credit to each consecutive sentence (resulting in 238 days of credit). The court explained that such an interpretation would produce an absurd result inconsistent with the statute's purpose. Relying on People v. Davis, the court emphasized that the statute was enacted to equalize the incarceration consequences for defendants who cannot post bail and those who can; awarding double credit would instead give a superior position to the defendant who could not post bail. The court further cited People v. Sturdivant to support the view that the statute envisions a one-time credit for a given period of incarceration and relied on People v. Pruitt to stress that credit should not be used to defeat the purpose of consecutive sentences. Consequently, the court concluded defendant was not entitled to double credit.

In the second part, the court considered defendant's argument that the single allowable credit should have been applied to the first of the consecutive sentences (the mandatory two-year felony-firearm term) rather than to the later delivery term. The court found this argument persuasive: awarding credit acknowledges that the defendant has already served a portion of his sentence, and logically that acknowledgment should reduce the first sentence to be served. The court rejected the prosecution's contention that credit was unavailable against the mandatory felony-firearm sentence, characterizing that argument as premised on a false premise (i.e., that the credit would constitute a reduction of the mandatory sentence). The court explained that credit simply reflects that part of the sentence has already been served prior to conviction and that there is no conflict between the mandatory felony-firearm sentence and the credit-for-time-served statute as construed by the court.

Based on this analysis, the court ordered the modification that the 119 days' credit previously allowed be applied to the two-year felony-firearm term instead of to the subsequent delivery term.

Holding and Implications

Holding: The court affirmed the sentence as modified. Specifically, the court held that:

Defendant is not entitled to receive the 119 days' credit twice (i.e., on each consecutive sentence); only a single credit for the period served is permitted.
The 119 days' credit shall be applied to the first of defendant's consecutive terms — the mandatory two-year felony-firearm term — rather than to the later delivery sentence.

Implications: The direct effect is that the trial court's sentencing is affirmed except for the reallocation of the 119 days' credit to the felony-firearm sentence. The opinion makes clear that this decision rests on interpreting the credit-for-time-served statute to avoid absurd results and to preserve the purpose of consecutive sentencing. The opinion does not announce a broader new rule beyond its application to the facts presented; it applies existing authorities to deny double credit and to require that a single period of pre-sentence confinement credit be applied to the first consecutive term.

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PEOPLE v CANTU

CYNAR, J.

Defendant was charged with delivery of marijuana, MCL 333.7401 (1), (2)(c); MSA 14.15 (7401)(1), (2)(c), conspiracy to deliver marijuana, MCL 750.157a; MSA 28.354 (1), and felony-firearm, MCL 750.227b; MSA 28.424 (2). On September 10, 1981, defendant pled guilty to the delivery and felony-firearm charges pursuant to a plea bargain whereby the conspiracy charge was dismissed along with a supplemental information which charged defendant as a second-felony offender. As part of the bargain, the prosecution also agreed to contact prosecuting officials in Texas and request dismissal of any pending charges against defendant in that state.

On October 1, 1981, defendant was sentenced to serve the mandatory two years on the felony-firearm conviction followed by a consecutive two and one-half to four years on the delivery charge. The trial judge explained the sentence as follows:

" The Court: It's mandatory by law that I sentence you on the felony, the gun charge conviction, Mr. Cantu, to two years in the State Department of Corrections, and I so sentence you.

"On the delivery of marijuana charge, I'm satisfied that from the amount involved, $30,000 worth, that you are something other than a street pusher, that you are a dealer. On that charge, I sentence you to the Michigan Department of Corrections for not more than four years and not less than two and a half years. This sentence will start commencing at the completion of the two years felony on the gun conviction.

"You'll receive credit against the latter sentence for the 119 days which you've already spent in confinement."

Defendant's counsel objected to credit not being applied to the felony-firearm portion of the sentence. This objection and the court's response were as follows:

" Mr. Theophelis: May I make a comment, your Honor?

" The Court: Yes.

" Mr. Theophelis: Regarding the credit sentence, he was incarcerated on both charges. Wouldn't he get credit on both counts?

" The Court: I don't know. They have to run consecutively. He doesn't get credit twice. He doesn't get 238 days credit, so I assume the credit would come off the end.

" Mr. Theophelis: Well, —

" The Court: I don't know that I can apply the credit against the two-year mandatory sentence, so I applied it against the sentence which will run later."

Defendant appeals as of right, claiming that the question of credit for time served in jail was improperly handled by the trial court.

Defendant first contends that he should be given 119 days credit on each of his consecutive prison terms. Since the terms are consecutive the result would then be a total of 238 days of credit. Defendant claims that this result is mandated by a literal reading of MCL 769.11b; MSA 28.1083 (2), the credit for time served statute, 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."

To interpret the statute in the manner advanced by defendant would lead to an absurd result in light of the purpose of the statute. The credit for time served statute was enacted to place a defendant who is unable to post bond on an equal footing with one who can do so with respect to the length of incarceration to which each is ultimately subject. People v Davis, 87 Mich. App. 72; 273 N.W.2d 591 (1978). Under defendant's construction of the statute, the defendant who cannot post bail is put in a superior position by receiving a double credit for the time served. This is clearly not the intention of the statute. Rather, the statute envisions only a one-time credit for a given period of incarceration as opposed to multiple credit. People v Sturdivant, 97 Mich. App. 711, 713; 296 N.W.2d 157 (1980). Furthermore, the credit for time served statute is not to be used so as to defeat the purpose of a consecutive sentence. See People v Pruitt, 23 Mich. App. 510; 179 N.W.2d 22 (1970). As in Pruitt, we avoid an absurd result by choosing a logical alternative. Defendant is not entitled to a double credit for the time he has already served.

Defendant claims that even if the trial court was correct in granting credit only on one of defendant's consecutive sentences, error was committed by reason of the fact that credit was granted on the second term to be served instead of the first. Although it appears to be of no practical significance at the present time, it does appear that defendant is correct. In giving a defendant credit for time served, a court acknowledges that, for all practical purposes, the defendant has already served a portion of his sentence. It follows logically that the credit should be given on the first of any consecutive sentences.

We find unpersuasive the prosecution's argument that credit for time served is not available for a mandatory felony-firearm sentence. That argument proceeds from the false premise that the credit constitutes a reduction of the sentence. In fact, the full sentence will be served, the only difference being that part of the sentence will have been served prior to conviction. We perceive no conflict between the mandatory felony-firearm sentence and the credit for time served statute as we construe them.

Defendant's sentence is, therefore, affirmed with the modification that the 119 days credit already allowed shall be credited to the two-year felony-firearm term instead of the subsequent consecutive delivery term.

Affirmed as modified.

PEOPLE v. CANTU