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Docket Number

Docket No. 45812.

Attorney(S)

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William F. Delhey, Prosecuting Attorney, and Robert L. Cooper, Assistant Prosecuting Attorney, for the people. Kendall B. Williams, for defendant on appeal.

Judges

BASHARA, J.

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Smart Summary

People v. Taylor, Docket No. 45812 (Mich. Ct. App. Aug. 27, 1980)

Factual and Procedural Background

Defendant entered a plea of guilty to larceny over $100 on March 16, 1979. As part of a plea bargain, the prosecutor, defense counsel, and defendant stipulated that the prosecutor would later file a supplemental information charging defendant as a second felony offender. The plea to the larceny charge was accepted. On March 22, 1979, the prosecutor filed the supplemental information; defendant pled guilty to the supplemental information and was sentenced to 3-1/2 to 7-1/2 years. The sentence for the underlying larceny conviction was set aside. Defendant appealed, contending that the Michigan Supreme Court's decision in People v. Fountain should be applied retroactively to his case.

Legal Issues Presented

Whether the rule announced in People v. Fountain (that supplemental habitual-offender informations should be filed with the information charging the underlying felony to provide fair notice and avoid an appearance of prosecutorial impropriety) should be applied retroactively.
If Fountain is applied retroactively, whether retroactivity should be limited by considerations of notice to the defendant and prejudice resulting from lack of notice.

Arguments of the Parties

Defendant's Arguments

Defendant's sole contention on appeal was that People v. Fountain should be applied retroactively to invalidate his supplemental-information-based second-offender conviction because the supplemental information was filed after his plea to the underlying offense.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
People v Fountain, 407 Mich. 96; 282 N.W.2d 168 (1979)	Holds that supplemental habitual-offender informations should be filed with the information charging the last felony to provide fair notice and avoid appearance of prosecutorial impropriety.	The court treated Fountain as announcing a new supervisory rule regarding notice and prosecutorial practice; it examined whether Fountain should be applied retroactively and recognized that Fountain must be followed after its release.
People v Devine, 407 Mich. 904 (1979)	Indicates the Supreme Court has not yet ruled on Fountain's retroactivity.	Used to show that the question of Fountain's retroactivity remains open at the Supreme Court level and requires analysis by the court of appeals.
People v Kamin, 405 Mich. 482; 275 N.W.2d 777 (1979)	Provides the three-factor balancing test for retroactivity: (1) purpose of the new rule, (2) general reliance on the old rule, and (3) effect on the administration of justice.	The court applied Kamin's three-factor test to determine whether Fountain should be applied retroactively in the defendant's case.
People v Hendrick, 398 Mich. 410, 423; 247 N.W.2d 840 (1976)	Justice Levin's dissent emphasizing that fairness requires notice to the offender of potential enhanced punishment where prosecutor is aware in advance of prior record.	The court noted that a majority of the Supreme Court in Fountain adopted the rationale expressed by Justice Levin in Hendrick regarding the need for notice.
People v Hampton, 384 Mich. 669; 187 N.W.2d 404 (1971)	Addresses how reliance on an old rule bears on effects upon the administration of justice.	The court cited Hampton to justify considering reliance and administrative effect together in assessing retroactivity.
People v Marshall, 41 Mich. App. 66; 199 N.W.2d 521 (1972)	Stands for the prior rule that filing a supplemental information after conviction on the underlying offense was not error unless delay substantially prejudiced the defendant; timing depended on circumstances.	The court relied on Marshall to demonstrate the prior common practice and reliance by prosecutors on filing supplemental informations after conviction absent prejudice.

Court's Reasoning and Analysis

The court began by identifying the controlling framework for a retroactivity inquiry—Kamin's three-factor balancing test: (1) the purpose of the new rule, (2) general reliance on the old rule, and (3) the effect on the administration of justice. It analyzed each factor using only the material in the opinion.

For the first factor (purpose of the new rule), the court relied on Fountain's rationale that supplemental habitual-offender informations should be filed with the information charging the last felony to provide fair notice and to avoid an appearance of prosecutorial impropriety. The court characterized the rule's primary purpose as providing notice and reducing the appearance of prosecutorial impropriety where intent to file a supplemental information was not previously disclosed.

For the second and third factors (reliance and effect on administration), the court considered the prior practice: before Fountain, prosecutors often filed supplemental informations after conviction and this was not error unless the delay substantially prejudiced the defendant (citing People v. Marshall). Because prosecutors had heavily relied on that practice, retroactive application of Fountain would substantially affect the administration of justice. The court also noted Chief Justice Coleman's concurrence in Fountain indicating the decision was grounded in the Court's supervisory powers over court practices and procedures.

Balancing these factors, the court concluded that while Fountain's rule must be followed going forward, retroactive application should be limited. Specifically, Fountain should be applied retroactively only where a defendant did not receive notice that a supplemental information would be filed and that the lack of such notice resulted in prejudice to the defendant.

Applying this standard to the present case, the court found that the defendant had ample notice of the prosecutor's intent to file a supplemental information because that intent was part of the plea bargain agreed to by the prosecutor, defense counsel, and defendant. Accordingly, the defendant suffered no prejudice from the timing of the supplemental information, and Fountain's retroactivity did not invalidate his conviction under the circumstances.

Holding and Implications

AFFIRMED.

Holding: The court affirmed the defendant's second-offender conviction and sentence. It held that the People v. Fountain rule must be followed after its release but will be applied retroactively only in cases where the defendant did not receive notice that a supplemental information would be filed and where that lack of notice caused prejudice to the defendant.

Implications: The decision limits the retroactive effect of Fountain. Prosecutors and courts must adhere to Fountain prospectively, and defendants who lacked notice and were prejudiced by post-conviction filing of supplemental informations may obtain retroactive relief. In cases where the defendant received notice (for example, as part of a plea bargain) and was not prejudiced, convictions based on supplemental informations filed after the underlying plea or conviction are not invalidated by Fountain.

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PEOPLE v TAYLOR

BASHARA, J.

Defendant appeals from a plea-based conviction for violation of the second felony offender provision of MCL 769.10; MSA 28.1082.

The record reveals that on March 16, 1979, the defendant entered a plea of guilty to the charge of larceny over $100, MCL 750.356; MSA 28.588. The prosecutor and defense counsel, as well as defendant, all stipulated that, as part of the plea bargain, the prosecutor would file a supplemental information charging defendant as a second offender. Thereafter, defendant's plea to the larceny charge was accepted. On March 22, 1979, the prosecutor filed the supplemental information, to which defendant pled guilty. He was sentenced to 3-1/2 to 7-1/2 years. The sentence for the underlying larceny conviction was set aside.

Defendant's sole contention is that People v Fountain, 407 Mich. 96; 282 N.W.2d 168 (1979), should be applied retroactively. That case, which was decided on August 28, 1979, held that to avoid the appearance of impropriety the supplemental information should be filed with the information charging the underlying felony.

The Supreme Court has made it clear that it has not yet ruled on the question of Fountain's retroactivity. People v Devine, 407 Mich. 904 (1979). In order to determine this issue, it is necessary to approach the problem by balancing three factors: (1) the purpose of the new rule, (2) the general reliance on the old rule, and (3) the effect on the administration of justice. People v Kamin, 405 Mich. 482; 275 N.W.2d 777 (1979).

The new rule's purpose is best portrayed by an excerpt from Fountain, supra, 99:

"The habitual offender charges should have been filed with the information which charged the last felony to provide fair notice and avoid an appearance of prosecutorial impropriety."

It thus appears that a majority of the Court has now adopted the rationale of Justice LEVIN in his dissenting opinion in People v Hendrick, 398 Mich. 410, 423; 247 N.W.2d 840 (1976):

"While the habitual offender provisions of the Code of Criminal Procedure do not create a separate offense, providing rather for enhanced punishment for the current offense, fairness requires notice to the offender that he may face enhanced punishment where the prosecutor is aware, in advance of the trial on the current offense, of the offender's prior record."

It would, therefore, seem that the primary purpose of the rule is to provide notice and lessen the appearance of prosecutorial impropriety through lack of notice of an intent to file a supplemental information.

The second and third factors can be considered together, since the extent of reliance on the old rule often determines the effect upon the administration of justice. People v Hampton, 384 Mich. 669; 187 N.W.2d 404 (1971).

Prior to Fountain, it was not error for the prosecutor to file a supplemental information subsequent to a conviction on the underlying offense, unless the delay substantially prejudiced the defendant. People v Marshall, 41 Mich. App. 66; 199 N.W.2d 521 (1972). The timing of the filing of supplemental charges depended upon the particular circumstances of each case.

Where the accused's rights were not prejudiced, the habitual offender charges were generally not filed until after the conviction on the substantive offense. Since the prior rule was heavily relied on by the prosecutors of this state, applying the rule retroactively would have a substantial effect upon the administration of justice. This accords with the concurring opinion of Chief Justice COLEMAN that the result in Fountain is based on the Court's supervisory powers over the practices and procedures used in the courts of this state. Fountain, supra, 99-100.

It is beyond question that the Fountain rule must be adhered to after its release. However, we hold that it will be retroactively applied only where a defendant has not received notice that a supplemental information would be filed and that lack of such notice works to the prejudice of the defendant.

Applying that ruling to the case at bar, it is clear that the defendant received ample notification of the prosecutor's intent to file a supplemental information. In fact, it framed a part of the plea bargain in which all parties participated. The defendant was not prejudiced by the filing of the supplemental information after the plea to the underlying charge.

Affirmed.

PEOPLE v. TAYLOR