People v. Banks, Michigan Court of Appeals, Docket No. 23423 (Dec. 2, 1977)

Factual and Procedural Background

James E. Banks was tried by jury and convicted of breaking and entering (MCLA 750.110; MSA 28.305) and larceny in a dwelling house (MCLA 750.360; MSA 28.592). The trial court sentenced him to 3 to 15 years on the breaking and entering conviction and 3 to 4 years on the larceny in a dwelling house conviction. At sentencing the trial judge noted that the defendant previously had been convicted of another crime and received a sentence of 1-1/2 to 15 years. Defendant appealed as of right, raising two issues: (1) that the trial court erred in giving an aiding and abetting instruction without sufficient evidence, and (2) that the 3-to-4-year sentence for larceny in a dwelling house violated the indeterminate sentencing act and the Supreme Court's holding in People v Tanner.

Legal Issues Presented

1. Whether the trial court erred in giving an aiding and abetting instruction absent sufficient supporting evidence.
2. Whether the 3-to-4-year sentence for larceny in a dwelling house violated the indeterminate sentencing act (MCLA 769.8; MSA 28.1080) and the rule in People v Tanner that a minimum exceeding two-thirds of the maximum is improper under the indeterminate sentence act.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Court's Reasoning and Analysis

The court addressed the two issues raised on appeal in turn:

• On the aiding and abetting instruction: The court disposed of this contention summarily, referencing People v Mann. The opinion provides no extended discussion of factual sufficiency for the instruction beyond that citation.
• On the sentencing challenge under the indeterminate sentence act and People v Tanner: The court quoted the Tanner language that a sentence with a minimum exceeding two-thirds of the maximum is improper as failing to comply with the indeterminate sentence act. The court then analyzed the scope of Tanner by examining the indeterminate sentence act's language, which, as quoted in the opinion, applies to persons "convicted for the first time of crime committed after this act takes effect." Because the defendant's larceny in a dwelling house conviction was his third conviction, the court concluded that the indeterminate sentence act did not apply to him. Consequently, the trial court was not bound by the two-thirds rule announced in Tanner and retained discretion to set the sentence. The appellate court reviewed the sentence for abuse of discretion, found none, and therefore declined to disturb it.

The opinion also records that Judge M.F. Cavanagh concurred in the affirmance of the conviction but dissented as to the sentence, citing People v Redwine and Tanner and stating he would remand for resentencing.

Holding and Implications

Affirmed.

Holding: The Court of Appeals affirmed the defendant's convictions and sentences. The trial court's ruling to give an aiding and abetting instruction was summarily dismissed as erroneous claim (per People v Mann citation), and the 3-to-4-year sentence for larceny in a dwelling house was upheld because the indeterminate sentence act (and the two-thirds rule of People v Tanner) did not apply to this defendant given his prior convictions.

Implications: The direct effect is that the defendant's convictions and sentences remain in place. The majority expressly relied on the statutory limitation in the indeterminate sentence act (applying only to first convictions) to limit the reach of the Tanner two-thirds rule; the court found no abuse of sentencing discretion and did not order resentencing. The opinion does not announce a novel rule beyond applying Tanner only where the indeterminate sentence act governs; a dissenting judge would have remanded for resentencing based on prior authority.