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People v. Parker

Court of Appeals of Michigan

April 25, 2017

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee,
v.
SABRINA RACINE PARKER, Defendant-Appellant.

         Kalamazoo Circuit Court LC No. 2013-001721-FH

          Before: Beckering, P.J., and Markey and Shapiro, JJ.

          PER CURIAM

         Defendant, Sabrina Racine Parker, appeals by leave granted her guilty plea to identity theft, MCL 445.65, and conspiracy to steal and retain a financial transaction device without consent, MCL 750.157n(1). The trial court sentenced defendant as a fourth-offense habitual offender, MCL 769.12, to 4 to 15 years' imprisonment for each offense. The trial court ordered these sentences to run concurrently to one another, but consecutively to sentences imposed upon defendant in 2010 that she failed to complete because the Department of Corrections (DOC) erroneously released her into the community in 2011. Given the absence of statutory authority to support the trial court's imposition of consecutive sentences in this case, we remand to the trial court to correct defendant's judgment of sentence by striking the provision that her current sentences run consecutively to her sentences from 2010.

         I. PERTINENT FACTS

         In October 2010, defendant was convicted and sentenced in Kent County to serve 21 to 72 months' imprisonment for possession of a stolen financial transaction device. In November 2010, while serving her Kent County sentence, defendant was also convicted of possession of a stolen financial transaction device in Monroe County and sentenced to 32 to 48 months' imprisonment. On June 6, 2011, the DOC erroneously released defendant back into the community before she finished serving either of her sentences.

         The charges in the current case arose from conduct initiated on January 9, 2013, when defendant stole five credit cards from a victim while the victim was participating in a yoga class. Defendant was arrested on December 17, 2013, and subsequently entered guilty pleas to identity theft under MCL 445.65 and conspiracy to steal and retain a financial transaction device without consent under MCL 750.157n(1). The trial court sentenced defendant to concurrent sentences of 4 to 15 years' imprisonment for each offense. Because defendant's release from prison in 2011, before completing her sentences from 2010, came about through clerical error, her presentence investigation report indicated that she was "in prison." Accordingly, the trial court ordered that defendant's sentences in this case run consecutively to the completion of her sentences from 2010 pursuant to MCL 768.7a.[1]

         II. ANALYSIS

         On appeal, defendant argues that the trial court erred by ordering that her current sentences run consecutively to her sentences from 2010 because the consecutive sentencing provisions of MCL 768.7a do not apply to her. We agree.

         Whether a consecutive sentence may be imposed is a question of law that we review de novo. People v Gonzalez, 256 Mich.App. 212, 229; 663 N.W.2d 499 (2003). Resolution of this issue requires us to interpret MCL 768.7a and related statutes. "The purpose of statutory interpretation is to give effect to the intent of the Legislature. If a statute is clear, we enforce it as plainly written. However, if a statute is susceptible to more than one interpretation, we must engage in judicial construction and interpret the statute." People v Denio, 454 Mich. 691, 699; 564 N.W.2d 13 (1997) (citations omitted). The purpose of a consecutive sentencing statute is "to deter persons convicted of one crime from committing other crimes by removing the security of concurrent sentencing." People v Phillips, 217 Mich.App. 489, 499; 552 N.W.2d 487 (1996). Accordingly, " 'consecutive sentencing statute[s] should be construed liberally in order to achieve the deterrent effect intended by the Legislature.' " Id., quoting People v Kirkland, 172 Mich.App. 735, 737; 432 N.W.2d 422 (1988).

         A trial court may only impose a consecutive sentence if specifically authorized by statute. People v Lee, 233 Mich.App. 403, 405; 592 N.W.2d 779 (1999). Neither of the statutes under which the court sentenced defendant in this case specifically authorizes consecutive sentencing. See MCL 445.65; MCL 750.157n(1). As authority for the imposition of consecutive sentences, the trial court relied upon MCL 768.7a, which states in pertinent part:

(1)A person who is incarcerated in a penal or reformatory institution in this state, or who escapes from such an institution, and who commits a crime during that incarceration or escape which is punishable by imprisonment in a penal or reformatory institution in this state shall, upon conviction of that crime, be sentenced as provided by law. The term of imprisonment imposed for the crime 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 in a penal or reformatory institution in this state.
(2)If a person is convicted and sentenced to a term of imprisonment for a felony committed while the person was on parole from a sentence for a previous offense, the term of imprisonment imposed for the later offense shall begin to run at the expiration of the remaining portion of the term of imprisonment imposed for the previous offense.

         According to the plain language of MCL 768.7a, to be subject to consecutive sentencing a person must either be "incarcerated in a penal or reformatory institution, " an escapee, or a parolee. It is undisputed that defendant was neither an escapee nor a parolee when she committed the 2013 offenses. Therefore, the question before this Court is whether defendant was "incarcerated in a penal or reformatory institution" at the time of ...


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