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People v. Allen

Court of Appeals of Michigan

October 1, 2019

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee,
v.
ERICK ROSEAN ALLEN, Defendant-Appellant.

          Monroe Circuit Court LC No. 17-243894-FH

          Before: Beckering, P.J., and Sawyer and Cameron, JJ.

          Per Curiam.

         Defendant appeals as of right following his jury trial conviction of possession of less than 25 grams of cocaine, MCL 333.7403(2)(a)(5). Defendant was sentenced, as a fourth habitual offender, MCL 769.12, to 30 to 180 months' imprisonment for possession of less than 25 grams of cocaine, with zero days' credit for time served. We affirm.

         On July 12, 2017, defendant was arrested for possession of cocaine, and on July 13, 2017, he was released on his own recognizance. Defendant was on parole at the time of his arrest. Defendant was rearrested on August 16, 2017, for missing a court hearing, and on August 17, 2017, the district court set a cash or surety bond of $5, 000. On August 31, 2017, defendant was released from jail after posting bond.

         On September 5, 2017, defendant was arrested again because he tested positive for cocaine. Also on that date, a parole detainer was signed asking the Monroe County Jail to hold defendant "until further notice." On September 8, 2017, the trial court set a cash or surety bond of $25, 000. On January 8, 2018, defendant was convicted by jury of possession of less than 25 grams of cocaine. Defendant remained in jail until his sentencing hearing on March 1, 2018. Defendant was sentenced to 30 to 180 months' imprisonment with no jail credit.

         Defendant argues that he is entitled to jail credit for time served between July 12, 2017, and July 13, 2017, between August 16, 2017, and August 31, 2017, and between September 5, 2017, and March 1, 2018, and that trial counsel was ineffective for failing to argue that defendant was entitled to jail credit for these periods of time. We disagree.

          A party preserves an issue for appeal when it raises the issue in the trial court and the court considers the issue. People v Fyda, 288 Mich.App. 446, 460 n 35; 793 N.W.2d 712 (2010). Defendant did not argue in the trial court that he was entitled to any jail credit. Thus, this issue is unpreserved for appeal. Id.

         "To avoid forfeiture of an unpreserved, nonconstitutional plain error, the defendant bears the burden of establishing that: (1) error occurred, (2) the error was plain, i.e., clear or obvious, and (3) the plain error affected substantial rights." People v Jones, 468 Mich. 345, 355; 662 N.W.2d 376 (2003). "To establish that a plain error affected substantial rights, there must be a showing of prejudice, i.e., that the error affected the outcome of the lower-court proceedings." Id. at 356. This Court reviews de novo issues of statutory interpretation. People v Beard, __Mich App, __;__ N.W.2d__ (2019) (Docket No. 346383, issued 4/25/2019); slip op at 3 n 3.

         The statute addressing jail credit for time served while awaiting sentencing 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. [MCL 769.11b.]

         In People v Idziak, 484 Mich. 549, 552; 773 N.W.2d 616 (2009), our Supreme Court announced that there is an exception to the jail credit statute:

We hold that, under MCL 791.238(2), [1] the parolee resumes serving his earlier sentence on the date he is arrested for the new criminal offense. As long as time remains on the parolee's earlier sentence, he remains incarcerated, regardless of his eligibility for bond or his ability to furnish it. Since the parolee is not being held in jail "because of being denied or unable to furnish bond," the jail credit statute does not apply.

          This case presents a question that Idziak did not squarely address. What happens when a parolee is held before sentencing because he is unable to furnish bond and no parole detainer is in effect?[2] Here, defendant was jailed between July 12, 2017, and July 13, 2017, and between August 16, 2017, and August 31, 2017, before, according to the prosecutor, a parole detainer was signed after defendant's arrest on September 5, 2017. While Idziak clearly holds that defendant is not entitled to jail credit from the time the parole detainer was signed on September 5, 2017, until the date ...


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