People v. Sheryl Miller

182 Mich. App. 692 (1990) 452 N.W.2d 882 PEOPLE v. SHERYL MILLER Docket No. 115071. Michigan Court of Appeals. Decided March 19, 1990. Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, William A. Forsyth, Prosecuting Attorney, Timothy K. McMorrow, Chief Appellate Attorney, and Gregory T. Boer, Assistant Prosecuting Attorney, for the people. Jeffrey P. Kirchoff, for defendant on appeal. Before: HOLBROOK, JR., P.J., and MacKENZIE and NEFF, JJ. NEFF, J. Defendant appeals as of right from her plea-based conviction for retail fraud in the first degree, MCL 750.356c; MSA 28.588(3). Defendant was sentenced to fourteen to twenty-four months of imprisonment, with zero days credit for time served. I Defendant contends that, pursuant to MCL 769.11b; MSA 28.1083(2), she is entitled to sentence credit for time served in the county jail and in a residential drug-treatment program prior to sentencing. Defendant was on parole at the time of the instant offense. It is undisputed that defendant was incarcerated in the county jail pursuant to a parole detainer from July 19, 1988, the date of her arraignment, until August 18, 1988, when defendant pled guilty to the instant offense. On August *694 18, 1988, following her plea, defendant's parole detainer was lifted. The trial court also entered an order changing defendant's bond to a $5,000 personal recognizance bond with the conditions that defendant be released only to Bullock House, a drug treatment program, and that she remain in that program. Defendant was released to Bullock House where she remained until sentencing on October 3, 1988. The issue of sentence credit was not raised in the trial court. However, we believe that this Court's failure to address the issue would result in a miscarriage of justice. Because defendant's confinement in the county jail from July 19, 1988, until August 18, 1988, was pursuant to a parole detainer, and not because of being denied or unable to furnish bond, defendant is not entitled to sentence credit pursuant to MCL 769.11b; MSA 28.1083(2) for the instant offense for that period of time. However, we believe that the circumstances under which defendant was ordered to the drug rehabilitation center after her parole detainer was lifted amounted to confinement analogous to jail. See People v Stange, 91 Mich App 596, 600; 283 NW2d 806 (1979). Accordingly, defendant shall be granted credit for presentence time served from August 18, 1988, until sentencing on October 3, 1988. II Defendant also contends that her sentence should shock the conscience of this Court. We disagree. People v Coles, 417 Mich 523; 339 NW2d 440 (1983). III Defendant's conviction is affirmed, but this case *695 is remanded to the trial court for proceedings consistent with this opinion. We do not retain jurisdiction. MacKENZIE, J. (dissenting in part). I agree that defendant is not entitled to sentence credit for the period of her confinement in the county jail pursuant to a parole detainer. I also agree that defendant's sentence is not shocking to the conscience. People v Coles, 417 Mich 523; 339 NW2d 440 (1983). For the reasons stated in People v Morin, 159 Mich App 582; 407 NW2d 43 (1987), however, I disagree wilth the majority's conclusion that defendant is entitled to credit for the period spent in the drug rehabilitation center. Accordingly, I would affirm defendant's sentence of fourteen to twenty-four months of imprisonment, with no credit for time served.