PEOPLE
v.
HATFIELD
Docket No. 124500.
Michigan Court of Appeals.
Decided February 20, 1990.Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, George G. Mullison, Prosecuting Attorney, and Martha G. Mettee, Assistant Prosecuting Attorney, for the people.
Arthur M. Fitzgerald, for defendant on appeal.
Before: DANHOF, C.J., and SAWYER and GILLIS, JJ.
ON REMAND
SAWYER, J.
Defendant was convicted, following a jury trial, of wilful and malicious destruction of police property. MCL 750.377b; MSA 28.609(2). Defendant had previously been convicted of being a habitual offender (third offense). MCL 769.11; MSA 28.1083. Defendant was sentenced to serve sixty-four to ninety-six months in prison.
*386 This is the third time this matter has come before this Court. In an original appeal following defendant's first trial, this Court reversed the conviction for wilful and malicious destruction of police property in an unpublished opinion per curiam, decided June 26, 1986 (Docket No. 83274). Defendant's conviction as a habitual offender was left undisturbed in the initial appeal. Thereafter, defendant was retried and again convicted of wilful and malicious destruction of police property. The trial court, however, determined that, since defendant's original conviction as a habitual offender had not been reversed, it was unnecessary to retry defendant on the habitual offender charge and proceeded to sentence defendant as a habitual offender. Defendant again appealed and this Court affirmed his conviction on the underlying offense, but concluded that the trial court erred in not retrying defendant on the habitual offender charge and remanded the matter to the trial court to either resentence defendant on the underlying, unsupplemented conviction or retry defendant as a habitual offender and sentence him in accordance with the outcome of that trial. People v Hatfield, 177 Mich App 324; 441 NW2d 76 (1989). Thereafter, the people sought leave to appeal to the Supreme Court, which initially denied leave. People v Hatfield, 433 Mich 869 (1989). However, upon reconsideration, the Court vacated its earlier denial of leave to appeal and remanded the matter to this Court for reconsideration in light of People v Wilkins, 115 Mich App 153; 320 NW2d 326 (1982). People v Hatfield, 433 Mich 916; 449 NW2d 106 (1989).
In our earlier opinion, we erroneously noted that the issue whether it was necessary to retry defendant on the habitual offender charge following his reconviction on the underlying offense was *387 one of first impression. Hatfield, supra at 329. After the Supreme Court's initial denial of leave to appeal, it was brought to this Court's attention that the prior decision in Wilkins, supra, had dealt with this issue and concluded that retrial was unnecessary. Accordingly, this Court notified the Supreme Court that a conflict existed, after which the Court remanded the matter to us for reconsideration in light of the Wilkins decision.
In Wilkins, supra at 155, this Court determined that there was no reason to require a retrial on a habitual charge if the initial appeal did not reverse the habitual conviction:
At the trial on the habitual offender information the people must prove the three prior convictions and the identity of the defendant as the person who committed those offenses. People v Covington, 70 Mich App 188, 191; 245 NW2d 558 (1976). The people sustained this burden of proof in the habitual offender proceeding following the original conviction of carrying a concealed weapon and defendant was properly convicted as an habitual offender, having committed three prior felonies. That conviction was never reversed. The factual determinations essential to support that conviction have never been set aside.
After further consideration of this matter as directed by the Supreme Court, we are persuaded that the Wilkins Court correctly analyzed this issue and that our original opinion in this regard was in error. Accordingly, we now affirm defendant's conviction and sentence as a habitual offender.
Finally, we have considered the issues related to sentencing raised in defendant's original brief in this matter and which were not addressed in our prior decision. We conclude that defendant's sentence *388 does not shock our judicial conscience, People v Coles, 417 Mich 523; 339 NW2d 440 (1983), nor does it constitute cruel and unusual punishment.
Affirmed.