PEOPLE of the State of Michigan, Plaintiff-Appellant,
v.
Shawn Dojon HUTCHINSON, a/k/a Shawn Deon Hutchinson, Defendant-Appellee.
Docket No. 194643.
Court of Appeals of Michigan.
Submitted June 17, 1997, at Lansing. Decided July 22, 1997, at 9:00 a.m. Released for Publication October 8, 1997.*859 Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, John D. O'Hair, Prosecuting Attorney, Timothy A. Baughman, Chief of Research, Training, and Appeals, and Thomas A. Chambers, Assistant Prosecuting Attorney, for People.
Glenn A. McCandliss, Detroit, for Defendant-Appellee.
Before MARK J. CAVANAGH, P.J., and DOCTOROFF and D.A. TEEPLE[*], JJ.
PER CURIAM.
The Wayne County Prosecutor appeals as of right from an action of the Wayne Circuit Court, purportedly "correcting" the verdict rendered at the conclusion of a bench trial so as to find defendant guilty only of attempted possession of more than 650 grams of cocaine, rather than actual possession. The substantive difference is that the penalty for possession of more than 650 grams of cocaine is a mandatory sentence of life imprisonment, M.C.L. § 333.7403(2)(a)(i); M.S.A. § 14.15(7403)(2)(a)(i), whereas attempted possession is punishable by a maximum of five years' imprisonment, M.C.L. § 750.92; M.S.A. § 28.287. This case is being decided without oral argument pursuant to MCR 7.214(E).
The principal thrust of the defense at trial was lack of proof that defendant knew the large quantity of cocaine was present in the motor vehicle he was driving when arrested, despite the fact that he was the sole occupant of the vehicle. At the conclusion of the original bench trial, the trial court rejected defendant's testimony as completely incredible, *860 calling defendant a "big liar." Although persuaded beyond a reasonable doubt that defendant knew of the cocaine in the vehicle he was driving and was likewise knowingly exercising dominion and control over the cocaine, the court nonetheless found that defendant did not intend to deliver the more than 650 grams of cocaine found in his possessiontogether with a pager and a large quantity of cashbut then went on to "find the defendant guilty of possession of 650 or more grams of a controlled substance, cocaine, contrary to the statute."
More than nine months later, after sentencing had been delayed several times at the request of defendant, the trial court appears to have concluded sua sponte that it had intended only to find the defendant guilty of attempted possession. Despite no support for such a revisionary view in either the audio or stenographic recording of the trial, the court asserted the record failed to reflect its intent to find defendant guilty only of attempted possession. In making this statement, the trial court referred to no facts or circumstances that would logically justify a finding of only attempted possession on any basis other than a desire for leniency. But trial courts in bench trials are both required to render logical verdicts and precluded from exercising a jury's capacity for lenity. People v. Burgess, 419 Mich. 305, 310-311, 353 N.W.2d 444 (1984). Leniency is an exclusive prerogative of the executive branch. Const 1963, art 3, § 2; People v. Fox, 312 Mich. 577, 581-582, 20 N.W.2d 732, 168 ALR 703 (1945). The trial court proffered no reasoned explanation that would justify a finding of guilty of only attempted possession, in the face of proofs establishing only actual possession, either on the basis of the facts originally found or any subsequent clarification.
Such alteration of the original reasoned verdict of guilty is precluded on both double jeopardy principles and public policy grounds. A trial court in this respect has no greater prerogatives than a jury. People v. Jones, 203 Mich.App. 74, 82, 512 N.W.2d 26 (1993). Double jeopardy subsumes the notion of autrefois convict as well as autrefois acquit, Kring v. Missouri, 107 U.S. (17 Otto) 221, 225, 2 S.Ct. 443, 447, 27 L.Ed. 506 (1883), and pardon. United States v. Scott, 437 U.S. 82, 87, 98 S.Ct. 2187, 2192, 57 L.Ed.2d 65 (1978). Accordingly, the original verdict of guilty of possession of more than 650 grams of cocaine is reinstated, and the cause is remanded to the Wayne Circuit Court for resentencing.
Defendant's challenge to the right of the prosecutor to invoke this Court's jurisdiction is without merit for the reasons set forth in People v. Jones, supra, 203 Mich. App. at 78-79, 512 N.W.2d 26 (1993):
The people may appeal only to the extent provided by statute. People v. Cooke, 419 Mich. 420, 425, 355 N.W.2d 88 (1984). In Cooke, the Michigan Supreme Court held that § 12 of the Code of Criminal Procedure does not authorize an appeal from an order of acquittal made after the defendant has been put in jeopardy. Id.; M.C.L. § 770.12; M.S.A. § 28.1109. In Cooke, after the jury found the defendant guilty, the trial court reversed and acquitted him. Cooke, at 424, 355 N.W.2d 88.
Section 12 has been amended since Cooke was decided. It now provides that the people may take an appeal in any case if the Double Jeopardy Clause would not bar further proceedings. [People v.] Caballero, [437 Mich. 884, 885, 463 N.W.2d 891 (1990) ]; People v. Reynolds, 181 Mich. App. 185, 187-188, 448 N.W.2d 774 (1989); US Const, Am V; Const 1963, art 1, § 15. In Reynolds, we held that a prosecutor's appeal of a sentence does not subject the defendant to a second trial. Therefore, appealing the sentence did not present double jeopardy implications and was permissible under § 12. Reynolds, at 188, 448 N.W.2d 774.
Likewise, the appeal in this case does not subject defendant to a second trial and does not present double jeopardy implications. If the prosecution prevails, the original verdict will be reinstated. If defendant prevails, the judgment will be affirmed. Neither requires a second trial.[1] Consequently, we conclude that we have jurisdiction to hear this appeal.
*861 Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment.
[1] Although retrial following acquittal is barred under the Double Jeopardy Clause, the government may appeal if reinstatement of the jury's verdict of conviction, rather than retrial, is sought. See People v. Anderson, 409 Mich. 474, 483, n. 10, 295 N.W.2d 482 (1980), cert. den. 449 U.S. 1101, 101 S.Ct. 896, 66 L.Ed.2d 827 (1981), citing United States v. Wilson, 420 U.S. 332, 95 S.Ct. 1013, 43 L.Ed.2d 232 (1975).