PEOPLE OF MI V JOSEPH RYAN KADLEK
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
June 2, 2009
Plaintiff-Appellee,
V
No. 285162
Midland Circuit Court
LC No. 07-003169-FH
JOSEPH RYAN KADLEK,
Defendant-Appellant.
Before: Fitzgerald, P.J., and Talbot and Shapiro, JJ.
SHAPIRO, J. (dissenting).
I respectfully dissent as to the majority’s conclusions in both issues in this case. As to the
first issue, the prosecution concedes that it did not comply with MCL 769.13(2); MSA
28.1085(2). I would therefore vacate the habitual offender conviction and order the lower court
to resentence the defendant within the correct guidelines, namely, a minimum term of 12 to 24
months. As to the second issue, i.e., jail credit on a new sentence committed while on probation,
I would hold this case in abeyance for the Michigan Supreme Court decision in People v Idziak,
483 Mich 885; 759 NW2d 401 (2009), where the Supreme Court is considering precisely this
issue.
MCL 769.13(1) provides that the “prosecuting attorney may seek to enhance the sentence
of defendant by filing a written notice of his or her intent to do so within 21 days after the
defendant’s arraignment on the information charging the underlying offense or, if arraignment is
waived, within 21 days after the filing of the information charging the underlying offense.”
MCL 769.13(2) sets forth additional requirements and reads in pertinent part:
The notice shall be filed with the court and served upon the defendant or his or
her attorney within the time provided in subsection (1). The notice may be
personally served upon the defendant or his or her attorney at the arraignment on
the information charged in the underline defense, or may be served in the matter
provided by law or court rule or service or written pleadings. The prosecuting
attorney shall file a written proof of service with the clerk of the court.
The requirement of subsection (1) is met in this case. The notice is present in the file and
date stamped within the required time frame. As to subsection two, defendant alleges and the
prosecutor concedes that the notice of intent was not “personally served upon the defendant or
his or her attorney at the arraignment on the information charging the underline offense” and
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similarly that it was not “served in the matter provided by law or court rule for service or
pleadings.” The prosecution also admits that it did not “file a written proof of service with the
clerk of the court.”
The question then is whether the failure to comply with subsection (2) while complying
with subsection (1) is grounds to strike the enhancement. Further, the prosecutor argues that the
defense had actual notice of the intent to habitualize defendant and, therefore, any failure under
subsection (2) is cured.
As a general rule, failures to comply with precise procedure requirements should not
overcome substantive realities particularly where a party alleging a lack of written notice did, in
fact, have actual notice. However, I conclude that the language of MCL 769.13 evidences a
legislative requirement that the prosecutor serve the notice as set forth in the statute. The
Legislature did not merely require that the notice be filed with the court, but specifically added
that the prosecutor “shall” (a) serve the notice on defendant;1 (b) serve the notice in a manner
specifically defined; and (c) file a proof of that service with the court. I conclude that in setting
forth these additional requirements, the Legislature addressed its concern that a notice might be
filed with the court, but not served on the defendant and added subsection (2) to deter any error
or oversight by the prosecution in this regard. As the Legislature has evidenced its intent to
require not only filing of the notice, but also service of the notice, and it is conceded that service
did not occur, I conclude that the sentence enhancement must be stricken in this case.2
On the issue of sentence credit during the period of parole, this issue is before the
Michigan Supreme Court in Idziak, supra. While the majority states that the issue in this case is
some how distinguishable from Idziak, I see no distinction nor does the majority articulate one.
Accordingly, I believe the case should be held in abeyance in that regard.
/s/ Douglas B. Shapiro
1
While the majority opinion quotes much of the statute, it fails to quote the language of
subsection (2) which reads “the notice shall be filed with the court and served upon the defendant
or his or attorney within the time provided in subsection (1).
2
The majority cites People v Walker, 234 Mich App 299; 593 NW2d 673 (1999), where the
failure to file the proof of service was not found to require vacation of the enhancement.
However, the Walker court specifically relied upon the fact “defendant makes no claim that he
did not receive the notice of intent to enhance.” By contrast, in the instant case not only does
defense maintain that he never received the notice, but the prosecutor admits that the notice was
never served.
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