PEOPLE OF MI V WILLIAM DANIEL BURNS
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
December 26, 2000
Plaintiff-Appellee,
v
No. 217658
Lenawee Circuit Court
LC No. 98-007881-FH
WILLIAM DANIEL BURNS,
Defendant-Appellant.
Before: McDonald, P.J., and Neff and Fitzgerald, JJ.
PER CURIAM.
Following a jury trial, defendant was convicted of conspiracy to burn real property, MCL
750.157a; MSA 28.354(1), and burning real property, MCL 750.73; MSA 28.268. He was
sentenced as an habitual offender, fifth offense, MCL 769.12; MSA 20.1084, to two concurrent
life terms. Defendant appeals as of right. We affirm.
Defendant first argues that the court erred by holding that the six-year statute of
limitations in MCL 767.24; MSA 28.964 for filing an indictment was tolled for the period of
time that defendant was incarcerated in Ohio between the date of the offense and the date he was
eventually charged with the crimes for which he was convicted. We disagree. Under the plain
and unambiguous language of the statute, “. . . any period during which the party charged did not
usually and publicly reside within this state shall not be considered part of the time within which
the respective indictments shall be found and filed.” MCL 767.24(1); MSA 28.964(1). Because
defendant did not reside in Michigan during the time of his incarceration, the statute was tolled
for this time period.
Further, because defendant conceded that he resided in Ohio for more than one year
during the time period between the offense and the date he was charged, and because he admitted
that there was no question of fact regarding his incarceration in Ohio, the trial court properly
refused to submit the issue to the jury. Cf. People v Price, 74 Mich 37, 43-44; 41 NW 853
(1889) (factual question existed and, therefore, submission of the statute of limitations question
to the jury was proper).
Defendant next argues that the court abused its discretion by foreclosing the possibility
that the jury could rehear testimony. Even if the trial court impermissibly foreclosed the
possibility of having the testimony reviewed at a later time under MCR 6.414(H), defense
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counsel acquiesced in the trial court’s handling of the matter and thereby expressed satisfaction
with the trial court’s refusal of the jury’s request. Defendant cannot harbor error as an appellate
parachute by waiving objection to an issue before a trial court and then raising it as an error on
appeal. People v Carter, 462 Mich 206, 214; 612 NW2d 144 (2000).
Defendant also argues that the court abused its discretion by sentencing defendant to two
concurrent life terms. We disagree.
Provided permissible factors are considered, appellate review is limited to whether the
sentencing court abused its discretion. People v Hansford (After Remand), 454 Mich 320, 323324; 562 NW2d 460 (1997). A sentence must be proportionate to the seriousness of the crime
and the defendant’s prior record. People v Milbourn, 435 Mich 630, 635-636, 654; 461 NW2d 1
(1990); People v Bennett, 241 Mich App 511, 515; 616 NW2d 703 (2000). Our review of the
record indicates that the court made a thorough analysis of the appropriate factors and did not
abuse its discretion in sentencing defendant.
Finally, defendant argues that plaintiff violated several discovery orders, and that the
proper remedy for such violations was for the court to dismiss the charges against defendant.
This Court reviews a trial court’s decision regarding discovery orders for an abuse of discretion.
People v Davie, 225 Mich App 592, 298-299; 571 NW2d 229 (1997).
Our review of the record fails to reveal how any of these alleged discovery violations
compromised defense counsel’s ability to cross-examine any of the witnesses or how they
resulted in any actual prejudice to defendant. More importantly, the court offered to adjourn trial
for a short time period in order to address any of the defense’s discovery concerns and defendant
expressly declined this remedy, thereby waiving review of any alleged discovery violations on
appeal. See Carter, supra at 214.
Affirmed.
/s/ Gary R. McDonald
/s/ Janet T. Neff
/s/ E. Thomas Fitzgerald
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