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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED April 18, 2017

v No. 331249 Ingham Circuit Court LARRY DARNELL MALONE, LC No. 13-000684-FH

Defendant-Appellant.

Before: S AWYER , P.J., and S AAD and R IORDAN , JJ.

P ER C URIAM

. Defendant appeals by leave granted 1 his plea-based conviction of larceny from a motor vehicle, MCL 750.356a(1). The trial court sentenced defendant as a second habitual offender, MCL 769.10, to 17 to 90 months’ imprisonment. Defendant challe nges the trial court’s award of 49 days’ jail credit. We affirm.

I. FACTUAL BACKGROUND

In January 2013, defendant removed catalytic convertors from t wo vehicles, intending to sell them for scrap. On June 2 , 2013, he was arrested and char ged with larceny from a motor vehicle (hereinafter “the Ingha m County offense”). He posted b ond and was released. Then, he failed to appear for a pretrial conference in June 2014. His b ond was revoked, and the trial court issued a bench warrant.

In October 2014, defendant committed a second larceny from a m otor vehicle (hereinafter “the Wayne County offense”) and was arrested in No vember 2014. He pleaded guilty to that offense in February 2015 and was sentenced to on e year in the Wayne County Jail, with 103 days of jail credit, a nd two years’ probation.

Defendant was transported to Ingham County after he completed h is sentence in Wayne County. He was arraigned on the bench warrant on August 5, 201 5, and he pleaded guilty to the

1 People v Malone , unpublished order of the Court of Appeals, entered February 2 9, 2016 (Docket No. 331249).-2- Ingham County offense later that month. On September 23, 2015, the trial court sentenced him as set forth above, a pplying 49 days of jail credit toward his sentence for the days that he spent in the Ingham County Jail between August 5, 2015, and September 23 , 2015. The trial court disagreed that defendant was ent itled to 308 days of jail credi t, which would have included the time that he was incarcerated on the Wayne County offense. The court reasoned, “I am not giving him credit for not showi ng up and getting arrested other places.”

II. JAIL CREDIT

Defendant argues that the trial c ourt violated the jail credit statute when it refused to award him jail credit in this case for the time that he served on the Wayne County offense, as he was unable to post bond while he was incarcerated for that offe nse. We disagree.

A. STANDARD OF REVIEW

“Whether a defendant is entitled to credit for time served in j ail before sentencing is a question of law that we review de novo.” People v Armisted , 295 Mich App 32, 49; 811 NW2d 47 (2011).

B. ANALYSIS

The jail credit stat ute, MCL 769.11b, provides:

Whenever any person is hereafte r convicted of any crime within this state and has served any time in jail prior to sentencing because of being denied or unable to furnish bond for the offense of which he is convicted , the trial court in imposing sentence shall specifically grant credit against the s entence for such time served in jail prior to sentencing.

“[T]he primary purpose of the sen tence credit statute is to equ alize as far as possible the status of the indigent and less financially well-circumstanced accused with the status of the accused who can afford to furnish bail.” People v Prieskorn , 424 Mich 327, 340; 381 NW2d 646 (1985) (quotation marks and citation omitted). Accordingly, th e Legislature’s intent, in passing the jail credit statute, was “to give a criminal defendant a ri ght to credit for any presentence time served ‘for the offense of which he is convicted,’ and not upon any other conviction .” Id . at 341 (emphasis added); see also People v Idziak , 484 Mich 549, 560; 773 NW2d 616 (2009) (citing Prieskorn , 424 Mich 327, and reiterati ng this principle).

“To be entitled to sentence credit for presentence time served, a defendant must have been incarcerated ‘for the offense of which he is convicted,’ ” meaning that the credit must be related to the offense for which he is being sentenced. Id . at 344. The Michigan Supreme Court has squarely rejected defendant’s claim in this case on at leas t two occasions. In Prieskorn , 424 Mich at 340, the Court explained:

[T]he sentence credit statute neither requires nor permits sent ence credit in cases, such as the one before us, where a defendant is released on bon d following entry of charges arising from one offense and, pending disposition of those charges, is subsequently incarcerated as a result of charges arising out of an unrelated offense-3- or circumstance and then seeks credit in the former case for that latter perio d of confinement. [Emphasis added.]

Later, in People v Adkins , 433 Mich 732, 734; 449 NW2d 400 (1989) , the Court stated:

The question before the Court is w hether Michigan’s sentence cr edit statute, MCL § 769.11b . . . , requires that a defendant receive credit for time spent incarcerated in other jurisdictions, for offenses committed while he was fre e on bond for the offense for which he seeks such credit, from the time that a de tainer or hold either was or could have been entered against him by authorities in th e jurisdiction where the defendant is to be sentenced. We hold that the statu te does not require sentence credit under such circumstances.

The Court reasoned:

[MCL 769.]11b does not require a c ourt to grant sentence credit from the time a hold either was or could have been placed. As explained in Prieskorn , credit is to be granted for presentence time served in jail only where such time is served as a result of the defendant being denied or unable to furnish bond ‘for the offense of which he is convicted.” [ Id . at 742. 2 ]

“Where, as here, the defendant has served time not as a result of his inability to post bond for the offense for which he seeks credit, but because of his incarceration for another offense, § 11b is simply not applicable .” Id . at 750 (emphasis added). 3

2 Defendant attempts to distinguish Adkins because it involved a defendant who was incarcerated out of state after being convicted of an offense that he commit ted while released on bond for Michigan charges. We find this distinction inapposite. The Co urt’s reasoning in Adkins , 433 Mich at 743-751, directly addresse s defendant’s claims in this case. Likewise, the broad applicability of Adkins is confirmed by the Michigan Supreme Court’s summary and applic ation of Adkins in Idziak , 484 Mich at 560-561:

In People v Adkins , 433 Mich 732, 739; 449 NW2d 400 (1989), we applied Prieskorn to a case in which the defend ant was released on bond after being charged with armed robbery and, before trial and convicti on of the armed robbery charge, was arrested and convicted of two unrelated sto len property offenses in two other jurisdictions and began serving sentences for those convictions. We held that when, “as here, the defendant has se rved time not as a result of his inability to post bond for the offense for which he seeks credit, but because of his incarceration for another offense, [MCL 769.11b] is simply not applicable.” Id. at 751.

3 See also People v Givans , 227 Mich App 113, 125-126; 575 NW2d 84 (1997) (holding that a defendant was not entitled to a j ail credit toward his sentence for a conviction in Jackson County from his incarceration for a separate Washtenaw County convicti on, as “MCL 769.11b . . .-4- The record clearly shows that defendant was incarcerated for the Wayne County offense during the period of time between November 2014 and September 2 015 for which he now seeks jail credit. The Ingham County offense and Wayne County offens e were completely unrelated. See Prieskorn , 424 Mich at 340. Each offense arose from a separate incident and resulted in its own arrest, arraignment, and sentencing. Like the defendant in Prieskorn , defendant did not serve time for the Wayne County offense because he was unable t o post bond for the Ingham County offense. See id . at 343. Rather, “it was because he was free on bond for [the Ingham County offense] that he was in a position to commit the [Wayne County offenses].” See id

. Analogously, as the Court reasoned in Prieskorn , 424 Mich at 343-344, “[ t]o attribute to the Legislature the intention that the defendant be given credit in this case for the fifty-one days served under the traffic sentence offense, committed while he w as free on bond in this case, is to attribute to the Legislature an intent to afford a defendant a ‘free’ misdemeanor—one for which no sentence of confinement need be or could be served.”

Thus, defendant is unable to app ly jail credit from his incarce ration for the Wayne County offense toward his subsequent sentence for the Ingham Co unty offense. Defendant only is entitled to 49 days of jail credit for the time that he spen t in jail between his arraignment on August 5, 2015, on the Ingham County offense and his sentencing on September 23, 2015, for that offense.

Defendant contends, through a co mparison of hypotheticals, that applying the statute in this manner leads to inequitable results. We need not consider these hypotheticals. The Michigan Supreme Court has made clear that the statutory langua ge is controlling. See Adkins
, 433 Mich at 749-751; Prieskorn , 424 Mich at 341-342. The trial court simply was not required to grant the jail time credit requested by defendant in this ca se from his time in the Wayne County Jail.

III. CONCLUSION

Defendant has failed to establi sh that he is entitled to relie f.

Affirmed.

/s/ David H. Sawyer /s/ Henry William Saad /s/ Michael J. Riordan

provides that a defendant shall receive credit for the time he has served before sentencing for the offense of which he is convicted. ”); People v McKnight , 165 Mich App 66, 68-69; 418 NW2d 402 (1987) (applying Prieskorn , 424 Mich at 340).