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145142 - People v Veilleux (Brian)

People of the State of Michigan,
 
Jessica R. Cooper
 
Plaintiff-Appellee,
Jeffrey M. Kaelin 
v
(Appeal from Ct of Appeals)
 
 
(Oakland – Warren, M.)
 
Brian James Veilleux,
 
John D. Lazar
 
 Defendant-Appellant.
  

Summary

The defendant, Brian James Veilleux, pleaded guilty to possession of less than 25 grams of cocaine as a fourth habitual offender. At an August 7, 2008 hearing, a circuit court judge sentenced Veilleux to three years of probation with the first year in the county jail; as a condition of his probation, Veilleux was not to use drugs or alcohol and was to submit to regular tests for substance abuse. After the judge announced the sentence, Veilleux began shouting and swearing at the judge, persisting even though the judge told him he would be found in contempt of court for each outburst. The judge found Veilleux guilty of contempt seven times, imposing a 90-day sentence for each count of contempt to be served consecutive to each other and to his year in jail for the drug offense. Veilleux did not appeal; the court appointed an attorney to represent Veilleux in any appeals, but the attorney withdrew without pursuing any. There is no official transcript showing Veilleux’s alleged contemptuous behavior.
 
On June 29, 2009, after Veilleux had served one year in the county jail, the jail released him in error; Veilleux still had 630 days to serve for contempt. On July 18, Veilleux was arrested for assault; a breath test revealed that he had a blood alcohol level of .17 percent. He was charged with violating his probation, but the assault charge was later dismissed because the complainant failed to appear.
 
At a January 13, 2010, hearing, the judge revoked Veilleux’s probation because of his alcohol consumption and sentenced him to prison for 34 months to 15 years on the drug charge, to be served consecutive to the 630 days for contempt of court. Veilleux’s attorney argued that the new sentence should run concurrent to the contempt sentences, but the judge disagreed, observing that he had been lenient considering Veilleux’s criminal record, parolee status, and persistent substance abuse. In support of imposing consecutive sentences, the judge cited MCL 768.7a: “(1) A person who is incarcerated in a penal or reformatory institution in this state, or who escapes from such an institution, and who commits a crime during that incarceration or escape which is punishable by imprisonment in a penal or reformatory institution in this state shall, upon conviction of that crime, be sentenced as provided by law. The term of imprisonment imposed for the crime shall begin to run at the expiration of the term or terms of imprisonment which the person is serving or has become liable to serve in a penal or reformatory institution in this state.”
 
Veilleux was released on parole for the drug charge, but was immediately sent to the county jail to begin serving his contempt sentences. He appealed, arguing that the court should not have ordered him to serve the contempt sentences consecutively with the drug charge sentence. Veilleux also argued that the consecutive sentences were excessive and disproportionate compared to his offenses, and that the trial judge should not have held him in contempt seven times for what was, Veilleux maintains, a single continuous outburst.
 
But in a 2-1 unpublished per curiam opinion, the Court of Appeals affirmed the trial court. The majority reasoned that a defendant should always be required to serve a sentence that he has already become “liable to serve.” Since Veilleux’s terms for contempt had not expired when he was improperly released from jail – and because he never appealed his 2008 sentence – under MCL 768.7a, he remains “liable to serve” the balance of that sentence before serving his sentence for violating probation, the majority reasoned.
 
The dissenting judge agreed that a defendant should always be required to serve a sentence that he or she becomes liable to serve. But a consecutive sentence may only be imposed if specifically authorized by statute, the dissent said, and there is no statute authorizing consecutive sentencing for possession of less than 25 grams of cocaine, violation of probation, or contempt of court. Moreover, MCL 768.7a does not support consecutive sentencing in this case, the dissenting judge maintained. That statute is aimed at deterring incarcerated offenders from committing further crimes “during that incarceration or escape” and does not apply to someone who, like Veilleux, had been released, the judge reasoned. The dissent also said that, particularly when there is no transcript to show what Veilleux did during the hearing, 630 days for contempt of court was excessive.
 
Veilleux appealed, and on July 18, the Supreme Court ordered the case to be scheduled for oral argument “on whether to grant [Veilleux’s] application or take other action.” The Court directed the parties to address “(1) whether sentences imposed after a finding of criminal contempt must be served consecutively under MCL 768.7a; and (2) whether a court may hold a person in contempt multiple times for each contemptuous act in a continuous course of conduct.” The Court also stayed the contempt sentences pending the appeal, and directed the trial court “to determine whether any recording of the defendant’s contemptuous behavior exists, and if so, to provide a copy of that record to this Court.” In a letter to the Supreme Court dated July 23, the trial court judge provided a video clip from the August 7, 2008 hearing showing Veilleux’s behavior and the judge finding him in contempt. The judge explained that there was no official transcript because the incident took place between hearings – after Veilleux was sentenced but before the court called the next case.