PEOPLE v EASON
Docket No. 82718
Supreme Court of Michigan
Argued December 8, 1988. Decided July 5, 1990.
435 MICH 228
In an opinion by Justice BOYLE, joined by Chief Justice RILEY and Justices BRICKLEY and GRIFFIN, the Supreme Court held:
A defendant charged under a statute which provides for imposition of an enhanced sentence on a person previously convicted of an offense under the same statute is not entitled to notice within fourteen days of arraignment of the prosecutor‘s intent to seek sentence enhancement or to a separate proceeding on the question whether the defendant has previously been convicted of a controlled substance offense.
1. Due process requires reasonable notice and an opportunity to be heard relative to a recidivist charge. However, due process does not require the filing of a separate charge pursuant to a statute that does not create a new offense but simply authorizes the sentencing court to enhance the sentence. The prosecutor is not required to charge the prior conviction in the information because it is not an element of a new charge, separate from the offense for which the defendant is presently charged. Instead, the prior conviction is a factor which the court may consider when imposing sentence. While a defendant may challenge the accuracy of the information in a presentence report and is entitled to an opportunity to be heard on the
2. The sentence-enhancement provision of the controlled substance act does not provide a defendant who is a subsequent offender under the same statute a right to early notice of sentence enhancement. Nor does it provide for a separate proceeding to determine the question of a defendant‘s prior conviction of a drug offense. The sentence enhancement provision is a legislative authorization for judges to tailor punishment to the criminal on the basis of an objective factor, i.e., a prior conviction of the same statute. The habitual offender statutes are considered alternate sentencing provisions rather than penalty-enhancement provisions. Under the habitual offender act, a separate charge must be filed, the defendant is entitled to a full jury trial, and the prior convictions must be proved beyond a reasonable doubt. Where a statute does not contemplate a separate trial-type proceeding, but rather provides for sentence enhancement, due process requires a reasonable opportunity to challenge the accuracy of the information relied on in passing sentence. Unlike situations in which a statutory scheme and elements of an offense are created and due process requires notice of the charge and proof beyond a reasonable doubt, there is no due process requirement that the prosecutor charge a prior drug conviction in an information in order to enable a defendant‘s sentence to be enhanced on the basis of the prior conviction. The prior offense is not an element of a separate charge. Nor does due process entitle the defendant to a trial-type procedure regarding the use of the prior convictions for sentencing purposes. In this case, the defendant was informed prior to sentencing of the increased penalty for a second offense and had an opportunity at sentencing to contest the accuracy of the information in the presentence report. Because he did not challenge the fact that he was a second offender, the Court of Appeals erred in vacating his sentence, and the sentence imposed by the trial court must be reinstated.
3. In a typical sentencing proceeding, due process assures the right to be sentenced on the basis of accurate information, but does not require trial-type procedures. Due process should not
Justice CAVANAGH, joined by Justice ARCHER, concurring, stated that the constitutional guarantee of due process does not require that a defendant‘s prior conviction be treated as a new crime that must be separately charged and proven at a separate trial. Before an enhanced penalty under
The defendant in this case has not claimed that he or his counsel had inadequate time or information to prepare to contest the prior conviction, and neither he nor his counsel requested a continuance for that purpose. In addition, he has never denied that he committed the prior offense or that the conviction was invalid. Absent a claim that his admission of the prior conviction was not knowing or voluntary or a showing of prejudice, there is no constitutional basis for vacating his sentence.
Reversed.
Justice LEVIN, dissenting, stated that the procedural safeguards applicable under the habitual offender provisions of the Code of Criminal Procedure apply to sentence enhancement under the controlled substances article of the Public Health Code.
REFERENCES
Am Jur 2d, Habitual Criminals and Subsequent Offenders §§ 19, 23.
See the Index to Annotations under Habitual Criminals and Subsequent Offenders.
A defendant charged under a statute which provides for imposition of an enhanced sentence on a person previously convicted of an offense under the same statute is not entitled to notice within fourteen days of arraignment of the prosecutor‘s intent to seek sentence enhancement or to a separate proceeding on the question whether the defendant has previously been convicted of a controlled substance offense (
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, John D. O‘Hair, Prosecuting Attorney, and Timothy A. Baughman, Chief, Criminal Division, Research, Training and Appeals, for the people.
Monash, Monash & Goldberg, P.C. (by Richard A. Monash), for the defendant.
BOYLE, J. We granted leave to appeal to determine whether the procedural safeguards1 surrounding a formal trial must be afforded a defendant subjected to an enhanced sentence pursuant to the second-offender provisions of the controlled substance act,
I
The questions presented in this case are: 1) did
Despite recent modification of sentence enhancement provisions, the Legislature has not granted defendants who are subsequent offenders under the same statute a right to early notice of sentence enhancement. Nor has it provided for a separate proceeding to determine the question of a defendant‘s prior conviction of a drug offense. The sentence enhancement provision is a legislative authorization for judges to tailor punishment to the criminal on the basis of an objective factor, i.e., a prior conviction under the same statute.
The Legislature has long provided that where a prosecutor intends to proceed under the habitual offender act, a separate charge must be filed, the defendant is entitled to a full jury trial, and the defendant‘s prior convictions2 must be proven beyond a reasonable doubt. The habitual offender statutes are considered alternate sentencing provisions rather than penalty-enhancement provisions.3
In creating a sentence enhancement provision in the controlled substance act, the Legislature took a factor, the defendant‘s prior criminal convictions, a traditional consideration in determining a defendant‘s sentence, and authorized a weight to be given that factor, i.e., not more than twice the term authorized.4 The statute is directed to facts
By contrast, in situations in which the state creates a statutory scheme and elements of an offense, due process requires both notice of the charge and proof by the prosecutor of each element beyond a reasonable doubt. In re Winship, 397 US 358; 90 S Ct 1068; 25 L Ed 2d 368 (1970). Conversely, a state may define the elements of an offense, and due process does not require the state to satisfy the reasonable-doubt standard as to facts not included in the statutory definition of an offense, so long as the definition does not offend a deeply rooted principle of justice. Patterson v New York, 432 US 197; 97 S Ct 2319; 53 L Ed 2d 281 (1977). Thus, due process does not require the state to proceed by notice of a separate charge, the right to trial by jury, and proof beyond a reasonable doubt wherever sentence enhancement is authorized.
Due process does not require the prosecutor to charge the prior drug conviction in the information in order for the defendant‘s sentence to be enhanced on the basis of the prior conviction because the prior offense is not an element of a separate charge.5 Nor is the defendant entitled to
habitual offender act be applied to other sentence enhancement provisions, this Court and the Court of Appeals have implied such requirements in both criminal sexual conduct,
In the instant case, the court informed the defendant prior to sentencing of the increased penalty for a second offense, the defendant had the opportunity at sentencing to contest the accuracy of the information included in the presentence report, and the accuracy of the information was admitted.7
Where the statute does not contemplate a separate trial-type proceeding but, rather, provides for sentence enhancement, due process requires a reasonable opportunity to challenge the accuracy of the information relied on in passing sentence.8 Because the defendant did not challenge the fact that he was a second offender, the Court of Appeals erred in vacating his sentence and remanding the case for resentencing. Accordingly, the decision of the Court of Appeals is reversed and the sentence imposed by the trial judge is reinstated.
the matter came to the trial court‘s attention through the presentence investigation, the judge would be authorized to enhance the sentence provided the defendant did not claim lack of notice or contest the factual accuracy thereof.
On February 25, 1985, law enforcement personnel raided the defendant‘s house and seized a small amount of cocaine and more than $30,000 in cash. The defendant was charged with possession with intent to deliver less than fifty grams of cocaine.
On July 12, 1985, the defendant was arraigned in Detroit Recorder‘s Court, and on September 12, 1985, the prosecutor filed a written notice9 of his intent to seek an enhanced (doubled) sentence pursuant to
The defendant was convicted by a jury of possession with intent to deliver less than fifty grams of cocaine, and on January 31, 1986, was sentenced to a maximum of forty years in prison.10 Although advised at sentencing that the court was relying on the defendant‘s prior conviction for possession of heroin, neither the defendant nor counsel contested the accuracy of the prior conviction, and counsel confirmed that the presentence report was accurate.
On March 7, 1986, the defendant moved to
In our view the quoted language from [People v] Urynowicz [412 Mich 137; 312 NW2d 625 (1981)] makes clear that a subsequent drug offender‘s sentence may not be enhanced unless the prior drug offense is charged in either the information or a supplemental information and the prosecutor proves that the defendant is a recidivist drug offender. [Emphasis in original.]
The sentencing judge believed the Court of Appeals erred in Stout, but also that, under Stout, the notice filed was sufficient because the defendant received the notice and had not contested his conviction on the underlying charge. The motion was denied.
In an unpublished per curiam opinion, the Court of Appeals affirmed the defendant‘s conviction but remanded the case for sentencing.11 The Court of Appeals agreed with the defendant that the prosecution must charge the defendant as an habitual offender before his sentence could be enhanced under
Relying on our decisions regarding proceedings under the habitual criminal act, the Court held that the prosecutor must file a supplemental information not more than fourteen days after a defendant is arraigned in circuit court unless the prose-
The prosecution contends that earlier decisions of this Court imposed procedural requirements in the sentence enhancement context that the Legislature never intended.13 See People v Urynowicz, supra, People v Wright, supra, and People v Lester, supra. The prosecutor further submits that the recent ruling of the United States Supreme Court in McMillan v Pennsylvania, 477 US 79; 106 S Ct 2411; 91 L Ed 2d 67 (1986), provides a justification for reconsideration regarding the issue what procedures are required under due process when the court enhances a defendant‘s sentence pursuant to
The defendant claims that the prior drug offense must be charged in either the information or a supplemental information, and that the prosecutor
III
The issue presented is whether the sentence provision of the controlled substance act, authorizing an enhanced penalty for a defendant previously convicted of a like offense, offends due process by failing to provide prior notice of intent to enhance or a separate adversarial proceeding to establish proof of the prior conviction. People v Stout, supra.
It is well settled that in a criminal trial, the defendant‘s conviction must rest on evidence which proves “beyond a reasonable doubt the existence of every fact necessary to constitute the crime charged”14 and includes the right to a trial by jury,15 a public trial, counsel, confrontation of adverse witnesses, and a fair and speedy trial. The most fundamental of these safeguards in a criminal proceeding is the right to a trial by jury.16 See Duncan v Louisiana, 391 US 145, 158, n 30; 88 S Ct 1444; 20 L Ed 2d 491 (1968); Baldwin v New
By contrast, the due process right at a typical sentencing hearing is the right to be sentenced on the basis of accurate information. Trial-type procedures are not required. Williams v New York, 337 US 241; 69 S Ct 1079; 93 L Ed 1337 (1949).17 In Williams, the United States Supreme Court rejected a claim that the defendant was denied the opportunity to confront and examine his accusers by the trial court‘s reliance on the presentence investigation as the basis for its sentence. Id., p 244. The Court held the procedure did not violate due process18 and identified a distinction between guilt determination and sentencing, observing:
In addition to the historical basis for different evidentiary rules governing trial and sentencing procedures there are sound practical reasons for the distinction. ... [B]efore verdict the issue is whether a defendant is guilty of having engaged in certain criminal conduct of which he has been specifically accused. Rules of evidence have been fashioned for criminal trials which narrowly confine the trial contest to evidence that is strictly relevant to the particular offense charged. ... A
sentencing judge, however, is not confined to the narrow issue of guilt. ... Highly relevant—if not essential—to his selection of an appropriate sentence is the possession of the fullest information possible concerning the defendant‘s life and characteristics. [Id., pp 246-247.]
The Court concluded that the “due process clause should not be treated as a device for freezing the evidentiary procedure of sentencing in the mold of trial procedure.” Id., p 251.
Decisions following Williams supported traditional individualized sentencing on the basis of a broad inquiry.19 The Court held that while information obtained in violation of a defendant‘s right to counsel20 could not be considered, a sentencing judge might permissibly take into account a defendant‘s trial conduct21 and the defendant‘s refusal to cooperate with law enforcement officials.22 The basic tenor of these cases is that an individualized sentence can be based on any relevant and reliable information, and that, while normal sentencing proceedings are not immune from due process attacks, only minimal due process protections are required in those proceedings. United States v
However, the Supreme Court has required additional procedural safeguards to satisfy due process requirements in situations in which a court seeks to impose additional penalties on a defendant pursuant to a finding of fact equivalent to invoking a new charge.23 Specht v Patterson, 386 US 605; 87 S Ct 1209; 18 L Ed 2d 326 (1967). In Specht, the defendant was convicted under one Colorado statute for indecent liberties which carried a maximum sentence of ten years.24 Id., p 607. Thereafter, the defendant was sentenced under a different act25 for a sentence of one day to life without full notice or a hearing. Id.
The Court noted that the act made one conviction the basis for invoking a separate proceeding under the sex offenders act, thus requiring a determination that constituted “a new finding of fact.” Id., p 608. As such, the defendant was entitled to the “‘full panoply of the relevant protections which due process guarantees in state criminal proceedings ... all those safeguards which are fundamental rights and essential to a fair trial....‘” Id., pp 609-610, citing Gerchman v Maroney, 355 F2d 302, 312 (CA 3, 1966).
Subsequent to the Specht decision, in 1970, the United States Supreme Court declared that the
[I]f Winship were limited to those facts that constitute a crime as defined by state law, a State could undermine many of the interests that decision sought to protect without effecting any substantive change in its law. It would only be necessary to redefine the elements that constitute different crimes, characterizing them as factors that bear solely on the extent of punishment. [Id., p 698.]
However, in Riviera v Delaware, 429 US 877; 97 S Ct 226; 50 L Ed 2d 160 (1976), the Court confirmed that it remained constitutional to burden the defendant with proving the insanity defense, and also held that the state could place the burden of proving a new affirmative defense, extreme emotional disturbance, on the defendant when the affirmative defense did “not serve to negative any facts of the crime which the State is to prove in order to convict of murder.” Patterson v New York, supra, p 207.
While Winship and Specht establish that a Legislature is not wholly free to define elements of an offense as factors bearing only on punishment, it is clear that the limitation is a narrow exception to the deference accorded a state‘s administration of justice.
In McMillan, supra, p 86, the Court recently has reaffirmed the state‘s ability to pursue “its chosen course in the area of defining crimes and proscribing penalties.” The Court rejected a due process challenge to a state statute that provided for imposition of a mandatory minimum sentence where a sentencing judge finds by a preponderance of the evidence that an individual convicted of an offense “visib[ly] possess[ed] a firearm” during its commission.26
While declining to define the express parameters of the state‘s authority to define the elements of an offense, the Court observed that Patterson had rejected the claim that whenever a state linked the severity of punishment to the presence or absence of an identified fact, McMillan, supra, p 84, the state must prove that fact beyond a reasonable doubt. The Court further distinguished Specht on the basis that in Specht the defendant was confronted with a “radically different situation” from the usual sentencing proceeding. The Court observed:
The Pennsylvania Legislature did not change the definition of any existing offense. It simply took one factor that has always been considered by sentencing courts to bear on punishment—the instrumentality used in committing a violent felony—and dictated the precise weight to be given that
factor if the instrumentality is a firearm. Pennsylvania‘s decision to do so has not transformed against its will a sentencing factor into an “element” of some hypothetical “offense.” [Id., pp 89-90.]
Of significance to the language in Stout, supra, that the prosecution prove the factor that authorizes enhancement, the Court also observed that “Sentencing courts have traditionally heard evidence and found facts without any prescribed burdens of proof at all,” McMillan, supra, p 91, and noted “embracing ... the clear-and-convincing standard here would significantly alter criminal sentencing, for we see no way to distinguish the visible possession finding at issue here from a host of other express or implied findings sentencing judges typically make on the way to passing sentence.” Id., p 92, n 8.27
The second-offender provision with which we here deal likewise neither seeks to impose additional penalties on the basis of a finding of fact equivalent to a new charge, Specht, nor changes the definition of an existing offense, Winship. It simply takes one factor that has historically been of paramount importance in imposing an appropriate sentence, a previous conviction for a like offense, and authorizes an increased penalty. Therefore, due process neither compels a separate charge nor imposes trial-type evidentiary burdens on the sentencing process.
IV
In the present case, the Court of Appeals va-
Despite the fact that in Oyler v Boles, 368 US 448, 452; 82 S Ct 501; 7 L Ed 2d 446 (1962), the United States Supreme Court held that due process required reasonable notice and an opportunity to be heard relative to a recidivist charge, but not notice prior to trial on the underlying offense,28 this Court, citing Oyler, thereafter held that the prosecutor separately, or coincidentally, must charge the defendant as an habitual offender prior to trial on the underlying substantive offense.29
The apparent purpose of requiring the information to be filed is to provide the accused notice, at an early stage of the proceedings, of the potential consequences should the accused be convicted of the underlying offense. People v Shelton, supra, p 569. In Shelton, the Court defined “promptly” as not more than fourteen days after the individual the prosecutor elects to charge as an habitual offender is arraigned in circuit court on the underlying felony (or before trial if the defendant is tried within the fourteen-day period).
It is clear from a reading of Oyler and McMillan that Shelton is distinguishable, and that due process does not require the filing of a separate charge pursuant to a statute that does not create a new offense but simply authorizes the sentencing court to enhance the sentence.30 The prosecutor is
allegations, and require the offender to say whether he is the same person as charged in the information or not. If the offender says he is not the same person, or remains silent, the court shall enter a plea of not guilty, and a jury of 12 jurors shall be impaneled from the petit jurors serving at the then or a following term of court to determine the issues raised by the information and plea. The accused may waive trial by jury in the manner provided by this act. The usual practice in the trial of criminal actions shall be followed in the impaneling of a jury and the trial of the issue. ... If the accused pleads guilty to the information or if the jury returns a verdict of guilty, the court may sentence the offender to the punishment prescribed in section 10, 11, or 12, and shall vacate the previous sentence, deducting from the new sentence all time actually served on the vacated sentence if required. [
MCL 769.13 ;MSA 28.1085 .]
When the Court has considered a statutory scheme incomplete, it has imposed additional requirements in accordance with the object or intent of the statute. While that solution is more appropriately provided by the Legislature, it has been utilized by this Court when as in this situation it was believed necessary. Schwartz, Multiple punishment for the “same offense“: Michigan grapples with the definitional problem, 25 Wayne LR 825, 856 (1979).
Where, as here, the factor, a prior conviction, has not historically been considered an element of the crime, is objectively ascertainable, and carries little risk of erroneous determination, and there is no indication that the Legislature is seeking to avoid the procedural protections of Winship,32 due
have no relation to the circumstances of the wrongdoing constituting the most recent offense, but rather to something which is wholly unrelated thereto. Further, they do not relate to determining what the accused has done, but rather to what the state has previously determined that he has done. And that previous determination must have been a formal, judicial determination of guilt; and hence one as to which the full measure of constitutional protections was available. [See Buckley v Butler, 825 F2d 895, 903 (CA 5, 1987). Emphasis in original.]
The pertinent sentence enhancement provision of the controlled substance act,
(2) Except as otherwise provided in subsections (1) and (3), an individual convicted of a second or subsequent offense under this article may be imprisoned for a term not more than twice the term otherwise authorized or fined an amount not more than twice that otherwise authorized, or both.
Under subsection 2, the trial judge may consider a defendant‘s prior offense if the present offense is a drug-related crime involving an amount less than fifty grams.33 In the present case, the defendant was convicted of a second offense of an amount less than fifty grams, and the trial judge imposed a maximum sentence of forty years, twice the twenty-year maximum otherwise authorized.
It is clear that neither the statute nor its predecessor34 requires an information filed prior to trial
This Court‘s reference to Wright,36 in Urynowicz, mandating specific pleading or proof of recidivism that triggers enhanced sentencing. United States v Hawkins, 811 F2d 210 (CA 3, 1987); Field v Sheriff of Wake Co, NC, 831 F2d 530 (CA 4, 1987); United States v Affleck, 861 F2d 97 (CA 5, 1988); United States v Brewer, 853 F2d 1319 (CA 6, 1988); United States v Jackson, 262 US App DC 294; 824 F2d 21 (1987); United States v Rush, 840 F2d 574 (CA 8, 1988) (en banc); United States v West, 826 F2d 909 (CA 9, 1987); United States v Gregg, 803 F2d 568 (CA 10, 1986), cert den 480 US 920 (1987).
The act authorized the sentencing judge to enhance the punishment for certain individuals. If a defendant was a second, or subsequent drug offender, the statute did not contemplate a separate proceeding. In People v McFadden, 73 Mich App 232, 234; 251 NW2d 297 (1977), the defendant argued that the procedural requirements of the habitual offender act should be applied to this section of the controlled substance act. The Court held there was no express statutory requirement that the habitual offender act be applied to this provision and, further, the fact that the Legislature did not write the procedural requirements of the earlier habitual offender act into the controlled substance provision indicated no intent to provide such safeguards. Id., pp 234-235.
However, in 1979 this Court remanded a case for resentencing on the basis that the trial court improperly imposed a double sentence pursuant to
CONCLUSION
In this case, the defendant contends he did not receive the notice required under People v Shelton. He does not contend he was denied a reasonable opportunity to contest the information in the presentence report.38 Although we hold that the fourteen-day rule in Shelton is not applicable to sentence enhancement authorized under this statute, we observe that due process requires notice of the information in the presentence report sufficiently in advance of sentence to provide a meaningful opportunity to contest its accuracy.39 Thus, we would remand the case to the trial court if we were unable to determine that the defendant was provided a reasonable opportunity to respond to the accuracy of the information in the report.
Here, the record confirms that counsel reviewed the presentence report and guidelines with the defendant, that defendant was given an opportunity to respond to the accuracy of the information
Accordingly, we reverse the decision of the Court of Appeals and reinstate the sentence imposed below.
RILEY, C.J., and BRICKLEY and GRIFFIN, JJ., concurred with BOYLE, J.
CAVANAGH, J. (concurring). I agree with the majority that the Legislature did not intend defendant‘s status as a second offender under subsection (2) of § 7413 of the controlled substances act,
However, I do not join the lead opinion‘s suggestion that no additional procedural protections are required under the Due Process Clause in a case, like this one, in which a factual finding at sentencing, unrelated to the proof establishing a defendant‘s underlying conviction, doubles the maximum sentence to which the defendant is exposed. As I interpret Specht v Patterson, 386 US 605, 610; 87 S Ct 1209; 18 L Ed 2d 326 (1967), and McMillan v Pennsylvania, 477 US 79; 106 S Ct 2411; 91 L Ed 2d 67 (1986), before an enhanced penalty under § 7413(2) may be imposed, a defendant is entitled to contest his alleged prior-offender status at an adversarial hearing where the prosecution carries the burden of proving the
Nevertheless, even though the record permits an inference of inadequate notice and unintelligent waiver, this defendant simply has not raised such a claim. The defendant has never suggested that he or his counsel had inadequate time or information to prepare to contest his alleged prior conviction. Nor did he or his counsel request a continuance for that purpose either when the sentencing judge questioned defense counsel about the accuracy of the allegations in the presentence report, which included reference to defendant‘s prior drug conviction, or when the enhancement issue was subsequently raised by the judge. Defendant has never, even in this Court, claimed that he did not commit the prior offense or that the prior conviction is somehow invalid. He claims only that the absence of a separate charge and accompanying proof of his prior conviction requires his enhanced sentence to be vacated, and does not demand an opportunity to contest his prior conviction on remand. Absent either a claim by the defendant that his admission of his prior conviction was not knowing or voluntary, or a showing of prejudice,2 I
ARCHER, J., concurred with CAVANAGH, J.
LEVIN, J. (to affirm). Eason was charged with possession with intent to deliver less than 50 grams of a mixture containing cocaine.1 The prosecutor did not charge Eason as a repeat offender in the information charging the current offense, nor did the prosecutor file a supplemental information within fourteen days after Eason‘s arraignment. Eason was convicted as charged. On the basis of a prior drug-related conviction, Eason was sentenced to imprisonment for twenty to forty years.2
The Court of Appeals affirmed Eason‘s conviction but concluded that the procedures applicable under the habitual offender provisions of the Code of Criminal Procedure3 also apply where the prose-
The majority holds that the procedures applicable to sentence enhancement under the habitual offender provisions of the Code of Criminal Procedure do not apply to sentence enhancement under the controlled substances article. The majority goes on to hold that the “procedures” in the instant case were not violative of the Due Process Clause.
I agree with the majority that the Due Process Clause of the Fourteenth Amendment does not require the prosecutor to notify a defendant before trial on the current offense that, if he is convicted of that offense, he is subject to sentence enhancement on the basis of a prior conviction of a similar offense.
I would hold that the procedures applicable under the habitual offender provisions of the Code of Criminal Procedure apply to sentence enhancement under the controlled substances article. I would affirm the decision of the Court of Appeals
I
Under both the controlled substances article of the Public Health Code and its predecessor, the Controlled Substances Act, this Court has required the prosecutor to charge the defendant as a second or subsequent offender when seeking sentence enhancement.6
A
The only decision of this Court concerning the procedures to be followed when the prosecutor sought sentence enhancement under the Controlled Substances Act is People v Wright, 405 Mich 832; 275 NW2d 1 (1979). There, the defendant was charged with delivery of cocaine7 and conspiracy to deliver cocaine.8 The prosecutor did not charge Wright as a second offender.9 Wright was convicted as charged.
Wright argued on appeal that he had been
This Court issued a peremptory order vacating Wright‘s sentences, and remanded the case for resentencing:
The sentencing court improperly imposed double sentence pursuant to
MCL 335.348 ;MSA 18.1070(48) . Oyler v Boles, 368 US 448; 82 S Ct 501; 7 L Ed 2d 446 (1962). SeeMCL 769.10 ;MSA 28.1082 , as amended by 1978 PA 77.
In Oyler v Boles, cited by this Court in Wright, the United States Supreme Court said that “a defendant must receive reasonable notice and an opportunity to be heard relative to [a] recidivist charge,” but that “due process does not require that notice be given prior to the trial on the substantive offense.”12
The suggestion that this Court in Wright misunderstood the United States Supreme Court‘s ruling in Oyler is unsupported by the language of the order in Wright14 and (see n 11 and the accompanying text) by the contentions of the parties. There is evidence that the Court understood the applicable law.
B
The Controlled Substances Act was repealed in 1978 and the Public Health Code was simultane-
Any person convicted of a second or subsequent offense under this act may be imprisoned for a term up to twice the term otherwise authorized or fined an amount up to twice that otherwise authorized, or both. [1971 PA 196,
MCL 335.348(1) ;MSA 18.1070(48)(1) .]Oyler was notified before the sentencing hearing that the prosecutor was filing a supplemental information charging him as an habitual offender. Wright received no notification before the sentencing hearing was under way. Wright did not, however, as noted above, predicate his due process claim on the prosecutor‘s failure to provide earlier notice.
The procedural requirements for sentence enhancement under the new law were first addressed in People v Stout, 116 Mich App 726; 323 NW2d 532 (1982). Stout was charged with possession of less than 50 grams of cocaine,16 and possession of marihuana.17 The prosecutor filed a supplemental information charging Stout under the habitual offender provisions of the Code of Criminal Procedure.18 Stout was convicted as charged. The trial court dismissed the supplemental information, and sentenced Stout for the cocaine conviction pursuant to the repeat offender provision of the controlled substances article.19
Stout argued on appeal that his sentence should be vacated because he was not given notice of the repeat offender charge and because there was no hearing or trial concerning his prior drug-related convictions. The Court of Appeals agreed. Relying primarily on this Court‘s opinion in People v Urynowicz, 412 Mich 137; 312 NW2d 625 (1981) (per curiam),20 the Court of Appeals said:
In our view ... Urynowicz makes clear that a subsequent drug offender‘s sentence may not be enhanced unless the prior drug offense is charged in either the information or a supplemental information and the prosecutor proves that the defendant is a recidivist drug offender. [Stout, supra, p 735. Emphasis in original.]
Since the trial court dismissed the supplemental information charging Stout under the habitual offender provisions of the Code of Criminal Procedure, and the prosecutor had not proved Stout‘s prior drug-related convictions, the Court of Appeals held that sentence enhancement was improper.21
This Court has twice vacated sentences enhanced under the controlled substances article because the defendant was not charged as a second or subsequent offender. People v Lester, 417 Mich 927; 330 NW2d 854 (1983); People v Cobb, 422 Mich 901; 367 NW2d 335 (1985). In these cases, unlike Wright, supra, the Court‘s orders mention the prosecutor‘s failure to charge the defendant as a repeat offender as the basis for holding that sentence enhancement was improper.22
II
The Court‘s decisions applying the sentence enhancement provisions for repeat drug offenders are
A
The Michigan liquor law authorized sentence enhancement for a second or subsequent conviction without specifying the procedures to be followed when the prosecutor sought sentence enhancement.
1
In People v Ancksornby, 231 Mich 271; 203 NW 864 (1925), the defendant was charged with unlawful possession of intoxicating liquor and with selling and furnishing as a first offender. Ancksornby pled guilty to the information and, on the basis of an alleged post-plea acknowledgment of a prior conviction under the liquor law, the trial court imposed an enhanced sentence.24
Ancksornby appealed on the ground that an enhanced sentence could not be imposed because the prosecutor had not charged him as a second offender. The prosecutor confessed error.25 This Court held that Ancksornby‘s sentence was excessive and illegal:
The trial judge was in error. He sentenced the defendant for an offense of which he had not been convicted. The statute provides an increased punishment for a second or subsequent offense, but it must be charged as such in the information. That was not done in this case. [Id., p 272.]
In People v McDonald, 233 Mich 98; 206 NW 516 (1925), the defendant was charged in the complaint and the information with unlawful possession of intoxicating liquor as a second offense. McDonald was tried, convicted and sentenced accordingly. At the preliminary examination, how-
The Court said that “[t]he information must contain an averment of former conviction ... to justify a conviction and sentence therefor.”26 Although the former conviction was alleged in the information, “[a]s there was no proof of a former conviction submitted on the examination had, the averment thereof should have been stricken from the information and the objection of the defendant to the introduction [at the trial] of proof thereunder sustained.”27 McDonald was followed in People v Van Vorce, 240 Mich 75, 78; 215 NW 5 (1927).
2
Referring to Ancksornby, McDonald, and Van Vorce, the majority says that the “better construction” of those decisions is that “the Court construed the legislation in question as necessarily requiring a separate information filed to provide the opportunity for a preliminary examination for the defendant and to provide the circuit court with jurisdiction.”28 The majority also appears to suggest that a first offense was a misdemeanor, while a second or subsequent offense was a felony, and that the distinction is somehow significant.29
The majority‘s attempt to distinguish Anck-
The majority is again incorrect when it asserts that in the liquor law cases a first offense was a misdemeanor while a second or subsequent offense was a felony. When the liquor law was initially enacted, a first offense was indeed a misdemeanor.31 By the time the Court decided Ancksornby, McDonald, and Van Vorce, however, the Legislature had amended the liquor law to make a first offense a felony.32 In any event, the misdemeanor/felony distinction—now determinative of whether a preliminary examination is required33 and the jurisdictions of the district and circuit courts34—
B
Another statutory scheme that authorizes sentence enhancement for a second or subsequent conviction without specifying the procedures to be followed when the prosecutor seeks sentence enhancement concerns driving under the influence of alcohol.
1
The Attorney General issued an opinion in 1940 concerning the proper practice when prosecuting a person who had previously been convicted of driving under the influence of alcohol.36 The Attorney General said:
We feel that the proper procedure to be followed in cases of this nature is to charge the offender with a second or subsequent offense in the original
complaint, have a preliminary examination before the proper magistrate, and in the event that the magistrate finds probable cause, have the accused bound over to the circuit court to stand trial. The information would charge a second or subsequent offense so as to apprize the accused and the court of the fact that such a second offense is charged. [OAG, 1939-1940, p 427 (February 29, 1940).37 Emphasis added.]
In People v Bosca, 25 Mich App 455; 181 NW2d 678 (1970), the information charged the defendant as a second offender under the drunk driving law.38 Bosca moved to quash the information on the basis that it was defective because it alleged both the current and the prior offense. The trial court denied Bosca‘s motion. The Court of Appeals affirmed, holding that “before a defendant‘s punishment for the current offense can be enlarged, the earlier conviction must be charged and proved.”39
2
The majority cites People v Mellor, 302 Mich 537; 5 NW2d 455 (1942), a case involving a second conviction of drunk driving, in support of its argument that a prosecutor is not required to charge a prior conviction because an earlier conviction is merely a factor for the judge to consider in sentencing and not an element of a new charge.42 The defendant in Mellor was charged,43 convicted, and sentenced44 as a second offender. On appeal, Mellor argued that the prior conviction and the current
The Court rejected Mellor‘s contention and said that it was not error to allege both the current offense and the prior conviction in the same count.46 The Court did not say that there was no need to charge a defendant as a second offender—Mellor had been so charged.47
3
The majority appears to attempt to distinguish drunk driving from the case at hand on the basis that a prior conviction is an “element” of a repeat drunk driving offense because a first offense is a misdemeanor whereas a subsequent offense may be a felony.48
The majority also says that the “better construction” of the drunk driving laws is that “the Court construed the legislation in question as necessarily requiring a separate information filed to provide the opportunity for a preliminary examination for the defendant and to provide the circuit court with
The jurisdictional significance of the availability of an enhanced sentence was indeed one basis for the Attorney General‘s opinion in 1940.54 It was not, however, the only basis for the Attorney General‘s opinion.55 Nor was it a basis of the Court of Appeals decision in Bosca.56
C
Still another statutory scheme that authorizes sentence enhancement for a second or subsequent conviction without specifying the procedures to be followed when the prosecutor seeks sentence enhancement is found in the provisions of the Penal Code concerning criminal sexual conduct.
1
This Court construed those provisions in People v Urynowicz, 412 Mich 137; 312 NW2d 625 (1981) (per curiam). The information charged Urynowicz
When taking Urynowicz’ plea, the trial court told him that the maximum punishment for first-degree criminal sexual conduct was life imprisonment, but did not inform him of the mandatory five-year minimum sentence for a second conviction of criminal sexual conduct. Urynowicz was sentenced to life imprisonment.
The Court of Appeals reversed Urynowicz’ conviction on the basis of the trial court‘s failure to inform Urynowicz of the mandatory minimum sentence.60 The prosecutor argued that the provision requiring a five-year minimum sentence was not operative in Urynowicz’ sentencing61 because
This Court agreed with the prosecutor‘s analysis. The Court first observed that “[w]e have said in the past that second-offender provisions with mandatory sentence enhancement require that the information must charge the earlier conviction before a defendant may be liable for the additional punishment.”62 After reviewing the decisions of this Court and the Court of Appeals, the Urynowicz Court concluded:
We believe that [the Court of Appeals] captured the essence of this Court‘s earlier decisions when [it said] in Bosca that “before a defendant‘s punishment for the current offense can be enlarged, the earlier conviction must be charged and proved.” This defendant was not charged under § 520f. Consequently, there was no mandatory minimum of which advice ... was required. [Id., pp 143-144 (quoting Bosca, supra, p 458).]63
2
The majority would jettison Urynowicz on the basis that “the Court erred in Urynowicz in concluding due process requires a separate proceeding and proof before enhancing the sentence of a second offender.”64 The alleged flaw in Urynowicz is the Court‘s reference to Wright.65 The majority
The majority‘s contention that Urynowicz was wrongly decided is predicated on two assumptions: 1) this Court decided Wright on the basis of an incorrect reading of the United States Supreme Court‘s decision in Oyler; and 2) this Court compounded its error by mentioning Wright in Urynowicz. As previously discussed, however, Wright was not decided on the basis of a mistaken belief that the Due Process Clause of the Fourteenth Amendment always requires notice of the possibility of sentence enhancement before trial on the most recent offense.67 Further, the decision in Urynowicz contains an accurate description of the United States Supreme Court‘s holding in Oyler,68 and of this Court‘s order in Wright.
Even if the reference to Wright in Urynowicz did evidence a mistaken belief that the Due Process Clause of the Fourteenth Amendment was
III
In requiring the prosecutor to charge the defendant as a second or subsequent offender when seeking an enhanced sentence, this Court has followed the rule advocated by most legal authorities and adopted in most jurisdictions.
A
The principle that an accused, subject to a heavier penalty because of his recidivism, must be charged as a recidivist resounds in legal treatises and encyclopedias:70
[T]he indictment must set out every element of crime which enters into the punishment, since otherwise it does not set out fully the
offense .... [Bishop, Statutory Crimes, § 167, p 184.] [U]nder ordinary forms of the statutory provision, if the offence is the second or third, and by reason thereof the punishment is to be made heavier, this fact must appear in the indictment; because by the rules of criminal pleading, every particular which makes heavier the punishment to be inflicted must be set out. [Bishop, Criminal Law (9th ed), § 961, pp 710-711.]
The indictment must allege every fact and modification of fact legally essential to the punishment to be inflicted. [I Bishop, New Criminal Procedure (2d ed), § 81.]
The result is that in every case, with no exception, the common law requires each individual thing which itself or a statute has made in that wrongful aggregation out of which the punishment proceeds, to be alleged in the indictment. [Id., § 84.]
In most jurisdictions, by statute, a person who has been convicted of certain offenses, like larceny or the unlawful sale of intoxicating liquors or drunkenness, for instance, is rendered liable to an increased punishment for a second or third offense. The previous conviction enters into the second or third offense to the extent of aggravating it, and increasing the punishment; and, where it is sought to impose the greater penalty for a second or third offense, the previous conviction or convictions, like every other material fact, must be distinctly alleged in the indictment. [Clark, Criminal Procedure, § 84, p 204.]
There are many cases in which a second conviction changes the grade of the offense or authorizes the infliction of an increased punishment, and where this is the case the former conviction enters as an element into the new offense and should be alleged as a necessary part of the description and character of the crime intended to be punished directly and not by recital. [Joyce, Indictments (2d ed), § 449, p 516.]
So a sentence to an increased penalty, imposed by statute upon a second conviction, cannot be rendered, except upon an allegation in the indictment, and upon proof, of a prior conviction. [Joyce, supra, p 518.]
Where a second conviction changes the grade of an offense, or authorizes a higher penalty than could otherwise be imposed, the former conviction enters as an element into the new offense, and must be alleged and proved as a necessary part of the description and character of the crime intended to be punished. [8 Ruling Case Law, § 293, p 276.]
A person accused of crime as a recidivist is entitled to be informed by indictment or information that he is being charged as such. [39 Am Jur 2d, Habitual Criminals and Subsequent Offenders, § 20, p 324.]
In some jurisdictions statutes have been enacted which, without setting up more than one offense or more than one degree of the same offense, permit the infliction of a heavier sentence when it is shown that the accused committed the crime in question under circumstances showing aggravation. The decisions construing these statutes have
generally taken the position that in order to justify the imposition of the higher sentence, it is necessary that the matter of aggravation relied upon as calling for such sentence be charged in the indictment or complaint. [4 Anderson, Wharton‘s Criminal Law & Procedure, § 1788, p 610.] An indictment under which it is sought to impose a higher penalty by reason of a previous conviction must allege the fact of such conviction. [1 McClain, Criminal Law, § 28, p 28.]
B
In numerous cases decided in a host of other states, courts have held that repeat offenders, subject to heavier penalties because of their recidivism, must be charged as second or subsequent offenders71 although the statutes, analogous to the
Many of these cases, like the instant case, involve sentence enhancement provisions contained in drug offense statutes. Louisiana courts have required that prosecutors seeking heavier sentences against repeat offenders of a statute criminalizing possession of marijuana,72 include in the bill of information an allegation that the crime is a multiple offense. See State v Bouzigard, 286 So 2d 633 (La, 1973).73
In the case of a defendant charged with distribution under the Controlled Dangerous Substances Act, the Louisiana court held that a defendant not charged as a second offender for distributing ethchlorvynol could not be sentenced as such.74
In Sparkman v State Prison Custodian, 154 Fla 688; 16 So 2d 772 (1944), the Florida Supreme Court, citing numerous Florida and other state cases75 where it was held that the fact of prior conviction(s) must be alleged to subject an accused to enhanced penalties, held that the general rule applied as well to prosecutions under the Uniform Narcotic Drug Law.76
[W]e think the defendant was entitled to know, and to be specifically advised by the information of the specific offense with which he was charged and the seriousness thereof, including the class of felony of which he stood accused. The information before us recited the prior conviction in detail, and noted that the offense charged was a class B felony. This gave the defendant proper notice of the charge. [Id., p 159.]
Other cases where courts have required that earlier convictions be charged under sentence enhancement provisions of the Uniform Drug Act include: People v Hightower, 414 Ill 537; 112 NE2d 126 (1953), cert den 346 US 875 (1953), app den 346 US 882 (1953), and State v Holloway, 144 Conn 295; 130 A2d 562 (1957).
See also People v Breitweiser, 44 Ill App 3d 284; 357 NE2d 890 (1976), where the court required that a defendant, subject to higher penalties under a sentence enhancement provision of the Cannabis Control Act, have been charged with his previous convictions.
A complaint charging the defendant with drunk driving under this statute and also with a second or subsequent conviction within five years, requires procedurally that each be the subject of a separate count. [Id., p 298.]77
In Smith v State of Florida, 75 Fla 468; 78 So 530 (1918), the defendant was charged with a violation of the beverage laws of that state. The Florida Supreme Court held that the defendant must be charged with prior offenses if it is intended that he be charged as a second offender. Id., p 473.78 Similarly, Kentucky courts have required that defendants subject to severer punishment under the sentence enhancement provision of the Prohibition Act be charged with the previous convictions.79
“The indictment charging any offense under this section shall contain the same allegations as prior to the adoption of this section.”80
The Georgia Supreme Court said:
Prior to the adoption of such section, it had been consistently held that where the State sought to impose a greater penalty for an illegal act because of the defendant‘s alleged “incorrigible and dangerous character” resulting from prior convictions, such prior convictions must be alleged in the indictment .... [Citations omitted.] Such allegations are necessary to inform the defendant of the nature of the offense with which he is charged since they involve the penalty which may be invoked.81
Illinois cases have similarly so held with respect to
See also State v Briggs, 94 Kan 92; 145 P 866 (1915), app dis 242 US 615 (1916), where the Supreme Court of Kansas applied the general rule to the recidivist provision in the Kansas Prohibitory Liquor Law.
In cases focused on sundry other types of statutes, e.g., statutes prohibiting illegal cohabitation,83 joyriding,84 lotteries,85 unlawful use of weapons,86 pandering,87 prostitution,88 and insufficient fund checks,89 courts have required that prosecutors seeking increased sentences, charge the accused with the prior conviction(s).
The majority departs from this long-settled and widely accepted rule.
C
Particularly relevant are cases in which this general rule was followed although the Legislature had enacted other sentence enhancement statutes containing explicit procedural safeguards.
In Haffke v State, 149 Neb 83; 30 NW2d 462 (1948), the Supreme Court of Nebraska was called upon to decide what procedures must be followed when imposing an enhanced sentence for second or subsequent convictions of driving under the influ-
While the above statute by its terms applies only to the Habitual Criminal Act, yet it announces rules of practice and procedure that, as a matter of sound public policy, should apply to any statute which imposes the duty upon a court to inflict a greater punishment upon the repetition of an offense. [Id. at 95.]
Other cases where courts required prosecutors to charge defendants as repeat offenders under “procedurally silent” statutes even though habitual offender statutes in the jurisdictions expressly provided that defendants must be charged as habitual violators, include State v McClay, 146 Me 104; 78 A2d 347 (1951),93 People v Hightower, 414 Ill 537; 112 NE2d 126 (1953),94 People v Ratner, 67 Cal App 2d Supp 902; 153 P2d 790 (1944),95 and State v Waller, 167 Ind App 231; 339 NE2d 61 (1975).96
Many of the cases and authorities cited in the preceding sections predate the enactment of habitual offender provisions in this and other states.97 Thus, the principle that a defendant may not be sentenced as a recidivist unless he was charged as a recidivist predates the enactment of habitual offender statutes. This principle was developed by the courts over the course of several decades in applying procedurally silent sentence enhancement provisions.
I agree with the majority98 that the Legislature‘s intent should be considered in deciding whether the prosecutor must charge a defendant as a repeat offender.
A
A statute should be construed to avoid absurd or
1
The Code of Criminal Procedure provides for sentence enhancement where a defendant who is convicted of a felony has previously been convicted of one or more felonies.100 These habitual offender provisions are not limited to cases where the defendant‘s most recent conviction is for the same or a similar offense as his prior conviction(s).
When the prosecutor seeks sentence enhancement under the habitual offender provisions, the general rule is that he must file a supplemental information charging the defendant as an habitual offender within fourteen days of the arraignment
ings to sentence the defendant as an habitual offender.102
The rules of practice and procedure that have been developed for prosecutions under the habitual offender provisions are based on this Court‘s construction of the relevant statutes,103 and its exercise of its supervisory power over the practices and procedures in the courts of this state.104 Those rules are not based on the
2
Under the habitual offender provisions, where a defendant with one prior felony conviction is convicted of a felony that is punishable “by imprisonment for a term less than life,” the trial court “may place the person on probation or sentence the person to imprisonment for a maximum term which is not more than 1 1/2 times the longest term prescribed for a first conviction of that offense or for a lesser term.”106
Under the sentence enhancement provision of the controlled substances article, where a defendant with one prior drug-related conviction is convicted of another drug-related offense, he “may
The construction placed on the controlled substances article by the majority attributes to the Legislature an intention to provide a defendant facing a possible fifty percent increase in the maximum sentence with the right to be informed of that possibility at an early stage in the proceedings, but deny early notice to a defendant who is facing a possible one hundred percent increase. It attributes to the Legislature an intention to provide a defendant facing a possible five- or ten-year increase in the maximum sentence with early
The majority‘s construction thus attributes to the Legislature a purpose to act in disregard of the conception that the quantity and quality of needed procedural safeguards should be in direct relation to the severity of the possible penalty. I would wait for a clear expression of legislative intent before abandoning the well-established rule that the prosecutor must charge the defendant as a repeat offender when seeking an increased sentence on the basis of a prior conviction.
B
When the Legislature enacted the controlled substances article of the Public Health Code, it is presumed to have acted in contemplation of the longstanding and unbroken rule that the prosecutor is required to charge the defendant as a repeat offender whenever sentence enhancement is sought on the basis of a prior conviction.109 This has been the rule without regard to whether the statute that authorizes sentence enhancement contained an express requirement that the prosecutor charge the defendant as a repeat offender.
The Legislature could have provided for a depar
In not expressly requiring the prosecutor to charge the defendant as a repeat offender, the sentence enhancement provision of the controlled substances article is similar to the sentence enhancement provisions for second or subsequent convictions of criminal sexual conduct, driving under the influence of alcohol, and violation of the liquor law. And in every single case in which the question was raised, this Court has held, or has expressly approved a decision of the Court of Appeals which held, that the prosecutor must charge the defendant as a repeat offender when seeking sentence enhancement.113
This Court has, on several occasions, endorsed the view expressed by Justice Brandeis in his dissenting opinion in Burnet v Coronado Oil & Gas Co, 285 US 393, 406; 52 S Ct 443; 76 L Ed 815 (1932), where he said:
Stare decisis is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than that it be settled right. This is commonly true even where the error is a matter of serious concern, provided correction can be had by legislation.114 [Emphasis in original; citations omitted.]
D
The prosecutor argues, and the majority agrees, that it was the Legislature‘s intention that the prosecutor would not be required to give early notice of the possibility of sentence enhancement to a defendant who has a prior drug-related conviction. It is said that since the Legislature “required” the prosecutor to charge a defendant as a repeat offender under the habitual offender provi
It is again relevant that this Court has always required the prosecutor to charge the defendant as a repeat offender even when such a requirement was not mandated by the literal language of the statute authorizing sentence enhancement. Given this longstanding and unbroken rule, there was no reason for the Legislature to set forth in the controlled substances article a requirement that the prosecutor charge the defendant as a repeat offender. The Legislature‘s “omission” amounted to nothing more than a failure to restate a proposition that had always been thought obvious.
It is also relevant that the requirement that a prosecutor give early notice of the possibility of sentence enhancement to a defendant in an habitual offender proceeding is the product of this Court‘s construction of the applicable statutes and of the exercise of its supervisory authority over the courts of this state.116 The literal language of the habitual offender provisions no more requires early notice than does the literal language of the other sentence enhancement statutes where the Court has imposed a similar requirement. In this respect, there is no difference between the literal language of the various statutes.
The majority‘s argument is based on the “theory” that the Legislature acted with a selective memory. The majority asserts that the Legislature enacted the controlled substances article in contemplation of this Court‘s decisions that the prose
The majority says that it is “highly doubtful that the Legislature was deemed to be aware of decisions of this Court and relied on liquor law cases from the mid-1920‘s ....”117 If this is true, then it is also “highly doubtful” that the Legislature acted in contemplation of the habitual offender provisions of the
In emphasizing the alleged verbal differences between the habitual offender provisions and the sentence enhancement provision of the controlled substances article, the majority employs a mode of analysis that has never before been thought to be persuasive. In McDonald,119 the Court held that the information must contain an allegation of prior conviction even though the statute authorizing sentence enhancement did not expressly so require, and in support of the rule there announced cited decisions involving sentence enhancement statutes that expressly required the prosecutor to charge the defendant as a repeat offender.120 So too in Urynowicz,121 and so too in the Attorney General‘s opinion concerning second or subsequent con
In sum, the basis for the majority‘s assertion concerning legislative intent is a distinction that has never before been thought significant.
E
The majority would reject the longstanding and unbroken rule that the prosecutor must charge the defendant as a repeat offender whenever sentence enhancement is sought on the basis of a prior conviction. It is a rule that until today was thought to be obvious-so obvious that the prosecutor in Ancksornby confessed error for failing to charge the defendant as a second offender,125 the prosecutor in Urynowicz advanced this rule before the Court,126 and the Attorney General adopted the rule in his 1940 opinion.
When the unsupportable characterizations and unpersuasive distinctions of the Court‘s precedents are “set aside,”127 the only basis for the majority‘s
This Court has not said that notice of the possibility of sentence enhancement before trial on the current offense was mandated by the
V
Enough prologue. Correct analysis should begin with the
A
In People v Judge of Recorder‘s Court, 251 Mich 626; 232 NW 402 (1930), decided three years after passage of the
This Court held that in light of the
Prior to the criminal code [1927 PA 175], there was no provision in the law for an independent trial to determine the fact of a prior conviction. It was tried out in the trial for the subsequent offense. It was necessary to charge it in the complaint and warrant and prove it on the examination and trial unless examination was waived. Otherwise the court was without jurisdiction to consider it in imposing sentence. But [1927 PA 175, ch IX, § 13], authorizes an independent trial of that question on the filing of a supplemental information after conviction and sentence for the subsequent offense. ... The purpose of an examination is to determine if a crime has been committed and if there is probable cause for believing the accused party committed it. If no crime is charged, an examination is not required. In People v Palm, 245 Mich 396 [223 NW 67 (1929)], it was held that a supplemental information, filed after conviction,
alleging a prior conviction, does not charge any crime. [Id., p 627. Emphasis added.]133
The Court‘s statements indicate that it was not until the enactment of the
B
The lack of jurisdiction, adverted to in Judge of Recorder‘s Court and remedied in part by the enactment of the
Such a narrow reading of this Court‘s precedents concerning the jurisdiction of trial courts to impose enhanced sentences is, again, negatived by other decisions of this Court applying statutes that did not specify any particular procedures to be followed when seeking sentence enhancement on the basis of a prior conviction, as in People v McDonald, 233 Mich 98; 206 NW 516 (1925), where the Court held that “[t]he information must contain an averment of former conviction, and there must be proof on the trial to maintain it, to justify a conviction and sentence therefor.”137 The Court explained:
The violation complained of is aggravated by the fact of his former conviction. He is thereby subjected to an enhanced penalty. The purpose of averring and proving it is to give the court jurisdiction to impose it. [Id., p 103. Emphasis added.]
The jurisdictional significance of proceeding from the commencement of prosecution against the defendant as a repeat offender-even where the statute authorizing sentence enhancement did not expressly so require-was confirmed in In re Brazel, 293 Mich 632; 292 NW 664 (1940), where this Court compared the pre-Code habitual of
The Court first noted the statement in People v Campbell, 173 Mich 381, 386; 139 NW 24 (1912), that charging the defendant as a repeat offender was necessary to give the trial court the authority to sentence the defendant as an habitual offender. The Court then said:
It will be noted that [the habitual offender provisions] contained the express mandate that the prior convictions be alleged in the indictment on which conviction of any offense is had.
This was not true of the prohibition law of 1917, as amended, which contained certain provisions in respect to increased punishment for second and subsequent offenses. Attention is called to [1917 PA 338], where it will be noted that there was no provision requiring the prior convictions to be alleged in the indictment. However, this court held that in order to confer jurisdiction the information must include allegations which specify the prior convictions and that a respondent under such circumstances was entitled to a preliminary examination.138 [Brazel, p 639. Emphasis added.]
In speaking of “jurisdiction,” the Court was not referring to the respective jurisdictions of the circuit court and of the justice of the peace.139 When the Court decided the liquor law cases, the
The Court‘s references to “jurisdiction” were references to the authority of a court-any court-to impose an enhanced sentence on the basis of a prior conviction. Before enactment of the
C
It is against this historical background that the Court should consider the prosecutor‘s argument that the procedural safeguards applicable under the habitual offender provisions of the
I would thus hold that it is not necessary for the defendant to have been charged in the complaint and warrant as a repeat offender or that some evidence respecting the prior conviction be presented at the preliminary examination. It is necessary, where the prosecutor knows of the defendant‘s prior conviction before trial on the most recent offense, that the prosecutor file a supplemental information charging the defendant as a repeat offender within fourteen days of the arraignment or before trial if the defendant is tried within that fourteen-day period.143 Where the prosecutor does not learn of the defendant‘s prior conviction until after the defendant is convicted of the most recent offense, the prosecutor may commence a postconviction proceeding to seek an enhanced sentence.144
I acknowledge that the habitual offender provisions now state that where the defendant‘s most
The prosecutor in this case did not file a supplemental information charging Eason as a repeat drug offender within fourteen days of Eason‘s arraignment. The Court of Appeals concluded that the exceptions to the fourteen-day rule were not applicable. I agree with that determination and would affirm the judgment of the Court of Appeals
Notes
[A]n individual convicted of a second or subsequent offense under this article may be imprisoned for a term not more than twice the term otherwise authorized or fined an amount not more than twice that otherwise authorized, or both. [
MCL 333.7413(2) ;MSA 14.15(7413)(2) .]
When Eason was sentenced, a person who was convicted of possession with intent to deliver less than 50 grams of cocaine “may be imprisoned for not more than 20 years, or fined not more than $25,000.00, or both.” 1978 PA 368, § 7401(2)(a)(iv).
When the prosecutor seeks sentence enhancement under the habitual offender provisions, the general rule is that he must file a supplemental information charging the defendant as an habitual offender within fourteen days of the arraignment or before trial if the defendant is tried within that fourteen-day period. People v Shelton, 412 Mich 565, 566; 315 NW2d 537 (1982) (per curiam). If the prosecutor does not learn of the defendant‘s prior felony conviction until after the defendant‘s conviction of the most recent offense, the prosecutor may institute postconviction proceedings to sentence the defendant as an habitual offender. See
See also
At the sentencing hearing in Wright, the trial court elicited an acknowledgment from Wright that he had previously pled guilty to a drug-related offense. The court then informed Wright, apparently for the first time, that he would be sentenced pursuant to the repeat offender provision of the Controlled Substances Act:
The majority also suggests that the reference to Wright in People v Urynowicz, 412 Mich 137, 143; 312 NW2d 625 (1981) (per curiam), is further evidence of this Court‘s misunderstanding of the United States Supreme Court‘s decisions under the Due Process Clause. See ante, p 250. That assertion is discussed in the text accompanying ns 64-69.
Any person, who ... shall violate any of the provisions of this act ... shall be deemed guilty of a felony, and upon conviction thereof be sentenced to pay a fine of not more than one thousand dollars and the costs of prosecution, or to imprisonment in the State Prison, Michigan Reformatory, or the Detroit House of Correction for a period of not less than six
months nor more than one year, or by imprisonment in the county jail for not less than thirty days, nor more than one year, or by both fine and imprisonment in the discretion of the court, and for every second and subsequent offense, so committed, ... he shall, upon conviction thereof, be sentenced to imprisonment in any penal institution of this State for a term of not less than six months nor more than two years, and in addition thereto the court may impose a fine not to exceed one thousand dollars. [1919 PA (Ex Sess) 3.]
Where the punishment provided by statute for a second offense is greater than that for a first offense, the authorities are unanimous that the information or indictment should specifically aver that the crime charged is a second offense.
* * *
The charge was of a first offense. The sentence was greater than that allowed by law for a first offense. We concede, therefore, that the case should be reversed, and the cause remanded to the Superior Court for a proper sentence .... [Emphasis added.]
Any other rule would place a difficult burden on the imposition of a recidivist penalty. Although the fact of prior conviction is within the knowledge of the defendant, often this knowledge does not come home to the prosecutor until after the trial, and in many cases the prior convictions are not discovered until the defendant reaches the penitentiary. [Id., p 452, n 6.]Ante, p 247, n 31.
If after conviction and either before or after sentence it appears that a person convicted of a felony has previously been convicted of crimes as set forth in section 10, 11, or 12, the prosecuting attorney of the county in which the conviction was had may file a separate or supplemental information in the cause accusing the person of the previous convictions. The court in which the conviction was had shall cause the person to be brought before it and shall inform him of the allegations contained in the information, and of his right to be tried on theSee ante, p 247, n 31 (“we find it highly doubtful that the Legislature ... relied on liquor law cases from the mid-1920‘s to require separate charges in the present cases, which involve sentence enhancement and not a separate felony charge as found in the liquor law cases cited by the dissent“).
Thus, it appears that the better construction of the cases discussed in the dissent is that the Court construed the legislation in question as necessarily requiring a separate information filed to provide the opportunity for a preliminary examination for the defendant and to provide the circuit court with jurisdiction.
Further, the question before the Court is one of legislative intent, and we find it highly doubtful that the Legislature was deemed to be aware of decisions of this Court and relied on liquor law cases from the mid-1920‘s to require separate charges in the present cases, which involve sentence enhancement and not a separate felony charge as found in the liquor law cases cited by the dissent.
See 1917 PA 338, § 51.(1) Any person convicted of a second or subsequent offense under this act may be imprisoned for a term up to twice the term otherwise authorized or fined an amount up to twice that otherwise authorized, or both.
(2) For purposes of this section, an offense is considered a second or subsequent offense, if, prior to his conviction of the offense, the offender has at any time been convicted under this act or under any statute of the United States or of any state relating to narcotic drugs, marihuana, depressant, stimulant or hallucinogenic drugs.
SeeIn People v Wright, 405 Mich 832 (1979), the Court examined the sentence enhancement provision of the Controlled Substances Act.
Every person who is convicted of a violation of section 3 of this act relating to ... driving or permitting driving while under the influence of intoxicating liquor ... shall be punished by imprisonment in the county jail or Detroit house of correction for not more than 90 days or by a fine of not less than $50.00 nor more than $100.00 or both such fine and imprisonment in the discretion of the court, together with costs of the prosecution. On a second or subsequent conviction he shall be guilty of a misdemeanor and punished by imprisonment for not more than 1 year, and, in the discretion of the court, a fine of not more than $1,000.00. [1939 PA 318.]
In our view the quoted language from Urynowicz makes clear that a subsequent drug offender‘s sentence may not be enhanced unless the prior drug offense is charged in either the information or a supplemental information and the prosecutor proves that the defendant is a recidivist drug offender. [Stout, supra, p 735.]
Likewise, this Court remanded a case for resentencing which posed the same issue as Wright, supra, and noted that a drug offender‘s sentence could not be enhanced unless the prosecutor complied with the procedures under the habitual offender act:
The Attorney General‘s opinion was based both on the effect of the availability of an enhanced sentence on the respective jurisdiction of the circuit court and justice of the peace and on established principles of the criminal law:Pursuant to
GCR 1963, 853.2(4) , in lieu of granting leave to appeal, the defendant‘s sentences are vacated and the matter is remanded on March 21, 1983, to the Genesee Circuit Court for resentencing. The defendant‘s sentence may not be enhanced pursuant toMCL 333.7413 ;MSA 14.15(7413) because he was not charged with being a subsequent offender.MCL 769.10 ,769.13 ;MSA 28.1082 ,28.1085 ; People v Urynowicz, 412 Mich 137 (1981); People v Stout, 116 Mich App 726, 734-735 (1982). [People v Lester, supra.]
If the original complaint did not contain an allegation charging a second offense then the offense would be cognizable by a justice of the peace and not a circuit court misdemeanor.
It has been generally held that, in order to subject the accused to the enhanced punishment for a second or subsequent offense, or as an habitual criminal, it is necessary to allege in the indictment the fact of a prior conviction or convictions. [Id. Citations omitted.]
The Attorney General cited, inter alia, Ancksornby and McDonald, supra, and Buck, Butler, and Campbell, n 26 supra.
If the defendant challenges the information, under
The Court of Appeals also held that the prosecutor would not be allowed to introduce evidence of Bosca‘s prior conviction unless the jury first returned a guilty verdict on the charged offense.
[H]e, the said Henry Mellor, having been heretofore, to-wit, on the 21st day of January, A.D. 1935, convicted in the Recorder‘s Court of the City of Detroit, Traffic and Ordinance Division, of the offense of operating a motor vehicle while under the influence of intoxicating liquor, and the offense heretofore set forth constitutes a second or subsequent offense; and the said Henry Mellor is so herein charged as a second or subsequent offender.
The Court: This is a case though of second offense. Sometimes the court feels that if the first offense is not too serious it entitles him to some consideration, but hardly on the second offense. One hundred dollars costs and ninety days and license revoked for one year.
This Court approved the Bosca Court‘s analysis in People v Urynowicz, 412 Mich 137, 143-144; 312 NW2d 625 (1981) (quoted in text accompanying n 63).The [Mellor] court‘s statements ... that the “former conviction was merely an additional fact or circumstance to be considered in imposing a severer penalty for the second conviction” and that “the prior offense is not an element of the instant offense,” cannot properly be read as negating the need both to charge and prove the earlier conviction before the punishment for the currently charged offense can be enhanced. The currently charged offense can in truth be charged and proved without reference to the earlier conviction. In that sense the earlier conviction is not, as said in Mellor, an element of the “instant [or current] offense.” But, nevertheless, before a defendant‘s punishment for the current offense can be enlarged, the earlier conviction must be charged and proved.
Without such notice a defendant would not know whether the punishment which he faces upon a conviction is that which may be meted out to first offenders (90 days and $100) or second offenders (1 year and $1,000). A defendant needs this information, not only to decide whether it is in his interest to plead guilty but also in deciding whether to engage an attorney and the vigor of the defense which he may wish to put forth.
The holding in Bailey is in direct conflict with this Court‘s subsequent holding in Urynowicz.
In People v Wright, 405 Mich 832 (1979), the Court examined the sentence enhancement provision of the Controlled Substances Act.
MCL 335.348 ;MSA 18.1070(48) . The defendant had been charged only with delivery of cocaine and conspiracy to deliver cocaine, but he was sentenced as a second offender to twice the term of imprisonment authorized. The Court said that doubling the sentence was improper and cited Oyler v Boles, 368 US 448; 82 S Ct 501; 7 L Ed 2d 446 (1962), in which the United States Supreme Court required, as a matter of due process, that a defendant receive reasonable notice and an opportunity to be heard on a recidivist charge.
The doctrine that when a statute imposes a greater punishment upon second and subsequent convictions of an offense, that the former conviction must be alleged in the indictment and proved at the trial, or the same can only be punished as a first offense, is sustained by the great weight of the authorities.
Accord State v Ruble, 77 ND 79, 80; 40 NW2d 794 (1950), State v Cameron, 126 Vt 244, 246-247; 227 A2d 276 (1967), In re Harris, 80 Cal App 2d 173, 176-177; 181 P2d 433 (1947), and Haffke v State, 149 Neb 83, 88-89; 30 NW2d 462 (1948).The weight of authority supports the view that, with no statutes to the contrary, in order to subject the defendant to an enhanced punishment for a second or subsequent offense, it is necessary to allege the prior conviction in the complaint or information.
In People v Ratner, 67 Cal App 2d Supp 902, 903-904; 153 P2d 790 (1944), the court, quoting Massey v United States, 281 F 293, 297 (CA 8, 1922), noted:
“It is the established rule, under such statutes, unless the statute designates a different mode of procedure, that, if the prosecutor desires to invoke the severer punishment provided as to second or subsequent offenders, the indictment or information must allege the fact of the prior conviction, and the allegation of such conviction must be proved in the trial to the jury.” Some forty-five authorities were cited in support of the statement and more may be found in [State v Scheminisky, 31 Idaho 504, 507-508; 174 P 611 (1918), and the annotations in 58 ALR 64, 82 ALR 366, 116 ALR 229, 132 ALR 107, and 139 ALR 689].
The citation in Sparkman, a sentence enhancement case, of Brown, an habitual offender case, bespeaks the court‘s view (a view shared by many other states) that there is no distinction between the procedures applicable under these two statutory patterns.
Admittedly the statute involved in the instant case differs from those statutes discussed in [State v Curtis, 152 So 2d 754 (Fla App, 1963)] in that under the Narcotic Drug Law both first and second offenses are felonies while under the lottery laws a second offense changes the character of the crime from misdemeanor to felony. However, the fact that the allegation of a previous conviction was determinative of the proper jurisdiction in Curtis and is not so significant in this case does not preclude application of the rationale of the Curtis case to the instant case. [Id., p 406.]
See also Evans v State, n 70 supra; Pickelsimer v State, 440 So 2d 47 (Fla App, 1983).
Where punishment of an accused as an habitual criminal is sought, the facts with reference thereto must be charged in the indictment or information which contains the charge of the felony upon which the accused is prosecuted, but the fact that the accused is charged with being an habitual criminal shall not be an issue upon the trial of the felony charged and shall not in any manner be disclosed to the jury.
The applicable statute,
Section 23 of the Uniform Narcotic Drug Act provided for a severer punishment on subsequent offenses and did not specify whether a defendant‘s previous convictions must be set forth in the indictment. The defendant objected to the inclusion of his prior convictions in the information. The court disagreed:
We do not agree with defendant‘s contention that his prior conviction should have been deleted from the indictment. It is true that the Habitual Criminal Act of this State specifically provides that the fact of prior conviction and sentence in the penitentiary must be pleaded in the indictment for the present offense and that the Illinois Uniform Narcotic Drug Act contains no such provision. However, we are of the opinion that it is necessary to plead this fact to justify a conviction and sentence under the aggravated penalty clause. [414 Ill 544-545.]
The applicable statute,
The New York statute, authored by State Senator Caleb Baumes, served as a model for recidivist legislation enacted across the nation in the late 1920s. See People v Stoudemire, 429 Mich 262, 267-271; 414 NW2d 693 (1987), for a discussion of what came to be called the “Baumes Laws.”
In People v Stratton, 13 Mich App 350, 356; 164 NW2d 555 (1968), the Court of Appeals said:
The procedure set forth in section 13 is to be followed whenever it appears to the prosecutor “after conviction” of the current charge that the felon has a prior felony record. However, where it appears to the prosecutor before conviction of the current charge that the accused person is a prior felon, the accused person is to be informed against as a prior offender prior to conviction on the current charge .... [Emphasis in original.]
Two years later, this Court approved the analysis in Stratton. See People v Hatt, 384 Mich 302, 309; 181 NW2d 912 (1970).
Relying on Hatt and Stratton, this Court in People v Fountain, 407 Mich 96, 98; 282 NW2d 168 (1979) (per curiam), held that “[a] prosecutor who knows a person has a prior felony record must promptly proceed, if at all, against the person as an habitual offender.” The Court also said, however, that “[t]he habitual offender charges should have been filed with the information which charged the last felony ....” Id., p 99.
In Shelton, supra, p 568, the Court held that Fountain required “prompt” filing of the supplemental information, not a simultaneous filing with the information charging the most recent offense. The Court defined “promptly” as within fourteen days of the defendant‘s arraignment or before trial if the defendant was tried within that fourteen-day period.
The only exception to the requirement that a prosecutor, who knows of the defendant‘s prior felony conviction(s), must charge the defendant as an habitual offender within fourteen days of the defendant‘s arraignment is where the delay in filing the supplemental information is caused by the need to verify out-of-state conviction(s) based on a rap sheet. See People v Hendrick, 398 Mich 410; 247 NW2d 840 (1976).
See also MCR 6.112(C).
The rule requiring that the prosecutor promptly charge the defendant as an habitual offender seeks to avoid the appearance of prosecutorial impropriety and to provide fair notice to the defendant. See Fountain, n 101 supra, p 99, Young, p 367, and Shelton, supra, pp 568-569.
- A violation of
section 7401(2)(a)(ii) or (iii). - A violation of
section 7403(2)(a)(ii) or (iii). - Conspiracy to commit an offense proscribed by
section 7401(2)(a)(ii) or (iii) orsection 7403(2)(a)(ii) or (iii). [1988 PA 144,MCL 333.7413(1) ;MSA 14.15(7413)(1) .]
When a violation of
If the Legislature were to enact a statute that relieved the prosecutor from providing pretrial notice only where a defendant‘s prior and current offenses are drug related, however, there might be a problem under the
Similarly, the Legislature amended the sentencing provisions concerning driving under the influence of alcohol,
Under the habitual offender provisions of the
[T]he majority is able to arrive at this view only by mischaracterizing this Court‘s precedents. The Court discards leading free exercise cases as “hybrid.” In short, it effectu-ates a wholesale overturning of settled law concerning the Religion Clauses of our Constitution. One hopes that the Court is aware of the consequences, and that its result is not a product of overreaction to the serious problems the country‘s drug crisis has generated. [Emphasis added.]
When any such convict shall have been twice before sentenced to imprisonment at hard labor, for a period of not less than one year at each time, by any court in this state, or in any other of the United States, he shall be sentenced to imprisonment at hard labor for life, or for a term of not less than seven years in addition to the punishment prescribed by law for the offence of which he shall then be convicted. [1846 RS, tit XXX, ch 161, § 13.]
The Court early held that the pleading requirement of § 12 also applied to § 13. People v Campbell, n 26 supra, p 386.
The “following section” is § 13, which read:
If at any time after conviction and either before or after sentence it shall appear that a person convicted of a felony has previously been convicted of crimes as set forth in any of the three foregoing sections, it shall be the duty of the prosecuting attorney of the county in which such conviction was had to file an information in such cause accusing the said person of such previous convictions. [1927 PA 175, ch IX, § 13. Emphasis added.]
The Court also said that “the rule herein laid down will apply to all future cases and to all statutes wherein increased punishment is provided for offenders who have theretofore been convicted.” Id., p 106.
A first offense under the liquor law was punishable by a fine of one thousand dollars or imprisonment in a state or county facility for one year. 1919 PA (Ex Sess) 3, amending 1917 PA 338 (quoted in n 24). Thus, the justice of the peace did not have jurisdiction--and the circuit court did have jurisdiction-over a first offense.
The circuit court also had jurisdiction over a first offense in the habitual offender context. Those provisions only applied where the defendant was sentenced for the most recent conviction to imprisonment for one year or more. See 1846 RS, tit XXX, ch 161, §§ 12-13 (quoted in n 129). By definition, the habitual offender provisions could only be invoked where the charged offense was punishable by imprisonment for more than three months. Thus, the justice of the peace would not have had jurisdiction.
Eason was not convicted of a “major controlled substance offense.”