People v. Gardner

Pеople 41 GARDNER PEOPLE v July Decided 2008. No. 131942. Docket Caprese Wayne jury D. of second- Court convicted Gardner A Circuit firearm, murder, possession and degree being of a a felon court, felony. possessing during of a The a firearm the commission Edwards, J., 769.11 the defendant under MCL Prentis sentenced prison terms of offender to concurrent as a third offense habitual years years for the for conviction and 2 to 10 to 50 the murder year felon-in-possession term for and to consecutive 5 conviction prior felony-firearm the court The two felonies that conviction. from the same the habitual offender enhancement arose used for challenged appeal, act. On the defendant several criminal using evidentiary rulings, did not the issue of court’s but raise for multiple arising the same incident or transaction felonies from Gage, EJ., Appeals, offender enhancement. The Court of habitual JJ., convictions and affirmed the defendant’s Murphy and Jansen, curiam, April opinion per unpublished issued and sentences an (Docket 238186), Supreme 13,2003 leave and the denied No. Court (2003). subsequently appeal, 469 The defendant Mich 975 court, arguing sought judgment in the trial that his relief from the attorneys appellate provided assistance of and had ineffective trial by failing challenge the manner in the trial court counsel which determining prior ha- felony his his two convictions when used that, People argued v under offender status. The defendant bitual (1987), Preuss, Stoudemire, Mich and 429 Mich 262 (1990), convictions the trial should have counted the two court they single prior from the same because arose as a conviction so, argued, he Had done the defendant criminal act. the court prison potentially the murder faced shorter terms for would have felon-in-possession denied the The trial court and convictions. motion, concluding that the had not estab- defendant defendant’s good raise in his cause his failure to the issue lished for Fitzgerald EJ., and Appeals, appeal. The Court and Talbot, JJ., application for leave the defendant’s denied Smolensk, (Docket order, July No. unpublished entered appeal in an 267317). argument Supreme on ordered heard oral Mich 41 grant application appeal leave to whether defendant’s peremptory take other action. opinion by joined In an Chief Justice Justice Corrigan, Supreme Young and Justices Court held: Taylor Markman, separate felony A court must count each conviction that determining preceded sentencing the offense when a defendant’s status, any regardless offender habitual of whether of the convic- out criminal tions arose of the same act or incident. generally gives sentencing 1. Habitual offender status a court sentence, option repeat the to increase a offender’s maximum and high range it also increases the end of the minimum sentence sentencing guidelines. recommended for the under offender the subject The defendant would have been to a maximum sentence of imprisonment second-degree regard- life for his conviction murder any sentencing less of habitual offender enhancement. If the court offender, had as a sentenced the defendant second habitual offense range his recommended minimum sentence would have been 180 Although to 375 months rather 180 to than 450 months. the year defendant’s minimum sentence is both within of these ranges range applied and the 180 to 300 month that would have enhancement, resentencing with no habitual offender would none- required theless be in this case if the trial relied court on an higher range imposed inaccurate it when the defendant’s mini- mum sentence. 769.11(1) any requires 2. MCL a court to count combination of felony prior purposes convictions for of habitual offender enhance- plain language require ment. The the statute does not that the separate arose from convictions incidents. and Stoudemire Preuss by considering legislative history erred of the habitual offender adding statutory and require- statutes a incident same test to the ments, and those cases are overruled. properly 3. The defendant was sentenced as a third offense prior habitual offender because he had been convicted of two claiming felonies. A defendant ineffective assistance counsel prejudice by cannot show defense counsel’s failure to raise an objection supported by that would have been decision that was Thus, subsequently required resentencing overruled. not case. Sentences affirmed. only Justice WEAVER concurred the result of the opinion. injustice The defendant suffered no material in this case.

Any harmless, sentencing error the defendant’s was and the defendant need not be resentenced. dissenting, joined by would Justice Kelly, Justice Cavanagh, Legislature The intended and Preuss. not overrule Stoudemire persist in apply who to individuals statutes habitual-offender now, activity having despite been Until convicted. criminal predicate felony consistently convictions held that all Court sepa- purposes from must have arisen habitual-offender used for language of the habitual-offender incidents. The rate criminal they part, statutes, are a scheme of which and legislative require separate incidents. intent to indicates supports if history rule. Even legislative the Preuss of the statutes however, correct, majority’s interpretation of the statutes were plausible, lenity apply are still should because there the rule statutes, interpretations and Preuss competing criminal of these felony prior the defendant’s not be overruled. Because should act, they should be the same criminal arose out of convictions conviction, only be defendant should as one counted as a habitual offender. second-offense resentenced Cavanagh’s dissenting, joined Justice dissent Justice Kelly, overruled, but wrote agreed him should not be with that Preuss object majority’s apply stare decisis separately to refusal to correctly Supreme cases. Preuss was in this case and recent case, however, determining whether overrule a decided. When correctly only step in the case decided is the first whether the was Detroit, Even v 462 Mich 439 test set forth Robinson it, incorrectly, overruling before the Court a case was decided when workable, examine decision remains must also whether decision, changes in degree and of reliance on the whether Addition- have the basis of the decision. law or facts undermined justification. ally, overruling requires special precedent some regard present with to Preuss. of these factors is None — — Offend- Habitual Prior Convictions of Habitual Sentences Offenders —Same Incident or Transaction. ers require sentencing to count offender court The habitual statutes sentencing preceded separate felony conviction each status, determining offender an offender’s habitual offense when regardless any arose out of the same of whether of the convictions 769.12[1]). (MCL 769.11[1]; act or incident MCL criminal General, Cox, Casey, L. Attorney A. Thomas Michael General, Attor- Worthy, Prosecuting L. Kym Solicitor Research, Train- A. Chief of Timothy ney, Baughman, Prosecut- Agnello, Assistant Appeals, Olga ing, Attorney, for the ing people. 482 Mich 41

Opinion of the Court Arthur Gardner, James Rubiner and D. Caprese for the propria persona, defendant.

Amicus Curiae: McCann

Jacqueline J. for the Criminal At- Defense torneys Michigan. case, J. In this we consider the correct

CORRIGAN, method counting prior under Michigan’s felonies statutes, 769.10, habitual 769.11, 769.12, offender MCL and 769.13. These stаtutes escalating penal- establish ties for who are repeatedly offenders convicted of felo- nies. This Court has ruled that the statutes imply that predicate felony each must separate arise from criminal Preuss, 714; incidents. v People Mich 461 NW2d 703 (1990); Stoudemire, 414 NW2d (1987), Preuss, Therefore, mod at 739. supra multiple felonies arise from the same criminal incident or transaction count single felony as a under the habitual offender laws.

We conclude that the holdings of Stoudemire and Preuss directly contradict the plain text of the statutes. Therefore, we overrule these The unambiguous cases. statutory language directs courts to count each separate felony that preceded offense, conviction sentencing not the number criminal incidents resulting felony Accordingly, convictions. defendant was properly sen- tenced and we affirm his sentences.

I. AND FACTS PROCEDURAL HISTORY defendant, a jury convicted D. Caprese Gardner, second-degree murder, 750.317, being MCL (felon felon in possession of a firearm possession), 750.224f, MCL and possessing a firearm during the felony commission (felony-firearm), of a MCL 750.227b. People Opinion of the Court do not bear on his convictions underlying The facts 30, 2001, August On before Court. question current a third offense defendant as court sentenced the circuit 769.11, prison concurrent offender, MCL habitual 2 to conviction and for the murder years of 25 to 50 terms and a conviction possession for the felon years felony-firearm for convic- years term of 5 consecutive challenged several On direct defendant appeal, tion. did raise the evidentiary rulings, but not circuit court’s affirmed his convic- issue. The Court of Appeals present This denied defendant’s tions and sentences.1 appeal.2 for leave to subsequent application un- sought judgment relief from defendant MCR 6.501 et seq. appointed He that his trial argued der constitutionally had attorneys provided appellate failed to inves- they because representation ineffective underly- the two convictions challenge prior tigate For offender status. his third offense habitual ing enhancement, defen- offender purposes the habitual of feloni- stipulated dant had at trial convictions In his motion for relief felony-firearm. ous assault and claimed that both of those judgment, defendant from Febru- convictions, he had sentenced on for which been Accord- 25, 1988, from the same criminal act. ary arose have should he asserted that two convictions ingly, felony conviction for single prior counted as a been under the habitual offender laws purposes applying he and Preuss. Thus, argued that Stoudemire defendant offense only as second should have been sentenced offender, 769.10, MCL and therefore would habitual prison terms potentially been shorter exposed have He convictions. possession his and felon murder Gardner; unpublished opinion per curiam of the Court 238186). (Docket Appeals, April issued No. Mich

Opinion op the Court argued good also that he for belatedly raising had cause this issue in a for relief from judgment motion under 6.508(D)(3)(a) MCR appellate attorney because his was constitutionally failing recognize ineffective for raise the issue defendant’s prior appeal. motion, circuit court denied defendant’s opining had not good defendant established cause for his

failure to raise this issue his The Court appeal. of Appeals denied application defendant’s leave “for appeal failure to meet burden of establishing 6.508(D).”3 entitlement to relief under MCR Defendant then applied appeal for leave to in this Court. We heard oral argument on whether to grant his application or take other peremptory action. We directed parties to address whеther Preuss and Stoudemire “correctly multiple held that arising convictions out of a single criminal may incident count as only single prior conviction for and, so, habitual offender purposes if whether the defendant is entitled to be resentenced.”4

II. STANDARDS OF REVIEW The primary question requires us to interpret Michi- gan’s habitual offender statutes. This Court reviews de questions novo of statutory interpretation. v People Buehler, (2007). 18, 23; 477 Mich 727 NW2d 127 alsoWe review de novo the ultimate constitutional question whether an attorney’s ineffective assistance deprived a defendant of his Sixth Amendment5 right to counsel. LeBlanc, v People 640 NW2d 246 (2002). 3 People Gardner, unpublished Appeals, order of the Court of entered (Docket 267317).

July No. 477 Mich 1096 Const, US Am VI. Opinion of the Court

III. ANALYSIS third offense habitual as a Defendant was sentenced reads, in 769.11, pertinent which under MCL offender part: any 2 or combination person has been convicted If felonies, attempts to whether commit

more felonies have been for in this state or would convictions occurred in this if attempts to commit felonies state felonies or state, person and that commits a subse- obtained state, he person punished shall quent felony within this felony sentencing subsequent and upon conviction of the chapter [MCL as follows .... under section 13 of 769.11(1) added).] (emphasis in each appeared The same relevant and 1978.7 1987 habitual offender statute6 since and the Stoudemire Preuss courts respectively, these statutes same-incident imply concluded that of counting prior method felonies single-transaction each sentencing Accordingly, enhancement. purposes separate from criminal felony must “arise predicate Preuss, supra incidents.” 717. increase a defendant’s may

Habitual offender status sentencing The minimum and maximum sentences.8 option repeat has the to increase a judge generally high The end of the offender’s maximum sentencе.9 un- range minimum sentence recommended 6 769.12(1). 769.11(1); 769.10(1); MCL MCL MCL 7 Preuss, supra See at 720. 8 sentencing Michigan primarily indeterminate scheme. For most has a crimes, impose a minimum and a maximum sentence. courts both sentencing the basis of the maximum sentence is set statute on range by statutory minimum is set offense. The recommended sentence particular guidelines that account the circumstances take into 769.8; 769.34; People Harper, 479 Mich MCL offense offender. MCL 612-613; 523 739 NW2d 769.12(1). 769.11(1); 769.10(1); MCL MCL MCL Opinion the Court (the minimum) sentencing guidelines

der the maximum also on the of prior increases basis number offense, convictions. Second third offense and fourth offense10 habitual offenders face their maxi- increases mum minimums of percent, percent and 100 777.21(3)(a) (c). percent, respectively. through MCL Here, defendant have would been to a maxi- subject mum of life in penalty for his prison second-degree murder conviction even an without habitual offender enhancement. His unenhanced minimum sentence range on a prior record variable score of 20 and —based an offense variable score of 65—was 180 to months. MCL 777.61. Because was he sentenced as a third 769.11(1), offender, habitual MCL he was sub- offense ject to an range enhanced minimum sentence of 180 to (a 450 months maximum minimum of 300 months 777.21(3)(b). percent), increased MCL that, argues Defendant under Stoudemire Preuss, only he should have as been sentenced a second offender, 769.10(1), habitual MCL because his offense prior felony two convictions arose from the same crimi- nal If incident. he had been sentenced as a second offense offender, habitual his statutory minimum sen- (a tence would range have been 180 to 375 months maximum minimum of 300 months by increased 25 percent). minimum Although his (25-year) 300-month sentence falls within the minimum sentence ranges for both and offenders, second third offense habitual as well as the range, enhanced defendant correctly argues that, if the сircuit court relied on an higher inaccurate range it imposed sentence, when resentencing 10 769.12(1) MCL establishes enhanced maximum sentences for offend prior felony reference, ers with more three or convictions. For ease of we call these “fourth offenders offense habitual offenders.” 49 People Opinion of the Court Francisco, Mich 474 v People required. be would (2006). 89-92; 711 NW2d claim defendant’s contest does not prosecution

The assault of felonious felony convictions that his two inci- criminal from the same arose felony-firearm and may that defendant concedes also prosecution The dent. relief from for current motion in his raise the issue correctly Preuss because, Stoudemire judgment if statutes, defendant offender the habitual interpreted constitutionally ineffective by the prejudiced has been attor- and appellate trial appointed his assistance of however, that Stou- argues, neys.11 prosecution attorneys the error at sentenc appointed did not raise Defendant’s in the resentencing, for remand ing, or in a motion in a motion for argument properly Accordingly, raises his Appeals. defendant right to Amendment he denied his Sixth a claim that was connection with attorney Francisco, supra An at 90 n 8. counsel. assistance of effective performance purposes fell below if his Amendment for Sixth ineffective preju was objective and the defendant of reasonableness an standard 668, 688, 692; Washington, 104 S 466 US v diced as a result. Strickland Pickens, 298, 338; (1984); 2052; v L Ed 2d 674 Ct prison imposed Any time as additional amount of NW2d 797 performance has Sixth Amendment attorney’s deficient result of an States, 198, 203; 121 S Ct 531 US significance. v United Glover (2001). Although to an accord substantial deference we L Ed 2d 604 identify strategic no reason attorney’s strategic judgments, canwe point attorneys to raise such an obvious here failure of defendаnts’ prison to which possible minimum sentence increased error Therefore, properly stated a claim exposed. defendant has defendant was of counsel. ineffective assistance alleged good properly cause reasons, defendant has also For same necessary for relief seek relief in a motion prejudice, as is actual 6.508(D)(3). may good cause A establish judgment. defendant MCR from showing that his argument raising for relief sooner an for not by failing to raise the attorney appellate ineffective assistance rendered Reed, appeal. People post-trial or first-tier proper motion in a issue J.). (1995) Appellate (opinion 375, 378; 535 NW2d Mich Boyle, arguable decision to “winnow claims” or “assert all failure to counsel’s likely prevail is not more arguments and focus on those out weaker noted, Here, however, we as Id. at 391. assistance.” of ineffective evidence 482 Mich 41 50 Opinion incorrectly demire and Preuss were decided and that defendant was as properly sentenced a third offense habitual offender under of the plain language agree. statute. We

Our goal construing a statute is “to ascertain and give to the the Legislature.” effect intent of v People (2002). Pasha, 378, 382; Mich 645 NW2d of legislative touchstone intent is the lan- statute’s guage. language “If statute’s is clear unambigu- ous, Legislature that we assume intended its plain meaning and we enforce the statute as written.” People (2004). Weeder, 493, 497; 469 Mich NW2d when Accordingly, language is unambiguous, judicial construction is required not or permitted.12 Id.

Here, the relevant states person [i]f that a has any been convicted of combination of or more attempts felonies or to commit felonies . and .. person a subsequent felony commits this state,” within shall person be under sentenced the habitual of- 769.11(1). fender MCL clearly laws. The text contem- plates the number person of times a been “con- identify any cannot excuse for counsel’s failure to raise an obvious error guaranteed resentencing have would under Francisco. Because the strength obvious, argument nature and of the are the omission is not professional evidence of a reasonable decision to out winnow weaker arguments. 12 “[O]nly provisions truly ambiguous a diligent few are and... a application interpretation normally yield ‘better,’ of the rules of will perhaps imperfect, interpretation Lansing Mayor albeit of the law. ...” Comm, 154, 166; v Pub Service 470 Mich 680 NW2d 840 A provision ambiguous just is not because “reasonable minds can differ regarding” meaning “Rather, provision. provision Id. at 165. ambiguous only ‘irreconcilably of the law is if it conflict[s]’ ‍‌​​​‌​‌‌‌‌​​‌​‌​‌‌‌​​‌​​‌‌‌‌​​‌‌​‌‌​‌‌​‌​​‌‌‌‌‌​‍with another provision, equally susceptible when single or it is to more than a (citation omitted). meaning.” Klapp Group Id. See v United Ins Inc, Agency, (2003), example truly 663 NW2d 447 for an ambiguous language. contractual Opinion of the Court felonies.” commit attempts to of “felonies victed” felony that the suggests text statutory in the Nothing To incidents. separate arisen from must have convictions the importa- defies statutory language contrary, the any it states because test of a same-incident tion Indeed, must be counted. convictions of combination acknowledged essentially Preuss and Stoudemire case, Nonetheless, in each language. import clear instead text, turning ignored explicitly the Court regarding Court’s own views and the history legislative legislatures.13 Michigan York and of the New the intents initial an Court offered 1987, the Stoudemire by language statutory of the relevant interpretation Michigan’s of language original observing that 175, PA was statutes, enacted habitual offender York’s habitual from New almost wholesale borrowed Stoudemire, 267. Accord- at supra statutes. offender New York the remarks of the referred to the Court ingly, Caleb Senator author, York State New statutes’ aimed at the statutes were Baumes, opined who criminal professional from the public protecting “ times, once, twice, three convicted has been ‘who . . out and time and come . and served his sentenced 268, quoting Id. at again....’” operations resumed in Baumes, legislative program law and The Baumes (1927) added York, 511, (emphasis Rep 52 ABA New Stoudemire). York that New The Court concluded in Stoudemire, arguing that the vigorously in dissented Justice Archer permit test. statutory impose a same-incident language did not clear dissenting). Stoudemire, 282, J., Justice supra (Archer, at Archer recognized rule that, a fundamental since this Court observed plain is used in statute “When the construction: of reading provision will suffice. unambiguous, a common-sense necessary.” Archer dissented interpretation at 280. Justice Id. No (Archer, J., concurring Preuss, supra at 743 for the same reasons. Preuss dissenting part). part 482 Mich Opinion

courts had interpreted the New York statutes in keep ing with Baumes’s intent establishing “that multiple convictions on the same day constitute only one ‘con viction’ for purposes the habitual offender statute.” Stoudemire, supra citing People v Spellman, 136 Misc 242 NYS 68 The Stoudemire Court acknowledged, rejected, but other New York cases that conflicted with Spellman, concluding that “[t]hese opinions do not reflect awareness of the legislative clearly intent expressed by Senator Baumes” and ob serving that those courts’ construction of the statutes had been superseded when the New York Legislature amended the statutes. Stoudemire, supra at 269 n 14.

The Stoudemire Court concluded: By borrowing New entirety, York’s statute in its the Legislature indicated that it was motivated the same purpose underlay that the Legisla- New York statute. The ture intended that the habitual offender statute’s fourth- felony provision, parallel provision like the in the New York statute, аpply only should person to a who had had three opportunities to reform —who had been convicted and sentenced subsequently and then felony committed another which sentenced, he was also convicted and and then for subsequent to the second yet conviction committed another felony, again which he was convicted and [Id. sentenced. added).] (emphasis at 271 The Court also compared the intents of legislatures in jurisdictions other interpreted by courts in those —as jurisdictions had adopted methods for counting —that felonies based on whether the grew offenses out of the occurrence, same were committed on the day, same or charged were in the same indictment. Id. at In 272-276. accord, held, the Court consistently legisla- “with the tive purpose underlying the habitual statute, offender that multiple convictions arising out of a single incident may count only as a single prior conviction for purposes People v Gardner Opinion of the Court that, The Court of the statute.” Id. at 278. concluded otherwise, the statutory the extent that the text read legislative Court should focus on intent order to Id. at absurdity, hardship, injustice. avoid 266-267. of the Significantly, import Stoudemire avoided the text, part, dismissing Legislature’s the 1978, of the text in 1978 PA Before 1978 revisions 77. “A portion person the relevant of MCL 769.11 stated: having who been twice convicted within this state after felony attempt felony of a or an to commit a .. . com- state, any felony punishable upon mits within this [provided (Emphasis conviction as this section].” added.)14 revisions, Despite Stoudemire history nonetheless relied on its perceptions original 1927 act. The Court explicitly recognized that “the Tf a phrase person has been convicted of 3 or felonies,’ arguably more has a different than import ‘A phrase person who having after been 3 times con- Stoudemire, victed ....’” supra at 278. But the Court dismissed this significant change, concluding that “when considered in the context of changes the other made in the statute clear Legislature it is only intended improve grammar, statute’s not to alter its underlying meaning.” Id.15 the Preuss Court refined the Stoudemire holding by clarifying prior offenses need not change throughout was consistent the habitual offender laws. instance, similarly person For before MCL 769.12 stated: “A who state, having been 3 within times convicted of felonies or after added.) attempts (Emphasis to commit felonies ....” Cavanagh puzzling “[t]here Justice the offers assertions that change statutory language today been no in the between 1940 that inapplicability growing affects its to ‘different counts out of the same ” act,’ Podsiad, 541, 547; (1940), quoting People v 295 Mich 295 NW 257 identify changes language “fail[] and that we that would 6, had at n have this effect.” Post 77. Opinion of the Court sentences,” or separated by intervening

“be convictions prior the rule “that a defendant’s offenses but it retained Preuss, supra at 737. separate must from incidents.” arise by reference to the fourth offense habitual Specifically, statute, concluded that offender the Court require that a fourth offender’s three the statute does not convictions, convictions, prior the sentences for those upon the offenses which those convictions and sentences based, any particular sequence. occur in The statute are only requires preceded that the be three offense fourth felony offenses, convictions and that each those three of of predicate separate arise criminal incidents. felonies from added).] (emphasis [Id. at 717 Preuss criticized Stoudemire Court’s “flawed” in- statutes, terpretation Michigan’s concluding that Stoudemire Court had erred attempt its to divine the underlying intent New York statutes on which Michi- gan’s statutes were modeled. Id. at 727-731. For Preuss observed Stoudemire instance, had “reliеd on erroneously only New York decision that held that a fourth and third offender’s second offenses must each follow conviction and sentence on the earlier offense.” Id. the Preuss Court Further, at opined 727. that Senator Baumes’s comments did not establish his intent “on convictions.” Id. at 729. sequentiality prior issue of the the Preuss Court observed Perhaps significantly, most that, to the extent that Baumes’s “that suggested views the fourth offense must follow sentence,” completed his views with the of 1927 PA “conflict[ed] literally requires only which that the commission of the ‘convictions,’ fourth offense follow three not sen- tences.” Id. (emphasis original). the Preuss

Thus, acknowledged the un- ambiguous statutory language person has been —“If combination of 3 or more any convicted felonies or People v Gardner Opinion the . and that com- person to commit felonies .. attempts felony” only mits a to the number subsequent —refers felony particu- that no “implies convictions lar for the first three offenses or convictions sequence 720-721, Nonetheless, was intended.” Id. at 730. the that “a disregard language, opining Court chose to this a modified if that reading may literal statute be leads a clear or manifest of the reading contradiction act, necessary of the or if to correct an apparent purpose unjust Accordingly, absurd and result.. . .”16Id. at 721. the Court to sources of intent other legislative “turn[ed] the language declining than to determine whether read into the statute a for sequentiality requirement predicate Legislature’s offenses would contradict in purpose enacting the statute.” Id. at 721. so, Court erred when it doing Preuss construed

the unambiguous terms of the statute reference to Weeder, legislative history. Ironically, at 497. not supra incorrectly nothing Justice in asserts Preuss “found CAVANAGH compel change longstanding require the amended ‘multiple arising single may ment that convictions out of a incident count ” only single prior quoting as conviction under the statute.’ Post at Preuss, supra contrary, at 720. To the both Preuss and Stoudemire recognized language “arguably import,” that the new has a different Stoudemire, supra “implies particular sequence at that no Preuss, supra the first three offenses or convictions was intended.” at case, plain meaning 721. But in each the Court avoided the of the legislative history text in favor of or on the basis of the Court’s plain language produced conclusion that the of the text an absurd or Preuss, Stoudemire, unjust supra 266, 271, supra result. at 278. There is no need to address merits of the absurd results rule opinion. assuming interpreta- Even of such a rule of the existence tion, A the result reached here is no means absurd. reasonable is, easily lawmaker could have intended the result reached here. That easily such a intended that count lawmaker could have courts each felony separate determining conviction in habitual offender status. There treating nothing at all absurd about a defendant who has been convicted of three felonies as a third offense habitual offender. Opinion op the Court at the attempt Court’s

only reject did it Stoudemire task, highlights problems its opinion same but offering judi- a different attempts by inherent in such “history” of the the inconclusive cial construction of Further, Preuss failed very same enactments.17 revisions, import at all grapple with had just as the Court relying instead — the impressions Legislature’s its of Stoudemire —on language. On adopting original intent when the concluded that these Preuss impressions, the basis of suggests the it “legislative history the of statute offender.” ‘persistent’ ‘repeat’ directed at the was Preuss, conclusion, Having at 738. reached this supra if the statute as these words interpreted the Court then text, stating: in its appeared 17 Indeed, proceeded to examine inconсlusive the Preuss Court itself report Inquny of Into Criminal statements from a of the Commission Preuss, 721-722, supra citing Michigan, Report at of Procedure. State of 1927). (February 8, Inquiry Into Procedure the Commission of Criminal improve repeat- former The Court noted the commission’s desire escalating imposed punishments offender statutes that on the basis of Preuss, preceding punishments. supra at 722-723. The Court concluded goals tougher it for criminals to that the commission’s were to “make conviction, adequate punishment,” “apply apprehension, avoid [habitual enhancements] to a broader class of criminals than offender they applied prior language prior to had the about sentence would have retained,” “punishD harshly.” repeat at been and to offenders Id. 724. Significantly, acknowledged report that the “does not contain the Court any concerning regarding express commission’s intent statement the convictions, offenses, prior a defendant’s or sentences must whether subject any particular sequence him occur in in order for to be Indeed, provision penalties.” the in its fourth-offender Id. 722. new original applied an offender had been “three 1927 form—which when “literally applied previously had times to defendants who convicted”— offense, they their been convicted three times before committed fourth they yet any prior or all those even if had not been sentenced on of Nonetheless, among report, at 724. the Court cited the convictions.” Id. authorities, Legislature as evidence that intended a same- other incident test. Id. at 738.

Opinion of interpretation A common-sense phrases of these is that Legislature person did not in have mind the who had only episode managed one he criminal which to commit Instead, “repeat” suggests several different crimes. some crimes, “persistent” suggests time between interval pursuits сriminal who continues his criminal after these concepts may easily intervals. Neither these be recon- interpretation ciled with an of the statute which would impose penalties allow a court fourth-offender on a defendant whose three convictions arose out of the same criminal incident. \Id.'\ reject

We the approaches of both Stoudemire and Preuss, which run counter to principles Indeed, Stoudemire, construction. in criticizing Preuss Court reinterpreted very history on which Stoudemire relied and reached a Thus, different result. these opinions two exemplify problems inherent preferring judicial interpretation legislative history plain to a reading of the unambiguous text. As we have stated, construing an unambiguous statute relying “ legislative on history very ‘[a]t most.. . allows the reader, with equal plausibility, to pose conclusion of ” his own that differs from that of the majority.’ Dona Co, jkowski v Alpena 243, 259; Power 460 Mich 596 (1999), Detroit, NW2d 574 quoting v Rogers 457 Mich (1998) 125, 164; 579 NW2d 840 dissenting), (TAYLOR, J., Detroit, which by was overruled v Robinson 462 Mich (2000).18Further, “not all legislative history is of perhaps put by Supreme As best United States Court Justice Scalia, Antonin reports, speeches, [c]ommittee colloquies floor and even between Congressmen upon ... are frail substitutes for bicameral vote the presentment

text of a law and its to the President.... It is at best dangerous necessary participants to assume that all the in the process acting upon unexpressed law-enactment are the same assumptions. that, dangerous And likewise to assume even with self-discipline, judges prevent they implications the utmost can the [July- 482 Mich Opinion the Court of Question, In re . value .. equal Certified historical 5; Some 115 n 659 NW2d inferences courts to draw reasonable may facts allow shed intent because the facts Legislature’s about the instance, affirmative acts. For Legislature’s on the light intended to an enactment was may cоnsider that we statute, of a or we judicial the construction repudiate drafts debated compare multiple find it may helpful settling before on Legislature facts, however, such as staff actually enacted. Other significantly less useful analyses legislation, are necessarily do reflect the intent of they because not Id. of the Legislature body. Shifting interpretations as a as Legislature particularly intent of the New York — single state senator— embodied the comments of certainly category. fall into this latter essentially defendant here concedes

Significantly, proper interpretation that a habitual offender a same-incident method precludes statutes the use of merely Defendant ad- counting prior convictions. suggests vances considerations policy to the Legislature acquiesced interpretations in Stoudemire in Preuss. statutes offered But, divining at intent from attempts legislative as with history, “legislative acquiescence is an ex- legislative intent.” Dona- ceedingly poor legislative indicator of Instead, jkowski, supra principles at 258. “sound courts require Michigan construction words, Legislature’s determine the intent from its not Hawkins, Id. v 261; see also from its silence.” (2003) (“As 488, 507; Mich we 668 NW2d have stated, ‘legislative acquiescence’ prin- repeatedly mirroring policies they [Thompson Thomp- favor. see from (1988) son, 174, 191-192; 484 US 108 S Ct 98 L Ed 2d 512 (citations omitted).] (Scalia, J., concurring) Opinion of the Court ciple construction has been squarely re- jected by this Court because misap- it reflects a critical prehension legislative process.”). As we observed “ ‘ in Donajkowski, [c]ommentators have noted that one posit myriad can reasons explaining Legislature’s failure judicial to correct an erroneous decision ....’” Donajkowski, 259, at supra quoting Rogers, at supra “ (TAYLOR, J., 164 n 2 Moreover, dissenting). ‘it should not be Legislature assumed that the agrees even it has duty interpretations by to correct the courts that it ” considers erroneous.’ Donajkowski, supra at quoting at Rogers, supra (TAYLOR, J., 164-165 dissent- “ Indeed, ing). observed, as Justice TAYLOR ‘[i]n Autio v Co, 517, 527; Proksch Construction 141 NW2d (1966), Justice SOURIS described [the doctrine of legislative acquiescence] as “a pernicious designed evil to relieve a court duty of its of self-correction” ....’” Donajkowski, supra at quoting Rogers, at supra (TAYLOR, J., dissenting). See Donajkowski, supra 258-262, for a full discussion.19 Legislature’s

When the clear, is we are bound to follow plain its meaning. Legislature engage guessing game The dissenters would have regarding us in a Cavanagh meaning legislative instance, that, silence. For if it sees statutory language amending of

fully capable country Indeed, throughout legislatures so. fit to do explicitly statutes that offender enacted habitual have counting prior felo- methods for include same-incident instance, laws, for offender Arizona’s habitual nies. offenses for two or more “Convictions provide: explicitly only shall be counted as same occasion committed on the Ariz section.” Rev of this purposes conviction for one added).20 13-604(M) The California (emphasis Ann Stat of a “any convicted person provides Penal Code has been convicted of previously felony serious who enhance- five-year receive ... felony serious ... shall charges brought conviction on prior ment for each such 667(a)(1) (empha- Penal Code tried Cal separately.” added). offer a habitual offender laws sis Illinois because the definition comparison particularly helpful general includes habitual offender status in to that our own statutes: somewhat similar any Every person has been twice convicted state who the same court of an offense that contains or federal classified in Illinois as a Class elements as an offense now assault, kidnapping felony, aggravated or X criminal sexual murder, degree thereafter convicted of a Class X and is first murder, degree first felony, criminal sexual assault or convictions, adjudged the 2 shall be committed after (em 5/33B-1(a) Comp [720 criminal. III Stat an habitual added).] phasis however, provides, explicitly The statute also or are connected which result “[a]ny convictions from transaction, com- with the same or result from offenses time, shall be counted for the mitted at the same 13-604(S) (“A person who... stands also Ariz Rev Stat Ann See , preparatory- completed .. . whether a convicted of a serious offense offense, previously or more serious been convicted of two and who to life occasion shall be sentenced offenses not committed on same ...”) added). (emphasis imprisonment. Opinion of the Court III conviction.” 720 this Section as one purposes added).21 5/33B-1(c) (emphasis Comp Stat and Preuss. we overrule Stoudemire reasons, For these mechanically to forever applied is not to be “[S]tare decisis deci overruling from earlier erroneous prevent the Court meaning of statutes.” Robinson v determining sions (2000). Rather, Detroit, 439, 463; 613 NW2d 307 decided, duty if we have a incorrectly a case was Id. controlling reconsider it should remain law. whether so, “review whether the decision at issue doing 464. we workability,’ whether reliance interests ‘practical defies hardship, changes would work an undue whether decision.” longer justify questioned the law or facts no Stoudemire Id. These criteria overruling weigh favor and Preuss. the same-incident test has not significantly,

Most by reliance interests that will be thwarted created 558.016(3)(“A compare ‘persistent Mo Rev Stat offender’ is one Also pleaded guilty guilty has been found of two or more felonies who has to or added); (emphasis times" Okla Stat tit committed different 51.1(B) (“Felony upon § offenses relied shall not have arisen out closely in time same transaction or occurrence or series events related 924(e)(1) addеd)); (emphasis (providing 18USC that under and location." Act, formerly “[i]n what was titled the federal Armed Career Criminal previous person 922(g)] [18 and has three the case of a who violates USC by any 922(g)(1)] [18 for a violent convictions court referred to USC both, felony offense, drug on occasions or a serious or committed different another, person fined under this title and one such shall be from added). years”) (emphasis imprisoned not less than fifteen legislatures’ plain language exemplify to These statutes other use of We note them in contrast to the text of establish same-incident tests. meaning Michigan positive Michigan’s into statutes. We do not “read instance, statute,” regarding, legislative as Justice silence a Missouri suggests. Cavanagh Cavanagh n has it backwards. Post at 76 10. Justice Legislature spoken through plain language, its which we seek to colleagues import uphold. dissenting who wish It is defendant our none, assuming Legislature’s that the a same-incident test where there is signifies approval of the test in the wake of Stoudemire and Preuss silence those cases added. Opinion of the Court Preuss; overruling Stoudemire and these cases

overruling will dislocations” or frustrate citi- “significant not cause zens’ their conduct to the law. See id. attempts conform knowledge at 466-467. have reliance the must be of “[T]o entity the sort that causes a or person attempt trigger- conform his conduct to a certain norm before the ing event.” Id. at 467. The nature of a criminal act defies any argument attempt that offenders to conform their by definition and statutory crimes—which violate societal legal norms —to a test established Stoudemire and Moreover, Preuss. to the extent that implicate these cases interests, weigh reliance such interests in favor of over- ruling them. citizens and Michigan prosecutors should be able to read the clear words of the and “expect... statutes they will be carried out all in society,including the courts.” Id. fact, legitimate should a court confound those citizen

expectations by misreading statute, misconstruing it is disrupted that court itself that has the reliance interest. happens, subsequent court, holding When that rather than reading to the distorted because of the doctrine stare decisis, should overrule the earlier court’s misconstruction. [M]

We also note that the factor of practical workability bears little on our decision to overrule our previous interpretations erroneous of the habitual offender laws. The Legislature’s clear directive to felony count each no less workable —and indeed is arguably simpler to apply practice current, judicially ‍‌​​​‌​‌‌‌‌​​‌​‌​‌‌‌​​‌​​‌‌‌‌​​‌‌​‌‌​‌‌​‌​​‌‌‌‌‌​‍imposed —than same-incident rule.

IV TO THE RESPONSE DISSENTS Justice CAVANAGH concedes that our interpretation “may, arguably, supported by be of the language habitual-offender statutes . . . .” Post at 73. But his People Gardner Opinion of the Court there are are rooted in his assertion that arguments .. . .”22 arguably plausible interpretations “competing, that, purported then because Post at 74. He concludes possible, appropriate are it is competing interpretations legislative history apply lenity. to and the rule consult contrary, explained at 75-76. To the as we have Post concedes, essentially nothing there is as defendant directive to textually ambiguous Legislature’s about “a sentencing person habitual offender laws when apply 2 more any has been convicted of combination of to commit felonies....” MCL attempts felonies or 769.11(1). statute,

In his based on the text of the only argument Justice CAVANAGHasserts that statute’s use felony” indicates that enhance- phrase “subsequent ment does not to simultaneous criminal acts. Post apply that, if agree at 72.23We an offender is convicted felonies, sentenced for two simultaneous neither simul- used enhance the sen- may taneous conviction be tence for the other under the habitual offender statutes. But point imply Justice CAVANAGH’sextension of this a same-incident test the statute’s use of misinterprets describes the “subsequent.” “Subsequent” word felony sequential relationship sentencing between the (“If and the been con- prior person convictions any attempts victed of combination of. .. felonies or commit felonies . . . and that commits a subse- person quent felony....”). “Subsequent” does not describe relationship among convictions. similarly opines Justice that “the of the habitual Kelly equally supportive is at least of the conclusion that the

offender statutes inapplicable multiple arising are convictions from the same statues act.” Post at 86. Cavanagh point. on Post at 86 n 24. Justice cites Justice Kelly 41

64 482 Mich Opinion op the Court rely also on “this purports Justice CAVANAGH concerning the purpose Court’s consistent statements of the habitual-offender statutes.” Post at 73. He cites 1929, 1940s, and, recently, from most cases 6,n Yet, and 1976. Post at and 73. as Justice amended the acknowledges, Legislature CAVANAGH PA ignores statutes in 1978. 1978 77. He import revisions, did the as Stoudemire and Thus, he “in urges years, Preuss. more than 150 no held, Michigan today, court has ever until that convic- tions for crimes committed in a criminal multiple single transaction count as convictions separate for habitual- Palm, offender Post at v purposes.” citing People 396, 400; Mich 223 NW Justice simi- KELLY larly opines that “1978 amendments did not alter the command that ‘multiple arising convictions out of a single may incident count only single prior as convic- But, tion under the statute ....’” Post at 86. instead of conclusory statement, explaining merely she cites Preuss. Post at 86-87. reject

We the dissents’ suggestions this Court legislative should divine intent not from the Legisla- enactments, ture’s but from precedent this Court Indeed, that preexisted thоse enactments. this Court addressed this very reasoning when we overruled Dedes Asch, (1994), NW2d 488 Robin- son. We explained: interpreted phrase

The in Dedes “the proximate proximate cause” to mean “a cause.” It did this analysis produce on the basis of an that not to do so would change Michigan law, Legislature, a marked and that the “legislative history,” gave in its no indication that it under- significant making change. stood that it was such a This approach judicial theory can best be described as a legislative essence, Stripped befuddlement. to its it is an “history” endeavor the Court to use the statute’s

Opinion op the Court terms. We believe the Court the statute’s clear contradict [Robinson, supra 459-460.] authority this. had no to do duty satisfy us that its has no Legislature one. must “good” Legislation enactment is a legislative Legis- Once the constitutional; enough. this alone be are constitutionality, the hurdle of we lature has cleared When, here, as the text to treat its enactment as law. the Legislature signed by the Governor enacted duty is to its mean- unambiguous, uphold plain is our ing. essentially require would the analyses

Both dissents’ its explain to this Court’s satisfaction Legislature statutory Legisla- the text. The changing reasons for and, clear, duty ture has no such to us because its text is legislators it is irrelevant whether the concluded the statutes its misinterpreted pre-1978 this Court or, instead, policy decisions that a new for previous Significantly, felonies was counting prior preferable. may the text legislators’ enacting various reasons have been rooted either of may have differed and of lan- agreed-on these conclusions. But their choice forth- controlling. language perfectly If that is guage right, simply implement reject our task is it. We views, implications of the dissents’ which would ulti- laws, to mately require Legislature, amending when plain add redundant for its otherwise explanations X, mean suсh as: we mean X. We do not “By Y.” interpretations Court’s of Supreme previous regarding the correctness of express opinion We no pre-1978 any interpretations court’s of the versions Questions earlier versions of concerning the statutes. Moreover, are not us. to whatever extent the text before correctly legislatures’ using divined intents past courts those intents should not previously language, enacted unambiguous language interpretation our guide Opinion op the Court statutes; of the current past versions acts of legislatures do not bind the power legisla- successive enact, amend, repeal legislation. tures to Studier v Bd, Michigan Pub School Retirement Employees’ 642, 660; case, Mich NW2d 350 this we acknowledge Legislature’s explicit changes statutory language and, so, in doing by no means do we employ “a new view of interpretation,” as Justice CAVANAGH contends. Post at 78 n 12. To the contrary, we consider the plain language, statute’s it imagine is difficult how the Legislature could possibly have written the statute to clearly more indi- cate that all prior convictions count than stating that person “[i]f a any been convicted of combination of 2 or more felonies or attempts to commit felonies . . . and that person commits a subsequent felony within state, this the person punished shall be provided [as 769.11(1) added). MCL section].” (emphasis Significantly, Justice CAVANAGH’s central contention is that the habitual offender plainly statutes “are intended apply offenders, to to habitual individuals persist who in criminal activity regardless of their prior convictions.” Post at 70. But the goal punishing persistent offenders by no means requires Rather, a same-incident test. Legislature apparently reasonably and punish saw fit to an offender who has committed multiple prior felonies in a harsher manner than an offender who has committed only a single prior felony. why We seе no reason Legislature may punish persistence not by discriminating in a graduated among fashion those who have committed a single prior felony, 769.10, MCL those who have com- mitted prior felonies, 769.11, two MCL and those who have committed prior felonies, 769.12, three or more MCL regardless of whether the offender committed the prior sum, felonies on a single occasion. In Justice CAVANAGH’s analysis is fundamentally flawed because it judi- offers a Opinion the Court unambiguous an deconstruct cial construction Nothing it text renders the statute’s about statute. susceptible interpretations multiple and, there- permissible. judicial not even fore, “construction” repeats of the the mistakes Further, Justice CAVANAGH by dismissing the and Preuss in Stoudemire and, laws the habitual offender revisions of relying history legislative instead, on debatable addressing previous versions court cases statutes. Kelly’s exegesis

Finally, of the doctrine Justice already As we have misses the mark. stare decisis decisions and Preuss discussed, recent Stoudemire interpreting long part identical of a line of cases are not pur- statutory language; rather, and Preuss Stoudemire language. post-1978 interpret ported Moreover, are themselves and Preuss decisions the Stoudemire precedents. maintain Justice would inconsistent KELLY workable, free from it is stare decisis because Preuss as practice,” absurdity, no “not mischievous changes at 89. But facts undermine it. Post in the law or Accordingly, things can be said of Stoudemire. the same analysis contradicts her the heart of Justice KELLY’s preference Preuss, itself overruled Stou- for which thoroughly part. dis- Indeed, have demire in as we adhering exemplifies the need for cussed, Preuss precedent upholding plain statutory instead of merely precedent’s Court followed sake. The Preuss choosing plain to avoid the Stoudemire supra supra Preuss, Stoudemire, at 720- text. part aftеr then overruled Stoudemire 721.But Preuss reinterpreting selectively caselaw, com- other states’ addressing reports by legislators, and committee ments Michigan original New York act and the certainly upholding reasons, Preuss For these act. “ arbitrary discretion to ‘avoid an would not serve 482 Mich 41 Opinion of the Court 81, the courts Post at quoting The Federalist No. (Alexander Hamilton) (Clinton 78, p ed, Rossiter 1961). To the contrary, binding to “strict rules” —such as the tenets of interpretation Moreover, —avoids arbitrariness.24 Post at 81. as we have explained, nothing there is “destabilizing” about today’s decision under Robinson or otherwise. See post 80, 82. No undue hardship will result because of reliance on our previous holdings, nor will we frustrate attempts citizens’ to conform their conduct to the law. Robinson, supra at unlikely 466-467. event that those who would commit additional felonies state laid plans future crime in reliance on receiving less punishment than the plain language of the habitual offender statutes prescribes, Justice KELLY correctly assumes that such garners reliance little sympathy in our eyes. Post at 82-83 n 11.

V CONCLUSION Michigan’s habitual clearly offender laws contem- plate counting each felony conviction separately. The text of those laws does not include a same-incident test. This Court erred judicially such engrafting test onto the unambiguous statutory language. Accord- ingly, we overrule Preuss and Stoudemire.

Defendant was properly sentenced as a third offense habitual offender because he “ha[d] been convicted of... or more felonies ... and committed] subse- 769.11(1). quent felony within this . .” state. . MCL Because sentenced, defendant was properly resentenc- ing is not required on the basis of his claim that he Concerning Justice supposed criticisms of the Kelly’s for its “disregard” decisis, for the doctrine of stare concurring we reference the Comm, statement of Justice Markman in Rowland v Washtenaw Co Rd 731 NW2d 41 69 Opinion by J. Weaver, an of counsel. When assistance ineffective received that would have objection “an fails to raise attorney subsequently was a decision which supported been preju- that he was cannot show overruled,” a defendant v Lockhart of Strickland. meaning diced within 838; 122 L Ed 2d Fretwell, 364, 366; 113 S Ct US (1993). on circumstances, a focus Under these because is insufficient determination” “mere outcome fundamentally unfair is not proceeding the result a conviction or “To set aside Id. at 369. or unreliable. would have been the outcome solely because sentence the defen- may grant error but for counsel’s different not entitle him.” the law does a windfall to which dant Cronic, US 369-370, citing United States Id. at 2d 2039; 80 L Ed 648, 658; 104 S Ct sentences. We affirm defendant’s Accordingly, we defendant’s re- respect with deny appeal leave failed to meet the burden he has maining issues because relief under MCR establishing entitlement 6.508(D). MARKMAN,JJ., concurred

Taylor, C.J., and YOUNG Corrigan, J. with I concur with only). in result (concurring

WEAVER, J. need not that defendant majority opinion result of case, did not suffer defendant In this be resentenced. in defendant’s sen- Any error injustice. material any harmless error. tencing constituted case considers This (dissenting). CAVANAGH, J. statutes, MCL habitual-offender Michigan’s scope I Because believe 769.11, 769.Í2, and 769.13. 769.10, legisla- understood has, today, properly until this Court habitual-offender applied properly intent and tive MICH Dissenting Opinion Cavanagh, J. persons statutes to who persist crime after having convicted, been I respectfully dissent. statutes,

The habitual-offender enhancing punish- ment convictions, for subsequent are plainly intended apply offenders, to habitual individuals who persist activity criminal regardless of their prior convictions. 769.11(1) Defendant was sentenced under MCL as a third-offense habitual offender. argues, Defendant the prosecution contest, does not that the two underly- ing felonies supporting this sentence enhancement arose from the same criminal fact, incident. In there could not be a clearer case of arising felonies from the same incident; criminal the two prior convictions of possession of a during firearm the commission of a felony and felonious assault arose from very same act April 11, committed on 1987.

Applying both of these convictions predicates as for a third-offense habitual-offender sentence enhancement would be invalid under People Preuss, v 436 Mich 461 (1990), NW2d 703 People Stoudemire, v 429 Mich 262; 414 NW2d (1987), and the uniform holdings of this Court since the Legislature enacted the habitual- offender statutes in 1927.1 that, Preuss held for pur- poses of the habitual-offender statutes, each of the predicate felony convictions must “arise from separate Preuss, criminal incidents.”2 436 Mich at 717. Preuss affirmed the same found holding not only Stou-

1 The current habitual-offender statutes were enacted as 1927 PA 175. language The relevant However, was last amended 1978 PA 77. Palm, People 396, 400; v (1929), 223 NW 67 this Court observed that habitual-offender sentence enhancement was not “new” in this state; such never, statutes have been in force since 1857. This Court has today, until apply multiple held that such statutes offenses committed on one occasion. specifically 769.12, Preuss addressed MCL the habitual-offender addressing statute prior convictions, three or more but that decision People Opinion Dissenting Cavanagh, J. 541, 547; Mich Podsiad, 295 v demire, People also but (1940) the habitual-offender (stating that NW 257 different on to convictions “inapplicable are statutes act”), the same out of growing counts (1944) 94, 100-101; NW2d Lowenstein, Mich same crimi from the convictions multiple that (holding to addi the defendant subject not did nal transaction stat under the habitual-offender punishment tional utes). previous two defendant’s Clearly, present act, do not convictions, from the same arising felony Preuss, Under incidents. criminal separate from arise as enhancement to sentence subject be defendant would third- offender, not as a habitual a second-offense offender. habitual оffense at 44. The ma- Preuss. Ante overrules

The to understand has failed this Court jority asserts statutes since habitual-offender language and, thus, incorrectly failed were enacted such statutes habitual-offender offenses toward multiple to count disagree. I sentence enhancement. 769.11(1), MCL and the Legisla- indicates that part, which it is a

system of felonies for predicate require ture intended to from crimi- sentencing separate arise habitual-offender that statutes in elementary pari “It is nal incidents. ascertaining together are to be taken materia regard and that courts will legislature, intention as subject matter general the same upon all statutes Jones, 335 Clerk v Twp Dearborn system.” of 1 part (1953). MCL 769.10 is the 658, 662; Mich 57 NW2d of Criminal in the Code in a of three statutes first series an on penalties allow enhanced together Procedure that in the specifying sentence enhancements applies to all three statutes statutes. scheme of the habitual-offender common 482 Mich 41 Dissenting Opinion by Cavanagh, J. second,3 third,4 an increasing scale for offender’s and fourth5 that person offenses. MCL 769.10 states a “[i]f has been of a . and felony. convicted . that person subsequent felony,” commits a then that is person enhancement. subject to a second-offense (Emphasis added.) person MCL 769.11 states that a “[i]f has been any convicted of combination of 2 or more . . felonies . that person subsequent felony,” and commits a then person subject is to usually what is termed a added.) Finally, third-offense enhancement. (Emphasis MCL 769.12 states that a person “[i]f been con- any victed of combination of 3 or more felonies ... and a person felony,” commits subsequent then that is to person subject usually what is termed a fourth- added.) offense (Emphasis enhancement.

This system graduated of enhancements for subse- quent clearly felonies the Legislature indicates that did not intend habituаl-offender to sentence enhancement apply to long simultaneous criminal acts. As this Court ago recognized, the [provisions “[i]t obvious that the habitual-offender statutes] relate to for convictions subsequent They who, apply only persons felonies. to after having been convicted of felony, one commit an chapter applies Section 10 of IX of the Code of Criminal Procedure to a second offense and allows a sentence enhancement of no more than longest prescribed times the term for a conviction” first of an offense “IV2 769.10(1)(a). punishable by imprisonment. otherwise less than life MCL 777.21(3)(a). also See MCL chapter Section 11 IX applies of the Code of Criminal Procedure higher a third or up offense allows a sentence enhancement of longest punishable by twice the term otherwise an allowed for offense 769.11(1)(a). imprisonment. less than life MCL See also MCL 777.21(3)(b). chapter applies Section IX of the Code of Criminal Procedure higher fourth up offense allows sentence enhancement of life imprisonment punishable by imprisonment for offenses otherwise 769.12(1)(a). years 777.21(3)(c). five or more. MCL See MCL also People by Dissenting Opinion Cavanagh, J. convictions on crime, inapplicable and are to additional Podsiad, out of the same act.” growing different counts added).6 (emphasis Mich at 546-547 sentenced case, defendant could not have been he first offender when was a second-offense habitual as underlying crimes committed at of the two convicted now, intervening But convic- time. without the same a third-offense tions, has been sentenced as defendant simultaneous, not because of subse- habitual offender the majority interprets The quent, convictions. multiple, si- applying statutes as habitual-offender may, this interpretation convictions. While multaneous the language the of habitual- arguably, supported be statutes, uniform longstanding, this Court’s offender equally supported by least interpretation I find the more convinc- language of the statutes. latter of the habitual- ing light plain statutes, sentencing system pre- the overall offender legislative history. Legislature, scribed arise from predicate The felonies requirement this Court’s supported by criminal incidents is separate concerning purpose consistent statements pun- statutes. The statutes increase habitual-offender “ persistence ishment of a person’s ‘apparent because Hendrick, v People in the commission crime ....’” (1976), 410, 416; quoting 247 NW2d 840 398 Mich Palm, 396, 401; 245 Mich 223 NW passed provide criminal act was “The habitual In re repeated commissions of felonies.” punishment disagrees graduated scheme of that the enhancement “inapplicable implies they are statutes habitual-offender Podsiad, growing act.” counts ‍‌​​​‌​‌‌‌‌​​‌​‌​‌‌‌​​‌​​‌‌‌‌​​‌‌​‌‌​‌‌​‌​​‌‌‌‌‌​‍out of the same convictions on different Podsiad, that this is supra at decided demonstrates 547. But no hardly understanding There been scheme. novel today change statutory language that affects its between 1940 and growing the same act.” inapplicability “different counts out of 482 Mich 41 Dissenting Opinion by Cavanagh, J. (1941).7 Southard, 75, 298 NW 457 Obvi- ously, persistence repetition not when apparent are simultaneously single two convictions arise from a act. This Court’s legislative statements on the intent relied, the behind habitual-offender statutes have degree another, on legislative history. one The ma- jority legislative history denounces as a means statu- of tory majority implies that, construction. The use of legislative history, a statute can made say be what- its interpreter ever wishes it to Ante at If say. 56-58. so, one imagines were the could marshal majority legislative evidence from history supporting its inter- pretation of MCL 769.11. The cannot. Such evidence does not exist. The uniform evidenсe from legislative history Preuss, rule supports the of crimes committed a single criminal incident are counted as one the purposes for the of habitual-offender statutes. United Supreme States does not share the

majority’s dim of consulting legislative view history when there are competing, arguably plausible interpre- of a Taylor States, tations statute.8 v United US 575; Palm, (stating sustaining See also 245 Mich at 401 that the basis for “ Legislature may require the habitual-offender statutes is that ‘the the persistence take courts to into consideration the of the defendant in his ”) (citation Lowenstein, omitted), criminal course’ 309 Mich at 100-101 (stating that “the fact that defendant was convicted and sentenced on both counts” does not “result conviction for two as felonies such subject punishment defendant to additional under the habitual act”), Hatt, People 306-307; criminal v 181 NW2d 912 (1970) (stating “only purpose [the statutes] of habitual-offender impose longer apparent persistence by is to sentence because of the nature”). defendant in the commission of acts of a criminal 8 See, e.g., Burr, 47; 2201; America Ins Co v 551 US 127 S Ct Safeco of (2007) (extensively legislative reviewing history L Ed 2d 1045 the Fair of Reporting Act); Goodyear Co, Inc, Credit Ledbetter Tire & Rubber 550 US (2007) 618; (referring legislative S Ct L Ed 2d 982 Dissenting Opinion Cavanagh, J. (1990), L is the seminal 2143; 109 Ed 2d 607 110 S Ct formerly called of what was scope interpreting case (ACCA), specifically Act Armed Career Criminals involving of MCL 769.11 924(e), analog a federal USC Court iden- Supreme Taylor, firearms offenses. scope interpretations plausible tified alternative provision in a statutory language particular certain of examining then stated: “Before the ACCA. The Court think interpretations], we [plausible, these alternative 924(e)].” background USC [18 it to review helpful rigorous conducted a review Id. at 581. The Court then to the history related legislative Id. at 581-590. question. Court: agree Supreme I the United States with may not be when it legislative history ignоred should reasonable, considering alternative illuminate a court here, Where, legislative as interpretations of statute. history arguably one reasonable singularly supports a another, worthy a it is interpretation of statute over ons.9 interpretati to the choice between the guide proper 769.11, MCL this interpretation given by The former of to is today, from the in 1927 enactment law Robbins, 1964). In Wilkie v history Rights of of the Civil Act of title VII 12; (2007), n the 537, _; US 127 S Ct 168 L Ed 2d Congress patterned [Hobbs] “we know that the Act Court stated that Code, ‘the of and the Field after two sources of law: Penal Code New York ” (Citations omitted.) penal legislative 19th-century This a model code.’ Court, just history statutory insight regarding to the the sources offered (likewise reviewing background Stoudemire the as it did for this Court adapted penal Michigan New from the York of habitual-offender laws code). history may support legislative legislative intentions While several targeted by habitual-offender those the directed toward individuals society, punishment, is from or rehabilitation —there removal statutes — identity diversity regarding of the the individuals whom no such Uniformly, target apply. intent are evident is to meant statutes activity offenders, despite prior persist those who criminal habitual convictions. Dissenting by Opinion Cavanagh, J. It is language

reasonable. of supported uniformly statute. It is also supported legislative history.

Further, plausible, when there are competing inter- pretations statute, a lenity of criminal the rule of should “ apply. ‘[W]hen there are two rational of a readings statute, other, criminal one harsher than the arewe choose the harsher only Congress spoken when ” clear and definite language.’ Scheidler v Nat’l Org for Inc, Women, 409; 1057; 537 US 123 S L Ct 154 Ed (2003), States, 2d 991 quoting McNally v United 483 US 350, 359-360; 107 S Ct 97 L Ed 2d 292 words, other when plausible there are two meanings, the more lenient should when of a apply years person’s life majority are at stake. The isolates a statute outside its clear scheme to arrive at harsher even if majority’s result. But interpretation plausible, rule should lenity apply, and the rule of Preuss, expressing the consistent holdings Court, should stand. majority

The lists juris- several statutes from other examples dictions as of habitual-offender statutes with language clearly requiring predicate felonies arise from separate criminal episodes.10Ante at 60-61. Among ACCA, these is the statute, federal habitual-offender as mentioned. The majority notes that the federal statute express language contains stating predicate majority asserts that these statutes from states other indicate Michigan Legislature fully capable amending that the “is its if it do positive sees fit to so.” Ante at 59-60. The would read meaning Michigan legislative regarding, instance, into silence statute, light Missouri but refuses do so in of decades of settled Michigan Michigan Legislature may law. The well remained have silent Michigan today because no multiple court until that ever held arising multiple from convictions the same act count as offenses for purposes of habitual-offender enhancement. 77 Dissenting Opinion Cavanagh, J. different on occasions must be “committed felonies 924(e)(1). the What another . . . USC from one the time the United fails that at to observe majority the United States implied, Court Supreme States held, Circuit that Eighth for the Appeals used under federal habitual-offender predicate felonies from must on occasions different be committed statutes another, say that. expressly statute did not the one con- history to Rather, legislative the courts reviewed meaning the of the statute. that this must be clude held, the courts so amended the statute Congress after so fact, rulings relied the court and, in on Congress the statute.11 amend in the changes that majority repeatedly implies have altered the habitual-offender

statutory language that nоw to crimes they apply to the extent statutes transaction, but the same criminal during committed in the lan- identify changes the fails because that have had this effect. That is guage would The 1978 changes language. are no there such conviction; they relate the time revisions timing relate of the commission of do not underlying crimes. Preuss, 1927 and 1978 statu- we reviewed the language, concluded that both

tory language. We amendment, required only and after before felony a before com- have been convicted of defendant for which the enhanced sentence mission of crime holding being We revised Stoudemire’s imposed. was crime have been previous the sentence for must States, Petty, Petty (1987), v v United States 481 US United See (CA (CA 8, 1986), Petty, States v 8,1987), United 798 F2d 1157 F2d 1988). Cong S17360, (daily Rec ed November For McElyea, United States history development, see also 158 F3d of this (CA 9, 1998); Stoudemire, 429 Mich at 275-276. 1018-1020 Dissenting Opinion by Cavanagh, J.

completed before that crime be used in could count- ing predicate felony Thus, analyzing convictions. 769.12, MCL stated that applies we the statute “to defendants had previously who been convicted three they times before offense, committed their fourth if they yet even had not been all any sentenced on or Preuss, prior of those convictions.” 436 Mich at 724. nothing Yet we found in the amended to language compel a in change longstanding requirement arising that “multiple single convictions out of a incident may only count as single prior a conviction under the statute.” Id. at 720.

The language amended relate timing does not to the of the underlying crimes; commission it relates only timing to the of the convictions for them. The majority does not show precisely how the amended to relates timing of commission of The previous majority’s crimes. overruling century of a Michigan and half of jurisprudence is not based on the Again, revisions.12 in more than 150 years, no Michigan held, court has ever today, until that convic- tions for multiple сrimes in a single committed criminal transaction as separate count convictions for habitual- Palm, offender See purposes. Mich at 400. 12 appears majority It that is driven new view of interpretation, posit [b]ut argument’s changes even were we for sake that interpretive approach place time, take from time to we could not agree change justify that the existence such a would reexami prior Principles decisis, nation of well-established law. of stare all, respect precedent judicial after demand whether methods change interpretation stay so, the same. Were that not those principles legal stability they would fail achieve the that seek upon depends. West, [CBOCS which the rule of law Inc v

Humphries, _ US _, _; 128 S 170 L Ct Ed 2d 864 (2008).] Opinion Dissenting Cavanagh, J. “arguably ruling its asserts longstanding than practice” apply simpler true may it be Ante at 62. While rule. same-incident felonies than multiple to count it is easier single from a convictions arose whether discern Legisla- that the does not mean incident, that criminal to apply statutes habitual-offender intended the ture that con- rule Further, longstanding that manner. as be counted same incident from the arising victions has not purposes for habitual-offender conviction one susceptible interpret particularly to difficult proved has been workable The rule discretion.13 judicial to enacted. the statutes were since sentenced in this case has been The defendant felony- as a second-offense years for five imprisonment 750.227b(l).14 His simultaneous MCL firearm offender. extending his for purposes counted crimes have been lifetime, if years, not a spend will sentence. Defendant further subject be defendant should But prison. second-offense, a third- not as a sentence enhancement stat- The habitual-offender offense, offender. habitual judicial majority’s regarding discretion somewhat I concern find give observes, because, themselves the statutes puzzling as the they apply. and how prosecutors discretion in when and broad courts a enhancement for Giving intent to seek a sentence notice of the discretion of the is at is an habitual offender defendant who 769.13(1). Imposing is a sentence enhancement prosecutor. See MCL 769.10(1)(a) (b); and sentencing discretionary court. See MCL for the 769.12(1)(a) (b). 769.11(1)(a) (b); MCL MCL 750.227b(l) states that MCL possession when a firearm has in his or her

person who carries or guilty felony of a attempts ... is to commit commits or he or she years. Upon imprisoned a second felony, be and shall section, imprisoned for 5 person be shall under this conviction subsequent under this subsec- Upon conviction years. a third or years. imprisoned tion, for 10 person be shall Dissenting Opinion by Kelly, 482 Mich J. simultaneous, utes apply subsequent, not felonies. The statutes are intended to enhance the sentences of criminals, persistent not multiple offenders. Defen- 25-year dant’s minimum within sentence is the recom- mended minimum sentence for a range second-offense offender, but, habitual sentencing because the court incorrectly counted separate arising convictions from incident, the same criminal arising fact from the act, same resentencing required. People Francisco, 89-91; I NW2d 44 would not overrule holdings Preuss and uniform of this Court that Preuss I would represents. remand this case to the sentencing court for it to impose a sentence on defen- dant as a second-offense habitual offender. J., concurred J. with

Kelly, CAVANAGH, J. This (dissenting). is another case in which KELLY, the majority disregards the doctrine stare I decisis. join Justice CAVANAGH’s I well-reasoned dissent. write separately to strongly disapprove majority’s efforts to overturn all which caselaw with it disagrees, however destabilizing may be. effect This is not a new area of contention I amоng us. have previously argued majority’s willingness pre- overrule cedent legal system weakens our at its foundation.1 issue, Because of the importance of the it warrants continuing attention.2

I agree with Justice People CAVANAGH that v Preuss and its antecedents correctly held that “multiple con- 1 Rowland, See, e.g., Comm, v Washtenaw Co Rd 197, 253-257; 477 Mich (2007) (Kelly, J., concurring 731 41 part dissenting part). NW2d in in 2 Dep’t of Hwys Transportation, Welch v Texas & Pub See 468, 483 US 494; (1987) J.) 2941; (“[T]he Powell, (opinion 107 S Ct L Ed 2d 389 doctrine of stare decisis is of fundamental importance to the rule of law.”). by Opinion Dissenting Kelly, J. as may count single of a incident arising out victions ,”3 .. . under statute conviction only single prior line of decisions. that I would not overrule Obviously, I concerned disagreement, am Yet, from this basic aside of stare to the doctrine majority’s approach that correctly its ear. The to turn it on decicis tends mechanically not be stare decisis should observes that caselaw. overruling previous prevent applied in the direction. by moving opposite Then it errs doctrine, it me- of the purpose contravention overruling permit stare decisis chanically applies decided. incorrectly case it believes was every et non quieta decisis is short for stare decisis Stare decided and movere, by thing means “stand which of American part It has been a disturb the calm.” do not Alex- founded.4 country since the was jurisprudence arbitrary an wrote that to “avoid ander Hamilton courts, they indispensable in the it is discretion precedents rules and be bound down strict should duty every their point define and out which serve to Early . . .”5 case that comes before them . particular Cardozo century, (then-judge) Justice the twentieth increased the “labor of would be judges wrote could every past if decision breaking point almost to the lay not one’s every case, and one could reopened be foundation of the of bricks on the secure own course him.”6 gone had before courses laid others who (1990). Preuss, People v 461 NW2d England. Healy, Stare back to medieval The doctrine can be traced requirement, L It a constitutional 104 W Va R 56-62 decisis as early eighteenth and nineteenth modern form in the late assumed its Id. at 55. centuries. Hamilton) (Clinton (Alexander 78, p 471 Rossiter The Federalist No. 1961). ed, (New Cardozo, the Judicial Process Benjamin The Nature of N. Press, 1921), University p 149. Haven: Yale 41

82 482 Mich by Dissenting Opinion Kelly, J. adopted this Court present majority on has what commonly are the factors” known as “Robinson precedent discern should be overruled.7 “In whether case, determining whether to overrule a this Court first considers whether the earlier case was wrongly only decided.”8 But that is the first step that (1) must be taken. The Court must then examine (2) workable, whether the decision the degree remains (3) on the decision, changes reliance in whether or facts law have undermined the basis of the straightforward, decision.9 While this analysis appears it can be applying difficult.

First, case, as demonstrated the instant the jus- tices of this Court often disagree about whether a previous incorrectly Yet, decision was decided. cases, Court’s if post majority -Robinson concludes that previous decision was wrong, likely it will be overruled.10 The remainder of the analysis Robinson be appears gratuitous. instance, For area of law, criminal held that reliance inter- addition, ests are not simply implicated.11 In the major- Detroit, 439; v Robinson 462 Mich 613 NW2d 307 8 Rowland, 214, citing Robinson, 477 Mich at 462 Mich 463-468. 9 Robinson, 462 Mich at 464. 10 See, Rowland, e.g., (stating 477 Mich at 215 n 13 that Robinson against overruling precedent); Paige Sterling factors ‍‌​​​‌​‌‌‌‌​​‌​‌​‌‌‌​​‌​​‌‌‌‌​​‌‌​‌‌​‌‌​‌​​‌‌‌‌‌​‍did not counsel v (2006) Hts, 495, 21; (stating only 476 Mich 512 n 720 NW2d 219 that “the might precedent]” [erroneous instances in which we decline overrule is chaos) doing produce (emphasis added); Nutt, when would so v (2004) 565, 591; (concluding Mich 677 NW2d 1 is compelled precedent); People Hickman, to overrule erroneous v 470 Mich (2004) 6; (noting justification special 610 n 684 NW2d 267 that no necessary Petit, precedent); People overrule erroneous v 466 Mich (2002) 633-634; (stating NW2d that courts should overturn decisions). erroneous People Kazmierczak, 411, 425; Ante at see also (2000) (implying worthy “sympathy” NW2d 667 is not reliance V GARDNER PEOPLE Opinion Dissenting Kelly, J. initial with the prong reliance merges ity often correctly was precedent the of whether determination reli- the effectively eviscerates point This last decided. “wrong” a analysis, because the Robinson ance prong The reliance.12 generate can never supposedly decision approach current majority’s the result of predictable of demon- its initial burden that, a meets party once the wrong, precedent was decision strating that a is overturned. of stare face of the doctrine flies

This result that some concept is the to the doctrine Key decisis. notwithstanding its flaws.13 upheld should be precedent context). recognize are majority that criminals fails to the criminal instance, legisla- rely only people criminal statutes. For who on not the Department on the basis of appropriate of Corrections funds for tors majority’s many incarcerated. The predictions individuals will be of how previ- render interpretation offender statutes could of the habitual new appropriations insufficient because calculations inaccurate ous subject lengthier prison terms. will now be criminals Park, 675, 694; City Mich 641 NW2d v Allen See Pohutski (“ ‘[Sjhould Robinson, (2002), a court con quoting 462 Mich at 467 misreading misconstruing expectations by legitimate .. citizen found . disrupted statute, the reliance interest. itself that has a it is that court court, holding happens, subsequent rather than When that decisis, reading should overrule of the doctrine of stare distorted because ”). earlier court’s misconstruction.’ 695, 716; 1754; States, 115 S Ct 131L v United 514 US See Hubbard (1995) (Sealia, J., concurring part) (stating that the decision Ed 2d 779 go beyond supported mеre demon “reasons that to overrule must be wrong opinion [otherwise the doctrine was that the overruled stration Cos, Dobson, all]”); v Terminix Inc no doctrine at Allied-Bruce would be (1995) (O’Connor, J., 265, 283-284; 834; L Ed 2d 753 115 S Ct 513 US wrong majority (reiterating had been concurring) her view that the joining in this deciding previous but issue in a case the same it); special justification Mathews to overrule there was no case because (1988) 58, 66-67; States, 99 L Ed 2d 54 108 S Ct 485 US United (“I only J., separately I have (Brennan, concurring) because write dissenting joined opinions from this Court’s previously or written four entrap predisposition is relevant to the holdings that the defendant’s slate, judging I still be inclined a clean would ... Were I on ment defense. 482 Mich 41 Dissenting Opinion by J. Kelly, As stated Justice Brandéis: “Stare usually decisis is 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.”14

Relying on caselaw from the United States Supreme Court, many suggest commentators that there exists hierarchy of precedents. Under hierarchy, stare decisis applies differently to different areas of the law.15 The hierarchy approach gives greatest weight to statutory precedents.16 It states that interpret- caselaw ing statutes should rarely be overturned because the Legislature is the appropriate branch of government correct an erroneous interpretation.17 adopt entrapment the view that the exclusively defense should focus on the writing slate; Government’s conduct. But I am not on a clean spoken definitively point. Therefore, Court has on this I bow to stare decisis....”); Illinois, 367, 374-375; 1158; Scott v 440 US 99 S Ct 59 L Ed (1979) (Powell, J., 2d concurring) (“Despite my 383 continuing reserva Argersinger rule, tions approved by about the it was the Court in the opinion justices 1972 and four today. important have reaffirmed it It is provide guidance that this Court clear to the hundreds of courts across country problem daily. the that Accordingly, сonfront this and mindful of decisis, join Court.”). opinion stare I the of the 14 Co, 393, 406; Burnet v Coronado Oil 443; & Gas 285 US 52 S Ct 76 (1932) (Brandeis, J., L dissenting). Ed 815 15 See, e.g., Sinclair, Precedent, super-precedent, 363, 14 Geo Mason L R (2007); Sellers, precedent 368-370 The doctrine in the United States of of America, Comp 67, 68-69, 54 Am J (Supp, 2006); L Eskridge, 84-85 Overruling statutory precedents, 1361, (1988); 76 Geo L J 1362-1363 Barrett, Statutory appeals, stare decisis in the courts 73 Geo Wash L R (2005). 317 States, 284, 295; Neal v 763; United 516 US 116 S Ct 133 L Ed 2d 709 (1996); Union, 164, 172-173; Patterson v McLean Credit 491 US 109 S Ct 2363; (1989); 105 L Ed 2d Illinois, 720, Illinois Brick Co v 431 US 736; 2061; (1977); 97 S Fisher, Ct 52 L Ed Statutory 2d 707 see also Keeping respectful eye Congress, construction: on L 53 SMU R 51-52 (2000); Barrett, 73 Geo Wash L R at 320-321 Supreme As stated the United States Court: “Considerations of special stare decisis have interpretation, force in the area of Dissenting Opinion Kelly, J. hierarchy approach, if rejects one Even justifica- special some overruling precedent requires Michigan Supreme majority The current tion.18 acknowledged however, broadly this Court, ignored analysis While Robinson borrowed its requirement.19 law, incorporate it failed to from federal directly that permeates that requirement special-justification aspect of this significant “The most body of law.20 requires is it more that justification’ approach ‘special was challenged precedent than a conviction justification special wrongly Requiring decided.”21 application in the Court’s predictability promotes also apply more difficult to by making decisis it of stare selectively. doctrine case, majority longstanding overrules

In the instant justifi- any special a statute without interpreting caselaw the earlier simply concludes majority cation. The decided, and, the caselaw incorrectly because caselaw was statute, no reliance interests are a criminal interpreted majority, the habitual of- According to the implicated. offenses commit- clearly apply multiple fender stаtutes As Justice CAVANAGH explains, ted on one occasion. years precedent.22 contradicts more than 150 the 1978 amend- claims that it relies on It refuses to the habitual offender statutes. ment of legislative here, interpretation, constitutional unlike in the context of implicated, Congress what we have power remains free alter Patterson, 491 US at 172-173. done.” 203, 212; 2305; Id.; Rumsey, 104 S 81 L Ed 2d Arizona v 467 US Ct Hickman, (1984); People n 684 NW2d 267 (2004) Note, (Kelly, J., dissenting); The unworkable unworkabil see also (2005). ity test, L R 1669-1670 80 NYU (Kelly, J., Hickman, dissenting). 470 Mich at 617 n 6 See 20Robinson, 462 Mich 463-464. (2005). Note, L R at 1670 80 NYU Ante at 70 n 78. 482 Mich 41 Dissenting Opinion by Kelly, J. any interpreta- comment on “the correctness of court’s tions of the pre-1978 versions of the statutes.”23 Willful ignorance prior caselaw does not make it disappear. assertion, to the Contrary majority’s post-1978 language of the habitual offender statutes does not clearly apply multiple offenses committed on one Rather, occasion. of the habitual offender statutes is at least equally supportive of the conclusion the statutes are inapplicable to convic- multiple arising tions from the same act. they This is because set out a “system graduated enhancements for subse- ,”24 quent felonies . ..

Accordingly, the 1978 amendments did not alter the command that “multiple convictions arising out of a single incident may only count as a single prior convic- tion under the statute .. . .”25 Because the amended statutory language does compel not the result reached by majority, it appropriate to consider this Court’s understanding preamendment statutory lan- guage. long This history ignored should not be simply because it does not suit the majority’s analysis.

Nor is it illogical or inconsistent to stand Preuss even though Preuss itself rejected, part, People v held, Stoudemire.26 Preuss contrary to some of the reasoning Stoudemire, articulated in that the habitual offender statutes did require not that a prior conviction be sepаrated by intervening convictions or sentences.27 However, specifically Preuss maintained Stoudemire’s holding that a defendant’s offenses must arise

23 Ante at 65.

24 Ante at 72.

25 Preuss, 436 Mich at 720. Stoudemire, 414 NW2d 693 27 Preuss, 436 Mich at 738-739. People v Gardner Dissenting Opinion by Kelly, J. Thus, incidents.28 Preuss and Stoudemire separate from on the in issue.29 controlling precedent point are to a strict- majority binding The asserts that courts ensures statutory interpretation constructionist view of in arbitrary decision-making. that courts are not their claim. majority’s The decision this case belies that necessarily at issue does not statutory language The majority. reached None- lead to conclusion theless, willing change longstanding majority that conflicts with its Fre- interpretation. rule of law disagree fair-minded about what quently, people will requires. of a statute Just because a justices on this Court majority proclaims ambiguity statute free from does not make it so. This is why something it is so more precisely important incorrectly than a notion that 'an earlier case was required precedent decided should be before is over- ruled.

Stare decisis is not an ironclad mandate. Because err, sometimes it is for us to recon- justices appropriate so, however, earlier we do stare sider decisions.30When requires give thoughtful decisis that we those decisions them aside. thorough tossing consideration before Our decision about whether an earlier case must be should more than a notion that guided overruled be incorrectly the case was decided.31 Id. 737. rejected correctly reasoning concern Whether Preuss Stoudemire’s ing timing of the convictions is not at issue here. Chrysler Sington Corp, See 467 Mich 648 NW2d 624 (2002) (Kelly, J., dissenting). concurring relies on Justice Markman’s statement my argument freely precedent it Rowland to counter too overturns disagrees. primary it Justice Markman’s assertion in Rowland with which precedent disagreement than was that our is less about оur esteem for Rowland, being opinions 477 Mich at about the merits of the overruled. Dissenting Opinion by Kelly, J. Preuss, us, I uphold the matter before would Moreover, correctly

because it was decided. the doctrine of stare decisis dictates that it be upheld. Preuss re- workable, mains and no changes the law or facts have special undermined it. No circumstances exist indicat- ing that it should be overruled. Because Preuss inter- law, preted statutory especially the Court should be If misinterpreted legisla- hesitant to overrule it. Preuss intent, Legislature tive can amend the habitual permit offender statutes to their to application multiple opinions agreed precedent 224. He then in cited which I with the that the “ Rowland, majority overruled. As I stated in [t]his to amounts little more logical fallacy.” (Kelly, Id. than a circumstantial ad hominem n 12 J., dissenting). support precedents disagree Whether I will with which I is a question brought light regularly not often but one I confront. In years, frequently disagreed majority recent I have with the on the presented merits and resolution of issues to us. Once I have been dissent, my outvoted and I face whether to reiterate dissent in future raising Often, opinion cases the same issues. I accede to the majority instance, recently joined majority opinion For I in State Univ, Michigan 692; (2008), News v State Mich 753 NW2d 20 even though Michigan Michigan, it cited Federation Teachers v Univ (2008), Also, 753 NW2d 28 in which I dissented. in the past years, deny I have voted to leave in cases too numerous to list by majority, my despite disagreement based on decisions reached my frequent willingness with those decisions. This further indicates by precedents disagree. abide and maintain I with which Contrary belief, respective to Justice Markman’s our records demonstrate disagreements frequently solely that our stem not from our view of differing the merits of issues but from our esteem for stare decisis. See Rowland, (Kelly, J., dissenting), citing Berg, 477 Mich at 257 n 12 Todd C. MSC, Esq., Overruling Scorecard, Precedent and the The Justices’ Michi- gan Lawyers Weekly, November 2006. majority’s reference to Justice Markman’s accusations in Row- concerning my is, land record and views should he seen for what it a red herring, point: choosing a distraction from the main is case, longstanding precedent many it, overrule in this inas so before wholly inadequate reasons. Dissenting by Opinion J. Kelly, free occasion.32 Preuss is on one offenses committed practice, not mischievous absurdity, from For of this Court.33 adjudications other consistent with articulated Justice reasons, as well as those these I dissent. Cavanagh, disagree I with the Justice For the reasons stated Cavanagh,

majority’s Legislature has amended the statutes to that the conclusion multiple permit application committed on one occasion. their offenses Ante at 77-78. J., Rowland, concurring part 477 Mich at 255 n 8 (Kelly, dissenting part). Justice notes 924(e)(1) Congress before explicitly amended 18 USC include a same- test, already begun incident grafting courts had such a test onto the statute. rarely Post at legislature’s 76-77. But we know whether a intent amending a originally statute reflects the intent it had when it enacted the Indeed, conforming statute. when a amendment occurs in the wake of a judicial decision, know, judicial may for all sparked we decision have legislators perceived error, ‍‌​​​‌​‌‌‌‌​​‌​‌​‌‌‌​​‌​​‌‌‌‌​​‌‌​‌‌​‌‌​‌​​‌‌‌‌‌​‍debate because some the decision as but the legislature may ultimately interpretation have concluded that the incorrect policy. reasons, nonetheless reflected the better current For these we decline second-guess Legislature spoken unambiguously. when it has It is not correct'judicially perceived Court’s role to mistakes rooted in the Legislature’s contrary, separate duty silence or inaction. To the our is to engage Donajkowski, appropriate. supra when at 260. self-correction MICH Opinion of the Court

Case Details

Case Name: People v. Gardner

Court Name: Michigan Supreme Court

Date Published: Jul 23, 2008

Citation: 753 N.W.2d 78

Docket Number: Docket 131942

Court Abbreviation: Mich.