People v. McFadden
251 N.W.2d 297
Mich. Ct. App.
1977
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PEOPLE v McFADDEN

Docket No. 27065

Court of Appeals of Michigan

January 6, 1977

73 Mich. App. 232

OPINION OF THE COURT

  1. CRIMINAL LAW—HABITUAL OFFENDER ACT—SENTENCES—PRIOR CONVICTIONS—JURY TRIAL.

    The habitual offender act, which governs the sentences of persons being convicted for committing a second or subsequent offense, requires the filing of an information accusing the offender of such prior offenses and affords him, should he deny the charge, the right to a jury trial on the validity or truth of the prior convictions (MCLA 769.13; MSA 28.1085).

  2. DRUGS AND NARCOTICS—CONTROLLED SUBSTANCES ACT—SECOND CONVICTIONS—SENTENCES—PROCEDURAL SAFEGUARDS—STATUTES.

    The section of the Controlled Substances Act which allows a person convicted оf a second or subsequent offense under the act to be given a penalty of up to twice the penalty otherwise authorized under the act does not require that the offender be granted the рrocedural safeguards which are required by the habitual offender act (MCLA 335.348, 769.13; MSA 18.1070[48], 28.1085).

  3. STATUTES—STATUTORY CONSTRUCTION—CONFLICTING STATUTES—SPECIFIC STATUTE—GENERAL STATUTE.

    It is a rule of statutory construction that where two statutes are or appear to be in conflict a specific statutе, enacted subsequent to a more general statute, prevails.

  4. DRUGS AND NARCOTICS—SENTENCES—PRIOR CONVICTIONS—GREATER PENALTY—DUE PROCESS—STATUTES.

    There was no violation of a defendant‘s due process rights when the defendant was sentenced under the portion of the Con-trollеd Substances Act which allows a greater penalty for a defendant who has been convicted for a second or subsequent offense under the act where the defendant was presented ‍​​‌‌‌‌​​‌‌‌‌‌‌‌‌‌​‌‌​​‌​​‌‌‌​‌‌​​‌​‌​​‌​​‌‌‌‌‌‌‌‍with information concerning his prior drug offenses, was given an opportunity to allocute, and the accuracy of the information regarding the other convictions was confirmed (MCLA 335.348; MSA 18.1070[48]).

  5. COURTS—INSTRUCTIONS TO JURY—ENTIRETY OF INSTRUCTIONS.

    Instructions to a jury are reviewed as a whole rather than in small excerpts.

CONCURRENCE BY D. C. RILEY, J.

  1. DRUGS AND NARCOTICS—SENTENCES—GREATER PENALTY—PRIOR CONVICTIONS—STATUTES.

    The doubling of a defendant‘s punishment for a second conviction under the Controlled Substances Act does not violate due process where the dеfendant‘s prior conviction under the act involved possession of cocaine and amphetamines and that conviction was not remote in time from the second conviction.

Appeаl from Genesee, Philip C. Elliott, J. Submitted December 9, 1976, at Lansing. (Docket No. 27065.) Decided January 6, 1977.

Roscoe McFadden was convicted of delivery of a controlled substance. Defendant appeаls. Affirmed.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Robert F. Leonard, Prosecuting Attorney, and Donald A. Kuebler, Chief, Appellate Division, for the people.

Thomas L. Gadola, for defendant.

Before: D. E. HOLBROOK, P. J., and ALLEN and D. C. RILEY, JJ.

ALLEN, P. J. May a trial court, acting under authority of § 48 of the Controlled Substances Act,1 imрose a sentence of up to twice the normal sentence for a second conviction of a crime relating to drugs, without affording the defendant a hearing or other opportunity to requirе the people to prove the alleged prior conviction? This question of first impression is raised after defendant was found guilty by jury of delivery of a controlled substance, contrary to MCLA 335.341(1)(b); MSA 18.1070(41)(1)(b) and, on Novеmber 4, 1975, sentenced to a term of 8 to 14 years imprisonment. The maximum penalty ‍​​‌‌‌‌​​‌‌‌‌‌‌‌‌‌​‌‌​​‌​​‌‌‌​‌‌​​‌​‌​​‌​​‌‌‌‌‌‌‌‍for a single (41)(1)(b) offense is 7 years imprisonment or a fine of $5,000 or both.

The Michigan habitual offender act, governing sentences of рersons committing a second or third or more offenses,2 requires the filing of an information accusing the person of such prior offenses and affords that person, should he deny such charge, the right to a jury triаl on the validity or truth of the prior convictions. MCLA 769.13; MSA 28.1085. Defendant argues that even though § 48 of the controlled substances law, supra, does not specifically grant a similar right of hearing, such right is or should be implicit in § 48. Fundamental duе process, defendant says, would require that he be given the opportunity to require the people to prove the convictions on which the increased sen-

tence is based, and allow the defendant to present any defenses he might have. We disagree.

There is no express statutory requirement that the procedural safeguards of MCLA 769.13; MSA 28.1085 should be applied to MCLA 335.348; MSA 18.1070(48). The habitual offender statute last enacted in 1941 is genеral in nature, applying to all types of offenses. Section 48 of the Controlled Substances Act was enacted in 1966 and is specific, applying only to drug offenses. It is a rule of statutory construction that whеre two statutes are or appear to be in conflict, the specific statute, enacted subsequent to the more general statute, prevails.

. The fact that the Legislature did not write into the Controlled Substances Act the procedural requirements of the earlier act, indicates to us a legislative intent that it did not wish to provide another adversary hearing in drug cases. Furthermore, in a realistic sense the defendant was not denied due process. Represented by counsel at the sentencing hearing, he admitted that in 1955 he was sentenced in California on a marihuana charge and that at suсh time he was represented by counsel. The pre-sentence report also indicated that in 1969 defendant had been sentenced on a possession of narcotics charge by the Circuit Court for Genesee County. When defendant asserted that the 1969 sentence was only for carrying a concealed weapon, the trial court called a short recess, procured the circuit court file and ascertained that defendant was convicted of both carrying a concealed weapon and possession of a narcotic.3

The same statutory lack of due process claim as

is made in the instant case was leveled agаinst ‍​​‌‌‌‌​​‌‌‌‌‌‌‌‌‌​‌‌​​‌​​‌‌‌​‌‌​​‌​‌​​‌​​‌‌‌‌‌‌‌‍the consecutive sentence statute, MCLA 768.7b; MSA 28.1030(2), in

. Our Court rejected defendant‘s argument on two grounds, the second of which we find persuasive and relevant to the situation before us.4 After first noting that the information сoncerning a previous conviction was contained in the presentence report and was available to defendant, the Court said:

“Rather, such information can be readily ascertainеd and contained in a presentence report as part of the ‘antecedents, character and circumstances’ of the defendant. MCLA 771.14; MSA 28.1144. As in the case at bar, the defendant should be advised that he is subject to consecutive sentencing and be given the opportunity, during allocution, to explain, correct, or deny such information.

“As we have stated in

, and as stated in
:

” ‘It is vitally important to the defendant and to the ends of justicе that the sentence be based upon accurate information.’

“If, for some reason, a defendant contends the information in the presentence report is erroneous, the asserted fаcts upon which consecutive sentencing would be appropriate should be supported by proof. See

. Since, in this case, defendant, while represented by counsel, admitted the operative facts, we hold his consecutive sentence to be in order.”
.

Since at the sentence hearing defendant was presented with information concerning his prior drug offenses, was given an opportunity to allocute, and the accuracy of such information was confirmed, we find no violation of due process.

Two additional grounds for reversal are raised.5 We find neither persuasive. In charging the jury, the court emphasized the presumptiоn of innocence and defined for the jury the essential elements ‍​​‌‌‌‌​​‌‌‌‌‌‌‌‌‌​‌‌​​‌​​‌‌‌​‌‌​​‌​‌​​‌​​‌‌‌‌‌‌‌‍of the offense with which defendant was charged. The adequacy of instructions are reviewed as a whole rather than in small excerpts.

. While the trial court did not mention “burden of proof” by name, the substance of the charge was fully imparted to the jury. In
, a jury charge which omitted specific reference to burden of proof but cоntained references to presumption of innocence was sustained.6 The claim of inadequacy in the charge as to reasonable doubt is not supported by the record which we find contains a statement by the court expressly mentioning proof beyond a reasonable doubt and the defendant by name.

Affirmed.

D. E. HOLBROOK, P. J., concurred.

D. C. RILEY, J. (concurring). I concur but write

separately merely to emphasize that application of MCLA 335.348; MSA 18.1070(48) in the context of the instant facts does not offend due process. I do not read my Brother ALLEN‘s opinion as holding that § 48 permits a doubling of punishment in every case. Rather, I would leave for another day the question whether a double penalty is constitutionally permissible where the prior offense is relatively minor and the subsequеnt offense significantly more grave.1 I would also forego deciding whether a prior offense may be so remote in time that its use under § 48 to enhance punishment is constitutionally proscribed.

Notes

1
MCLA 335.348; MSA 18.1070(48):

“Sec. 48. (1) Any person convicted of a second or subsequent offense under this act may be imprisoned for a term up to twice the term otherwise authorized or fined an amount up to twice that otherwise authorized, or both.

“(2) For purposes of this section, an offense is considered a second or subsequent offense, if, prior to his conviction of the offense, the offender has at any time been convicted undеr this act or under any statute of the United States or of any state relating to narcotic drugs, marihuana, depressant, stimulant or hallucinogenic drugs.”

Since in the present case defendant‘s prior drug convictions involved not only marihuana but also cocaine and amphetamines, see
, our opinion today does not address the first issue raised in this concurrence.
2
MCLA 769.13; MSA 28.1085.
3
Defendant‘s sentence and conviction on both counts wаs appealed and affirmed in
.
4
The first reason given for failure to persuade the Court of a violation of due process was that the consecutive sentence statute, unlike the habitual offеnder act, does not increase the maximum punishment for the second offense but merely postpones ‍​​‌‌‌‌​​‌‌‌‌‌‌‌‌‌​‌‌​​‌​​‌‌‌​‌‌​​‌​‌​​‌​​‌‌‌‌‌‌‌‍the time the second sentence commences. Therefore, “Inquiry into the validity of the priоr conviction is not relevant, since if overturned on appeal or otherwise, the prisoner automatically starts serving his sentence on the subsequent conviction.”
.
5
The two additional grounds for aрpeal are: (1) the trial court inadequately instructed the jury as to the people‘s burden of proof; (2) the trial court erred in its instruction as to the definition of “reasonable doubt“.
6
“The charge befоre us is replete with references to presumption of innocence and the question remains as to whether the requisite charge on burden of proof is present. Read as a whole, we beliеve that the jury was fairly apprised that the burden of proof lies on the prosecution.”
.