*1
Frank J. Thomas Thompson, Casey, ecuting General, Solicitor Richard Pros- Appellate Attorney, Joyce Todd, Chief, F. Division, ecuting Kabodian, and Janice A. Assistant Pros- people
Attorney, for the in Moreau. Deming Deming) (by & Maurer John H. for Morris. Appellate (by State Defender Sheila N. Robert-
son) Hadley. McCarthy Michael J. for Moreau.
Amicus Curiae: Kelley, Attorney General,
Frank J. Thomas L. Casey, General, Martin, Solicitor Donald Presi- Prosecuting Attorney, dent, O’Hair, D. John Timothy Baughman, Training Chief, Research, A. Appeals, Prosecuting Attorneys for the Associ- Michigan. ation of J. in the three Defendants cases before Boyle, multiple
us have been stance offenses and sentenced to serve consecutive convicted controlled sub- prison challenge terms. Defendants consecu- arguing sentences, tive nature of their that their statutory crimes do not fit the relevant within *4 provision mandating consecutive sentences. Con- requires sideration of this issue us to decide scope of offenses included the term "another felony” as used in the controlled substances act provision mandating imposed that a sentence for Opinion of the Court violation of certain drug enumerated controlled imposed offenses "shall be to run consecutively with any imprisonment term of imposed for the 333.7401(3); commission of felony.” another added). 14.15(7401)(3) (emphasis As an exten- question sion of this in the case of defendant we Hadley, must also if a trial determine court required impose sentencing consecutive under 7401(3) where a defendant is sentenced in the § offenses, same proceeding for conviction two first covered under the mandatory sentencing provision §7401(3), but the second not provision. covered that
We hold that the term "another as used in § 7401(3) includes felony for which any defendant has been sentenced either before or simultaneously with the controlled substance fel ony enumerated in for which a defendant § is currently being phrase applies sentenced. The any provision felonies violative of of the controlled act, substances including additional violations of the same controlled provision substance for which the sentenced, defendant is being or any Further, felony. imposed sentences in the same sentencing proceeding assumed, are for the 7401(3), purposes of to be simultane § Therefore, ously. where for felonies which a defendant is being sentenced in the same proceeding are mandatory covered consecu 7401(3), tive provision of the sentence § must be to run consecu tively imprisonment the term of imposed for other felonies. Morris,
Because defendants Hadley, and Moreau were sentenced to consecutive pursuant terms 7401(3), we affirm the decisions of the Court of Appeals. *5 People v Morris 321 Opinion of the Court
I A PEOPLE v MORRIS Defendant Otis Morris was in charged Ingham with of less than County delivery fifty grams of charge cocaine1 and convicted of that on April 1989. While on pending sentencing bond for the conviction, April 6 he grams sold less than fifty cocaine Michigan to undercover State Police offi- occasions, on separate cers three the first two in occurring Ingham transactions and the County third transaction in County. Eaton Morris was 31, 1989, prison sentenced on to a May term of to twenty years April five for his 6 conviction. June, 1989, In charged Ingham Morris was County possession with two counts of with intent to deliver less than fifty grams of cocaine and charged in Eaton with County one count of that noted, charges same offense.2 As all three arose police from the sales to undercover while defen dant was free on bond. In Eaton County, supple mental information was filed him charging as an 8, 1989, September habitual offender.3 On defen dant was convicted of charged both counts 18, 1989, Ingham September On County. Morris delivery charge was also convicted of the cocaine County. separate hearing Eaton At a on 31, the charge October habitual offender was dis missed. 19, 1989, September
On
Morris was sentenced
Ingham
to concurrent
terms of
County
ten
twenty years
possession
for conviction of the two
MSA 28.1084.
Id.
[2]
The habitual offender
333.7401(2)(a)(iv);
charge
14.15(7401)(2)(a)(iv).
was filed
pursuant
to MCL
769.12;
450 Mich Opinion op the Court
charges,
to be
served
his term
concurrently
imprisonment
drug
his original
delivery
convic-
15, 1990;
tion.4 On
Morris
February
was sentenced
in Eaton
to a
County
prison
six- to twenty-year
term,
previous
to be served
sentence the defendant
currently serving.
At
*6
the Eaton County sentencing
hearing,
the trial
court
found
it
required
impose
that
was
to
a
7401(3).
consecutive
pursuant
sentence
to §
appeal
On
from defendant’s Eaton County con-
viction,
held,
alia,
the
of Appeals
Court
inter
mandatory
was
under
7401(3). Unpublished memorandum opinion,
is-
(Docket
127558).
19,
sued March
No.
We
granted
appeal,
leave to
limited to
the issue
consecutive sentencing,
and further ordered that
case
argued together
People v Hadley
with
(1994).
People
and
v Moreau.
.1995] Opinion op the Court pertinent under subsequent second offender provision of controlled act.6 substances 1987, appear
Hadley April, failed for trial on bond until arrested absconded and ar- October, 14, 1991, raigned in 1990. January On pleaded defendant guilty possession with intent fifty, grams to deliver more than but than 225 less pethidine possession with intent to deliver grams less morphine.7 than All fifty charges including against Hadley, absconding and charges, dropped. second offender were 18, Hadley originally was on sentenced March ten- to serve a for twenty-year sentence pethidine delivery concurrently conviction with a one- to twenty-year sentence the mor- phine delivery conviction. pethidine sentence pronounced immediately morphine before during the same proceeding. Approxi- mately one and one-half after original hours concluded, sentencing proceeding was it was recon- vened, and days the number of credit due the *7 defendant was corrected to 162. from 144 In addi- tion, 7401(3) court required circuit found that § that the sentences run consecutively. decision, In a split Appeals of upheld Court App 96; consecutive sentence. 199 Mich 501 (1993). granted NW2d 219 We appeal leave to issue, sentencing consecutive and ordered that case be argued with Morris and Moreau. 446 Mich (1994). 851
c PEOPLE v MOREAU While on apparently probation for a conviction 6 MCL [7] 333.7401(2)(a)(iii), 333.7413; MSA 14.15(7413). (iv); 14.15(7401)(2)(a)(iii), (iv). 324 316 Opinion of the Court delivery grams cocaine,8 less than fifty defendant Omott Moreau sold cocaine to an under- cover County Oakland deputy sheriff’s on three 9, occasions between June 1 July 1990. Defen- dant 7, 1991, was convicted on May of three counts delivery of more than fifty, but less than grams of cocaine9 and sentenced to three prison terms of ten to twenty years. These sentences were also ordered to be served Moreau’s of one to twenty years imposed for the conviction of his original cocaine delivery charge. At the sentencing hearing, the circuit court opinion stated its that consecutive sentencing was mandatory. appeal,
On
the Court
Appeals,
alia,
inter
upheld consecutive
defendant,
citing
provisions
§ 7401(3).
Unpublished
opinion
curiam,
per
issued October
(Docket
141413).
No.
Leave to appeal
granted
Court,
by this
argued
with Morris and Mor
(1994).
eau.
ii A Our issue in present cases is one of statutory construction. No challenge has been regard- raised ing the constitutional validity of on its face or applied. See People Bullock, 15, 27-43; 485 (1992), NW2d 866 see also id. at 43- J., concurring part and dissenting (Mallett, in part), and J., at 72-76 concurring in part (Boyle, and dissenting part). The defendants assert only the Legislature did not intend the relevant provision, statutory requiring the term of 8 MCL MCL 333.7401(2)(a)(iv); 333.7401(2)(a)(iii); MSA MSA *8 14.15(7401)(2)(a)(iv). 14.15(7401)(2)(a)(iii). Opinion of the Court imprisonment for one of the enumerated felonies "be to run consecutively any term of imprisonment imposed for the commission of an 14.15(7401)(3) other felony” 333.7401(3); (emphasis added), to apply to the circumstances presented in their cases. present defendants somewhat posi distinct
tions. Defendant Morris asserts that the statute is intended only to to apply noncontrolled substance offenses that are committed in the same transac tion as those § 7401(3). offenses enumerated Defendant Hadley agrees that application of the consecutive sentencing provision should be limited to offenses, but, noncontrolled substance contrary Morris, 7401(3) would application restrict § such offenses committed in transactions distinct from the controlled substance offense to which the consecutive sentencing provision applies. Defen dant Moreau dispute does not consecutive sentenc ing where a defendant has multiple committed controlled asserts, substance offenses.10 He how ever, that consecutive sentencing was not intended to apply to a series of like engaged transactions with the same police undercover officers over a period limited Instead, of time. he proposes that the statute should apply only where a defendant has committed distinct and different crimes.
We cannot agree with any of the defendants’
interpretations
various
phrase
"another
7401(3),
and hold that
§
lower courts
properly construed the
require
statute to
consecu-
tive sentencing in all three cases._
only challenges
Moreau
for the transac
engaged
during
tions
that
the
Whether
July,
question
June and
but does not
the sentences for
those crimes should be served
original
delivery
for his
cocaine
conviction.
statutory provision
some other
dictated this
result is not at issue before this Court.
*9
326
B
goal
statutory
construction is to effect the
v
Hiltz
Phil’s Quality
Legislature.
intent of the
Market,
(1983).
335, 343;
susceptible to alternative interpretations, it still remains Court this to construe "another fel ony” a manner is most consistent with the legislative enacting aim in the statute. Defendants’ arguments hinge on our legisla to find a authority tive intent that "another given should be a limited Although reach. concurrent is state, the norm in Sawyer, this 410 7401(3) 534; (1981), NW2d supplies § the clear statutory authority necessary impose statute, fact, consecutive sentences. The man that practice dates in the appropriate circum stances. nature,
Although penal part the Public Health Code. of that Provisions code are to be "liberally construed for protection of the Dictionary English Language: The Random House Una bridged provides Edition several definitions of "another”: second; further; additional; piece 1. a a an another of cake. 2. distinct; different; kind; time; of a at another different man.—pron. more; one; Try another 3. one an additional an- one; different; something going other. 4. a different from one first; copy
house to another. 5. one like the one for her and another, (person thing) another relation to for him. 6. one one another; other; each Love one another. People v Morris op Opinion the Court health, people and welfare of the of this safety, 14.15(1111)(2). 333.1111(2); state.” MCL MSA This contrary directive runs to the defendants’ claim general rule of should lenity applied resolve in the any ambiguity against statute Sawyer, supra imposition punishment. of harsher Acknowledging at 536. penal nature of the us, statute before resort rules of statutory Code, 750.2; construction for the Penal 28.192, further against counsels the strict coh struction of the statute advocated defen *10 dants: penal The rule that a statute is strictly to be apply
construed shall not any Penal fair to effect the Penal or [the Code] provisions of provisions the Code] thereof. All of [the according shall be construed to the import terms, promote justice their objects of the law. Pursuant directive of statutory both the Code, Public Health Code and the Penal we must interpret the statute in a manner that most effec- protects health, tively the safety, welfare of the people this state object effects the sought to be advanced the statute. punishment through enhancement con- sentencing legislative
secutive
is a
action taken for
the
purpose
ostensible
of deterring certain crimi-
Harden,
nal
196, 201;
behavior.
(1990).
c dispositive, While not it persuasive arguments advocating defendants’ a limited read ing of "another have been unanimously rejected by Ap numerous Court of peals panels, which phrase have found the unambiguously require Cline, See,
various factual
People v
e.g.,
scenarios.
(1991)
1;
(a
App
E Defendants assert that a interpretation broad "another to include controlled substance offenses results overlap several sentence provisions, enhancement 768.7b; MCL specifically 28.1030(2) MSA 333.7413; and MCL MSA 14.15(7413), and renders them redundant and un- necessary. agree We cannot that duplicity dictates 7401(3). a limited interpretation of § In pertinent 768.7b(1); part, MCL MSA 28.1030(2)(1) provides person that when a charged and, a felony "pending disposi charge n ” tion commits subsequent major offense,13 controlled substance the sentence for the prior offense and subsequent shall offense run A consecutively. charge "pending” remains for the purposes of 7b "until defendant is sentenced on § 750.110a(6); 28.305(a)(6) (imprisonment See MCL MSA for com any arising mission of degree other from the same transaction as first- invasion), 28.797(a)(2) 750.529a(2); (any home MCL MSA other for a conviction that out arises of the same transac 28.747(2)(4) carjacking), 750.479b(4); (any tion as MSA term imprisonment arising for another violation from the same taking weapons peace transaction or firearms from officers officers). and corrections 13"Major offense,” 7b, controlled substance as used in means 333.7401(2)(a); 14.15(7401)(2)(a) violation 333.7403(2)(a)(i) of MCL MSA or MCL (iv); 14.15(7403)(2)(a)(i) (iv), conspiracy MSA 28.843(12). 761.2; commit those offenses. MCL People v Morris *13 op Opinion the Court
the arising conviction out of first the offense and until original charge out arising of the first Smith, offense is dismissed.” (1985) C.J.). 452; NW2d (Williams, The purpose of this "to statute deter those charged felony committing with one from another prior to disposition final of the first. Absent such a deterrent, person could be assured of 'one free crime’ because of the policy concurrent usual sentencing.” Id. at 450. Section 7b therefore re- quires sentencing where defendant commits a major controlled substance offense after being charged, but before being sentenced for a prior felony. 7401(3)
Section does not rely on pendency of other charges when the substance controlled offen ses enumerated in the subject statute to as consec utive sentencing are committed. That the sentence drug transaction is to be "to run imprisonment with term im posed (em for the commission of another felony” phasis added), however, requirement does evince a that for the be imposed before, or simultaneously the sentence for the enumerated offense. may While there be some overlap, we cannot say overlap such renders Kent, either superfluous. statute supra 209; See at Mamon, supra at 126.
The cases us before demonstrate the different circumstances in which the statutes In apply. Morris, case of the defendant committed controlled substance offenses while disposition prior of a felony charge pending, presenting thus pursuant possibility, us, facts not at issue before this sentence should been imposed have run consecutively provisions under 7b.14 §
14See n 4.
Only applying reading § a broad of "an- felony,” however, other portions is available to enhance the being of the defendants’ sentences re- applicable viewed to (1) this Court. Section 7b is not sentencing for the crimes before us because both subject the offenses identified to consecutive (2) §in the offenses whose status as "another is at issue were commit- charges arising ted before from those events were brought. pending felony charges Therefore, no ex- application isted meet the conditions for of 7b. *14 interpret felony” Were we to "another as not including other controlled substance offenses as 7401(3) inap- advocate, § defendants plicable would also be present perti- cases because all the nent crimes at issue are controlled substance offen- Beyond merely benefiting present ses. defen- interpretation dants, however, such an would al- low a defendant to commit of number those 7401(3) being § offenses identified in before ini- tially charged any offense, with without concern prospect punishment for the normal concurrent of enhanced due to
sentencing practices. In es- opportu- sence, a defendant would be allowed the nity to commit numerous "free” controlled sub- crimes—precisely being sought stance those crimes 7401(3). by supra § Smith, to be deterred See at 450. 14.15(7413) presents 333.7413; MCL MSA even overlap § §
less quently than does 7b. It conse- presents convincing argument a less limiting felony.” definition "another Section particular punishments 7413 articulates enhanced subsequent for the second or commission of certain statute, controlled substance offenses. its People 333 Opinion of the Court terms, express multiple only applicable is con- fact, however, trolled substance offenses. This is of no moment to our consideration reach 7401(3). The enhancement articulated § § the form of increased sentences for subse- offenses, quent drug a representing legislative at- tempt punished to deter return to previously a conduct, but does not address consecutive or . imposed together. concurrent nature sentences The statutes therefore address two different en- hancement devices that do not conflict when "an- is interpreted to include other con- Nolan, supra; trolled offenses. Davenport, 399; App NW2d (1994).
F Defendants also assert that a interpreta- broad tion of "another felony” interferes with trial court’s discretion. argu- Defendants’ ment, however, misapprehends role Legislature punishment proscribing for certain conduct.15
' It
Legislature
is true
delegated
has
constitutional
authority
"pronounce
judgment
against
pass
upon
person
convicted
of an
769.1;
offense in that
court.”
4,
28.1072. See also Const
45. The range
art
*15
punishment
of
for commission
any particular
of
however,
felony,
prescribed
Legislature.
interpretation
Broad
a
passed
terms in
statute
argue
interpretation
Defendants also
that a broad
of "another
prosecuting
law
allows
enforcement and
authorities to im
properly lengthen
minimum
must
a
sentences that
be
on
particular
by engaging
a
offender
number
controlled substance
transactions with a defendant before the executive decision to arrest
case,
charge.
practices
Because we find no
abusive
the instant
unnecessary
find it
we
to address this issue.
hi
argument
Defendant
advances
Hadley
that
sentencing
is not authorized
in his
case because at
sentencing proceeding
his
he was
7401(3)
sentenced for an
(pos-
offense included in §
session with intent
to deliver between
and 225
fifty
grams
pethidine)
being
before
sentenced
for
another
offense that
was
enumerated in
not
(possession
statute
with intent
to deliver
less
grams
than
fifty
morphine) at the time of com-
Hunter,
Citing mission of the
offense.16
(1993),
App 23;
In
the Court
judge
found
who
sentenced the defendant
to a controlled substance
7401(3)
offense not included in
imposi-
after the
tion of a sentence for an enumerated
offense had
no statutory
authority
impose
the latter
sen-
1986,
offenses,
Hadley’s
In
at the time of
the version of §
possession
then in effect did not include
with intent
to .deliver less
grams
fifty
than
of a controlled substance in the list of
offenses
which consecutive
A
mandated. See
PA 147.
statutory amendment
to include that offense was effective March
1988.
Hunter distinguishable is from the case at bar. Hunter, In the being defendant was sentenced in separate two proceedings conducted on successive case, different In days by judges. present sen- tences for both crimes were pro- at one ceeding within seconds of each other by the same It judge. is inaccurate such circumstance characterize imposition of the second sentence as being "subsequent” In light first. synchronous of judge’s nature deliberation and action, a more accurate characterization of such a proceeding is that sentences were simulta- neously. proceeding Such a brings imposition of 7401(3)’s those sentences within the scope sentencing provision.17
iv
The paucity
support
for a limited interpreta-
tion of the statute at issue reveals that defendants’
essence,
argument,
is a claim that
policy
consecutive sentencing
misguided.
is
That numer-
ous Court of Appeals panels
rejected
have
such
Chambers,
policy
supra,
While this Court made a
decision in
imposition
by
judge
the
sentence
sentencing practice,
policy
of a consecutive sentence
one
on the basis of a
yet
imposed judge
to be
another
does not constitute sound
(Boyle, J., dissenting),
but see id. at 232-240
such
apply
presented
does not
to the circumstance
in the instant
case,
being imposed immediately
where both sentences are
after one
judge
proceeding.
single
another
same
the same
Because a
judge
passing
time,
sentence for both
at
crimes
the same
no
sentencing
circumstances.
arguably being
discretion is even
interfered with in such
Because a broad interpretation of "another fel- 7401(3), required is ony” by we hold that consec- § sentencing utive was mandated in the three cases before us.
Defendant Morris’ sentence for conviction his Eaton County delivery cocaine charge imposition after of sentences for other controlled felony substance convictions. Because the Eaton County offense one of the offenses enumerated 7401(3) in requiring as sentencing, consecutive § the circuit court correctly such a sentence for conviction of that crime. All three the delivery cocaine convictions for which defendant Moreau was simultaneously sentenced are also 7401(3)’s included in mandatory consecutive sen- § tencing list. Pursuant express language statute, sentencing in that case was mandated.
In Hadley, the result dictated the statute is by Morris and Moreau. the same Although Hadley’s possession felony offense of with intent deliver less fifty grams than a controlled sub stance was requiring mandatory not stated as sentencing under at the time of Hadley’s § crime, commission of that the imposition of the People v Morris op Opinion the Court sentence for that offense occurred simultaneously imposition possession sentence for a with intent to deliver conviction that was included in those felonies § 7401(3) enumerated at time of its commission. consequence, As a consecu tive sentencing was mandated law. This result is not imposition altered of sentence for the enumerated felony before sentencing for another same proceeding. light
In of the absence of words of limitation in statute, and because of the lack of evidence there legislative was a intent to limit scope of the term 7401(3), "another we hold that the term includes any felony for which the defendant has been sentenced either before or simultaneously with the controlled substance fel- *18 ony enumerated for which a defendant § is currently being sentenced. This represents most sensible and reasonable interpretation "another felony” light of the intent of the law to deter the commission of controlled substance offenses through the imposition of consecutive sen- tences. phrase The applies to felonies that violate any provision of the act, controlled substances including additional violations of the same con- trolled substance provision as that for which the defendant being sentenced or any felony. Sentences imposed in the same sentencing pro- ceeding assumed, are 7401(3), for the purposes of § imposed to be simultaneously. Where felonies for which a defendant is being sentenced in the same proceeding are covered the manda- tory 7401(3), consecutive sentencing provision of § the sentence for that imposed must be to run consecutively the term of imprisonment imposed other, nonenumerated felonies. Dissenting Opinion Levin, J. us,
In all three of the before cases sentences for controlled imposed substance violations were ei- ther after or simultaneously imposition for "another as that term is 7401(3). properly purposes defined for Pursu- § 7401(3), ant sentences for the controlled substance offenses in all three cases were required to be to run imprisonment the term of imposed for commis- sion offenses, of other controlled substance regard- less of whether the offenses were committed as part of the same transaction or in different and distinct transactions. The trial courts correctly interpreted the law to mandate that defendants be sentenced imprisonment. to consecutive terms of Morris,
The Appeals decisions the Court of Hadley, and Moreau are affirmed. C.J.,
Brickley, Riley, Mallett, Weaver, JJ., Boyle, concurred with J.
Levin, J. (dissenting). question presented The concerns consecutive sentencing where the of- fender is convicted of more than one controlled cases, substance In offense. the instant evidence seized in one search basis of two convic- tions sales same undercover (Hadley), (Moreau) (Morris) buyer or buyers were bases multiple convictions. The majority holds is mandatory. I would hold that it is not authorized.
i defendants, cases, in these consolidated on *19 appeal, have been of convicted controlled sub- stance provides for offenses which statute1 a mandatory minimum of imprisonment term of one 333.7401; 14.15(7403). 14.15(7401), 333.7403; MCL MSA Opinion by Dissenting Levin, J. (less fifty grams),2 years than year (fifty ten but (225 grams),3 less than 225 twenty years but less 650 grams), than and life imprisonment without more).4 (650 possibility parole grams of On the in basis of the evidence seized a search of home, his Bruce Hadley Robert was sentenced to serve minimum term of ten twenty years to for possession fifty with intent to deliver to 225 grams, and a minimum twenty term of one to years for possession with intent to less than deliver fifty grams—the minimum terms aggregating eleven years.
Omott C. Moreau was to sentenced serve three 1989, April, delivering Otis Morris was convicted of in late 1988, 1989, cocaine, fifty grams less than of May, and sentenced in was years. twenty to five awaiting to While free on bond and sentencing, officer fifty grams Morris delivered less than to an undercover 1989, April, fifty grams then and delivered than less to the early May, officer in same delivering concurrent with 1989. He was convicted of two counts of grams fifty twenty years less than and sentenced to ten to 1989, May, and each other consecutive sen tence. Dealing April with the officerto same whom cocaine in he sold late early May, proceeded and from across purchased Morris and officer undercover Ingham County, occurred, where all the other transactions had County, the border buyer to Eaton where another undercover fifty grams, which, following conviction, less than twenty-year Morris was sentenced to serve a six- to the instant case. 3During home, Hadley’s a search of Robert Bruce located in Eaton County, He pleaded guilty 225 deliver under consecutive minimum for police variety found controlled different substances. charged eight relating drugs counts to various possession fifty one count with intent to deliver grams pethidine possession one count of with intent to fifty grams morphine. He was sentenced to serve twenty twenty years of ten terms and one to convictions, those which were based on evidence obtained in the same search. pursuant C. Omott Moreau was convicted three one-count infor- fifty grams delivering County mations of evidence to 225 in Oakland on officer, he sold two ounces of an officer, cocaine to undercover days twenty-six twelve later sold ounces to three the same later, days serve sold two ounces to the same He was officer. sentenced to twenty-year three consecutive ten- to sentences. 4None of the defendants the instant were cases convicted of involving grams controlled substance offenses or more. *20 450 Mich Dissenting by Opinion Levin, J.
consecutive minimum ten- to twenty-year terms— aggregating minimum thirty years—for delivery more than fifty grams but less than 225 on three separate in occasions a period six-week same officer. undercover
Otis Morris was sentenced in Eaton County (and serve six thus more than the minimum one year) to twenty years for sale of fifty less than grams to an buyer undercover to sen- tences that had been in Ingham County sales the same period two-month as the Eaton County transaction to an undercover officer who introduced Morris to buyer in the instant case.
ii The statute that a imprison term of provides ment imposed for conviction of controlled sub stance offenses for which there are mandatory minimum terms of imprisonment "shall be im posed run consecutively with any term im prisonment imposed for the commission of another ”5 felony (Emphasis added.)
5 (1) Except article, by person as authorized this shall not manufacture, create, deliver, possess or with intent to manufac ture, create, substance, prescription prescription or deliver a controlled form, form. A article shall not form, prescription an official or a counterfeit practitioner licensed the administrator under this dispense, prescribe, or administer a controlled legitimate professionally recog substance for other than therapeutic purposes scope nized practice or scientific or outside the practitioner, licensee, applicant. or (2) person A who violates this section as to: (a) A controlled substance classified in schedule 1 or 2 that is 7214(a)(iv) drug drug a narcotic or a described section and: (i) grams any and Which is in an amount of 650 or more of containing guilty felony mixture shall be that substance is of a imprisoned for life. (ii) more, grams Which is in an amount of 225 or but less grams, containing than 650 guilty years mixture that substance is imprisoned of a and shall be for not less than 20 years. nor more than 30 Dissenting Opinion Levin, J. The defendants "an- contend that "another” means a con- felony other than a offense, prosecutors trolled substance while the that a contend controlled substance offense is also "another felony.” majority acknowledges phrase that "the
question susceptible may admittedly to alterna- *21 interpretations,” citing tive following the "several definitions of 'another’ second; further; additional; distinct; 1. a a an another
piece
different;
of cake. 2. a
a
of a differ-
kind;
time;
ent
one
different
man.—pron.
at another
3.
another
more;
one; Try
an additional
another. 4.
one;
different;
something
going
from one
first;
house
her
another. 5. one like
copy
the
one
for
another,
for
another
him. 6. one
one
(iii)
more,
grams
Which is in an amount of 50
or
less
but
grams,
containing
any
than 225
or
mixture
that
is
substance
less than
guilty
years
imprisoned
of a
and shall be
for not
10
years.
nor more than 20
(3)
imprisonment imposed pursuant
A term of
to subsection
(2Xa)
7403(2Xa)(i),
(iv)
(ii), (iii),
or section
or
shall any
imprisonment imposed
run
term of
felony.
for
subject
the commission of another
An individual
ato
mandatory
imprisonment
(2)(a)
term of
under subsection
or
(iv)
7403(2Xa)(i),(ii), (iii),
eligible
section
or
shall not be
for
probation, suspension
sentence,
parole during
of that
or
that
term,
mandatory
except
only
extent
that
those
provisions permit probation
life,
for
and shall not
receive
mandatory
discipli-
imprisonment by
reduction in that
nary
term of
type
or
credits
sentence credit reduction.
(4)
may depart
impris-
The court
from the minimum term of
(2)(a)(ii),
(iv)
(iii),
onment authorized under
subsection
or
if
compel-
court
on
finds
that
record
there are substantial and
14.15(7401)
ling
333.7401;
reasons to do so.
as last
[MCL
amended
The majority continues it is this Court’s obligation "to construe 'another felony’ a man- ner that is most legislative consistent with the aim enacting the statute.”7
The majority further acknowledges "con- current state,”8 is the norm in this but concludes: convincing
Absent a
indication
Legisla-
that the
ture meant
interpreted
the term to be
in a limited
manner,
convincing argument
or a
that limitation
would
ment
goal
advance the
of the sentence enhance-
provision,
a broad definition of "another
felony” provides the most sensible and reasonable
interpretation
ied
legislative
expression
embod-
statute,
subject
view of the
matter of
goal
the law and the
sentencing.
[People
Blodgett
(1865)].
v]
[13
*22
Given that
there are no contrary indications or
construction,
canons of
it follows that "another
felony” must be defined to
include
other fel-
6Ante, p 326, 11,
accompanying
n
text.
College Dictionary, p
See also Random House Webster’s
57:
being
same; further;
another.
... 1.
one more or more of the
piece
different;
additional: Please have another
of cake. 2.
distinct;
time;
of a different kind: at another
another man. 3.
very
to;
category
similar
of the same kind or
as: another
King, Jr.—pron.
more;
Martin Luther
4. one
an additional one.
one; something
going
5. a
thing
different
different:
from one
copy
another. 6. one like the first: one
for her and another for
person
him. 7.
specified:
other than oneself or the one
He told
her he loved another.
7Ante, p 326.
8Id., citing People
Sawyer,
531, 534;
(1981). Dissenting Opinion Levin, J. being ony for which a defendant is sen violation phrase in
tenced. Limitation of the reach of the such situations would be a distortion of the unre stricted cation.[9] adequate justifi statutory directive without "contrary are, believe, however, I There indicat ions.”10 support a narrower rather than a "broad definition There are "canons of construction” felony.’ of 'another The "most sensible and ”12 interpretation legislative express reasonable of the entirely "goal consistent with the ion,”13 is, believe, sentence enhancement I provision”14 narrower construction. legislative purpose ("goal”) requiring The imprisonment imposed upon minimum term of conviction of a controlled substance offense be served to a sentence for another felony is to minimum assure that the sentence is concurrently not served with sentences for offen- sentencing ses15 for which concurrent is the norm.16 Legislature pro- separately specifically repeat vided for enhanced con- trolled substance offenders where the offender is subsequent” convicted of a "second or violation of 9Ante, pp 327-328. 10Id., p 328.
11 Id.
[12] Id. 13 Id.
14 Id. law, offenses, (murder, E.g., statutory, the common' now assaultive conduct) (robbery, burglary, larceny). criminal sexual and theft accompanying See n 8 and text. *23 Opinion by Dissenting Levin, J. ct,17 the controlled substance or where the of a fender has charged felony, "pend been with a and ing disposition charge, of the commits a subse quent . . offense that is a . .”18
17 (1) previously An individual who was convicted for a viola any following tion of of the offenses and is thereafter convicted subsequent any following of a second or violation of of the imprisoned eligible shall offenses be for life and shall not be for probation, sentence, suspension parole during of or that manda tory term: (a) 7401(2)(a)(ii) (iii). A of violation section or (b) 7403(2)(a)(ii) (iii). A violation of section or (c) Conspiracy proscribed by to commit an offense section 7401(2)(a)(ii) (iii) 7403(2)(a)(ii) (iii). or or section or (2) (1) Except (3), provided as otherwise in subsections an subsequent individual convicted of a second or offense under may imprisoned this article term for a not more than twice the term otherwise authorized or fined an amount not more authorized, them twice that otherwise or both. (5) (2), purposes subsequent For of subsection an offense is considered a offense,if, offense, or second before conviction the any the offender at has time been convicted under this article any or under relating or statute of the or United States state marihuana, drug, stimulant, depressant, to a narcotic hallucinogenic drug. 333.7413; 14.15(7413).] [MCL 7401(2)(a)(ii) (iii). prescribes See n 5 for text of § Section 7403 penalties possession, distinguished' the same for possession from deliver, quantities. with intent to of the same 18 (1) April 1, 1988, Beginning through 31, 1991, December person charged felony, pending if a. who has been with a disposition a charge, subsequent of the commits a that is offense felony, upon subsequent accep conviction offense or plea guilty, ill, guilty mentally tance of a but nolo subsequent offense, contendere to the the consecutively. the sentences prior charged subsequent offense and the offense shall run (2) 1, 1992, Beginning January person aif who has been charged felony, pending disposition charge, with a subsequent felony, upon commits offense that is conviction subsequent acceptance plea guilty, of the guilty offense, offense or of a ill, mentally subsequent but or nolo contendere following apply: shall (a) subsequent major Unless the offense is a controlled sub- offense, prior charged stance offense and the the sentences for the subsequent may consecutively. offense run (b) subsequent major If the offense is a controlled substance *24 by Dissenting Opinion Levin, J. pend- noteworthy Parenthetically, that the it is "subsequent ing substance sen- offense” controlled provision refers to a "subse- tence enhancement added) (emphasis felony,” quent offense that is a statute, which, includes set forth the subse- quent that are not offenses that are and those argu- The textual controlled substance offenses.19 ment adopted by stronger ” felony’ for the definition of 'another "broad might majority the be somewhat Legislature if had mandated consecu- the imprisonment "with term of tive felony” (emphasis imposed added) of a for commission felony.”
rather than "another subsequent” sure, the the "second or To be pending "subsequent controlled substance offense” provisions sentencing enhancement do not cover possible repeat every ily offense, not and do necessar- arising multiple out of the include offenses multiple transaction, or sales to same search or the same undercover buyers. is, officer or There however, no more reason to assume from this enacting Legislature, the omission that provision, "another sentence enhancement situations not covered meant other is to cover these legislation than there sentence enhancement Legislature content to believe separate in the cover the situations dealt with specific controlled substance sentence enhance- legislation. ment Legislature probability did not
The is that are focus at all on the scenarios with which we confronted in the instant cases._
offense, prior charged the sentences for the offense and subsequent consecutively. offense shall run (3) department report legisla- The of corrections shall 1, 1991, impact ture on the no later than June prison amendatory act that this subsection has had on added 768.7b; 28.1030(2).] capacity population. [MCL 19Id. Dissenting Opinion Levin, J. observed, Llewellyn only infrequently Karl [A]s legislative reality
"a
intent
some concrete
legislative
can
be uncovered in circumstance
rest,
history.
For
the court’s
is not
work
find,
do,
any more than it is with case
It
law.
responsibly, fittingly, intelligently,
within
with and
author.)
given
(Emphasis by
Llewellyn,
frame.”
Tradition, Deciding
Appeals, p
Common Law
point
382. Much
language
the same
was made
quoted approvingly Wyandotte Savings
Bank v
Banking
33],
State
Commissioner
40-41
[347
(1956)]:
NW2d 612
"'"the
intention is to be
[78
presumed, according
*25
taken or
to
to
is
what
’ ”
consonant
good
and
1
discretion.”
Kent’s Com-
reason
(14th ed),
McFarlin,
p
[People
mentaries
Mich
462.
v
389
557, 564-565;
(1973).]
necessity judicial concern, are matters and its purpose should be possible. spirit effected if Its and purpose prevail should its Injus- over strict letter. application tice in its prevented, should be (Citations omitted.) consequences absurd avoided.” Rotary Co, 526, Webster Electric Steel Mich (1948). NW2d [33 69] New words have a so "content intrinsic” that meaning their not does become in doubtful particular question. context of a Wyandotte Sav- ings Comm’r, Bank Banking v State Dissenting Opinion Levin, J. (1956). Endlich, G.A. statutory his treatise on construction, said: "Language rarely ambiguity so free from as to being incapable sense; be used more than one rigidly and to adhere to its literal and primary meaning in all cases would to miss its real meaning many. meaning If a literal had been layman to the laws which lay forbade a priest, Eiven blood in punished ands on a all who drew street, layman who wounded a priest the weapon with a would not have failed within prohibition, surgeon person and the who bled a life, in the street to save his would have been liable to On a literal construction of punishment. promise, sawing his Mahomed II.’s the Venetian two, governor’s body in was no breach of his spare head; his nor Tamerlane’s engagement garrison, alive a pledge a violation of his burying construction, to after under a citadel, he and Paches, shea no blood. On a literal inducing the defender of parley Notium to a replace promise safely him in the engagement claimed to be within his when place detained his foe until captured, put him to death after conducted him having it; back to Argyll the Earl of fulfilled promise Glenstane, same that to his to the laird of spirit if he would surrender he would see him safe only England; hanged for he him after having taken him across the Tweed to the bank. English Endlich, pany (Linn Interpretation of Statutes & Com- 1888), 25, pp ed 33-34. [389 563-564.]
IV McFarlin, In this Court also said that the "teleo logical approach great appeal has to judges who recognize that law should make peo sense to the ple who must live with it. In Magnuson v Kent Co Canvassers, Bd of 370 Mich NW2d [122 (1963), this Court may said: 'We in the con 808] struction look to the ambiguous of an statute result determining construction to aid us in ’,20 added.) legislative intent.’ (Emphasis
20McFarlin, supra, p 565.
v would, events, I in all remand Hadley Moreau to consider whether there are "substantial and compelling depart reasons” to from the man- datory minimum consecutive sentences.23
Cavanagh, J., Levin, concurred J. 21Ante, p 328.
Marquis
years
apparently
638, 644;
23 Morris,
In
See Webster v
rather