*1 PEOPLE v POOLE 16, 1996, Lаnsing. Docket Nos. 169987. Submitted March at September 17, 1996, Decided at 9:00 am. Terry following separate jury Sagi- L. Poole was convicted in the trials Court, Crane, J., delivery grams naw Circuit A. William of of 50 or more, grams, possession but less than 225 of cocaine and of with grams more, grams, intent to deliver 50 or but less than 225 of prison cocaine. The defendant was sentenced to consecutive terms twenty years imprisonment eligibility of thirteen to and life without parole respective appealed for the convictions. The defendant conviction, appeals each and the were consolidated. Appeals
The Court of held: denying 1. The trial court did not err in the defendant’s motion to suppress place as evidence the items seized at the defendant’s pursuant support motion, residence to a search warrant. In argued the defendant that substantial evidence did not exist for the magistrate probable to conclude that cause existed to search the pro- residence. An affidavit used to secure a search warrant must magistrate vide sufficient facts from which a can find that the supplied personal knowledge information was based on and that person supplying either the the information was credible or the Hearsay may information was reliable. statements in an affidavit probable requirements per- used to establish cause where the credibility knowledge reliability sonal are met. The aver- ment in the affidavit in this case that an informant had been told just that the defendant had moved to the address that became the subject person of the warrant with whom the defendant had previously personal knowledge credibility lived satisfied the requirements. reliability supported by of thаt information was supplied by the fact that the affiant found that the address jail informant also had been listed the defendant’s records as address at which a relative could be contacted. Under the circum- stances, magistrate’s finding there was a substantial basis for the probable subject cause to search the address. imposing 2. The trial court did not err in a sentence of life imprisonment eligibility parole without for the conviction of 333.7413(1); with intent to deliver. MCL pre- provides 14.15(7413)(1) that an individual “who was convicted viously” designated offenses and is of certain controlled substance convicted of a second or violation” of those “thereafter imprisoned designated offenses is to be for life and is not eli- same *2 parole. gible Both of the offenses of which the defendant was for 7413(1). Therefore, among § listed in convicted are the offensеs delivery of 50 or more because the defendant was convicted of cocaine, grams, grams, within but less than 225 of he came the scope provision § the sentence enhancement of and was imprisonment parole properly life without for the con- sentenced to possession in viction of with intent to deliver an amount of cocaine 7413(1), range. § Because unlike some other sentence the same speak committing enhancement statutes that in terms of an offense having prior after been convicted of a offense or viola- or violation tion, provides for sentence enhancement where the second or sub- sequent conviction, conviction occurs after the first the enhanced possession sentence for his conviction of with intent to deliver was spite possession approрriate in in this case of the fact that the offense was committed before defendant was convicted of the delivery offense. imprisonment eligibility 3. The enhanced sentence of life without parole imposed respect possession for with to the conviction of punish- with intent to deliver does not constitute cruel or unusual meaning 1, Legislature § ment within the of Const art 16. The properly subsequent could determine that a second or conviction delivery possession fifty of or with the intent to deliver or more grams impris- is a of cocaine sufficient to warrant sentence of life eligibility parole violating onment without without the constitu- prohibition against punishment. tional or unusual cruel 4. The failure of defendant’s trial counsel to seek consolidation charges of the trials of the two has not been shown to amount to only ineffective assistance of counsel. Not has the defendant failed appeal to on demonstrate that motion to consolidate would have by granted counsel, appear been if it had been made but also there why counsel, may strategy, to be sound reasons as matter of trial separate preferable. have felt that trials were Any 5. claim that the defendant is entitled to be resentenced with respect delivery to the conviction is rendered moot the parole affirming eligibility life sentence without for the possession with intent to deliver conviction. Affirmed. Holbrook, Jr., P.J., concurring part dissenting part, in and the should be affirmed but that
stated that defendant’s convictions set aside and the matter should be the life sentence should be resentencing language because the of MCL remanded for susceptible 333.7413(1); 14.15(7413)(1) than one is more required sequence interpretation concerning of offenses and thus, and, common-law rule that sentence enhance- convictions requires prior precede ment that the conviction of the offense subsequent apply. should commission of the offense — — — Warrants Affidavits Probable 1. Searches and Seizures Search Cause. support application An affidavit in of an for a search warrant must provide magistrate sufficient facts from which a can find that the personal knowledge information in the affidavit is based on supplying that either the unnamed informant the information was reliable; hearsay credible or that the information was statements in may probable an affidavit be used to establish cause where the requirements personal knowledge credibility met. are — — 2. Controlled Subsequent Substances Second or Sen- Convictions tence Enhancement. enhancement for a second Sentence conviction of delivery grams of or with intent deliver at least 50 grams drug but less than 650 of a schedule 1 or 2 or cocaine or of conspiracy may to do the same on an based offense for which *3 prior the conviction after the conviction of occurred offense though pre- even commission of the second or offense prior (MCL 333.7413[1]; ceded the conviction of the offense MSA 14.15[7413][1]). — (cid:127)— — 3. Constitutional Law Controlled Substances Life Sentences Cruel or Unusual Punishment. eligibility parole The life sentence without for a second or subse- quent delivery possession conviction of of or with intent to deliver grams, grams, drug at least 50 less than but of a schedule or conspiracy or cocaine or of to do the same does not violate the prohibition against punishment constitutional cruel or unusual (Const 1963, 1, 16; 333.7413[1]; 14.15[7413][1]). § art MCL MSA Attorney Frank J. Kelley, General, Thomas L. Casey, Solicitor D. General, Thomas, Michael Prose- cuting Attorney, and Catherine Langevin Semel, Prosecuting Attorney, people. Assistant for the State Appellate (by Defender Richard B. Ginsberg), appeal. for the defendant on v Poole Taylor Holbrook, Jr., P.J., Before: and and W. J. Nykamp* JJ. sepa- following J. Defendant was convicted Taylor, jury delivery grams more,
rate trials of of 50 or but grams, 333.7401(2) cocaine, less than 225 MCL (a)(iii); 14.15(7401)(2)(a)(iii), MSA grams more, with intent to deliver 50 but less than grams, 333.7401(2)(a)(iii); cocaine, MCL 14.15(740l)(2)(a)(iii).* He was sentenced to serve prison twenty years consecutive terms of thirteen to nonparolable imprisonment, respectively. and appeals Ufe He right,
as of and we affirm.
i argues Defendant first that the lower court erred in denying his motion to declare void the search warrant suppress for 602 Holden Streеt and to the fruits of that search because substantial evidence did not exist magistrate probable for the to conclude that cause reviewing magis- existed to search the residence. In warrant, trate’s decision issue search this Court underlying must evaluate the search warrant affi- davit in a common-sense and realistic manner. This reasonably Court must then determine whether a cau- person totahty concluded, tious could have under the circumstances, that there was a substantial probable magistrate’s finding basis for the cause. 450 Mich Sloan, 160, 168; (1995);People Russo, 584, 603; 487 NW2d (1992). *4 * judge, sitting Appeals by assignment. Circuit on the Court of judgment We of sentence in No. lists an note 93-7218-FH statutory incorrect citation for the conviction of the offense of with intent to deliver cocaine. App Mich specifically argues Defendant that the search war- probable rant affidavit did not establish cause to believe that a nexus existed between him and 602 disagree. Holden Street. We provide
A search warrant affidavit must
sufficient
magistrate
facts from which a
could find that the
supplied
personal
information
was based on
knowl-
edge
person
and that either the unnamed
was credi-
ble or the information was
780.653;
reliable. MCL
28.1259(3).
Here, the affiant averred that inform-
by
ant Norman Wilson had been told
Kevin Jackson
that defendant had moved to the Holden Street
multiple hearsay
may
address. Such
statements
probable
ordinary
used to establish
cause where the
requirements
personal knowledge
reliability
credibility
App
are met.
v Harris, 191 Mich
(1991);People
422, 425-426;479 NW2d6
Brooks,
(1980).
416, 419;
Opinion of the Court See interest. penal his against made he merits (1995). 209; 535 NW2d App 205, Head, circumstances, the totality of the under Accordingly, for the basis existed a substantial we conclude to search cause probable finding judgе’s district suppress to motion Defendant’s Holden Street. denied. properly n cocaine delivered 1992, defendant 9, September On 1992, police the September On á officer. police to a executing while jacket in defendant’s cocaine found was con- subsequently Defendant warrant. search delivery separate trials juries at by separate victed grams less than 225 but grams than 50 of more with possession 27, 1993, and August on cocaine less than grams but more than to deliver intent 1993. Defendant September 3, on of cocaine grams terms of prison serve consecutive to was sentenced parole, without and life twenty years thirteen respectively. in sen- court erred that the trial argues
Defendant MCL under offender him as second tencing the offense because 14.15(7413)(1) MSA 333.7413(1); before he occurred conviction in his second resulting disagree. We for the first offense. was convicted pen- prescribes 333.7413; 14.15(7413) MSA MCL substance offenders. controlled repeat alties different 7413 describe of § three subsections first different enhanced provide and of offenses groups requires Section each group. penalties who com- for individuals life sentences nonparolable more involving subsequent offense or mit a second or drug 2 narcotic 1 or a schedule fifty grams of than conspiring cocaine, or to commit such offenses. Sec- 7413(3) subjects tion individuals who are second or 333.7410(2) (3); offenders under MCL (delivery 14.15(7410)(2) (3) with intent to 1 or 2 deliver schedule narcotics or prop- cocaine to a within 1,000 minor feet of a school mandatory prison erty) (although enhanced terms may depart mandatory court from minimum upon finding compelling sentence of substantial and *6 reasons). provides discretionary Seсtion enhanced for sentences individuals who are convicted any subsequent of other or second offenses under the (delivery involving controlled substances act offenses fifty grams, possession involving less than offenses twenty-five fifty grams, conspiracies to to commit offenses). these 14.15(7413)provides, perti- MSA 333.7413;
MCL part: nent (1) previously An individual who was convicted for a vio- any following of of
lation the offenses and is thereafter con- any of a victed second or violation of of the fol- lowing imprisoned offenses shall for life shall not be eligible probation, suspension sentence, parole for of or mandatory during that term:
(a) A 7401(2)(a)(ii) (iii). violation section of or (b) 7403(2)(a)(ii) A (iii). violation of section or Conspiracy (c) proscribed by to commit an offense sec- 7401(2)(a)(ii) (iii) tion or 7403(2)(a)(ii) (iii). or section or plainly prohibit More stated, these sectiоns delivery, possession manufacture, creation, or with to manufacture, create, deliver, intent grams or at least 50 grams, grams
but less than 225 or at least 225 grams but less than 2 650 of a schedule 1 or narcotic possession grams cocaine; or or of at least 50 but less Opinion of Court grams grams, than or at least 225 but less than drug grams, or of a schedule 1 or narcotic conspiracy forego- one of cocaine; to commit Managing ing Trial Con- See Under the offenses. (Michigan Institute, Act Judicial trolled Substances 1995),pp 332-333. applicable 333.7413(1); MCL MSA defendant,
As provides 14.15(7413)(1) an who was that individual delivery previously of of more than convicted grams grams than of cocaine and is but less convicted with intent thereafter grams than 50 but less than 225 deliver more imprisoned eligibility for life cocaine shall be without imposed nonparol- parole. Thus, the trial court pos- life able sentence defendant’s conviction grams but session with intent to deliver 50 or more grams of because defendant less than 225 cocaine previously delivering more had been convicted of grams less than 225 of cocaine. than but properly court con- The issue is whether the trial 333.7413(1); 14.15(7413)(1) as strued MCL nonparolable requiring sen- defendant receive a *7 statutory goal tence for his second conviction. give and to the construction is to ascertain effect Stanaway, Legislature. v intent of the (1994). If is a statute 643, 658; Mich People v must its directive. clear, the courts enforce (1995). 316, NW2d 842 It is Morris, 325; Mich susceptible only is and a statute unclear where judicial interpretation that construc- more than one presumed Legislature is Id. The tion is allowed. expressed. plainly meaning Peo- have it intended ple App 653, 655; Mich 522 NW2d Cannon, part penal 7413(1) Although § (1994). nature, is App “liberally the Public Code, Health which is to be con- protection safety, strued for the of the health, people.” 333.1111(2); welfare of the MCL 14.15(1111)(2). duty Thus, it is a court’s to construe 7413(1) § effectively protects in a manner that most safety, public the health, and welfare of the object sought by effects the to be advanced the stat- supra ute. Morris, at 327. 7413(1) ambiguous, clearly
Section is not and it requires nonparolable life sentence where a defend- previously” ant was “convicted of an enumerated offense and thereafter is “convicted” of an enumer- ated offense. At the time defendant was convicted of grams with intent to deliver 50 or more grams but less than 225 of cocaine, he had been “con- previously” victed of an enumerated offense. Thus, defendant’s situation fits within the terms of 7413(1), § properly and the trial court sentenced him nonparolable prison. to a term in argues § Defendant should not have applied been to him because he committed his sec- ond offense before he had been convicted of the first argument simply supported by offense. This is not unambiguous statutory language Legisla- used ture, which argu- we must enforce. For defendant’s prevail, ment to 7413(1). § we would have to rewrite provides nonparolable statute, This written, as for a previously” life sentence for a defendant “convicted who “is thereafter convicted.” Defendant, however, require change would this Court to “is thereafter con- victed” to read “[who] thereafter commits” an offense. This we cannot do.
The trial court’s construction of the statute is con- People Roseburgh, sistent with
Opinion of the Court that sentence which found 239; (1996), 545 NW2d only requires convic- under § enhancement require- temporal no one another with to follow tions Although of the crimes. sequence regarding ment a it dealt with because controlling is not Roseburgh persuasive statute, it is different subsection in this case. appropriate result is and a similar statutes repeat that other offender We are aware that a by require our courts to construed have been the commission of the sec- precede prior conviction statutory language under However, ond offense. sufficiently was different in those cases examination supra inapplicable. Roseburgh, render those cases 714; 461 Pruess, 436 Mich n 1. In at a defendant the Court held that (1990), NW2d 703 habitual punished as a fourth-offense could not be preceded the fourth offense offender unless Yet, an examination felony convictions. three statutes makes this in the habitual offender language interpre- our support and lends appropriate result statutes, The habitual offender 7413(1). tation § 28.1082-28.1084, provide that 769.10-769.12; MSA MCL felony after a who “commits” person felonies, prior or three one, two, convicted of being felony repeat offender. may punished as the Legislature is the fact that important distinction and not “convicted” word “commits” used the prior has a person occur after a describing what must felony conviction. App 55, 60; 212 Mich Erwin,
Similarly, People drunk-driving convic- stated that a (1995), NW2d 818 purposes used for enhancement may tion not be the date of the precedes date of conviction unless the entirely appropri- statement was offense. This second *9 repeat provisions ate because the offender of the drunken-driving 257.625(7)(b) (d); statute, MCL and 9.2325(7)(b) provide (d), that if “the viola- years prior tion occurs within seven of a conviction” years or if “the violаtion occurs within ten of two or prior may more convictions,” a defendant be treated repeat again, Legislature as a offender. Once did not use the word “conviction”but used the word “vio- describing lation” in what must occur after a first wording repeat conviction. The used in these three clearly Legislature offender statutes shows that the language has demonstrated that it knows how to use requiring that a defendant must commit an offense may after a conviction before the defendant be con- repeat sidered a offender when chooses, it so i.e., it uses words like “commit” and “violation” to describe what must occur after the first Morris, conviction. supra (if Legislature at 329-330 the means to limit the ability reach statute, of a it has demonstrated the to so); People do v Bewersdorf, 438 55, 72; Mich (1991) (the Legislature NW2d 231 has demonstrated capable whеn it intends to so, do that it is of exclud- particular ing category a of felonies from the sen- act). tence enhancement of the habitual offender We respect legislative must this distinction. The dissent, however, fails to do so. supportive
The case that is most of the defendant’s position, facially problematic approach, to our is Stewart, 441 Mich 89, 95; (1992), People Sawyer, which limited 531; (1981). properly 302 NW2d534 Yet, understood, Stew- Sawyer harmony analysis. art and stand in with our Sawyer was a in case which the Court construed the
repeat portion felony-firearm offender statute “upon sentence a second” requires lengthier a Sawyer held that defendant conviction.
“third” felony-firearm sentenced as a second should not be is committed after unless the second offense offender conclusion, reasoning In to this the first conviction. purposes are stated that number the Court punishment increases Legislature when the served more severe repeat offenders, including providing their change who punishment people decline reform. The clinch- ways following opportunity an rule of holding rationale for the Court’s ing penal statutes lenity, ambiguities which holds that harsher against imposition be resolved must *10 People Smith, 446; Mich punishments. Thus, construction that held NW2d 384 the (1985).2 occur after the first con- that the second offense must doctrinally rule was limited viction was sound.3 This a defendant Stewart, where the Court stated that in if felony-firearm, offense, third may be convicted of preceded by felony-firearm is two the third offense separate out of criminal convictions that arose incidents. Sawyer and Stewart are inapplica-
The holdings lenity is to the case at bar because the rule of ble felony-firearm part statute is inapplicable. The lenity only applies a firm indication of The rule of in the absence of 95, 113-114; legislative People Wakeford, 418 intent. Mich penal fact, 750.2; provides (1983). In MSA 28.192 that the rule that a MCL strictly apply Michigan Penal is to be construed shall not to the statute import provisions according the fair and all its shall be construed to Code justice objects terms, promote the of the law. of their to to effect Kavanagh Sawyer stated he to decision. Justice T. G. was four three meu'ority sympathetic to read sense into the stat to the efforts of the they did, construing as but dissented because he felt constrained ute it Legislature it. enforce the statute as the wrote subject lenity,4 Code, Penal which is to the rule of 7413(1) part § whereas is of the Public Code, Health liberally protection which must be construed for the safety, publiс. health, the and welfare of the Legislature pro- Stewart Court believed the wanted to opportunity having vide an to reform oneself after prison been first convicted before the additional time required repeat felony-firearm offenders was applicable. good Here, however, there is no reason to assumption. Legislature make the same Indeed, the passing drug protecting laws has focused on more public providing drug opportu- than dealers with an nity Legislature provided for reform. The has nonparolable life sentences for first-time offenders possess,5 possess who deliver, or with an intent to grams deliver more than 650 of a schedule 1 or 2 nar- cotic or cocaine. foregoing prop-
For all the
reasons, the trial court
erly interpreted
requiring
§
as
that defendant
nonparolable
recog-
bе sentenced
a life term. We
many
penalty
nize would consider this
to be
judicial misgivings regarding
harsh. Nevertheless,
legislative sentencing policy
pro-
wisdom of a
do not
legal
vide, absent a violation of the constitution, a
overriding legislative
foundation for
intent. Morris,
supra
policy
political
at 335. The wisdom of this
ais
question
political
to be resolved in forum. Id.
*11
4 See, however,
2,n
ante at 713.
5
Supreme
penalty
Michigan
The
Court found this
violated the
constitu
prohibition against
punishment. People
tional
Bullock,
cruel or unusual
v
15;
(1992). Nevertheless,
Legislature’s
Opinion
the Court
of
m
mandatory
next
that a
life
argues
Defendant
sen
punishment
tence constitutes “cruel and/or unusual”
he was
a
given
because
not
chance to reform before
mandatory
sеntence.6
facing
determining
life
In
whether
sentence is cruel or
we look to
unusual,
the
and
gravity
offense
the harshness of the
penalty,
imposed
the
comparing
penalty to those
for
in
other crimes
this state as
the penalty
well as
imposed for the
same offense
states
other
considering the goal of rehabilitation.
v Laun
sburry,
App 358, 363;
217 Mich
Opinion of the Court
holding
the Bullock
to cases
ever, refused to extend
delivery
possession
involving
deliver
or
with intent to
conspiracy
grams
to do
cоcaine,
of
or
more than
People
(1993);
Peo-
Fluker, 442 Mich
the same.
v
Lopez,
People
ple
(1993);
IV argues deprived Defendant next that he was of his right to effective assistance of counsel because his request counsel’s failure to consolidation of his two subjected nonparolable cases for trial him to a life sentence. Defendant claims that if his counsel had charges had consolidated, his two and if he had been charges, convicted of both then he could not have subject nonparolable been to a life sentence because prior would have been a there not conviction. People Pickens, In v Mich 298, 302; 521 NW2d Supreme (1994), adopted Court the federal reviewing test for claims of ineffective assistance of Michigan counsel under the Constitution. The Pickens prejudice Court stated that to find a court must con- probability clude that there is a that, reasonable absent errors, cоunsel’s the factfinder would have had respecting guilt. a reasonable doubt Id. at 312. The Court n id., 12, Pickens then stated as follows: Furthermore, analysis solely focusing
“an on mere outcome determina- tion, proceed- without attention to whether the result of the fundamentally ing unreliable, was unfair or is defective. To solely set aside a conviction or sentence because the out- come would have been different but for counsel’s errors may grant the defendant a windfall to which the law does Fretwell, (364), (369); 506 US him.” not entitle [Lockhart 180, (1993).] 838; S Ct 122 L Ed 2d 375, opinion People Reed, Also, the lead states: 21; (1995), n proper inquiry is a reasonable is not whether “there errors, probability that, the result of the but counsel’s proceeding been different.” Strickland Wash would have [v 2052; ington, 668, 694; L 104 S Ct Ed 2d 674 466 US analysis “solely (1984)]. An that focuses on outcome deter pro mination, attention to whether the result of the without fundamentally unreliable, ceeding unfair or is defec was supra Fretwell, at 369. tive.” Lockhart v was Thus, in order to establish that counsel ineffec- that but for error tive, defendant must show counsel’s probability there is a reasonable that the result of the proceeding would have been different and that fundamentally unfair or proceeding result *14 Pickens, supra; Reed, supra. unreliable. that defendant is not entitled to
We are satisfied any did regarding relief this claim. Because defendant evidentiary support an record to not move to create claim, existing this our review is limited to the Armendarez, App 73-74; People record. failed (1991). Defendant has to demon- necessarily strate that a motion to consolidate would Further, defendant has not over- granted. have been presumption come the that counsel’s assis- strong strategy. Stanaway, tаnce constituted sound trial supra may at 687. Counsel not have wanted to con- the two cases because the chances for an solidate acquittal in either case would have been reduced if is jury against heard both cases defendant. This proofs especially relating the case here because the Opinion by P.J. Holbrook, Jr., to the with intent to charge deliver were proofs not as as the strong relating delivery to the if the charge. Further, motion to consolidate had been and defendant was granted convicted of both charges, subject he still would have very been to a lengthy prison term once the sentences were made consecu- pursuant tive to MCL 333.7401(3); MSA 14.15(7401)(3) and doubled under MCL 333.7413(2); MSA 14.15(7413) anticipated It can be (2). that this would have precipi- tated a claim that moving consolidation of the two cases was ineffective assistance of counsel. The lim- ning of the dilemma with which counsel was faced bespeaks the strategic nature of the decision that was made.
Finally, defendant claims that he is entitled to resentencing respect with delivery to his conviction, for which he received twenty years. thirteen to Even if correct, defendant is he is any not entitled to relief because we are upholding mandatory his life sen- v Turner, tence. 558, 585; 540 NW2d 728 (1995).
Affirmed.
W.J. J., concurred. Nykamp, Jr., P.J. (concurring part in and dissent- Holbrook, ing in part). I agree majority with the that defend- ant’s conviction should affirmed. However, because second-offender provision of MCL 333.7413(1); apply does not 14.15(7413)(1) I case, this would remand resentencing.
In case, delivery this defendant committed the (offense September offense1 on i) 9, 1992, eight MCL *15 733.7401(2)(a)(üi); MSA 14.15(7401)(2)(a)(üi). by
Opinion P.J. Jr., Holbrook, pos- September days 1992,committed later, on (offense n). He offensе2 intent to deliver session with August 27, 1993, of offense I on was convicted September 3, 1993.At sen- n on convicted of offense 333.7413(1); prosecutor argued tencing, MCL that required 14.15(7413)(1) defendant receive MSA nonparolable for his conviction life sentence preceded offense I his conviction of offense n because expressly noted its The trial court that conviction. sentencing under subsection discretion lack of nonparolable imposed 7413(1) life a term of imprisonment offense n. defendant’s conviction of perti- provides, 14.15(7413) in 333.7413;MSA
MCL part: nent previously
(1) convicted for a vio- An individual who was any following thereafter con- offenses and is lation of any subsequent violation of of the fol- victed of a second or imprisoned and shall not be lowing shall be for life offenses sentence, parole probation, suspension eligible or mandatory during that term: (iii). 7401(2)(a)(ii) or
(a) A violation of section (iii). (b) 7403(2)(a)(ii) or A violation of section proscribed Conspiracy sec- (c) to commit an offense 7401(2)(a)(ii) (iii) 7403(2)(a)(ii) (iii). or section or tion requires To whether subsection determine resulting conviction occur that an offense a second previous conviction, we must look after defendant’s express statute. The statute first at the terms of the clearly temporal component, includes a inasmuch as previously” phrases it includes such as “convicted convicted of a second or and “thereafter temporal phrases, however, These are sus- violation.” MCL 733.7401(2)(a)(iii); 14.15(7401)(2)(a)(üi). *16 Opinion Holbrook, Jr., P.J. ceptible interpretation. of more than one impor- Most purposes tant for our is to phrase determine how the subsequent” “second or is applied, i.e., to be “second subsequent” hand, phrase to what? On the оne the could mean subsequent that the “second or violation” occur following “previous” the conviction. On the hand, phrase other the could mean that the violation mandatory for which a imposed life term is to be sim- ply have subsequent” occurred “second or to an ear- lier violation.
In Roseburgh, App 237; 545 NW2d 14 the (1996), defendant committed offense I and then offense n and was thereafter convicted of n, offense then offense I. The Roseburgh panel consid ered whether subsections and 7413(2) (5), MCL and 333.7413(2) (5); MSA 14.15(7413)(2) and *5of (5),* the controlled applied substances act “to enhance a defendant’s sentence where the resulting crime in the second conviction occurred before the crime result in ing the first conviction,” that, and held “[although the convictions must another, follow one the statute temporal includes no requirement regarding the sequеnce of crimes, the and in the any absence of authority so, to do we decline require- to add such a provide pertinent part: Subsections 2 and 5
under this article twice the term otherwise authorized or than twice that otherwise (3), (2) Except an individual convicted of a second or as otherwise may authorized, imprisoned provided in subsections or both. for a term not more than fined an subsequent amount not more [7413] (1) offense (5) purposes (2), For of subsection an offense is considered a subsequent offense, if, offense, second or before conviction of the any time, the offender has at been convicted under .... this article
Opinion by Holbrook, Jr., P.J. panel’s interpre Roseburgh merit.” Id. at 238-239.The (5) is bind subsections neither tation of persuasive. panel ing Indeed, it on this nor is key faulty panel’s reasoning is because it nullifies a phrase subsections, i.e., “second or subse in both Roseburgh, panel upheld quent In a term offense.” imprisonment (offense I) of life where the offense imposed occurred which a life sentence before any subsequent (offense n). offense Such second or interpretation phrase an “second or question: subsequent” begs offense” “second or *17 what? presents
The factual situation in this case
a differ-
possible interpretation
phrase
ent
“second or
Here,
violation.”
defendant committed
I,
n,
offense then offense
and was thereafter convicted
sequence
of offense
then
n.
I,
offense Unlike the
Roseburgh,
(offense n)
events in
the offense
which defendant
a life
received
sentence did occur
subsequent”
(offense
“second or
to an earlier offense
subsequent”
previous
i), but not “second or
to the
language
To
conviction.
the extent that the
оf subsec-
susceptible
interpre-
tion
is
of more than one
judicial
tation,
construction
accordance with estab-
statutory
necessary
lished rules of
construction is
ambiguity.4People Morris,
316,
resolve the
v
450 Mich
(1995); People
325;
Nantelle,
8; (1995), stated: statutes, enacting Legislature
In recognizes apply courts will common-law rules to resolve matters that specifically statutory provision. are not addressed in the 2B Statutory Singer, (5th ed), 50.01, Sutherland § Construction p phrases acquired unique 90. that have “[W]ords meaning interpreted at having common law are as the same meaning dealing when used in statutes with the same sub- ject” they matter as that with which were associated at the Co, common law. 68, 75; Pulver v Dundee Cement 445 Mich (1994); People Young, 1, 13; (1983). NW2d 805
Where the Legislature “has shown no disposition to
depart from the common-law definition,
therefore it
remains.”
v Schmitt,
Michigan appellate courts
long
have
followed the
majority common-law rule that,
proposes
pen-
alty
repeat
enhancement under
offender statutes,
it is
a prerequisite that
prior
precede
conviction
commission
the principal
offense.
Stoudemire, 429
283;
NW2d 693 (1987)
J.,
dissenting), cited
approval
with
in People
(Archer,
*18
v
436
Preuss,
714,
Mich
732;
Opinion P.J. Holbrook, Jr., procedural Chronological generally, anno: See, affecting sequence enhance- convictions as offormer penalty statutes, under habitual ment offender of example, pp § For 2a, 289-293. ALR5th Supreme supra, Sawyer, the Court construed our “prior phrase meaning in the sec- conviction” of the felony-firearm provision statute.5 ond-offender robbery a case, the defendant committed In that separate occa- a firearm on two while armed with separate prosecution trials for initiated sions. ultimately offenses, and the defendant these two felony-firearm pleaded guilty aat of two counts of plea proceeding. single court considered the The trial imposed prior a five- first offense as a conviction two-year year imprisonment than the rather term prior Our without a conviction. term for offenders although reading Supreme a that, held literal Court would lead to the conclusion that the statute technically conviction and defendant had a second subject repeat-offender provisions Legislature did not intend such a result: statute, the purposes Legisla- when the There axe a number of served repeat provides punishment increased offenders. ture society proper and the desire of These include deterrence punishment person provide for a who more severe ways following opportunity change an declines to his or her by imposing purposes a to reform. These are not served day punishment first on the when a defendant more severe Legisla- pleads guilty, accordingly and we believe that the five-year imprisonment term of second ture intended only imposed where the second conviction should Mich 535- offense is to the first conviction. [410 536.] See MCL 750.227b; 28.424(2). *19 Opinion by Holbrook, Jr., P.J. Supreme placed our Court recently,
More further Sawyer People Stewart, on when it stated in gloss 89, 94-95; (1992): 441 Mich Sawyer five-year impris- in “a Our statement term of only imposed onment for a second conviction should where the second offense is to the first convic- tion,” 536, should be to mean that a understood may repeat defendant not be convicted as a offender unless prior precede conviction(s) the the offense for which the punishment. require- faces enhanced There no defendant is prior neatly separated by ment that all offenses be interven- ing convictions. statutory phrase
Given that the “second or subse- quent susceptible violation” is of more than one inter- pretаtion, obligated apply we are the established footnote, panel common-law rule. In a the in supra at Roseburgh, n 1, apply refused to this by beyond rule the analogy habitual offender statutes “statutory sufficiently because the is differ- language inapplicable ent to render those cases to the issue presented previous here.” While it is true that no Michigan applied case has this common-law rule to the provisions second-offender of the controlled sub- act, applied only stances the rule has been not to the (Stoudemire, supra; habitual offender statutes Preuss, supra; Johnson, supra; Jones, supra), but repeat-offender felony- the provisions also the (Sawyer, supra; Stewart, supra), firearm statute provisions to the the drunk-driving second-offender (Erwin, supra). Certainly, legislative statute enacting penalty-enhancing intent in such statutes is is general the same whether conduct involved specific offenses, such as recidivism or recidivism of of a during of a firearm the commission Jr., P.J. Opinion Holbrook, felony, driving or while under motor vehicle liquor, dealing large influence of amounts of ille- gal narcotics.
Here, defendant Poole committed two offenses one apart week and was offenses in convicted those separate approximately year proceedings court one At later. the time defendant committed his second offense, he had however, not been convicted of his application Thus, first offense. of the common-law Legisla- rule to the facts of this case furthers both the enacting provi- ture’s intent the second-offender sions of the controlled substances act and the under- lying principle Accordingly, of the common-law rule. I would remand this matter to the trial court for resentencing.