People v. Stoudemire

Mich PEOPLE v STOUDEMIRE (Calendar 3). Argued Docket No. 75907. March No. Decided 30, 1987. Rehearing post, October denied 1213. Wesley Court, pled guilty J. Stoudemire in the Jackson Circuit Britten, J., assaulting prison guard, Gordon W. a in ex- change supplemental charg- for the dismissal a information ing prior felony him as an habitual with three convic- Bronson, P.J., Appeals, tions. The Court of and Hood JJ., affirmed, holding prop- Shepherd, that the defendant was erly charged though as an habitual offender-fourth offense even prior his convictions out arose of one transaction. The Court also certified that decision its conflicted with that of another (Docket 78144). panel appeals, alleging No. The defendant prior felony because his arose convictions out of transac- improperly charged tion he was as a fourth offender and that potential as a result of the sentence enhancement he faced as a pled guilty demanding fourth offender he instead a trial. Riley opinion by joined by In an Levin, Justice Chief Justice Brickley, Cavanagh,

and Justices Boyle, Griffin, Supreme Court held: Multiple person single convictions a which arise out of a may single prior transaction count as a conviction for purposes of the habitual offender statute. statute, construing language 1. In a of the statute must light general purpose sought be read in to be accom- discerned, plished. legislative given Once intent must be doing might appear effect even if so to conflict with the letter of legislative history the statute. The of the habitual offender penalties prescribed statute indicates an intent that the for a applied criminals, incorrigible fourth offender should be separate convicted on three occasions of crimes committed to the convictions. It was intended that a References 2d, Subsequent Am Jur Habitual Criminals and Offenders 1 et §§ seq. (18 2313) Dyer ground Conviction under Act USCS as penalty enhancement of under state criminal habitual statutes. 65 ALR3d 586. v Stoudemire opportunities being subject to reform have before phrase having Use of "after to the statute. been three times expres- in the statute was intended convicted” shorthand sion, reading of which would be with literal inconsistent legislative intent. case, only opportunity 2. In this the defendant had being charged, reform. Prior to he had been convicted and offender, only fourth-felony sentenced once. To deem him a subject penalties, most to the severe habitual offender would be legislative contrary prior intent. Because his three transaction, single arose out of a convictions he could be charged aas second offender. and Reversed remanded. Archer, dissenting, Justice stated that a defendant who felony having previously commits after been a convicted of which of

three felonies arose out the same criminal transaction charged should be habitual under the offender statute as a fourth offender. The offender habitual statute is clear and unambiguous provides person on its face. The statute that a felony who is convicted of a who is shown to be a fourth may read, Literally offender receive an sentence. enhanced person statute that who indicates a has been convicted of three transaction, felonies which arose out same of the criminal subsequent felony, may a who commits be sentenced as a fourth offender. provide punish- The habitual offender statute intended to repeated ment for It not commissions felonies. does mandate prosecutor charge person felony that a a who commits a as an person previously habitual offender where the been has con- felony. victed of a Nor it mandate does that a trial court merely prosecutor enhance sentence a because the flies a separate supplemental charging information the defendant as an habitual offender. Such decision is within the sound Legislature’s discretion the trial court. Given the concern citizenry, with crime and its effect on the it must have intended applied the habitual offender be statute in cases where prior multiple there are convictions for felonies which arose out appropriate of the same transaction. The under sentence prior statute is determined reference to the number of felony regard sequence convictions without convic- tions. (1985) App 687; Mich 365 NW2d reversed. Multiple — — Criminal Law Habitual Offenders Convictions. Multiple single convictions which arise out of a 429 Mich Opinion of the Court single prior may as a conviction for transaction count (MCL 769.10-769.14; habitual offender statute 28.1082-28.1085[1]). MSA Kelley, Attorney General, Louis J. Frank J. Filip, Prosecuting General, Caruso, Joe Solicitor Attorney, and Brian E. Thiede and Jerrold E. Prosecuting Attorneys, Schrotenboer, Assistant people. Jr., Worth, William for the defendant. provides J. The habitual offender statute Levin, escalating penalties persons repeatedly con- imposed may A victed of felonies.1 life sentence fourth-felony on a where the fourth punishable by years a term of five or more. The question presented is whether Stoudemire was charged properly as an habitual offender with convictions where the three convictions single arose out of a transaction. We hold that he charged only offender, could as a second reverse Appeals, the decision of the Court of and remand principal charge supplemen- for trial on the and a charging tal information that he was convicted but previous time. originally charged Stoudemire was with assault- ing prison guard2 and as a fourth offender under prior the habitual offender statute.3 The three supplemental convictions set forth in the tion robbery, informa- breaking entering, were and unarmed conduct, and criminal sexual and arose single single transaction, out of a and a trial and sentencing. supplemental

Stoudemire moved to dismiss the arguing information, that because the three 3 ^[2] 1 MCL MCL MCL 750.197c; 769.10-769.14; 769.12; MSA 28.1084. MSA MSA 28.394(3). 28.1082-28.1085(1). v Stoudemire Opinion transaction, single convictions arose of a out should count as one "conviction” under

they Therefore, the habitual offender statute. Stoude- argued, any supplemental mire information should charged him have a second offender.4 The motion, trial court denied Stoudemire’s Stoud- pled emire thereafter to the guilty principal charge exchange for dismissal of the habitual charge. Stoudemire subsequently appealed plea-based his conviction to the Court of Appeals, which affirmed.

i Legislative purpose is the lodestar of statutory construction.5 This Court has said: A responsibility court’s when it construes implement purpose

statute is to those who the intent it. A enact failure to consider whether , Legislature meaning understood the of a term quite differently when a statute was enacted than it is today understood would allow a statute to be construed scope. [People NW2d 834 a manner which extends its intended Gilbert, 191, 200; v 414 Mich (1982).] particular inquiry "The is not what ab stract may force of the words or they what com prehend, but in what they sense were intended to be understood or when used in understanding they convey what particular [People Lynch, act.” 343, 354; 410 Mich (1981).][6] NW2d In Wymer Holmes, 429 Mich 412 NW2d 769.10; MCL MSA 28.1082. 5People Gilbert, 191, 205; (1982), People v 414 Mich 324 NW2d 834 Lynch, (1981), McFarlin, v 410 Mich 301 NW2d 796 557, 563-565; (1973), Stambaugh Twp 389 Mich 208 NW2d 504 Treasurer, (1908). 104, 107; Iron Co 153 Mich 116 NW 569 6 (4th Quoting Sands, ed), Statutory 2A Sutherland Construction 46.07, p § 110. 262

266 429 Mich Opinion op the Court (1987), meaning,” discussing "plain Court, 213 construing statute, said that "in this Court must language light read the of the statute in of the general purpose accomplished. . . . to be Our first question task, legislative purpose.” therefore, is to ascertain the legislative discerned, Once intent is it must be given doing might appear effect, if even so " thing '[A] conflict with the letter of the statute. spirit which is within the of a statute is within the although thing statute, letter; not within the and a statute, within the letter is not within the unless ” Metropolitan within the intention.’ Council #23 Prosecutor, 299, 319; v Oakland Co NW2d Mich (1980).7 legislative history case, In this of the statute Legislature, by using phrase indicates that the having convicted,” "after been three times in- penalties tended that the fourth-offender reach only incorrigible criminals who had failed three separate times to reform —who had been convicted separate times where the last two convic- tions were for crimes committed after the Legislature phrase conviction. The used the "after having been three times convicted” as shorthand. Legislature expres-

When the uses a shorthand legislative arguably sion, intent controls over an reading literal of the statute inconsistent that with Twp intent. As this Court stated Elba v Gratiot (1939), Co, 372, 394; 287 Mich 283 NW 615 where question statutory it encountered a similar con- struction:_ 7Quoting Rush, 532, 542; Detroit Common Council v 82 Mich NW 951 Dep’t Conservation, 495, 499; See also Aikens v 387 Mich (1972), NW2d 304 proper where this Court said: "It is well settled any purpose construction of statute is for the court. The interpreting give legislative court a statute effect to the conflict, spirit purpose intent. If there is a of the statute (Citations omitted.) prevail

should over its strict letter.” People v Stoudemire Opinion op the Court ascertaining In the true meaning intent and of a statute often allowance must be made for at- tempted brevity expression. of language statute, "Where the of a in its ordi nary meaning grammatical construction, leads to a manifest pose apparent contradiction of pur enactment, of the or to some inconvenience or absurdity, hardship injustice, or presumably not intended, a may put construction upon be it which meaning words, modifies the of the and even the sentence.”[8] structure of the

II The habitual provisions were first en- part acted as of the Code of Criminal Procedure 1927,9 and adopted in toto the language of New York’s habitual offender statute.10 author the New York statute, State Endlich, Quoting Interpretation Statutes, 295, p § 399. original provision 1927 PA 175. The fourth offender stated: person having Sec. 12. A who after been three times con- state, victed felonies, attempts within this of felonies or to commit state, any government under the law of other country, of crimes which if committed within this state would felonious, be sentenced to state, commits a within this must be upon subsequent offense, conviction of such fourth or imprisonment prison in a state for the term of his natural life. Offenders sections shall not be preceding sentenced under this and the last two eligible parole expiration before the sentencing the minimum sentence court or judge term fixed at the time of approval judge without the written of such any judge sentencing judge of such court if the is not serving. person punishable

then two A to be under this and the last preceding sections need not have been indicted and con- previous victed as a offender in order to receive the increased punishment provided provided, may proceeded against therein but following in the section. grammatical NY Laws 457. There are several differences act, between example, the two acts. The New York inserted a ,” comma after "A Michigan who . . . which comma the Additionally, Michigan version omitted. act included a sentence regarding parole eligibility that was not in the New York statute. The New York statute read as follows: 429 Mich 262 Opinion the Court Baumes,11 escalating the act’s Caleb aimed

Senator life particular mandatory penalties —and original in the enactment on imposed sentence criminal, professional fourth offenders —at tried, repeatedly recidivist who had been hard-core convicted, sentenced, yet and who committed crime. Senator Baumes said: another Act[12] theory of the Fourth Offender is not all, protection it to the punishment at but once, public. The man who has been convicted twice, times, his sentenced and served time operations again and come out and resumed [sic] proven you has his lesson. He is incurable. He is non-reformable. And either he cannot or he will not to the fixed and settled rules and and to me that he cannot learn

adjust regulations himself society and civilization. ... He is a habitual [sic] criminal, society, a menace to and as such should segregated good society society be from for the perhaps good [Baumes, and The Baumes laws and for his own as well. legislative program in New (1927). York, 511, Rep Emphasis 52 ABA added.]_ who, person having 1942. A after been three times con- § state, attempts victed within this felonies, of felonies or to commit state, government any or under the other law of country, of crimes which if committed within this state would felonious, state,

be commits a within this shall be fourth, upon subsequent, sentenced fense to natural conviction of such of- imprisonment prison in a state for the term under his punishable life. A to be this and the preceding section not need have been indicted and convicted as previous punish- a ment offender in order to receive the increased provided, may proceeded against pro- therein but following vided in the section. legisla Senator Baumes’ act served as a model for the recidivist swept tion that the nation in the late 1920s and which was referred Brown, generically as the "Baumes Laws.” See The treatment of States, (1945); recidivist the United 23 Can Bar J 642-643 (6 Johnsen, Shelf, 3, 1929); The Baumes Laws The Reference Number Shumaker, offenders, imprisonment Life for habitual Law Notes supra. 12 1926NY Laws 1942. n 6 § See People v Stoudemire op Opinion the Court New York courts have construed the Baumes with In Act accordance Senator Baumes’ intent. Spellman, 136 Misc 242 NYS 68 (1930), multiple the court declared that convictions on the same constitute one "conviction” day only Spell- for of the habitual offender statute. man was in 1922. burglary convicted Subse 19, 1924, quently, pled on he January guilty seven indictments burglary grand larceny. prison, again After his release from he was con burglary, charged victed of and the state him as a fourth under offender habitual offender stat ute. The court held that the seven con same-day victions constituted one habitual only "conviction,” Spellman and that therefore could be charged as a only third offender. Before his most arrest, Spellman two, recent had had not three, opportunities to reform: have, however, humanely justly The courts sentence[13] required three or more ments of mandatory life after fully completed, legal, prior judg conviction, separated sufficiently to offer opportunity (People the felon to reform. v Bergman, (1916)], 176 318 443 NYS [AD] [162

People Schaller, 3, v 224 8 NYS 492 223 [AD] [229 (1928)], People Jennings, ex rel Gaczewski v (1928)].) 78 [Spellman, supra, p NYS 373 [AD] [228 29.][14]

Construing Michigan 1929, the in statute this 13 original Michigan statute, York’s, imposed The like New a man datory life sentence on a fourth offender. 14 (1927). 451; Gowasky, See also v 244 NY 155 737 NE English predecessors by discussion of the Baumes Act and its the New Appeals predicated assumption York Court of on the legislation targeted repeatedly at hard-core recidivists who had subsequently yet been convicted and sentenced and who committed another crime. appear Spellman. Later New York cases to conflict with These cases purposes counted as a conviction for of the habitual offender statute convictions for crimes that were committed before the defendant had 429 262

270 Mich Opinion of the Court Baumes Court echoed Senator and the New York courts: laws evidence a desire on the [Habitual offender]

part people protect of the of the State to them selves from the acts of habitual violators of law. persons, repeated by Such commissions of felonies, they have shown that are a menace to society, liberty, deprived unfit for and should be punishment in thereof. The such cases is increased apparent persistence of because the commis by sion of crime convicted and his necessary indifference the laws deemed for the protection people property. and their [Peo Palm, 396, ple 401; v 245 Mich 223 NW 67 (1929).][15][Emphasis added.]_ previous been convicted of some or all these cases had not been to reform before his commission (I.e., his crimes. The defendant in given requisite opportunities number of past of one more of his crimes. charged offender, if the defendant was as a third he should have previous opportunities had two to reform—one after first his convic tion and before he committed the crime that led to his second conviction, conviction, and another after his second but before he conviction.) People committed the crime that led his third v 894; (1939); Brophy, People Gorney, 256 AD 25 NYS2d v 203 Misc 512; Turk, (1951);Terwilliger 103 NYS2d 75 Misc NYS (1935). opinions legislative These do not reflect awareness of the intent expressed clearly Additionally, Senator Baumes. the construction rejected by Legislature, was later statute so as to confirm the the New York which amended the Spellman interpretation court’s Law, prior opportunities convictions as § for reform. New York Penal (Practice 70.10, pp (McKinney) Commentary). 222-223 See also Peo- Morse, ple 205, 219-222; NY2d 465 NE2d 12 Earlier, 1936, Legislature the New York its code of amended time, procedure permit, multiple criminal and the consolidation of for the first indictments trial. 1936 indictments for NY Laws act, Legislature Spellman 279. In the same affirmed the court’s § by adding construction felony multiple the habitual offender statute to the fourth- provision arising providing a sentence that convictions out of would convic- consolidated indictments count as section, tion for the habitual offender "For statute: separate conviction of two or more crimes in or dated for of one indictment counts information, or in shall be deemed to be informations consoli- two or more indictments or trial, 1936 NY one conviction.” Laws 1942. § 531, 535-536; People Sawyer, See also v 410 Mich 302 NW2d People v Stoudemire Opinion op the Court By borrowing entirety, New York’s statute in its Legislature by the the same statute. The indicated that it was motivated

purpose underlay the New York Legislature intended that the habitual fourth-felony provision, offender statute’s like the parallel provision apply only statute, in the New York should opportu- to a who had had three nities to reform —who had been convicted and subsequently sentenced and then committed an- other for which he was also convicted and subsequent sentenced, and then to the second yet felony, conviction committed he was person’s another for which again Upon convicted and sentenced. yet felony, conviction for a fourth he subject would be fourth-felony to the habitual offender act’s provision. subject He would be mandatory imprisonment life because he had three apparent reform, times failed to "because of the persistence in the commission of crime person convicted and his indifference to the laws . . . .” opportunity

Stoudemire had one to reform be charged fourth-felony fore he was as a offender. Before the case, assault in the instant Stoudemire had been tried and sentenced but once. He could charged have been as a second offender.16To fourth-felony subject deem Stoudemire a offender, penalties, to the most severe habitual offender contrary legislative purpose would be to applying fourth-felony penalties against persons failing who, those after separate opportunities reform, were deemed incorrigible criminals. appropriate legislative It is to infer intent from (1981); Lowenstein, 94; (1944); People 309 Mich 14 NW2d 794 Podsiad, 295 Mich 295 NW 257 769.10; 16 MCL MSA 28.1082.

272 429 Mich 262 Opinion op the Court purpose of similar statutes enacted in other jurisdictions. Wymer supra, Holmes, See where determining legislative purpose Court, underlying Michigan’s recreational land use stat- ute,17 "[i]t declared that is reasonable to assume Michigan general that the purpose statute has the similar jurisdictions

of similar acts in other construing . . . .” statutes, In similar a substantial majority of the courts that have considered this question recognized enacting legisla- have that the pre- ture intended that "convictions” reflect opportunities Multiple vious to reform. convictions arising out of one incident count as purposes applying "conviction” for of habitual of- fender statutes.18 State,

In Rezin v Nev 596 P2d 226 (1979), Supreme Court of Nevada construed an providing habitual offender statute for additional punishment persons previously "convicted.”19 13.1485(1). 300.201(1); MCL MSA multiple At least one arising court has held that convictions from may separate the same purpose indictment count as for the (Ala State, habitual offender statute. Eaton v 423 So 2d 352 Crim 1982). App, fraud or intent to defraud is an the laws of the situs of the crime or of this state would amount of whether in this state or or of intent shall less than 10 amount to a convicted, which victed, larceny, under the laws of the situs of the crime or of this state would 2. 1. any felony, Every person felony, Every person any be to defraud is an fraud or intent whether in this state or punished by imprisonment or of misdemeanor or whether in years or who has felony, any felony, who has nor more than 20 convicted in this state of convicted in this state of or who has this state or to defraud is an previously element, elsewhere, previously gross who has misdemeanor of which fraud or element, elsewhere, is an habitual criminal and previously been three times elsewhere, years. previously in the state been five times any or of element, of any crime which under been three times any petit larceny, been twice con- crime of which any prison petit crime which or of convicted, convicted, crime of larceny, for not petit or v Stoudemire Opinion of the Court purpose legislative under- that the The court noted lying age repeat discour- "to offender statute the habitual oppor- them an and to afford offenders two tunity held "where The court to reform.” grow act, of the same out more convictions or transaction, presented in occurrence, are information, several those the same indictment single 'prior may as a utilized convictions applying habitual conviction’ p Id., 462. criminal statute.” Appeals construed of New Mexico mean that convic- statute20 to

its habitual criminal arising single count a incident "would tions out of 'prior’ the habitual offender under as Montoya, 734, 737; 92 . . . NM .” State statute (1979). holding on was based 594 P2d 1190 This legislative purpose underlying statute, that the the " penalty in over 'the is held terrorem increased effecting purpose the of his refor- the criminal for subsequent preventing further and mation " ” by Therefore, must him.’ 'each offenses pre- the have been committed after conviction for ”21 ceding felony.’ elsewhere, petit larceny, any whether in or of or of this state gross intent to misdemeanor or defraud the the possibility misdemeanor of which fraud or element, by imprisonment punished in is an shall be prison parole. possibility If state life with or of for without imprisonment penalty by the fixed the court is life with begins parole, eligibility parole mini- when a years 10 Stat mum of has been served. Rev 207.010.] [Nev who, 20 Anyperson having after been convicted within this felony, of a who has the laws of state any which been convicted under government country, other of a or crimes state crime felony, if com committed within this state would any felony punishable mits death or life within state not otherwise imprisonment, punished shall be . . . .” [The punishment upon "prior depended the number of convictions.” 734, 735; (1979).] Montoya, State v 92 NM 594 P2d 1190 Linam, 307, 309; Quoting State v 93 NM 600 P2d 253 429 Mich 262 Opinion op the Court Tavares, In State v 509, 515; 63 Hawaii 630 P2d (1981), Supreme rejected the of Hawaii the prosecutor’s multiple claim that convictions on single counts of a indictment should count multiple prior convictions for of the s tute.22 chooses,” said, ta it court "to follow the "[T]his majority rule and holds that convictions on several counts of an indictment are to be treated as one conviction [under statute].”23 minimum during 606.5(l)(a)(b)J maximum (2) degree, of promoting ated offenses or of the first 707-768 810 robbery ing 720 cion (b) (a) (1) Notwithstanding in this or another each contrary, to relating dangerous drug relating involving Third conviction—10 Second conviction—5 relating such murder, who has a relating in degree, conviction period sentence of a the first period to any to the dangerous burglary 707-710 dangerous drug kidnapping, to extortion 707-733 as follows: any degree, imprisonment in the first after promoting section conviction for one of those relating jurisdiction, relating in convicted under weapons, the first years; prior conviction, 712-1241 years. involving dangerous weapons, 707-724 706-669 first degree, of a harmful in the second to without conviction 707-730 assault [Hawaii sodomy degree, enumerated relating relating any within 712-1242 section 707-701 of the above enumer- possibility in relating 708-840 in the first shall be sentenced any Rev to the to drug to a the first degree, relating criminal other law to time of the Stat, mandatory relating subsection to promoting rape or 712- degree, degree, parole to the § relat- coer- 706- first 708- in 23 (CA States, 1, 1955); See also v Gonzalez United 224 431 F2d Ellis, 172; (1983); Hollins, State v 214 Neb 333 NW2d 391 State v 310 (Iowa, 1981); Brezillac, NW2d 216 App 11; State v 19 573 Wash P2d (1978); Carlson, (Alas, 1977); 1343 State v 560 P2d 26 v State Sim mons, (Minn, 1977); Murray, 526; 258 NW2d 908 State v 200 Kan 437 (1968); Commonwealth, 1964); P2d (Ky, Dye 816 Ross v 384 324 SW2d Skeen, 90; (1950);Joyner State, 135 W 62 Va SE2d 681 158 Fla 806; (1947); State, 30 So 2d 304 App Ellis v 134 Tex Crim 115 (1938).See, generally, statutes, SW2d 660 anno: Habitual criminal 24 (The 1247, great majority ALR2d of cases have held two or indictments, day more convictions on the on same two or more or on indictment, two or more of the counts same constitute one purposes Sorenson, statute); for conviction of the habitual offender Quantity The 507 only?, habitual act: of criminal convictions L 59 Neb R v Stoudemire op Opinion the Court Supreme States in the United

In brief filed States of the United Court, General the Solicitor overrule a Court to error and asked confessed Appeals for of of the United States decision the felony Eighth an offender’s six that counted Circuit arising as six one incident from

convictions separate purposes the federal of for convictions Petty States, 481 v United act.24 habitual criminal US (1987). The 1968; 95 2d 810 —; S L Ed 107 Ct person provided of firearm convicted that a statute possession previous "who has burglary, robbery for convictions ... imprisoned . not less than . . [be] both . . . shall years, . shall not be . . such fifteen eligible previously parole Petty . . . had for .” robbery Missouri, been convicted of armed robbery York, on New of six counts the armed of robbery participation in at a of basis his people during different were restaurant which six The Solicitor General at the same time. robbed statute, six convic said that for tions arising incident should be out of same "previous rule conviction.” To counted as otherwise would contradict intent legislative clear " penalty 'hard that the increased burglars,’ 'repeat of core recidivist robbers and fenders,’ The United and 'three-time losers.’25 Supreme cause to the States United States Court Court remanded the Appeals Eighth

of accepted Circuit, which General’s Solicitor position and vacated the habitual offender sen (1982 1984). 1201(a) II, App, Supp Congress & has since § USC repealed section, provision penalty has but it made the enhanced 1202(a) applicable 922(g). of former violations 18 USC See 100 § 1986, 102, 99-308, Act PL Firearms Owners’ Protection §§ pertinent language Stat 458-459. The of the amended version of 1202(a), 922(g) language is the samé as the of former and the § § legislative history 922(g) applied indicates that is to in the same § 1202(a). sentencing provision manner as the enhanced § former General, p Brief Solicitor 8. 429 Mich op Opinion the Court (CA Petty, 8, tence. United States 828 F2d 2 1987).

IV Legislature While has amended the habitual changes offender statute since none of the provi- an evidence intent the fourth-offender apply anyone sion should other than someone already who, conviction, his fourth had separate been convicted and sentenced three (1929 subsequent 24) times. .The first amendment PA penalty moderated the fourth-offender so that a life sentence was mandated when the upon where, fourth was one a first convic- might imprisoned tion, "the offender ain state prison years for a maximum term of five more . . . .” If the maximum was less than five years, the habitual offender sentence was "not less years than seven and one-half nor more than years.” fifteen 56) (1949 changed

The second amendment PA sentencing mandatory discretionary. from longer required upon Life sentences were no fourth-felony which, convictions for offenses had they pun- convictions, been first would have been years ishable sentences five or more. The judge could, rather, sentence the offender "to im- prisonment prison in a state for the term of his any natural life or for lesser term in the discretion . . .” court . (1978 77) The third and last amendment PA primarily editing part an amendment changes concerning made controlled substance of- example, Legislature For fenses. altered 1949 PA Stoudemire Opinion is offender is tried such felony for which If the the of- thereof upon first conviction a that

such prison for a in a state imprisoned might be fender life, more, or for then or years of 5 term maximum upon conviction sentenced person may be such imprisonment subsequent offense fourth or such life or of his natural for the term prison in a state the in the discretion term any lesser . . . court

to: upon a punishable subsequent is

If the for a maximum imprisonment conviction first court, more, life, the or for then years 5 or term of or in this section provided except as otherwise person may sentence chapter 1 of section subsequent offense the fourth or upon conviction of the term of prison for imprisonment in a state 77, 12(l)(a).] PA term. life or for a lesser § [1978 Similarly, Legislature PA edited con- having times person after been A who state, attempts to or this of felonies

victed within felonies, any other under the law commit or if state, which government country, of crimes felonious, would be within this state committed punishable within this state is any felony commits . . . as follows upon conviction to read: 3 or more convicted of person If a has been both, felonies,

felonies, attempts to commit this state or the convictions occurred whether state if the felonies in this have been for would had been this state obtained outside convictions state, person commits a and that in this obtained state, person subsequent felony within follows .... upon conviction as punished shall 77, 12(1).] PA § [1978 429 Mich Dissenting Opinion by Archer, J. phrase person While the "If a has been convicted arguably felonies,” 3 or more has different import ing phrase "A than who hav- after convicted,”

been 3 times when considered in changes the context of statute it other made in the Legislature clear that intended improve grammar, only to the statute’s not underlying meaning. alter its These alterations are stylistic, They not substantive. therefore not do legislative purpose expressed origi- alter the in the nal statute. legisla- hold,

We therefore consistent with the purpose underlying tive the habitual offender stat- multiple arising ute, convictions out Of a single may single incident count as conviction for of the statute.

Reversed and remanded to the trial court for proceedings opinion. further with consistent Riley, C.J., Brickley, Cavanagh, Boyle, and JJ., Griffin, J. Levin, and concurred with (dissenting). J. Archer,

I. FACTS by The essential facts this case are set forth Appeals People Stoudemire, the Mich in v 140 App 687, 688; 365 NW2d 214 charged Defendant was originally with assault- ing prison guard, a 750.197c; 28.394(3), MCL MSA offense, and as 769.12; habitual offender-fourth MCL a[n] supplemental MSA 28.1084. The informa- tion predicated upon prior was felony three convic- breaking tions for entering, and robbery unarmed and criminal sexual conduct. Both defendant and prosecution agree prior that part single convictions were of a transaction and occurred place. at the same and time People v Stoudemire Opinion by Dissenting Archer, J. sup- brought a to dismiss the motion Defendant information, arguing that the three plemental single trans- prior felony arose out convictions charged multi-count information. in one action that the three convictions claims Defendant under the habitual only as conviction count statute, any supplemental therefore charged have should defendant information was motion de- as second offender. Defendant’s court, thereafter the trial and defendant nied charge exchange principal pled guilty to the supplemental information. The dismissal plea agreement complied with[. Defendant right plea-based from his appealed] [then] conviction. Appeals, appeal defendant the Court of On App People 218; Ross, Mich relied on (1978), argued that under NW2d supplemental statute, infor- habitual offender charged him aas second mation should have prior felony convictions his three offender because single The Court of out of a transaction. arose Appeals properly that defendant was found charged statute as a under the habitual offender plea-based offender, fourth affirmed defendant’s conviction, decision in and also certified its this case conflicts with its decision (1982).1 App Carson, 320 NW2d 343 Mich un- section of the habitual offender statute charged an habitual der as which defendant pertinent part: provides in offense offender-fourth 1 People Appeals v why Carson It not clear the Court of refers is Appeals certifying in its opinion a conflict to this Court. The order Ross is discussed in this case not cite Carson. v does Court, extensively by is in the the but not mentioned Stoudemire after statute was amended order. We note the habitual offender 1978, 1978 amendments Ross in but before Carson. The was decided case. do the issue in this not affect 280 429 Mich 262 Dissenting Opinion Archer, J. person 3 If a has been convicted of or more felonies,

felonies, both, attempts to commit whether the convictions occurred in this state or would have been for felonies in this state convictions obtained outside this state had been

if state, person in obtained subsequent this felony and that commits a state,

within this punished upon shall .... conviction [MCL 769.12; MSA 28.1084.] granted We appeal leave this case to. determine whether a defendant can be charged under the habitual statute a fourth offender where his convictions arose out of the same I transaction. would affirm Appeals. decision of the Court of

II. STATUTORY RULES OF CONSTRUCTION We must provisions construe the of the statute question reach issue raised in this case. The intent of Legislature controls statutory Ed, Owendale Schools v State Bd of construction. 1, (1982). 413 Mich 529 NW2d Our primary goal in construing the habitual offender statute is to discover and give effect to the intent of the Legislature. The intent of the Legislature is de- rived language from actual used in the statute. Rapids Crocker, Grand 178, 182-183; Mich (1922). NW language When the used in a statute is plain and unambiguous, a common-sense reading provision will suffice. interpreta- No Employees necessary. Dussia v Monroe Co tion System, Retirement 386 Mich 248-249; 191 NW2d 307 pronounced This rule was first People Blodgett, case, in Michigan in an 1865 Cooley (1865), Mich 167-168 where Justice wrote: v Stoudemire by Opinion Dissenting Archer, J. for the rules well settled certain There are statutes, safely court can which no

construction unam- plain and the statute disregard. Where nothing do terms, to courts have biguous but its and give a sensible may obey They it. to expressions legislative interpretation to reasonable to obscure, right they have no but are which intelligible. and which are clear those distort fair and natural employed, import of the terms law, is what matter of the subject view of govern .... omitted.] should [Citations statutory rule of fundamental There is another must take into consideration that we construction in this case. question raised reaching before the literal from "departure That rule states when such is justified of a statute construction unjust an absurd produce would construction with the inconsistent clearly and would result Salas question.” the act in policies Clements, 399 Mich 109; 247 NW2d

III. DISCUSSION offender habitual challenged I now turn to seq. et seq.; 769.10 et MSA 28.1082 statute. MCL statutory rules of fundamental In applying above, read the one must construction discussed con- give due offender statute and entire habitual section, possible, if produce, to every sideration enactment and consistent an harmonious Crocker, supra, 182. Rapids v whole act. Grand en- provides statute The habitual have been who for individuals punishment hanced at- an previous felony, of at least one convicted both, com- and who felony, to commit a tempt this state. within subsequent mit a apply of the statute sections The various from ranging felonies previous levels of graduated 429 Mich Dissenting Opinion Archer, J. prior felony or more felonies. If previously an individual has been convicted attempted felonies felonies and a sub- commits sequent felony, the statute authorizes the sentenc- ing impose to an court enhanced sentence. The regard necessary is statute quence silent with to the se- prior of convictions. The fact that the point necessarily is silent this statute on does not ambiguous. language reading My mean that the is of the statute as a whole convinces me that language plain unambiguous. is and reading statutory language

A literal of the indi- cates that an individual who has been convicted of three felonies which arose out of the same crimi- transaction, nal case, like the defendant in the instant subsequent felony,

and who commits a can be sentenced under the habitual offender as statute a fourth 769.12; offender. MCL MSA 28.1084. One meaning must determine whether the literal of applied the statute as unjust of the facts case so justify departure. and absurd as Salas supra, Clements, v 109.

A People Podsiad, In 541; v 295 Mich 295 NW 257 (1940), People Lowenstein, v 309 Mich (1944), NW2d 794 we were asked determine whether a defendant for two counts transaction had been of convicted and sentenced

arising out of same criminal

convicted two felonies so subject punish- as to the defendant to enhanced ment under the habitual criminal act.2 In both cases,3 we concluded that a defendant who commonly act is now This referred to as the habitual statute. 3People Lowenstein, supra, holding People relied on in Podsiad. v Stoudemire Opinion Dissenting Archer, J. arising counts for two sentenced convicted could not be transaction criminal same out act. The criminal habitual under the sentenced who, applied only hav- after to individuals statute ing felony, committed been convicted subsequent Podsiad both The defendants crime. prior aof not been convicted had and Lowenstein felony they the two felonies committed time at the were under review. that majority represents holding in Podsiad prerequisite that the "it is a states

rule which precede the com- or convictions conviction principal to en- order offense mission punishment criminal habitual under hance procedural Chronological se- Anno: statutes.” affecting quence enhance- of former convictions subsequent penalty ha- under ment of offense 1247, 1249; 22- statutes, 24 ALR2d bitual criminal Service) (Later 544, 545. Case 24 ALR2d minority of the conviction rule states that previous not have to ante- does offense or offenses primary offense. of the the commission date ALR2d 1252. initially case was in the

The defendant instant charged committed because he as a fourth offender having subsequent felony of been convicted after a arising the same criminal counts out three are therefore of this case The facts transaction. distinguishable I do not Podsiad. from the facts in ques- of the is determinative that Podsiad believe tion presented in this case.4 holding Appeals earlier, on the Court of defendant relies As stated argument Ross, authority supra, that the for his in prior v transaction out of the same in this case which arose felonies applying prior for be counted as one should the holding in our relied on statute. The Ross Court offender habitual Podsiad. the Ross Court misread Podsiad. I believe 429 Mich Opinion by Archer, J. Dissenting

B appropriate appli- haveWe never addressed the cation habitual offender statute cases involving defendants who have been convicted of previous felonies which out of arose the same subsequent transaction and who then commit a felony.5 punishment The habitual statute enhances " apparent persistence 'because of the in the com- mission of crime convicted and his necessary indifference to the laws deemed ” protection people property.’ and their People Hendrick, 416; 398 Mich 247 NW2d (1976), quoting People Palm, 245 Mich Southard, 223 NW 67 See also In re (1941), 75, 78; 298 Mich 298 NW 457 where we passed stated, "The habitual criminal act was provide punishment repeated commissions of felonies.”

I note that not statute does mandate prosecutor charge an individual as an habitual offender whenever the individual has been con- prior felony subsequent victed and commits a felony. The trial court is not also mandated to merely sentence a defendant under the statute prosecutor separate supple- because the files a accusing mental information the defendant of be- ing Sentencing convicted of felonies. defendant under the statute is within the sound discretion of the trial court. purpose

The stated of the habitual stat- ute leads me to conclude that the result this case is neither absurd nor reached

unjust. Given the Legislature’s with concern crime and effect it Legislature state, has on the citizens of this People Wakeford, (1983), See 418 Mich 341 NW2d 68 where robbery we grocery held that the armed of two cashiers in one store during period single the same of time was not a offense. People v Stoudemire Dissenting Opinion by Archer, J. intended that the habitual offender must have applied prior multiple be convictions for statute felonies which arose

out of the same transaction. appropriate under the statute is sentence by the number of convic- determined regard sequence to the of the tions without convic- tions.

An individual who has been convicted and sen- prescribed prison tenced, and has served the probation manslaughter term three counts of arose out of the same criminal transaction which him- should have sufficient motivation to reform acceptable of our self society. become an member motivated, When an individual is not so he can sentenced as a fourth habitual offender manslaughter subsequent once he commits a Legislature felony. I other do not believe that intended that an individual be sentenced second offender under the statute as a merely because prior manslaughter the three arose out convictions of the same transaction. A defendant who has manslaughter been convicted of three counts of which arose out of the same criminal transaction subsequent felony and who is less convicted is no persistent committing at than crimes a defen- independent dant who has been convicted of three subsequent felony. homicides and commits a It subject would be reasonable to individuals who commit homicides under either set of circum- degree stances to the same statute. of sanctions under the argument purpose Defendant’s provide habitual offender statute is to that where prior felony a defendant had been convicted of a given opportunity reformation, he should be an charges sepa- and that the convictions must be on rately brought tried, would be better ad- Legislature. dressed 429 Mich 262 Dissenting by Opinion Archer, J.

C My view does not represent adopted the rule by of majority jurisdictions which have considered question. In most construing cases a state’s statute, habitual offender of sequence prior convictions is not an issue. Where this factor is an issue, the rule followed in the majority jurisdic- tions is that each felony successive must be com- mitted the previous after felony it can be before counted under the habitual statute. ALR2d 1249. Carlson, State v

In (Alas, 1977), 560 P2d 26 Supreme Alaska repealed construed the now statute,6 Alaska habitual offender which was very Michigan’s statute, similar concluded and the statute did not apply to an individual who committed four crimes within a time short and provided: Alas Stat 12.55.050 punishment persons "Increased for convicted of more than felony. person felony one been A a convicted of in this state has who previously felony elsewhere, convicted of this state or felony if the crime same elsewhere would constitute a under law, punishable Alaska is as follows: "(1) person felony If the is convicted which would punishable life, punishable imprisonment by for a term less than his natural previously felony, and has been convicted of one then he is imprisonment by not less than the minimum longest prescribed nor more than twice the term for the person of which that is convicted. "(2) person previously If the has been convicted of two felonies, punishable by imprisonment he then is for not less longest than the minimum nor than more twice the term prescribed felony. herein for a second conviction of "(3) previously If the has been convicted three or felonies, more then on the fourth conviction he shall be ad-

judged criminal, punishable imprison- an habitual years ment for nor not less than more the remainder than of his natural life.” P2d n [560 2.] repealed replaced by materially This has been statute different wording. existing legislation imprisonment For the on sentences of felonies, see Alas Stat 12.55.125. Stoudemire Opinion by Dissenting Archer, J. given opportunity most one to reform. Both at Michigan statutes are silent on and the Alaska sequence required convictions. statutory language in the to the contained While offender statute is similar Alaska habitual significant Michigan statute, there is a difference statutory construction we between the rule of must follow and the rule of construction followed Supreme by the courts of Alaska. The Alaska "plain meaning” rejects the so-called rule as Court a strict exclusionary rule. That court has held that principle statutory inter- "[w]hile a fundamental pretation lan- is that a statute means what its guage reasonably conveys others, to to reference provide insight legislative history may an which is concerning helpful making judgment a a to what Supreme fur- statute means.” The Alaska meaning inquiry ther held that its into the of a interpretation with statute of the statute even not end a literal does though language used is Borough unambiguous. Slope North clear and (Alas, Corp, 534, 585 P2d Sohio Petroleum 1978). "plain meaning” earlier, As discussed rule is Michigan. alive in See Hiltz v Phil’s and well Quality Market, 335, 417 Mich 337 NW2d 237 (1983); In re Certified 416 Mich Questions, (1982); 567; 331 NW2d 456 Dussia v Monroe Co supra, Employees System, Retirement 249.7 Supreme rejec- I believe that the Alaska Court’s "plain meaning” tion of the fact that the court offender statute as rule accounts for

interprets the Alaska habitual requiring not that defendant who was convicted of three felonies which language and The rule states that where of a statute is clear according terms not lead to absurd conse construction to its does quences, meaning expression the intended, used are taken as the final of the words legislative history will not be consulted. See (4th Sands, ed), Statutory 2A Sutherland Construction 45.09. § 429 Mich Dissenting Opinion Archer, J.

arose out of same transaction be sentenced as a fourth offender. (Iowa, Tillman,

In State 228 NW2d 1975), Supreme the Iowa Court held that the Iowa habitual offender statute "dictates that each of- complete conviction, fense must have been as to prison sentence and commitment before the qualify of the commission application next in order enlarged it punishment” provided challenged for under the statute. statute provided pertinent part: Tillman crime, "Whoever has been twice of a convicted sentenced, prison, any committed in this or state, other ... terms not than less years shall, upon each conviction felony and criminal, ... be deemed to be a habitual punished by imprisonment shall in the penitentiary for a term of not twenty- more than years five . . . .” NW2d [228 40.] Defendant Tillman was convicted on December attempting 23, 1971, of break and enter and was years imprisonment. sentenced to five The sen- suspended, pa- tence was and the defendant was good May roled defendant’s for behavior. On the parole revoked, and he was incar- cerated. shop- 26, 1972,

On March Tillman committed a lifting offense. He was convicted of this crime on July years 3, 1972, and was sentenced to in seven penitentiary. the state shoplifting breaking

The convictions for and and entering justify sentencing used were the defen- dant as an habitual criminal when the defendant subsequent November, committed offense in Supreme 1973. The Iowa Court held that the ha- apply bitual offender statute did not to Tillman presented, stating: under the facts Stoudemire Dissenting Opinion Archer, J. light purpose, applying "In the of its and principle of strict construction we hold in accord- general § with rule ance that under 747.5 the imposition first conviction and must sentence precede prior offense, the second and that both of the impositions convictionsand of sentence must precede the third conviction. sequence That does exist not in this case. The resulting incidents in first and second convic- imposi- each tions tion of Code 747.5is occurred before and conviction penalty Therefore, first offense. inapplicable § [228 41.] . . . .” NW2d Michigan statute, unlike statute, The Iowa an defines habitual offender as an individual who crime, sentenced, has been convicted of a prison any committed to no Iowa other state years. Michigan than less statute require does not individual be sentenced an prison and committed to for a conviction charged before he can be as an habitual offender. Instead, our statute refers to an habitual offender as an individual who has been convicted felony, attempt felony, an to commit a both any this state or other state. The Iowa statute is distinguishable therefore from our statute.

iv I would hold that the habitual offender statute is unambiguous clear and on its I face. would further hold that literal construction of the statute would produce unjust not an absurd or result in this case clearly and would not be inconsistent with the policies of the act. On basis properly us, the facts before defendant was charged under the statute as a fourth offender. I would affirm the decision of the Appeals.

Case Details

Case Name: People v. Stoudemire

Court Name: Michigan Supreme Court

Date Published: Oct 30, 1987

Citation: 414 N.W.2d 693

Docket Number: 75907, (Calendar No. 3)

Court Abbreviation: Mich.