People v. Bewersdorf

• Decision Date: 22 August 1991
• Docket Number: 87729,Nos. 88095,s. 88095
• Citation: 438 Mich. 55,475 N.W.2d 231
• Court: Michigan Supreme Court
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Kim Ralph BEWERSDORF, Defendant-Appellee. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Valentine JOHNSON, Defendant-Appellant. 438 Mich. 55, 475 N.W.2d 231

Page 231

475 N.W.2d 231

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Kim Ralph BEWERSDORF, Defendant-Appellee.

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Valentine JOHNSON, Defendant-Appellant.

Nos. 88095, 87729.

438 Mich. 55, 475 N.W.2d 231

Supreme Court of Michigan.

Argued Jan. 8, 1991.

Decided Aug. 22, 1991.

Frank J. Kelley, Atty. Gen., Gay Secor Hardy, Sol. Gen., Jeffrey C. Middleton, Pros. Atty., Douglas K. Fisher, Chief Asst. Pros. Atty., Centreville, and Richard Thompson, Pros. Atty., Oakland County, and Michael J. Modelski, Chief, Appellate Div. by Richard H. Browne, Asst. Pros. Atty., Pontiac, for the People.

Elliot D. Margolis, Detroit, for defendant Bewersdorf.

Thomas Robertson, Sturgis, for defendant Johnson.

OPINION

ROBERT P. GRIFFIN, Justice.

The principal issue in these consolidated criminal appeals is whether the habitual offender act ¹ may be used to enhance a sentence otherwise applicable to a felony conviction under the Motor Vehicle Code ² for operating a motor vehicle while under the influence of intoxicating liquor (OUIL). ³ It is argued by defendants that the two sentencing schemes stand in conflict, and that the provisions specifically applicable to a felony OUIL conviction under the Motor Vehicle Code should prevail as against the general habitual offender statute. We find that the statutes in question do not conflict; rather, they "dovetail harmoniously...." ⁴ We conclude that the Legislature intended, as indicated by the plain meaning of the habitual offender act, that it be applicable to third and subsequent OUIL convictions.

I

A. People v. Bewersdorf

After entering guilty pleas, Kim Bewersdorf was convicted of the felony of operating a motor vehicle while under the influence of intoxicating liquor, third offense, M.C.L. Sec. 257.625(6); M.S.A. Sec. 9.2325(6), and of being an habitual offender, second offense, M.C.L. Sec. 769.10; M.S.A. Sec. 28.1082. Defendant was charged with OUIL-3, a felony, because his record included two prior misdemeanor OUIL convictions within the preceding ten years. In addition, defendant had previously been convicted of the felony of breaking and entering an occupied building with intent to commit larceny, M.C.L. Sec. 750.110; M.S.A. Sec. 28.305.

Prior to sentencing, the circuit judge advised defendant that he was subject to a maximum prison sentence of seven and one-half years. It was explained that, absent the felony conviction for breaking and entering, defendant would have been subject under the Motor Vehicle Code to a maximum prison sentence of five years for the current OUIL-3 felony. However, because this OUIL-3 offense is a second felony conviction, the maximum prison sentence was enhanced under the habitual offender act by one and one-half times, or seven and one-half years. After accepting defendant's pleas of guilty, the court sentenced him to one year in the county jail for the OUIL-3 offense, and then vacated that sentence and imposed an identical sentence for the habitual offender conviction. ⁵

Thereafter, defendant moved to withdraw his guilty pleas, claiming that he had been inadequately advised of his rights. ⁶ After the motion was denied, defendant appealed and for the first time challenged the applicability of the habitual offender act. ⁷ The Court of Appeals directed defendant's attorney to submit a brief addressing, inter alia, the question whether

"the enhancement provisions of the Habitual Offender Act, MCL 769.11; MSA 28.1083, [may] be combined with the enhancement provisions of Sec. 625(6) of the Motor Vehicle Code to generate a maximum possible punishment of 7 1/2 years imprisonment." ⁸

Thereafter, a divided Court of Appeals panel affirmed defendant's felony OUIL-3 conviction, but vacated the habitual offender conviction. 181 Mich.App. 430, 450 N.W.2d 271 (1989). Relying on People v. Tucker, 177 Mich.App. 174, 441 N.W.2d 59 (1989), the majority reasoned that the specific sentencing scheme applicable to OUIL offenses under the Motor Vehicle Code "prevails to the exclusion of the general habitual-offender statute." 181 Mich.App. at 433, 450 N.W.2d 271.

The prosecutor applied to this Court, and we granted leave to appeal. 435 Mich. 867 (1990).

B. People v. Johnson

Valentine Johnson was charged with the felony offense of OUIL-3, M.C.L. Sec. 257.625(6); M.S.A. Sec. 9.2325(6), and as an habitual offender, second offense, M.C.L. Sec. 769.10; M.S.A. Sec. 28.1082. When in 1987 the current charges were brought, defendant's record included three prior convictions: a 1978 Indiana drunk-driving misdemeanor conviction, ⁹ a 1981 Michigan OUIL misdemeanor conviction, and a 1985 Michigan conviction for unlawful blood alcohol level (UBAL), third offense, which had been elevated to felony status by reason of the two previous convictions. ¹⁰

In this case, defendant sought to avoid felony treatment of the current OUIL charge by moving to suppress evidence of all three prior convictions on the ground that the plea-taking in each case had been subject to procedural defects. ¹¹ The circuit court granted defendant's motion with respect to the 1978 conviction and the 1985 conviction, and remanded the case to the district court for trial of the current OUIL charge as a misdemeanor.

The prosecutor then sought an interlocutory appeal, ¹² challenging only the circuit court's suppression ruling with respect to the 1985 conviction. ¹³ The Court of Appeals reversed, holding that the procedural defect claimed by defendant with respect to the 1985 conviction could not be raised "indirectly in a subsequent proceeding charging an enhanced OUIL offense." ¹⁴ The OUIL-3 felony charge was reinstated, and the Court of Appeals remanded the case to the circuit court for trial. ¹⁵

Defendant then appealed to this Court. ¹⁶ In granting leave to appeal, we let stand the Court of Appeals rulings regarding defendant's collateral attacks on his prior convictions, and limited our focus to the relationship and applicability of the habitual offender act to OUIL felony offenses. ¹⁷ 435 Mich. 880, 459 N.W.2d 305 (1990).

II

It is a crime under the Motor Vehicle Code for any person (1) whose blood contains an unlawful (0.10 percent or more) blood alcohol level, or (2) who is under the influence of intoxicating liquor or a controlled substance, to operate a motor vehicle upon a highway. M.C.L. Sec. 257.625(1), (2); M.S.A. Sec. 9.2325(1), (2). ¹⁸

Upon a first conviction, the crime is treated as a misdemeanor, and the violator may be imprisoned for not more than ninety days or fined up to $500, or both. Upon a second conviction within a seven-year period, also a misdemeanor, the maximum prison sentence escalates to one year and the fine to $1,000. ¹⁹

However, one who is convicted of OUIL within ten years of two or more prior OUIL convictions, "is guilty of a felony," ²⁰ punishable under the Motor Vehicle Code by imprisonment for not less than one or more than five years, or by a fine of not less than $500 or more than $5,000, or both. ²¹

While the Motor Vehicle Code declares that the third, and each subsequent OUIL offense within a ten-year period, is a felony, the code does not specifically provide for escalation of the maximum punishment for fourth and subsequent OUIL convictions. ²² Because the Motor Vehicle Code contains its own punishment escalation scheme, including the elevation to felony status of third and subsequent OUIL offenses, and because the code specifies a punishment for felony convictions, it is argued by defendants in these appeals that the Legislature did not intend the habitual offender act to apply to OUIL felony convictions.

Against that background, we turn to consider the relationship and applicability of the habitual offender act to OUIL felony offenses.

III

That part of the habitual offender act applicable to second felony offenders provides in pertinent part:

"(1) If a person has been convicted of a felony, ... and that person commits a subsequent felony within this state, the person shall be punished ... as follows:

"(a) If the subsequent felony is punishable upon a first conviction by imprisonment for a term less than life, then the court ... may ... sentence the person to imprisonment for a maximum term which is not more than 1 1/2 times the longest term prescribed for a first conviction of that offense or for a lesser term.

* * * * * *

"(c) If the subsequent felony is a major controlled substance offense, the person shall be punished as provided by part 74 of the public health code, Act No. 368 of the Public Acts of 1978, being sections 333.7401 to 333.7415 of the Michigan Compiled Laws." M.C.L. Sec. 769.10; M.S.A. Sec. 28.1082, as amended by 1988 P.A. 90. (Emphasis supplied.)

It is noteworthy that while the habitual offender act provides that the court "shall" punish a second felony offender in accordance with the statute, the Legislature provided that the court "may" sentence such a second offender to a maximum term of up to one and one-half times the maximum term prescribed for a first conviction, "or for a lesser term." Since the language is permissive, not mandatory, it fixes only the upper boundaries of the court's sentencing discretion. People v. Coffee, 151 Mich.App. 364, 372, 390 N.W.2d 721 (1986), People v. Voss, 133 Mich.App. 73, 348 N.W.2d 37 (1984). As Justice Levin observed in People v. Hendrick, 398 Mich. 410, 424, 247 N.W.2d 840 (1976), "the judge [is not] obliged, if the accused is convicted as an habitual offender, to impose enhanced punishment."

We note also that these appeals do not challenge the validity of the statutes in question. ²³ The constitutionality of the habitual offender act has been upheld in a series of decisions, beginning with People v. Palm, 245 Mich. 396, 223 N.W. 67 (1929). See also In re Pardee, 327 Mich. 13, 41 N.W.2d 466 (1950) (double jeopardy); People v. Birmingham, 13 Mich.App. 402, 164 N.W.2d 561 (1968) (due process and equal protection); People...