People v. Burton, Docket No. 226530.

• Citation: 651 N.W.2d 143,252 Mich. App. 130
• Decision Date: 05 July 2002
• Docket Number: Docket No. 226530.
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Mark Edwin BURTON, Defendant-Appellant.
• Court: Court of Appeal of Michigan (US)

651 N.W.2d 143

252 Mich. App. 130

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Mark Edwin BURTON, Defendant-Appellant.

Docket No. 226530.

Court of Appeals of Michigan.

Submitted February 7, 2002, at Grand Rapids.

Decided July 5, 2002, at 9:10 a.m.

Released for Publication September 26, 2002.

Matthew Posner, Suttons Bay, for the defendant.

Before: Griffin, P.J., and Holbrook, Jr., and Hoekstra, JJ.

PER CURIAM.

Defendant appeals as of right from his jury trial convictions of attempting to operate a vehicle while under the influence of intoxicating liquor or with an unlawful blood alcohol level, third offense (OUIL/UBAL-3d), M.C.L. § 257.625(8)(c), and attempting to operate a vehicle while his operator's license was suspended or revoked, second or subsequent offense (DWLS-2d), M.C.L. § 257.904(3)(b). Defendant was sentenced to nine months in jail for the attempted OUIL/UBAL-3d conviction, forty-five days in jail for the attempted DWLS-2d conviction, and sixty months probation. Defendant also challenges the trial court's denial of his motion to suppress statements made to the police before his arrest. We affirm the trial court's decision on defendant's motion to suppress, but vacate his convictions and sentences for attempted OUIL/UBAL-3d and attempted DWLS-2d.

At approximately 1:30 a.m. on September 3, 1999, a greenskeeper at a Leelanau County golf course discovered a pickup truck with the engine running, parked next to a golf cart storage building in the course parking lot. The greenskeeper called 911 after his efforts to awaken the person sleeping in the front seat of the truck proved unsuccessful. Two Leelanau County deputy sheriffs responded to the scene. When they arrived, they found defendant's truck still parked next to the golf cart storage building. The engine was still running, the lights were off, and defendant was asleep behind the steering wheel.

With some difficulty, the officers awakened and questioned defendant. When defendant opened the cab door, the officers noted a strong odor of alcohol. Defendant told them that he had consumed eight beers earlier that evening. Two empty, twenty-two-ounce beer bottles were also discovered in the truck's cab. According to the police, defendant stated that he had been stranded in the parking lot by a co-worker and another woman. He indicated that after being stranded, he drove his truck from one side of the parking lot to the location where it was parked. After defendant failed a field sobriety test,¹ he was arrested, given his Miranda² warnings, and transported to the sheriff's department. There, the police twice measured defendant's blood alcohol level using a Datamaster Breathalyzer. The first test indicated a blood alcohol level of 0.17, and the second, given just a few minutes later, registered 0.18.

Defendant argues on appeal that the circuit court lacked subject-matter jurisdiction because M.C.L. § 257.625 and M.C.L. § 257.904 do not criminalize attempts to commit offenses. In support of his argument, defendant cites People v. Briseno, 211 Mich.App. 11, 535 N.W.2d 559 (1995), and People v. Anderson, 202 Mich.App. 732, 509 N.W.2d 548 (1993). In both cases, this Court held that application of the enhancement provision found in M.C.L. § 333.7413(2) was improper because the defendants had not been convicted of controlled substance offenses under the Public Health Code. Briseno, supra at 18, 535 N.W.2d 559; Anderson, supra at 735, 509 N.W.2d 548. Instead, the defendant in Briseno had been convicted of conspiracy to deliver marijuana, Briseno, supra at 12, 535 N.W.2d 559, and the defendant in Anderson had been convicted of attempted conspiracy to deliver cocaine, Anderson, supra at 732, 509 N.W.2d 548. In the case at hand, however, defendant was not convicted under either the attempt or conspiracy statutes,³ and defendant is not challenging the enhancement of his sentences under the applicable statutory enhancement provisions. Accordingly, the holdings of Briseno and Anderson are inapposite and nonbinding.

Nonetheless, at the heart of both Briseno and Anderson is the premise that, conceptually, the crimes of attempting to commit and conspiracy to commit a substantive offense are separate from the substantive offense itself. Indeed, in support of its holding, the Anderson Court specifically relied on this rule of law. Id. at 734-735, 509 N.W.2d 548, citing People v. Johnson, 195 Mich.App. 571, 491 N.W.2d 622 (1992). It is this rule of law that defendant in the case at hand relies on to support his argument that the trial court lacked jurisdiction.

We disagree with defendant that the court lacked jurisdiction. The information alleged the essential elements of the two crimes. "As long as the [information] alleges that a crime has been committed, the court has subject matter jurisdiction even if the criminal statute cannot be applied to the facts involved." 22 CJS, Criminal Law § 157, p 188. However, we agree with defendant that he should have been tried under the general attempt statute, M.C.L. § 750.92, rather than M.C.L. § 257.625. In both Briseno and Anderson, the existing statutory scheme did not proscribe either the attempt to commit the substantive offense or the conspiracy to commit the substantive offense. There was no language in the applicable enhancement provisions identifying the illegality of either behavior, nor were there separate statutes prohibiting attempted violations and conspiracies to violate the controlled substance offenses.⁴ Accordingly, those defendants were tried under the general attempt and conspiracy statutes.

In the case at bar, the OUIL/UBAL statute applicable at the time of defendant's arrest read in pertinent part:

(1) A person, whether licensed or not, shall not operate a vehicle upon a highway or other place open to the general public or generally accessible to motor vehicles, including an area designated for the parking of vehicles, within this state if either of the following applies:

(a) The person is under the influence of intoxicating liquor, a controlled substance, or a combination of intoxicating liquor and a controlled substance.

(b) The person has an alcohol content of 0.10 grams or more per 100 milliliters of blood, per 210 liters of breath, or per 67 milliliters of urine.

Had the Legislature intended to include the attempt to commit OUIL/UBAL in the statute, it could have written subsection 1 to read, "A person, whether licensed or not, shall not operate or attempt to operate a vehicle...." It is not the job of the judiciary to write into a statute a provision not included in its clear language. People v. Borchard-Ruhland, 460 Mich. 278, 284, 597 N.W.2d 1 (1999). "For all this Court knows, the Legislature considered, and rejected, including attempts in the statute." Johnson, supra at 576, 491 N.W.2d 622.

At the time of defendant's arrest, subsection 17 of the statute did include the following provision: "A person who is convicted of an attempted violation of subsection (1), (3), (4), (5), or (6) or a local ordinance substantially corresponding to subsection (1), (3), or (6) shall be punished as if the offense had been completed."⁵ We do not believe that former subsection 17 introduces an element of ambiguity into the statute. This provision does not state that a person who attempts to violate the provisions of subsection 1⁶ is also guilty of violating the statute. Rather, it states that a conviction for attempt will be treated "as if" it were a conviction for a completed OUIL/UBAL for purposes of punishment of the offender. In short, former subsection 17 was addressing appropriate levels of punishment, not proscribing conduct for purposes of determining culpability. It indicated that where a person has been convicted under the attempt statute, the prescribed punishment of the attempt statute does not apply, and the offender is punished as if the crime had been completed.⁷ While the punishment phase of a trial recognizes the judgment of the culpability phase, the decisions being reached and the judgments being made in these two phases of a trial are distinctly and qualitatively different. See California v. Ramos, 463 U.S. 992, 1007-1008, 103 S.Ct. 3446, 77 L.Ed.2d 1171 (1983) (observing that while in returning a conviction, the trier of fact must satisfy itself with the central issue whether the legislatively defined elements of the crime have been established, there is no similar "central issue" involved in the penalty phase); Crocker, Concepts of culpability and deathworthiness: Differentiating between guilt and punishment in death penalty cases, 66 Fordham L Rev 21, 26 (1997) ("The punishment-phase determination is not a recapitulation of the guilt-phase decision...."). Indeed, circumstances considered irrelevant during the culpability phase of a trial are considered when deciding the level of punishment to be imposed. United States v. Watts, 519 U.S. 148, 155, 117 S.Ct. 633, 136 L.Ed.2d 554 (1997). Accordingly, a statutory provision addressing the punishment for attempted criminal violations does not by itself create such a violation.

At the time of defendant's arrest, the statute also included an enhancement provision for repeat offenders. MCL 257.625(7). As with former subsection 17, this provision addresses punishment, not culpability. Additionally, this provision defined "prior conviction" to mean a conviction for

a violation or attempted violation of subsection (1), (4), or (5) or former section 625(1) or (2), a local ordinance substantially corresponding to subsection (1) or former section 625(1) or (2), or a law of another state substantially corresponding to subsection (1), (4), or (5) or former section 625(1) or (2). [MCL 257.625(7)(g).]

If subsection 1 already included within its bounds attempted violations, it would be superfluous for subsection 7(g) to define attempted violations within the definition of prior convictions. Borchard-Ruhland, supra at 285, 597 N.W.2d...