People v. Crawford

• Decision Date: 04 February 1991
• Docket Number: Docket No. 116135
• Citation: 187 Mich.App. 344,467 N.W.2d 818
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jack T. CRAWFORD, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 818

467 N.W.2d 818

187 Mich.App. 344

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jack T. CRAWFORD, Defendant-Appellant.

Docket No. 116135.

Court of Appeals of Michigan.

Submitted May 10, 1990, at Grand Rapids.

Decided Feb. 4, 1991, aat 9:25 a.m.

Released for Publication March 25, 1991.

Frank J. Kelley, Atty. Gen., Gay Secor Hardy, Sol. Gen., William A. Forsyth, Pros. Atty., and Timothy K. McMorrow, Chief Appellate Atty., for the People.

Jeffrey P. Kirchhoff, Grand Rapids, for defendant-appellant.

Before NEFF, P.J., and MAHER and MURPHY, JJ.

MURPHY, Judge.

Following a jury trial, defendant was convicted of felonious driving, M.C.L. Sec. 752.191; M.S.A. Sec. 28.661, and of operating a vehicle while under the influence of intoxicating liquor, M.C.L. Sec. 257.625; M.S.A. Sec. 9.2325. Defendant was also convicted by a jury of being a second-felony offender, M.C.L. Sec. 769.10; M.S.A. Sec. 28.1082. Defendant was sentenced to two to three years' imprisonment for the felonious driving conviction, and he received a ninety-day sentence for the OUIL conviction. Defendant appeals as of right. We affirm.

I

Defendant first contends that the trial court erred in failing to quash the supplemental information. Defendant seeks to collaterally attack his 1978 guilty plea and argues that the trial court erred when it denied his motion to quash the supplemental information.

A conviction which is defective under People v. Jaworski, 387 Mich. 21, 194 N.W.2d 868 (1972), can be challenged by a timely motion by the defendant to quash the supplemental information or to strike from the supplemental information the defective conviction. People v. Crawford, 417 Mich. 607, 613, 339 N.W.2d 630 (1983). In order to meet constitutional requirements for acceptance of a guilty plea, the defendant must waive his rights to a jury trial, to confront witnesses, and against self-incrimination, and the record must show that the defendant was informed of each of these rights. Jaworski, supra, 387 Mich. at 28-29, 194 N.W.2d 868; People v. Nydam, 165 Mich.App. 476, 478, 419 N.W.2d 417 (1987). Collateral attack of a prior guilty plea is limited to felony convictions where the constitutional requirements of Jaworski were not met. Crawford, supra, 417 Mich. at 613, 339 N.W.2d 630; People v. Schneider, 171 Mich.App. 82, 87, 429 N.W.2d 845 (1988); Nydam, supra, 165 Mich.App. at 478, 419 N.W.2d 417.

A review of the plea transcript shows that defendant was advised of the rights identified in Jaworski and acknowledged his understanding of each of those rights. Accordingly, defendant may not collaterally attack his 1978 guilty plea.

II

Defendant next contends that his conviction of and punishment both for OUIL and felonious driving constitute double jeopardy in violation of the state and federal constitutions, U.S. Const., Am.V; Const. 1963, art. 1, Sec. 15. We disagree.

The Double Jeopardy Clauses of the Michigan and United States Constitutions consist of three separate protections. First, the state is prohibited from seeking a second prosecution for the same offense after acquittal. Second, the state is prohibited from seeking a second prosecution for the same offense after conviction. Third, the state is prohibited from imposing multiple punishment for the same offense. People v. Sturgis, 427 Mich. 392, 398-399, 397 N.W.2d 783 (1986); People v. Wakeford, 418 Mich. 95, 103, 341 N.W.2d 68 (1983).

The protection against multiple punishment for the same offense is designed to insure that the courts impose sentences within the limits set by the Legislature. Sturgis, supra, 427 Mich. at 399, 397 N.W.2d 783. The scope of the protection is determined by the definition of "same offense." Id. The Legislature may authorize penalties for what would otherwise be the same offense. Id., at 403, 397 N.W.2d 783. Cumulative punishment of the same conduct under two different statutes in a single trial does not violate the Double Jeopardy Clause. Id.

Defendant argues that his convictions of OUIL and felonious driving constitute multiple punishment of the same offense because, under the facts of his case in which proof of his intoxication was also the sole proof of negligence, OUIL was a necessarily included lesser offense of felonious driving. Defendant relies on People v. Dickens, 144 Mich.App. 49, 373 N.W.2d 241 (1985), in which this Court held that a defendant could not be convicted of both OUIL and negligent homicide, M.C.L. Sec. 750.324; M.S.A. Sec. 28.556, where the evidence that the defendant had operated a vehicle under the influence of liquor was essential to proving the negligence element of the negligent homicide charge.

However, in People v. Robideau, 419 Mich. 458, 355 N.W.2d 592 (1984), our Supreme Court rejected the so-called actual-evidence or factual double jeopardy test applied by this Court in Dickens. The present test for double jeopardy in a "multiple punishment for the same offense" situation is to determine the intent of the Legislature. Sturgis, supra, 427 Mich. at 405, 397 N.W.2d 783; Robideau. When two statutes prohibit violations of the same social norm, even if in a somewhat different manner, it may be concluded that the Legislature did not intend multiple punishment. Robideau, supra, 419 Mich. at 487, 355 N.W.2d 592. On the other hand, statutes prohibiting conduct that violates distinct social norms can generally be viewed as separate and as permitting multiple punishment. The key is to identify the type of harm the Legislature intended to prevent.

In the past, this Court has stated, without elaboration, that the statutes prohibiting OUIL and felonious driving are "intended to prevent the same or similar harm or evil, not a substantially different, or a very different kind of, harm or evil." People v. Stewart, 138 Mich.App. 629, 636, 361 N.W.2d 16 (1984). Nevertheless, we conclude that the statutes at issue in this case, although related, are sufficiently distinct in purpose to permit separate and multiple punishment.

The language of a statute may indicate a legislative intent to create a series of offenses prohibiting different phases of conduct, with a separate penalty for each. However, legislative intent may sometimes appear from language creating a hierarchy of offenses, depending on the presence or observance of certain aggravating factors. The former structure is indicative of legislative intent to create separate offenses which are separately punishable; the latter structure indicates an intent to permit only a single appropriate offense and conviction. Sturgis, supra, 427 Mich. at 407, 397 N.W.2d 783. Our Supreme Court has rejected the rule articulated in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), as a conclusive test. It has, nevertheless, approved the test as a helpful tool in determining whether there are two offenses or only one. Sturgis, supra, 427 Mich. at 409, 397 N.W.2d 783. By asking whether two separate statutes each include an element the other does not, we may determine whether the Legislature manifested an intent to serve two different interests in enacting each statute. Id.

The OUIL statute, M.C.L. Sec. 257.625; M.S.A. Sec. 9.2325, is a provision of the Vehicle Code which prohibits a person who is under the influence of liquor or whose blood-alcohol level is 0.10 percent or greater from operating a motor vehicle on a highway or other places open to the public, including parking lots. The offense is proved without regard to the defendant's motive or intent, People v. Raisanen, 114 Mich.App. 840, 319 N.W.2d 693 (1982), or to the results of his conduct. A defendant may be convicted of OUIL even if he is observed driving in a normal fashion. People v. Walters, 160 Mich.App. 396, 402-403, 407 N.W.2d 662 (1987). Thus, OUIL is a status crime which focuses only on the fact that the defendant operates an automobile while he is intoxicated.

Felonious driving, M.C.L. Sec. 752.191; M.S.A. Sec. 28.661, a provision of the penal code, prohibits a person from driving a vehicle upon the highway "carelessly and heedlessly in wilful and wanton disregard of the rights or safety of others, or without due caution and circumspection and at a speed or in a manner so as to endanger or be likely to endanger any person or property and thereby injuring so as to cripple any person, but not causing death." Felonious driving shares with OUIL the common element of operating a vehicle upon the highway. However, while the defendant's intent is irrelevant to the offense of OUIL, a defendant must have a culpable state of mind to be guilty of felonious driving. People v. Ames, 60 Mich.App. 168, 171, 230 N.W.2d 360 (1975). To show that a defendant acted in wilful and wanton disregard of safety, something more than ordinary negligence must be proved. People v. Chatterton, 102 Mich.App. 248, 301 N.W.2d 490 (1980). But see People v. Marshall, 74 Mich.App. 523, 255 N.W.2d 351 (1977). Moreover, the defendant's culpable conduct must cause a crippling injury to another person. Felonious driving is a crime against a person which focuses on both the culpable nature of the defendant's actions and the resultant harm.

This clearly is not a case in which "one statute incorporates most of the elements of a base statute and then increases the penalty as compared to the base statute." Robideau, supra, 419 Mich. at 487, 355 N.W.2d 592. The only common element shared by felonious driving and OUIL is the operation of a vehicle upon the highway. However, felonious driving does not require proof of intoxication, nor are negligence or a crippling injury necessary elements of OUIL. The offenses, therefore, do not form a hierarchy in which the greater offense of felonious driving is proved by a showing of some aggravating factor beyond the elements of OUIL.

The most significant indicator of a legislative intent to authorize separate conviction and punishment for both OUIL and felonious driving is the...