People v. Doyle, 98809

• Citation: 545 N.W.2d 627,451 Mich. 93
• Decision Date: 02 April 1996
• Docket Number: No. 98809,No. 3,98809,3
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Michael Robert DOYLE, Defendant-Appellee. Calendar
• Court: Supreme Court of Michigan

Page 627

545 N.W.2d 627

451 Mich. 93

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Michael Robert DOYLE, Defendant-Appellee.

No. 98809.

Calendar No. 3.

Supreme Court of Michigan.

Argued Oct. 10, 1995.

Decided April 2, 1996.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Richard Thompson, Prosecuting Attorney, Joyce F. Todd, Chief, Appellate Division, and Richard H. Browne, Assistant Prosecuting Attorney, Pontiac, for the People.

Robert S. Zawideh, Warren, for defendant.

Donald Martin, President, John D. O'Hair, Prosecuting Attorney, and Timothy A. Baughman, Chief, Research, Training and Appeals, Lansing, for the Prosecuting Attorneys Association of Michigan, amicus curiae.

OPINION

MALLETT, Justice.

We granted leave in this case to determine whether this Court's decision in People v. Bewersdorf, ¹ is retroactively applicable to conduct that took place before the release of that opinion. We hold that People v. Bewersdorf applies retroactively to the present defendant, Mr. Robert Doyle. We reverse the judgment of the Court of Appeals and remand this case to the circuit court for further proceedings with regard to the supplemental information.

I

A. History of People v. Bewersdorf

In Bewersdorf, this Court, for the first time, interpreted the relationship between the habitual offender act and the Motor Vehicle Code. We held that the habitual offender act ² is applicable to third and subsequent convictions for operating a motor vehicle while under the influence of intoxicating liquor (OUIL), ³ and therefore, reversed the Court of Appeals. This Court concluded that the Motor Vehicle Code and the habitual offender act were not conflicting; rather, they "dovetail[ed] harmoniously." 438 Mich. 55, 59, 475 N.W.2d 231 (1991). Accordingly, on the basis of a literal interpretation of the plain language of the statutes, a defendant who is convicted of OUIL-3d is guilty of a felony. Thus, if a defendant is subsequently convicted of another OUIL-3d offense, he can be charged as an habitual offender.

However, this result was not always so clear. Before this Court's decision in Bewersdorf, the Court of Appeals decided People v. Tucker, 177 Mich.App. 174, 441 N.W.2d 59 (1989), in which it held that a person who had two or more OUIL-3d convictions could not be charged as an habitual offender. A different panel of the Court of Appeals chose to follow the Tucker holding in People v. Bewersdorf, 181 Mich.App. 430, 450 N.W.2d 271 (1989). This Court overruled both decisions. ⁴

B. History of People v. Doyle

During the pendency of the Bewersdorf appeal to this Court (between January 8 and August 22, 1991), the present defendant chose once again to drive while drunk. Defendant's conduct took place on June 26, 1991, in Oakland County, two months before the release of the Bewersdorf opinion. Defendant was charged with operating a vehicle while under the influence of intoxicating liquor, third or subsequent offense (OUIL-3d), M.C.L. § 257.625(6); M.S.A. § 9.2325(6), ⁵ driving a vehicle while his license was suspended or revoked, second or subsequent offense (DWLS-2d), M.C.L. § 257.904(3); M.S.A. § 9.2604(3), and being an habitual offender, second offense, M.C.L. § 769.10; M.S.A. § 28.1082. ⁶

Approximately two months after the release of Bewersdorf, on October 8, 1991, before pleading guilty to the OUIL-3d and DWLS-2d charges, Mr. Doyle moved to dismiss the habitual offender information. The court granted Mr. Doyle's motion, concluding that application of Bewersdorf to conduct occurring before the release of the opinion would violate the Ex Post Facto Clauses of the United States ⁷ and Michigan Constitutions. ⁸ Thus, Mr. Doyle pleaded guilty of OUIL-3d and DWLS-2d. On November 19, 1991, he was sentenced to two to five years for the OUIL-3d conviction, a $500 fine was imposed, his license was revoked for five years, and he was given credit for forty-six days in jail. Additionally, he was sentenced to one year for the DWLS-2d conviction. ⁹

At the plea proceedings, the prosecution placed the defendant on notice that it intended to appeal the dismissal of the habitual offender charge. Subsequently, the ruling was affirmed by the Court of Appeals. 203 Mich.App. 294, 296, 512 N.W.2d 59 (1994). The Court of Appeals held that "the due process provisions of the United States Constitution and the Michigan Constitution bar the retroactive application of judicial decisions that have the effect of enhancing the possible penalty for a criminal conviction." The Court found that application of Bewersdorf to Mr. Doyle's conduct would effectively increase the authorized penalty for a crime after the fact, in violation of ex post facto principles. Further, the Court found that retroactive application of Bewersdorf in that case did not obligate it to apply Bewersdorf retroactively in this case. Finally, in response to the prosecution's argument that due process considerations are not implicated because there has been no change in the law, the Court stated, "it is unrealistic to say that Bewersdorf did not change the law." 203 Mich.App. at 297, 512 N.W.2d 59.

The dissent was based on the fact that when Mr. Doyle was arrested and charged on June 26, 1991, Administrative Order No. 1990-6 ¹⁰ was not in effect. Thus, at the time the defendant was arrested, "he could expect that should his case reach the Court of Appeals, the panel that would consider his case might disagree with the Tucker/ Bewersdorf ruling, and he would be bound by any contrary ruling...." 203 Mich.App. at 299, 512 N.W.2d 59.

II

Mr. Doyle has argued that this Court created "new law" in Bewersdorf, which, if applied retroactively to his conduct, will violate the constitution, specifically the ex post facto prohibitions found in both the Michigan and United States Constitutions. The Court of Appeals agreed with Mr. Doyle and affirmed the trial court's dismissal of the habitual offender information. We disagree.

It is well recognized that the Ex Post Facto Clause does not apply directly to the judiciary. Marks v. United States, 430 U.S. 188, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977). However, ex post facto principles are applicable to the judiciary by analogy through the Due Process Clauses of the Fifth and Fourteenth Amendments. Bouie v. City of Columbia, 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964). This Court has acknowledged the application of the ex post facto analogy to the judiciary first in People v. Dempster, 396 Mich. 700, 714-718, 242 N.W.2d 381 (1976), and later in People v. Stevenson, 416 Mich. 383, 395, 331 N.W.2d 143 (1982).

Therefore, retroactive application of a judicial decision will only violate due process when it acts as an ex post facto law. An ex post facto law has been defined by the United States Supreme Court as one " 'that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action,' or 'that aggravates a crime, or makes it greater than it was, when committed.' " Bouie, supra at 353, 84 S.Ct. at 1702 (emphasis in original). As a result of the due process analogy, it has been stated that "an unforeseeable judicial enlargement of a criminal statute, applied retroactively, operates precisely like an ex post facto law ...." Id. at 353, 84 S.Ct. at 1702 (emphasis added). "The retroactive application of an unforeseeable interpretation of a criminal statute, if detrimental to a defendant, generally violates the Due Process Clause." Hagan v. Caspari, 50 F.3d 542, 545 (C.A.8, 1995) (emphasis added).

Further, this Court has recognized that a judicial decision that increases the authorized penalty for a crime is also a violation of the ex post facto prohibition. Stevenson, supra at 397, 331 N.W.2d 143. In Stevenson, this Court stated that "[p]roviding fair notice that conduct is criminal is one of the central values of the Ex Post Facto Clause ... [b]ut fair notice is not the sole purpose of the clause." Id. at 396, 331 N.W.2d 143. Generally, the basic principles protected by the Due Process Clause guarantees preclude retroactive application of a "judicial construction of a criminal statute [that] is 'unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue....' " Bouie, supra at 354, 84 S.Ct. at 1703, quoting Hall, General Principles of Criminal Law (2d ed), p 61.

In the present case, the Court of Appeals holding is based, in part, on Stevenson:

[T]he due process provisions of the United States Constitution and the Michigan Constitution bar the retroactive application of judicial decisions that have the effect of enhancing the possible penalty for a criminal conviction.... Among other things, a court cannot by judicial construction increase the authorized penalty for a crime after the fact... Because that is precisely what the application of Bewersdorf to this case would do, that case cannot be applied to this one. [Doyle, supra at 296, 512 N.W.2d 59.]

We reject this holding by the Court of Appeals. Contrary to the Court of Appeals decision, this Court finds that retroactive application of Bewersdorf to Mr. Doyle does not implicate any due process ¹¹ or ex post facto concerns. Our decision is based on our belief that Bewersdorf was not an unforeseeable decision that had the effect of "changing" the law. Therefore, Bewersdorf did not establish a "new" rule of law in Michigan jurisprudence.

In Bewersdorf, this Court discussed at length and clarified the relationship between OUIL felony offenses and the habitual offender act. The Court held that an OUIL-3d conviction, which is a felony pursuant to M.C.L. § 257.902; M.S.A. § 9.2602 of the Motor Vehicle Code, can support charging the defendant as an habitual offender when it is a second or subsequent OUIL-3d conviction. The habitual offender statute affects only the maximum term of the defendant's sentence by allowing the judge, in his discretion, to increase the...