People v. Gardner

Decision Date23 July 2008
Docket NumberDocket No. 131942.
Citation753 N.W.2d 78,482 Mich. 41
CourtMichigan Supreme Court
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. Caprese D. GARDNER, Defendant-Appellant.

Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, Kym L. Worthy, Prosecuting Attorney, Timothy A. Baughman, Chief of Research, Training, and Appeals, and Olga Agnello, Assistant Prosecuting Attorney, for the people.

Arthur James Rubiner and Caprese D. Gardner, in propria persona, West Bloomfield, for the defendant.

Jacqueline J. McCann, Detroit, for the Criminal Defense Attorneys of Michigan.


In this case, we consider the correct method for counting prior felonies under Michigan's habitual offender statutes, MCL 769.10, 769.11, 769.12, and 769.13. These statutes establish escalating penalties for offenders who are repeatedly convicted of felonies. This Court has ruled that the statutes imply that each predicate felony must arise from separate criminal incidents. People v. Preuss, 436 Mich. 714, 461 N.W.2d 703 (1990); People v. Stoudemire, 429 Mich. 262, 414 N.W.2d 693 (1987), mod. by Preuss, supra at 739, 461 N.W.2d 703. Therefore, multiple felonies that arise from the same criminal incident or transaction count as a single felony under the habitual offender laws.

We conclude that the holdings of Stoudemire and Preuss directly contradict the plain text of the statutes. Therefore, we overrule these cases. The unambiguous statutory language directs courts to count each separate felony conviction that preceded the sentencing offense, not the number of criminal incidents resulting in felony convictions. Accordingly, defendant was properly sentenced and we affirm his sentences.


In 2001, a jury convicted defendant, Caprese D. Gardner, of second-degree murder, MCL 750.317, being a felon in possession of a firearm (felon in possession), MCL 750.224f, and possessing a firearm during the commission of a felony (felony-firearm), MCL 750.227b. The facts underlying his convictions do not bear on the current question before this Court. On August 30, 2001, the circuit court sentenced defendant as a third offense habitual offender, MCL 769.11, to concurrent prison terms of 25 to 50 years for the murder conviction and 2 to 10 years for the felon in possession conviction and a consecutive term of 5 years for the felony-firearm conviction. On direct appeal, defendant challenged several of the circuit court's evidentiary rulings, but did not raise the present issue. The Court of Appeals affirmed his convictions and sentences.1 This Court denied defendant's subsequent application for leave to appeal.2

In 2004, defendant sought relief from judgment under MCR 6.501 et seq. He argued that his appointed trial and appellate attorneys had provided constitutionally ineffective representation because they failed to investigate and challenge the two prior convictions underlying his third offense habitual offender status. For purposes of the habitual offender enhancement, defendant had stipulated at trial prior convictions of felonious assault and felony-firearm. In his motion for relief from judgment, defendant claimed that both of those convictions, for which he had been sentenced on February 25, 1988, arose from the same criminal act. Accordingly, he asserted that the two convictions should have been counted as a single prior felony conviction for purposes of applying the habitual offender laws under Stoudemire and Preuss. Thus, defendant argued that he should have been sentenced only as a second offense habitual offender, MCL 769.10, and therefore would have been exposed to potentially shorter prison terms for his murder and felon in possession convictions. He also argued that he had good cause for belatedly raising this issue in a motion for relief from judgment under MCR 6.508(D)(3)(a) because his appellate attorney was constitutionally ineffective for failing to recognize and raise the issue in defendant's prior appeal.

The circuit court denied defendant's motion, opining that defendant had not established good cause for his failure to raise this issue in his prior appeal. The Court of Appeals denied defendant's application for leave to appeal "for failure to meet the burden of establishing entitlement to relief under MCR 6.508(D)."3

Defendant then applied for leave to appeal in this Court. We heard oral argument on whether to grant his application or take other peremptory action. We directed the parties to address whether Preuss and Stoudemire "correctly held that multiple convictions arising out of a single criminal incident may count as only a single prior conviction for habitual offender purposes and, if so, whether the defendant is entitled to be resentenced."4


The primary question requires us to interpret Michigan's habitual offender statutes. This Court reviews de novo questions of statutory interpretation. People v. Buehler, 477 Mich. 18, 23, 727 N.W.2d 127 (2007). We also review de novo the ultimate constitutional question whether an attorney's ineffective assistance deprived a defendant of his Sixth Amendment5 right to counsel. People v. LeBlanc, 465 Mich. 575, 579, 640 N.W.2d 246 (2002).


Defendant was sentenced as a third offense habitual offender under MCL 769.11, which reads, in pertinent part:

If a person has been convicted of any combination of 2 or more felonies or attempts to commit felonies, whether the convictions occurred in this state or would have been for felonies or attempts to commit felonies in this state if obtained in this state, and that person commits a subsequent felony within this state, the person shall be punished upon conviction of the subsequent felony and sentencing under section 13 of this chapter as follows.... [MCL 769.11(1) (emphasis added).]

The same relevant language has appeared in each habitual offender statute6 since 1978.7 In 1987 and 1990, respectively, the Stoudemire and Preuss courts concluded that these statutes imply a same-incident or single-transaction method of counting prior felonies for purposes of sentencing enhancement. Accordingly, each predicate felony must "arise from separate criminal incidents." Preuss, supra at 717, 461 N.W.2d 703.

Habitual offender status may increase a defendant's minimum and maximum sentences.8 The sentencing judge generally has the option to increase a repeat offender's maximum sentence.9 The high end of the statutory recommended minimum sentence range under the sentencing guidelines (the maximum minimum) also increases on the basis of the number of prior convictions. Second offense, third offense and fourth offense10 habitual offenders face increases in their maximum minimums of 25 percent, 50 percent and 100 percent, respectively. MCL 777.21(3)(a) through (c).

Here, defendant would have been subject to a maximum penalty of life in prison for his second-degree murder conviction even without an habitual offender enhancement. His unenhanced minimum sentence range — based on a prior record variable score of 20 and an offense variable score of 65 — was 180 to 300 months. MCL 777.61. Because he was sentenced as a third offense habitual offender, MCL 769.11(1), he was subject to an enhanced minimum sentence range of 180 to 450 months (a maximum minimum of 300 months increased by 50 percent), MCL 777.21(3)(b).

Defendant argues that, under Stoudemire and Preuss, he should have been sentenced only as a second offense habitual offender, MCL 769.10(1), because his two prior felony convictions arose from the same criminal incident. If he had been sentenced as a second offense habitual offender, his statutory minimum sentence range would have been 180 to 375 months (a maximum minimum of 300 months increased by 25 percent). Although his 300-month (25-year) minimum sentence falls within the minimum sentence ranges for both second and third offense habitual offenders, as well as the enhanced range, defendant correctly argues that, if the circuit court relied on an inaccurate higher range when it imposed the sentence, resentencing would be required. People v. Francisco, 474 Mich. 82, 89-92, 711 N.W.2d 44 (2006).

The prosecution does not contest defendant's claim that his two prior felony convictions of felonious assault and felony-firearm arose from the same criminal incident. The prosecution also concedes that defendant may raise the issue in his current motion for relief from judgment because, if Stoudemire and Preuss correctly interpreted the habitual offender statutes, defendant has been prejudiced by the constitutionally ineffective assistance of his appointed trial and appellate attorneys.11 The prosecution argues, however, that Stoudemire and Preuss were incorrectly decided and that defendant was properly sentenced as a third offense habitual offender under the plain language of the statute. We agree.

Our goal in construing a statute is "to ascertain and give effect to the intent of the Legislature." People v. Pasha, 466 Mich. 378, 382, 645 N.W.2d 275 (2002). The touchstone of legislative intent is the statute's language. "If the statute's language is clear and unambiguous, we assume that the Legislature intended its plain meaning and we enforce the statute as written." People v. Weeder, 469 Mich. 493, 497, 674 N.W.2d 372 (2004). Accordingly, when statutory language is unambiguous, judicial construction is not required or permitted.12 Id.

Here, the relevant language states that "[i]f a person has been convicted of any combination of 2 or more felonies or attempts to commit felonies ... and that person commits a subsequent felony within this state," the person shall be sentenced under the habitual offender laws. MCL 769.11(1). The text clearly contemplates the number of times a person has been "convicted" of "felonies or attempts to commit felonies." Nothing in the statutory text suggests that the felony convictions must have arisen from...

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