People v. Tucker, Docket No. 110080

• Decision Date: 26 June 1989
• Docket Number: Docket No. 110080
• Citation: 441 N.W.2d 59,177 Mich.App. 174
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Ronald TUCKER, Defendant-Appellee. 177 Mich.App. 174, 441 N.W.2d 59
• Court: Court of Appeal of Michigan — District of US

Page 59

441 N.W.2d 59

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Ronald TUCKER, Defendant-Appellee.

Docket No. 110080.

177 Mich.App. 174, 441 N.W.2d 59

Court of Appeals of Michigan.

Submitted March 23, 1989.

Decided May 15, 1989.

Released for Publication June 26, 1989.

[177 MICHAPP 175] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., L. Brooks Patterson, Pros. Atty., Robert C. Williams, Chief, Appellate Div., and Margaret G. Horenstein, Asst. Pros. Atty., for the People.

John D. Lazar, Royal Oak, for defendant-appellee.

Before MacKENZIE, P.J., and HOOD and GRIBBS, JJ.

HOOD, Judge.

The prosecutor appeals as of right from the trial court's grant of defendant's motion to set aside his guilty plea to a charge of being an [177 MICHAPP 176] habitual offender, fourth offense. The prosecutor here raises an issue of first impression: Can a conviction of operating a vehicle while under the influence of intoxicating liquor, third offense--which by statute is treated as a felony rather than a misdemeanor--also serve as the underlying felony for an habitual offender charge. We agree with the trial court that it cannot.

Defendant originally pled guilty to OUIL, third offense, M.C.L. Sec. 257.625(4); M.S.A. Sec. 9.2325(4), and habitual offender, fourth offense, M.C.L. Sec. 769.12; M.S.A. Sec. 28.1084. The prior felonies were procurement of a controlled substance and two convictions for larceny in a building. His sentence of three to five years in prison for the OUIL conviction was vacated and he was sentenced to three to fifteen years in prison on the habitual offender conviction. As a fourth offender, he could have been sentenced to life. Appellate counsel for defendant filed a motion to withdraw the pleas on a number of grounds. Counsel argued that defendant's constitutional rights were violated because the OUIL penalty--normally a ninety-day misdemeanor--was enhanced to a felony by statute because it was a third offense and then enhanced again by application of the habitual offender supplement.

The trial judge granted defendant's motion and dismissed the habitual offender charge. Defendant was resentenced to 1 1/2 to 5 years in prison on the OUIL conviction.

Under the Vehicle Code, a person convicted of operating a vehicle while under the influence of intoxicating liquor is guilty of a misdemeanor punishable by imprisonment of not more than ninety days or a fine. M.C.L. Sec. 257.625(1) and (4); M.S.A. Sec. 9.2325(1) and (4). Under subsection (5) of Sec. 625, a second conviction within seven years increases the fine and the possible prison term to not more than [177 MICHAPP 177] a year. Subsection (6) of Sec. 625 provides that if there is a third offense within ten years the person is guilty of a felony:

A person who violates subsection (1) or (2) or a local ordinance substantially corresponding to subsection (1) or (2) within 10 years of 2 or more prior convictions, as defined in subsection (5), is guilty of a felony. As part of the sentence, the court shall order the secretary of state to revoke the operator's or chauffeur's license of the person.

Section 902 of the Vehicle Code provides its own penalty for a felony: imprisonment of one to five years or a specified fine. M.C.L. Sec. 257.902; M.S.A. Sec. 9.2602.

The habitual offender statute, fourth offender, contained in the Code of Criminal Procedure, provides for enhanced punishment if "a person has been convicted of 3 or more felonies ... and that person commits a subsequent felony within this state...." M.C.L. Sec. 769.12; M.S.A. Sec. 28.1084.

While defendant raised his claim as a constitutional one of double jeopardy, similar claims challenging the application of the habitual offender statute have been resolved as statutory interpretation issues. If the statutes are both viewed as enhancement provisions, application of both is not permissible. See People v. Thornsbury, 148 Mich.App. 92, 96-98, 384 N.W.2d 88 (1985).

There are basically two approaches to the question before this Court.

The first, which supports the prosecutor's position, is that all the Court has to do is read and apply the plain meaning of the statutes. If the Legislature meant to exclude the OUIL felony from habitual offender enhancement it could have done so.

[177 MICHAPP 178] Under the plain meaning rule, if the language used by the Legislature is clear and unambiguous, no judicial interpretation of the statute is permitted. Wymer v. Holmes, 429 Mich. 66, 76, 412 N.W.2d 213 (1987). Applying this rule to our case, the habitual offender statute clearly provides for enhancement upon conviction for a subsequent felony, any felony. The information here clearly indicates that defendant was charged with a felony as defined under the Vehicle Code and, therefore, the habitual offender supplement is appropriate.

Furthermore, as argued by the prosecutor, this result is bolstered by the doctrine of expressio unius est exclusio alterius (expression of one thing is the exclusion of another). In other words, since the habitual offender statutes specifically express an intent to exclude their application only when a major controlled substances offense is involved, the Legislature must have meant to include (exclude from exclusion) any other felony.

This theory has been used in other habitual offender cases, primarily involving crimes which could only be committed by a convicted felon, such as prison escape or assault on a prison guard. In these cases, the Court allowed the sentence imposed for that crime to be supplemented under the habitual offender statute. The language governing these cases first appears in People v. Shotwell, 352 Mich. 42, 46, 88 N.W.2d 313 (1958): "Since the legislature did not except escaping prison from our second offender statute we can only infer that it intended the latter statute to apply to all felonies." See also People v. Staples, 100 Mich.App. 19, 23, 299 N.W.2d 1 (1980) (prison escape statute and habitual offender statute); People v. Baskin, 145 Mich.App. 526, 539-541, 378 N.W.2d 535 (1985) (conviction for assault on prison guard and habitual offender enhancement).

[177 MICHAPP 179] If we were to apply this line of reasoning to the OUIL statute, then habitual offender enhancement is clearly available and the habitual offender charge should not have been dismissed since the habitual offender statute clearly applies to all felonies and since it does not specifically exclude the OUIL felony. However, we find the second approach to be the better and more persuasive resolution of this issue.

The second approach views the Vehicle Code as addressing a separate concern, OUIL convictions, and determining that an appropriate penalty for a third OUIL conviction is to enhance the OUIL misdemeanor to a felony with an increased prison term and fine and loss of driver's license. The habitual offender enhancement provision conflicts with the Vehicle Code enhancement provision. Where a specific statute conflicts with a general statute, enforcement of the specific one--in this case the Vehicle Code--is preferred.

The general rule of statutory construction that applies here is that if two statutes appear to be in conflict the specific statute prevails as an exception to the general one. Wayne Co. Prosecutor v. Wayne Circuit Judge, 154 Mich.App. 216, 221, 397 N.W.2d 274 (1986). The Legislature is not to be presumed to have intended a conflict. Id. This specific-general rule was applied in People v. Edmonds, 93 Mich.App. 129, 135, 285 N.W.2d 802 (1979), in finding that a defendant could not be sentenced both as an habitual offender and under the sentence augmentation provisions of the controlled substances act. In general, the motor vehicle sentencing provisions are specific terms that control more general sentencing provisions of the Code of Criminal Procedure. Wayne Co. Prosecutor, supra.

Our habitual offender enhancement cases have [177 MICHAPP 180] mentioned the specific-general rule, but none have found that a conflict existed so that the habitual offender enhancement was precluded. E.g., People v. VanderMel, 156 Mich.App. 231, 234-235, 401 N.W.2d 285 (1986); People v. Voss, 133 Mich.App. 73, 78, 348 N.W.2d 37 (1984).

Two cases from other jurisdictions were found which applied this rule in situations similar to ours. Both cases found that application of a specific enhancement provision for subsequent driving while intoxicated convictions precluded operation of a general, habitual offender enhancement provision.

The case factually closest to ours was decided by the Supreme Court of Arkansas. In Lawson v. State, 295 Ark. 37, 746 S.W.2d 544 (1988), defendant was convicted of driving while intoxicated. At the time of trial, defendant had three prior DWI offenses within three years. The Arkansas DWI enhancement statute provided for a prison term of one to six years and, as in Michigan's statute, provided that defendant "shall be guilty of a felony." Arkansas's habitual offender statute, like Michigan's, provided for an enhanced prison term if the defendant had been previously "convicted" of "a felony." Defendant had at least four prior convictions not related to DWI at the time of trial. He was sentenced as an habitual offender to a prison term of eight to twelve years. The DWI statute would have imposed a prison term of one to six years. As in Michigan, the prior DWI offenses were misdemeanors.

The Arkansas court found that the statutes could not be stacked because the DWI statute, as a special act, excluded operation of a general act on the same subject, sentence enhancement. ¹ Similarly,[177 MICHAPP 181] the Nebraska Supreme Court refused to apply both its habitual offender statute and an OUIL statute which provided for a harsher prison...