People v. Poole

Holbrook, Jr., P.J.

(concurring in part and dissenting in part). I agree with the majority that defendant’s conviction should be affirmed. However, because the second-offender provision of MCL 333.7413(1); MSA 14.15(7413)(1) does not apply in this case, I would remand for resentencing.

In this case, defendant committed the delivery offense 1 (offense i) on September 9, 1992, and eight *720 days later, on September 17, 1992, committed the possession with intent to deliver offense 2 (offense n). He was convicted of offense I on August 27, 1993, and convicted of offense n on September 3, 1993. At sentencing, the prosecutor argued that MCL 333.7413(1); MSA 14.15(7413)(1) required that defendant receive a nonparolable life sentence for his conviction of offense n because his conviction of offense I preceded that conviction. The trial court expressly noted its lack of sentencing discretion under subsection 7413(1) and imposed a term of nonparolable life imprisonment for defendant’s conviction of offense n.

MCL 333.7413; MSA 14.15(7413) provides, in pertinent part:

(1) An individual who was convicted previously for a violation of any of the following offenses and is thereafter convicted of a second or subsequent violation of any of the following offenses shall be imprisoned for life and shall not be eligible for probation, suspension of sentence, or parole during that mandatory term:

(a) A violation of section 7401(2)(a)(ii) or (iii).

(b) A violation of section 7403(2)(a)(ii) or (iii).

(c) Conspiracy to commit an offense proscribed by section 7401(2)(a)(ii) or (iii) or section 7403(2)(a)(ii) or (iii).

To determine whether subsection 7413(1) requires that an offense resulting in a second conviction occur after a defendant’s previous conviction, we must look first at the express terms of the statute. The statute clearly includes a temporal component, inasmuch as it includes phrases such as “convicted previously” and “thereafter convicted of a second or subsequent violation.” These temporal phrases, however, are sus *721 ceptible of more than one interpretation. Most important for our purposes is to determine how the phrase “second or subsequent” is to be applied, i.e., “second or subsequent” to what? On the one hand, the phrase could mean that the “second or subsequent violation” occur following the “previous” conviction. On the other hand, the phrase could mean that the violation for which a mandatory life term is to be imposed simply have occurred “second or subsequent” to an earlier violation.

In People v Roseburgh, 215 Mich App 237 ; 545 NW2d 14 (1996), the defendant committed offense I and then offense n and was thereafter convicted of offense n, then offense I. The Roseburgh panel considered whether subsections 7413(2) and (5), MCL 333.7413(2) and (5); MSA 14.15(7413)(2) and (5),* 2 3 *5of the controlled substances act applied “to enhance a defendant’s sentence where the crime resulting in the second conviction occurred before the crime resulting in the first conviction,” and held that, “[although the convictions must follow one another, the statute includes no temporal requirement regarding the sequence of the crimes, and in the absence of any authority to do so, we decline to add such a require- *722 merit.” Id. at 238-239 . The Roseburgh panel’s interpretation of subsections 7413(2) and (5) is neither binding on this panel nor is it persuasive. Indeed, the panel’s reasoning is faulty because it nullifies a key phrase in both subsections, i.e., “second or subsequent offense.” In Roseburgh, the panel upheld a term of life imprisonment where the offense (offense I) for which a life sentence was imposed occurred before any second or subsequent offense (offense n). Such an interpretation of the phrase “second or subsequent offense” begs the question: “second or subsequent” to what?

The factual situation in this case presents a different possible interpretation of the phrase “second or subsequent violation.” Here, defendant committed offense I, then offense n, and was thereafter convicted of offense I, then offense n. Unlike the sequence of events in Roseburgh , the offense (offense n) for which defendant received a life sentence did occur “second or subsequent” to an earlier offense (offense i), but not “second or subsequent” to the previous conviction. To the extent that the language of subsection 7413(1) is susceptible of more than one interpretation, judicial construction in accordance with established rules of statutory construction is necessary to resolve the ambiguity. 4 People v Morris, 450 Mich 316, 325 ; 537 NW2d 842 (1995); People v Nantelle, 215 Mich App 77 ; 544 NW2d 667 (1996).

*723 The Supreme Court in People v Reeves, 448 Mich 1, 8 ; 528 NW2d 160 (1995), stated:

In enacting statutes, the Legislature recognizes that courts will apply common-law rules to resolve matters that are not specifically addressed in the statutory provision. 2B Singer, Sutherland Statutory Construction (5th ed), § 50.01, p 90. “[W]ords and phrases that have acquired a unique meaning at common law are interpreted as having the same meaning when used in statutes dealing with the same subject” matter as that with which they were associated at the common law. Pulver v Dundee Cement Co, 445 Mich 68, 75 ; 515 NW2d 728 (1994); People v Young, 418 Mich 1, 13 ; 340 NW2d 805 (1983).

Where the Legislature “has shown no disposition to depart from the common-law definition, therefore it remains.” People v Schmitt, 275 Mich 575, 577 ; 267 NW 741 (1936).

Michigan appellate courts have long followed the majority common-law rule that, for proposes of penalty enhancement under repeat offender statutes, it is a prerequisite that the prior conviction precede the commission of the principal offense. People v Stoudemire, 429 Mich 262, 283 ; 414 NW2d 693 (1987) (Archer, J., dissenting), cited with approval in People v Preuss, 436 Mich 714, 732 ; 461 NW2d 703 (1990). See also People v Podsiad, 295 Mich 541, 546-547 ; 295 NW 257 (1940); People v Sawyer, 410 Mich 531, 536 ; 302 NW2d 534 (1981); People v Alexander, 422 Mich 932 (1985); People v Johnson, 86 Mich App 77, 79-80 ; 272 NW2d 200 (1978); People v Smith, 90 Mich App 572, 574 ; 282 NW2d 399 (1979), vacated on other grounds 407 Mich 906 (1979); People v Jones, 171 Mich App 720, 726, n 5 ; 431 NW2d 204 (1988); People v Erwin, 212 Mich App 55, 60 ; 536 NW2d 818 (1995). *724 See, generally, anno: Chronological or procedural sequence of former convictions as affecting enhancement of penalty under habitual offender statutes, 7 ALR5th 263, § 2a, pp 289-293. For example, in People v Sawyer, supra, our Supreme Court construed the meaning of the phrase “prior conviction” in the second-offender provision of the felony-firearm statute. 5 In that case, the defendant committed a robbery while armed with a firearm on two separate occasions. The prosecution initiated separate trials for these two offenses, and the defendant ultimately pleaded guilty of two counts of felony-firearm at a single plea proceeding. The trial court considered the first offense as a prior conviction and imposed a five-year term of imprisonment rather than the two-year term for offenders without a prior conviction. Our Supreme Court held that, although a literal reading of the statute would lead to the conclusion that the defendant had a second conviction and technically was subject to the repeat-offender provisions of the statute, the Legislature did not intend such a result:

There axe a number of purposes served when the Legislature provides increased punishment for repeat offenders. These include deterrence and the proper desire of society to provide more severe punishment for a person who declines to change his or her ways following an opportunity to reform. These purposes are not served by imposing a more severe punishment on the day when a defendant first pleads guilty, and we accordingly believe that the Legislature intended a five-year term of imprisonment for a second conviction should only be imposed where the second offense is subsequent to the first conviction. [ 410 Mich 535 -536.]

*725 More recently, our Supreme Court placed a further gloss on Sawyer when it stated in People v Stewart, 441 Mich 89, 94-95 ; 490 NW2d 327 (1992):

Our statement in Sawyer that “a five-year term of imprisonment for a second conviction should only be imposed where the second offense is subsequent to the first conviction,” 410 Mich 536 , should be understood to mean that a defendant may not be convicted as a repeat offender unless the prior conviction(s) precede the offense for which the defendant faces enhanced punishment. There is no requirement that all prior offenses be neatly separated by intervening convictions.

Given that the statutory phrase “second or subsequent violation” is susceptible of more than one interpretation, we are obligated to apply the established common-law rule. In a footnote, the panel in Roseburgh, supra at 239, n 1 , refused to apply this rule by analogy beyond the habitual offender statutes because the “statutory language is sufficiently different to render those cases inapplicable to the issue presented here.” While it is true that no previous Michigan case has applied this common-law rule to the second-offender provisions of the controlled substances act, the rule has been applied not only to the habitual offender statutes ( Stoudemire, supra; Preuss, supra; Johnson, supra; Jones, supra), but also to the repeat-offender provisions of the felony-firearm statute ( Sawyer, supra; Stewart, supra), and to the second-offender provisions of the drunk-driving statute ( Erwin, supra). Certainly, the legislative intent in enacting such penalty-enhancing statutes is the same whether the conduct involved is general recidivism or recidivism of specific offenses, such as possession of a firearm during the commission of a *726 felony, or driving a motor vehicle while under the influence of liquor, or dealing in large amounts of illegal narcotics.

Here, defendant Poole committed two offenses one week apart and was convicted of those offenses in separate court proceedings approximately one year later. At the time defendant committed his second offense, however, he had not been convicted of his first offense. Thus, application of the common-law rule to the facts of this case furthers both the Legislature’s intent in enacting the second-offender provisions of the controlled substances act and the underlying principle of the common-law rule. Accordingly, I would remand this matter to the trial court for resentencing.

MCL 733.7401(2)(a)(üi); MSA 14.15(7401)(2)(a)(üi).

MCL 733.7401(2)(a)(iii); MSA 14.15(7401)(2)(a)(üi).

Subsections 2 and 5 provide in pertinent part:

(2) Except as otherwise provided in subsections [7413] (1) and (3), an individual convicted of a second or subsequent offense under this article may be imprisoned for a term not more than twice the term otherwise authorized or fined an amount not more than twice that otherwise authorized, or both.

(5) For purposes of subsection (2), an offense is considered a second or subsequent offense, if, before conviction of the offense, the offender has at any time, been convicted under this article ....

The majority’s wholehearted capitulation to the legislative branch is, if nothing else, interesting. The majority exalts legislative form over substance, yet fails to address the effect of the statutory phrase “second or subsequent violation,” thereby implicitly conceding the error of their position. See Gross v General Motors Corp, 448 Mich 147, 159 ; 528 NW2d 707 (1995) (as far as possible, a court must give effect to every phrase, clause, and word of a statute).

See MCL 750.227b; MSA 28.424(2).