People v. Eason

458 N.W.2d 17, 435 Mich. 228

• Court: Michigan Supreme Court
• Decided: July 5, 1990
• Docket: 82718, (Calendar No. 8)
• Status: Published

Opinions

Boyle, J.

We granted leave to appeal to determine whether the procedural safeguards¹ surrounding a formal trial must be afforded a defendant subjected to an enhanced sentence pursuant to the second-offender provisions of the controlled substance act, MCL 333.7413; MSA 14.15(7413). We hold that a defendant charged under a statute which provides for imposition of an enhanced sentence on an individual previously convicted of an offense under the same statute is not entitled to notice within fourteen days of arraignment of the prosecutor’s intent to seek sentence enhancement or to a separate proceeding on the question whether he has previously been convicted of a narcotics offense.

i

The questions presented in this case are: 1) did the Legislature intend to require a supplementary information and a separate fact-finding proceeding under this statute, and, 2) if not, does the legislative scheme offend the constitution?

Despite recent modification of sentence enhancement provisions, the Legislature has not granted defendants who are subsequent offenders under the same statute a right to early notice of sentence enhancement. Nor has it provided for a separate proceeding to determine the question of a defendant’s prior conviction of a drug offense. The sentence enhancement provision is a legislative authorization for judges to tailor punishment to the criminal on the basis of an objective factor, i.e., a prior conviction under the same statute.

The Legislature has long provided that where a prosecutor intends to proceed under the habitual offender act, a separate charge must be filed, the defendant is entitled to a full jury trial, and the defendant’s prior convictions² must be proven beyond a reasonable doubt. The habitual offender statutes are considered alternate sentencing provisions rather than penalty-enhancement provisions.³

In creating a sentence enhancement provision in the controlled substance act, the Legislature took a factor, the defendant’s prior criminal convictions, a traditional consideration in determining a defendant’s sentence, and authorized a weight to be given that factor, i.e., not more than twice the term authorized.⁴ The statute is directed to facts which relate to the criminal, not to the crime, and nothing in the act suggests a proceeding other than that comporting with the fundamental due process requirement that a sentence must be based on accurate information and a defendant have a reasonable opportunity at sentencing to challenge such information.

By contrast, in situations in which the state creates a statutory scheme and elements of an offense, due process requires both notice of the charge and proof by the prosecutor of each element beyond a reasonable doubt. In re Winship, 397 US 358; 90 S Ct 1068; 25 L Ed 2d 368 (1970). Conversely, a state may define the elements of an offense, and due process does not require the state to satisfy the reasonable-doubt standard as to facts not included in the statutory definition of an offense, so long as the definition does not offend a deeply rooted principle of justice. Patterson v New York, 432 US 197; 97 S Ct 2319; 53 L Ed 2d 281 (1977). Thus, due process does not require the state to proceed by notice of a separate charge, the right to trial by jury, and proof beyond a reasonable doubt wherever sentence enhancement is authorized.

Due process does not require the prosecutor to charge the prior drug conviction in the information in order for the defendant’s sentence to be enhanced on the basis of the prior conviction because the prior offense is not an element of a separate charge.⁵ Nor is the defendant entitled to a trial-type procedure regarding the use of the defendant’s prior drug convictions for sentencing purposes.⁶

In the instant case, the court informed the defendant prior to sentencing of the increased penalty for a second offense, the defendant had the opportunity at sentencing to contest the accuracy of the information included in the presentence report, and the accuracy of the information was admitted.⁷

Where the statute does not contemplate a separate trial-type proceeding but, rather, provides for sentence enhancement, due process requires a reasonable opportunity to challenge the accuracy of the information relied on in passing sentence.⁸ Because the defendant did not challenge the fact that he was a second offender, the Court of Appeals erred in vacating his sentence and remanding the case for resentencing. Accordingly, the decision of the Court of Appeals is reversed and the sentence imposed by the trial judge is reinstated.

II

On February 25, 1985, law enforcement personnel raided the defendant’s house and seized a small amount of cocaine and more than $30,000 in cash. The defendant was charged with possession with intent to deliver less than fifty grams of cocaine. MCL 333.7401(1) and (2)(a)(iv); MSA 14.15(7401)(1) and (2)(a)(iv). The maximum sentence for this offense is twenty years in prison.

On July 12, 1985, the defendant was arraigned in Detroit Recorder’s Court, and on September 12, 1985, the prosecutor filed a written notice⁹ of his intent to seek an enhanced (doubled) sentence pursuant to MCL 333.7413(2); MSA 14.15(7413X2).

The defendant was convicted by a jury of possession with intent to deliver less than fifty grams of cocaine, and on January 31, 1986, was sentenced to a maximum of forty years in prison.¹⁰ Although advised at sentencing that the court was relying on the defendant’s prior conviction for possession of heroin, neither the defendant nor counsel contested the accuracy of the prior conviction, and counsel confirmed that the presentence report was accurate.

On March 7, 1986, the defendant moved to vacate the sentence on the basis that the defendant’s prior drug conviction was not charged in either the information or a supplemental information and that the prosecutor had not proven that the defendant was a recidivist drug offender. The defendant relied on People v Stout, 116 Mich App 726, 735; 323 NW2d 532 (1982), in which the Court of Appeals held:

In our view the quoted language from [People v] Urynowicz [412 Mich 137; 312 NW2d 625 (1981)] makes clear that a subsequent drug offender’s sentence may not be enhanced unless the prior drug offense is charged in either the information or a supplemental, information and the prosecutor proves that the defendant is a recidivist drug offender. [Emphasis in original.]

The sentencing judge believed the Court of Appeals erred in Stout, but also that, under Stout, the notice filed was sufficient because the defendant received the notice and had not contested his conviction on the underlying charge. The motion was denied.

In an unpublished per curiam opinion, the Court of Appeals affirmed the defendant’s conviction but remanded the case for sentencing.¹¹ The Court of Appeals agreed with the defendant that the prosecution must charge the defendant as an habitual offender before his sentence could be enhanced under MCL 333.7413, 769.10(l)(c), 769.13; MSA 14.15(7413), 28.1082(l)(c), 28.1085.

Relying on our decisions regarding proceedings under the habitual criminal act, the Court held that the prosecutor must file a supplemental information not more than fourteen days after a defendant is arraigned in circuit court unless the prosecutor is unaware of any prior felony record until after conviction or the delay in filing the information is due to the need to verify out-of-state felony convictions based on the record of a defendant’s prior arrests. People v Shelton, 412 Mich 565; 315 NW2d 537 (1982), reh den 413 Mich 1108 (1982). As these exceptions were not applicable, the Court of Appeals vacated the defendant’s sentence and remanded the case to the trial court for resentencing¹² solely oh defendant’s charge of possession with intent to deliver cocaine.

The prosecution contends that earlier decisions of this Court imposed procedural requirements in the sentence enhancement context that the Legislature never intended.¹³ See People v Urynowicz, supra, People v Wright, 405 Mich 832; 275 NW2d 1 (1979), and People v Lester, 417 Mich 927; 330 NW2d 854 (1983). The prosecutor further submits that the recent ruling of the United States Supreme Court in McMillan v Pennsylvania, 477 US 79; 106 S Ct 2411; 91 L Ed 2d 67 (1986), provides a justification for reconsideration regarding the issue what procedures are required under due process when the court enhances a defendant’s sentence pursuant to MCL 333.7413(2); MSA 14.15(7413)(2).

The defendant claims that the prior drug offense must be charged in either the information or a supplemental information, and that the prosecutor must prove that the defendant is a recidivist drug offender.

hi

The issue presented is whether the sentence provision of the controlled substance act, authorizing an enhanced penalty for a defendant previously convicted of a like offense, offends due process by failing to provide prior notice of intent to enhance or a separate adversarial proceeding to establish proof of the prior conviction. People v Stout, supra.

It is well settled that in a criminal trial, the defendant’s conviction must rest on evidence which proves "beyond a reasonable doubt the existence of every fact necessary to constitute the crime charged”¹⁴ and includes the right to a trial by jury,¹⁵ a public trial, counsel, confrontation of adverse witnesses, and a fair and speedy trial. The most fundamental of these safeguards in a criminal proceeding is the right to a trial by jury.¹⁶ See Duncan v Louisiana, 391 US 145, 158, n 30; 88 S Ct 1444; 20 L Ed 2d 491 (1968); Baldwin v New York, 399 US 66, 72; 90 S Ct 1886; 26 L Ed 2d 437 (1970).

By contrast, the due process right at a typical sentencing hearing is the right to be sentenced on the basis of accurate information. Trial-type procedures are not required. Williams v New York, 337 US 241; 69 S Ct 1079; 93 L Ed 1337 (1949).¹⁷ In Williams, the United States Supreme Court rejected a claim that the defendant was denied the opportunity to confront and examine his accusers by the trial court’s reliance on the presentence investigation as the basis for its sentence. Id., p 244. The Court held the procedure did not violate due process¹⁸ and identified a distinction between guilt determination and sentencing, observing:

In addition to the historical basis for different evidentiary rules governing trial and sentencing procedures there are sound practical reasons for the distinction. . . . [B]efore verdict the issue is whether a defendant is guilty of having engaged in certain criminal conduct of which he has been specifically accused. Rules of evidence have been fashioned for criminal trials which narrowly confine the trial contest to evidence that is strictly relevant to the particular offense charged. ... A sentencing judge, however, is not confined to the narrow issue of guilt. . . . Highly relevant — if not essential — to his selection of an appropriate sentence is the possession of the fullest information possible concerning the defendant’s life and characteristics. [Id., pp 246-247.]

The Court concluded that the "due process clause should not be treated as a device for freezing the evidentiary procedure of sentencing in the mold of trial procedure.” Id,, p 251.

Decisions following Williams supported traditional individualized sentencing on the basis of a broad inquiry.¹⁹ The Court held that while information obtained in violation of a defendant’s right to counsel²⁰ could not be considered, a sentencing judge might permissibly take into account a defendant’s trial conduct²¹ and the defendant’s refusal to cooperate with law enforcement officials.²² The basic tenor of these cases is that an individualized sentence can be based on any relevant and reliable information, and that, while normal sentencing proceedings are not immune from due process attacks, only minimal due process protections are required in those proceedings. United States v Davis, 710 F2d 104 (CA 3, 1983), cert den 464 US 1001 (1983).

However, the Supreme Court has required additional procedural safeguards to satisfy due process requirements in situations in which a court seeks to impose additional penalties on a defendant pursuant to a finding of fact equivalent to invoking a new charge.²³ Specht v Patterson, 386 US 605; 87 S Ct 1209; 18 L Ed 2d 326 (1967). In Specht, the defendant was convicted under one Colorado statute for indecent liberties which carried a maximum sentence of ten years.²⁴ Id., p 607. Thereafter, the defendant was sentenced under a different act²⁵ for a sentence of one day to life without full notice or a hearing. Id.

The Court noted that the act made one conviction the basis for invoking a separate proceeding under the sex offenders act, thus requiring a determination that constituted "a new finding of fact.” Id., p 608. As such, the defendant was entitled to the " 'full panoply of the relevant protections which due process guarantees in state criminal proceedings ... all those safeguards which are fundamental rights and essential to a fair trial ....’” Id., pp 609-610, citing Gerchman v Maroney, 355 F2d 302, 312 (CA 3, 1966).

Subsequent to the Specht decision, in 1970, the United States Supreme Court declared that the Due Process Clause "protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” In re Winship, supra, p 364. Five years later in Mullaney v Wilbur, 421 US 684; 95 S Ct 1881; 44 L Ed 2d 508 (1975), the Court held that Maine’s homicide statute impermissibly shifted the burden of proof to the defendant on the issue of heat of passion on sudden provocation. Justice Powell observed:

[I]f Winship were limited to those facts that constitute a crime as defined by state law, a State could undermine many of the interests that decision sought to protect without effecting any substantive change in its law. It would only be necessary to redefine the elements that constitute different crimes, characterizing them as factors that bear solely on the extent of punishment. [Id., p 698.]

However, in Riviera v Delaware, 429 US 877; 97 S Ct 226; 50 L Ed 2d 160 (1976), the Court confirmed that it remained constitutional to burden the defendant with proving the insanity defense, and also held that the state could place the burden of proving a new affirmative defense, extreme emotional disturbance, on the defendant when the affirmative defense did "not serve to negative any facts of the crime which the State is to prove in order to convict of murder.” Patterson v New York, supra, p 207.

While Winship and Specht establish that a Legislature is not wholly free to define elements of an offense as factors bearing only on punishment, it is clear that the limitation is a narrow exception to the deference accorded a state’s administration of justice.

Traditionally, due process has required that only the most basic procedural safeguards be observed; more subtle balancing of society’s interests against those of the accused have been left to the legislative branch. [Patterson v New York, supra, p 210.]

In McMillan, supra, p 86, the Court recently has reaffirmed the state’s ability to pursue "its chosen course in the area of defining crimes and proscribing penalties.” The Court rejected a due process challenge to a state statute that provided for imposition of a mandatory minimum sentence where a sentencing judge finds by a preponderance of the evidence that an individual convicted of an offense "visibly] possessed] a firearm” during its commission.²⁶

While declining to define the express parameters of the state’s authority to define the elements of an offense, the Court observed that Patterson had rejected the claim that whenever a state linked the severity of punishment to the presence or absence of an identified fact, McMillan, supra, p 84, the state must prove that fact beyond a reasonable doubt. The Court further distinguished Specht on the basis that in Specht the defendant was confronted with a "radically different situation” from the usual sentencing proceeding. The Court observed:

The Pennsylvania Legislature did not change the definition of any existing offense. It simply took one factor that has always been considered by sentencing courts to bear on punishment — the instrumentality used in committing a violent felony —and dictated the precise weight to be given that factor if the instrumentality is a firearm. Pennsylvania’s decision to do so has not transformed against its will a sentencing factor into an "element” of some hypothetical "offense.” [Id., pp 89-90.]

Of significance to the language in Stout, supra, that the prosecution prove the factor that authorizes enhancement, the Court also observed that "Sentencing courts have traditionally heard evidence and found facts without any prescribed burdens of proof at all,” McMillan, supra, p 91, and noted "embracing . . . the clear-and-convincing standard here would significantly alter criminal sentencing, for we see no way to distinguish the visible possession finding at issue here from a host of other express or implied findings sentencing judges typically make on the way to passing sentence.” Id., p 92, n 8.²⁷

The second-offender provision with which we here deal likewise neither seeks to impose additional penalties on the basis of a finding of fact equivalent to a new charge, Specht, nor changes the definition of an existing offense, Winship. It simply takes one factor that has historically been of paramount importance in imposing an appropriate sentence, a previous conviction for a like offense, and authorizes an increased penalty. Therefore, due process neither compels a separate charge nor imposes trial-type evidentiary burdens on the sentencing process.

IV

In the present case, the Court of Appeals vacated the defendant’s sentence and remanded to the lower court for resentencing on the basis that the defendant did not receive sufficient notice of the prosecutor’s intent to seek enhanced sentencing. However, we recognize the existence of precedent from this Court that suggests that it is error for a trial court to enhance a defendant’s sentence under the controlled substance act unless a defendant is charged as a second or subsequent offender, as required under the habitual offender act.

Despite the fact that in Oyler v Boles, 368 US 448, 452; 82 S Ct 501; 7 L Ed 2d 446 (1962), the United States Supreme Court held that due process required reasonable notice and an opportunity to be heard relative to a recidivist charge, but not notice prior to trial on the underlying offense,²⁸ this Court, citing Oyler, thereafter held that the prosecutor separately, or coincidentally, must charge the defendant as an habitual offender prior to trial on the underlying substantive offense.²⁹ People v Wright, 405 Mich 832; 275 NW2d 1 (1979).

The apparent purpose of requiring the information to be filed is to provide the accused notice, at an early stage of the proceedings, of the potential consequences should the accused be convicted of the underlying offense. People v Shelton, supra, p 569. In Shelton, the Court defined "promptly” as not more than fourteen days after the individual the prosecutor elects to charge as an habitual offender is arraigned in circuit court on the underlying felony (or before trial if the defendant is tried within the fourteen-day period).

It is clear from a reading of Oyler and McMillan that Shelton is distinguishable, and that due process does not require the filing of a separate charge pursuant to a statute that does not create a new offense but simply authorizes the sentencing court to enhance the sentence.³⁰ The prosecutor is not required to charge the prior conviction in the information because it is not an element of a new charge, separate from the offense for which the defendant is presently charged. Instead, the prior conviction is a factor which the judge may consider when imposing the sentence. See People v Mellor, 302 Mich 537; 5 NW2d 455 (1942).³¹

Where, as here, the factor, a prior conviction, has not historically been considered an element of the crime, is objectively ascertainable, and carries little risk of erroneous determination, and there is no indication that the Legislature is seeking to avoid the procedural protections of Winship,³² due process requires neither the filing of a separate charge nor adversarial proceedings at sentencing. In sum, "[traditional sentencing factors need not be pleaded and proved at trial.” United States v Affleck, 861 F2d 97, 99 (CA 5, 1988).

The pertinent sentence enhancement provision of the controlled substance act, MCL 333.7413(2); MSA 14.15(7413X2) provides:

(2) Except as otherwise provided in subsections (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.

Under subsection 2, the trial judge may consider a defendant’s prior offense if the present offense is a drug-related crime involving an amount less than fifty grams.³³ In the present case, the defendant was convicted of a second offense of an amount less than fifty grams, and the trial judge imposed a maximum sentence of forty years, twice the twenty-year maximum otherwise authorized.

It is clear that neither the statute nor its predecessor³⁴ requires an information filed prior to trial charging the defendant as a second offender under the habitual offender act or prior to a separate jury trial.³⁵

This Court’s reference to Wright,36 in Urynowicz, supra, a second offense criminal sexual conduct sentence, implied that due process required a separate proceeding whenever a defendant’s sentence is increased on the basis of prior offenses. Id. For the reasons stated, we are now of the view that the Court erred in Urynowicz in concluding due process requires a separate proceeding and proof before enhancing the sentence of a second offender.³⁷

A defendant may challenge the accuracy of the information contained in the presentencing report and is entitled to an opportunity to he heard on the matter if accuracy is contested. However, enhanced sentences based on prior conviction of the same statute are not subject to the Shelton rule, nor do they require adversarial proceedings.

CONCLUSION

In this case, the defendant contends he did not receive the notice required under People v Shelton. He does not contend he was denied a reasonable opportunity to contest the information in the presentence report.³⁸ Although we hold that the fourteen-day rule in Shelton is not applicable to sentence enhancement authorized under this statute, we observe that due process requires notice of the information in the presentence report sufficiently in advance of sentence to provide a meaningful opportunity to contest its accuracy.³⁹ Thus, we would remand the case to the trial court if we were unable to determine that the defendant was provided a reasonable opportunity to respond to the accuracy of the information in the report.

Here, the record confirms that counsel reviewed the presentence report and guidelines with the defendant, that defendant was given an opportunity to respond to the accuracy of the information contained in the report,⁴⁰ and that counsel agreed that the information was accurate.

Accordingly, we reverse the decision of the Court of Appeals and reinstate the sentence imposed below.

Riuey, C.J., and Brickley and Griffin, JJ., concurred with Boyle, J.

1 Const 1963, art 1, § 17. US Const, Ams V, XIV.

2 MCL 769.10-769.13; MSA 28.1082-28.1085.

3 See People v Fountain, 407 Mich 96; 282 NW2d 168 (1979). In Fountain, the Court noted that defendant Jones was incorrectly sentenced for the unarmed robbery conviction, and, as an habitual offender, the defendant may be sentenced only under one or the other charge. Id., p 98, n 2. See also, e.g., People v Kraai, 92 Mich App 398; 285 NW2d 309 (1979).

4 Although there is no express statutory requirement that the habitual offender act be applied to other sentence enhancement provisions, this Court and the Court of Appeals have implied such requirements in both criminal sexual conduct, MCL 750.520f; MSA 28.788(6), and controlled substance cases. See People v Urynowicz, 412 Mich 137; 312 NW2d 625 (1981). See also People v Wright, 405 Mich 832; 275 NW2d 1 (1979), People v Lester, 417 Mich 927; 330 NW2d 854 (1983), and People v Stout, 116 Mich App 726; 323 NW2d 532 (1982).

5 Indeed, even if the prosecutor overlooked the prior conviction, if the matter came to the trial court’s attention through the presentence investigation, the judge would be authorized to enhance the sentence provided the defendant did not claim lack of notice or contest the factual accuracy thereof.

6 United States v Brown, 381 US 437, 458; 85 S Ct 1707; 14 L Ed 2d 484 (1965).

7 Had the defendant chosen to contest the accuracy of the information in the presentence report and claimed surprise at the hearing, and had the trial judge not allowed the defendant an opportunity to address the issue, the proper remedy would be to provide an opportunity for the defendant to contest the accuracy of the report which would be accomplished by a remand to the trial court.

However, an evidentiary hearing at the sentencing stage is not an adversary trial, and due process is satisfied so long as the information the sentencing judge considers has sufficient indicia or reliability. United States v Blade, 811 F2d 461, 468 (CA 8, 1987).

8 Because sentencing is a critical stage of the proceedings, the defendant has a Sixth Amendment right to counsel. Mempa v Rhay, 389 US 128; 88 S Ct 254; 19 L Ed 2d 336 (1967).

9 The defendant contended he had no knowledge of the prosecutor’s intent to seek sentence enhancement and that there was no documentation indicating that the letter notifying the court and him of the intent was ever time stamped as having been received by a clerk of the trial court. In addition, the defendant asserted there was no proof of service in the file indicating that the opposing side was in fact served. The notice of intent was dated September 12, 1985. However, it did not bear the lower court’s date stamp.

The defendant was previously convicted of possession of a controlled substance and was sentenced on March 3,1980.

10 At sentencing the judge noted that the defendant had previously been convicted of second-degree murder in 1979 and for possession of heroin in 1983. The judge indicated that he intended to deviate from the sentencing guidelines because, given the defendant’s background and the jury’s conclusion that the defendant sold drugs, the guidelines which called for a thirty- to forty-two-month sentence were totally inadequate.

11 People v Eason, unpublished opinion per curiam of the Court of Appeals, decided January 22,1988 (Docket No. 91429).

12 In addition, the defendant claimed he was entitled to be sentenced by the judge who presided over the trial. Judge Talbot presided over part of the trial and sentenced the defendant, and the Court of Appeals found there had not been any error.

13 The prosecution notes that this is clear when the language used by the Legislature in MCL 333.7413(2); MSA 14.15(7413X2), "[a]n individual convicted of a second or subsequent offense under this article may be imprisoned for not more than twice the term otherwise authorized or fined an amount not more than twice that otherwise authorized, or both,” is compared with the language of MCL 769.13; MSA 28.1085 in which the Legislature requires a full trial if the defendant pleads not guilty to the charge of prior felony convictions.

14 Davis v United States, 160 US 469, 493; 16 S Ct 353; 40 L Ed 499 (1895). See In re Winship, supra, pp 363-364. The policy .considerations underlying the reasonable doubt standard include the protection of a defendant’s liberty interest, and the reduction of the risk of erroneous convictions.

See also note: Criminal law — Fourteenth Amendment Due Process Clause — preponderance standard satis&es due process where state makes visible possession of ñrearm sentencing factor rather than component of crime, 18 St Mary’s L J 543, 545-546 (1986).

15 See, generally, Duncan v Louisiana, 391 US 145; 88 S Ct 1444; 20 L Ed 2d 491 (1968).

16 Trial by jury of one’s peers has long been regarded as a precious and intractable right and the right is expressly reserved in the constitution, the Bill of Rights, and in the state constitution. Note, Enhanced sentencing under North Carolina’s DWI statute: Making due process disappear — Field v Sheriff of Wake County, NC, 23 Wake Forest LR 517, 525 (1988).

17 Early principles of sentencing due process doctrine were established by the United States Supreme Court in Williams v New York. Weissman, Sentencing due process: Evolving constitutional principles, 18 Wake Forest L R 523, 524 (1982). See also United States v Satterfield, 743 F2d 827, 840 (CA 11, 1984), cert den 471 US 1117 (1985).

18 The holding of Williams represented a divergence from another seminal sentencing decision decided in the previous year, Townsend v Burke, 334 US 736; 68 S Ct 1252; 92 L Ed 1690 (1948). In Townsend, the United States Supreme Court held the defendant’s due process rights were violated when the defendant was sentenced on the basis of false information concerning his criminal record. Id., p 740. While at first blush the holding of Townsend appears to support the idea that the Court favored increased due process safeguards at sentencing, the decision was limited by the Court’s emphasis on the total lack of effort with which the sentencing judge investigated the truth of the defendant’s past convictions, three of which were charges that had either been dismissed or resulted in a finding of not guilty.

19 See United States v Tucker, 404 US 443; 92 S Ct 589; 30 L Ed 2d 592 (1972); United States v Grayson, 438 US 41; 98 S Ct 2610; 57 L Ed 2d 582 (1978); Roberts v United States, 445 US 552; 100 S Ct 1358; 63 L Ed 2d 622 (1980).

20 The United States Supreme Court held information regarding prior convictions obtained in violation of a defendant’s right to counsel could not be considered as sentencing factors by the trial judge at the sentencing hearing. United States v Tucker, pp 443, 447.

21 In Grayson, n 19 supra, p 44, the trial judge discounted the defendant’s credibility due to the defendant’s testimony during trial in which the defendant denied his guilt.

22 The sentencing judge took into account the defendant’s persistent refusal to cooperate with law enforcement authorities in identifying other participants in the drug conspiracy. The United States Supreme Court concluded such refusal was highly relevant on the issue of the defendant’s prospects for rehabilitation and thus was properly considered at sentencing. Roberts v United States, n 19 supra, p 552.

23 Note, The constitutionality of statutes permitting increased sentences for habitual or dangerous criminals, 89 Harv LR 356, 364 (1975).

24 Colo Rev Stat Ann, § 40-2-32 (1963).

25 Pursuant to the Colorado sex offenders act, Colo Rev Stat Ann, §§ 39-19-1 to 10 (1963), if the trial court was of the opinion that a person convicted of specified sex offenses constituted a threat of bodily harm to the public or was an habitual offender and mentally ill, the state could sentence a defendant to commitment in a mental institution as a sexual psychopath for an indefinite period. Id. The only procedural requirements were that the state have the defendant examined and a psychiatric report prepared for the trial judge prior to sentencing. Id., p 608.

26 Relying on In re Winship, petitioners contended that visible possession of a firearm was an element of the crimes for which they were being sentenced and thus must be proved beyond a reasonable doubt.

27 While it is true that the Court also observed that the sentencing scheme in question did not alter the maximum penalty for the crime, it is clear that the factor here made relevant for sentencing purposes, a prior conviction of a crime, historically has been considered one of the most significant factors bearing on appropriate punishment.

28 The United States Supreme Court noted:

Any other rule would place a difficult burden on the imposition of a recidivist penalty. Although the fact of prior conviction is within the knowledge of the defendant, often this knowledge does not come home to the prosecutor until after the trial, and in many cases the prior convictions are not discovered until the defendant reaches the penitentiary. [Id., p 452, n 6.]

29 The statute requires a separate charge. It does not require an habitual offender charge prior to trial.

If after conviction and either before or after sentence it appears that a person convicted of a felony has previously been convicted of crimes as set forth in section 10, 11, or 12, the prosecuting attorney of the county in which the conviction was had may file a separate or supplemental information in the cause accusing the person of the previous convictions. The court in which the conviction was had shall cause the person to be brought before it and shall inform him of the allegations contained in the information, and of his right to be tried on the allegations, and require the offender to say whether he is the same person as charged in the information or not. If the offender says he is not the same person, or remains silent, the court shall enter a plea of not guilty, and a jury of 12 jurors shall be impaneled from the petit jurors serving at the then or a following term of court to determine the issues raised by the information and plea. The accused may waive trial by jury in the manner provided by this act. The usual practice in the trial of criminal actions shall be followed in the impaneling of a jury and the trial of the issue. ... If the accused pleads guilty to the information or if the jury returns a verdict of guilty, the court may sentence the offender to the punishment prescribed in section 10, 11, or 12, and shall vacate the previous sentence, deducting from the new sentence all time actually served on the vacated sentence if required. [MCL 769.13; MSA 28.1085.]

When the Court has considered a statutory scheme incomplete, it has imposed additional requirements in accordance with the object or intent of the statute. While that solution is more appropriately provided by the Legislature, it has been utilized by this Court when as in this situation it was believed necessary. Schwartz, Multiple punishment for the "same offense”: Michigan grapples with the definitional problem, 25 Wayne L R 825, 856 (1979).

30 In circumstances presented by this case, the enhanced sentencing statutes

have no relation to the circumstances of the wrongdoing constituting the most recent offense, but rather to something which is wholly unrelated thereto. Further, they do not relate to determining what the accused has done, but rather to what the state has previously determined that he has done. And that previous determination must have been a formal, judicial determination of guilt; and hence one as to which the full measure of constitutional protections was available. [See Buckley v Butler, 825 F2d 895, 903 (CA 5, 1987). Emphasis in the original.]

31 By contrast, when a prior conviction is an element of the charge, the earlier offense must be charged in the information when, for example, an individual charged for a second or subsequent offense of driving under the influence of liquor is found guilty of a felony. While the offense is a misdemeanor, a third or subsequent offender can be charged with a felony. MCL 257.625; MSA 9.2325. However, the defendant must be charged as a second, or subsequent offender, which is an element of the underlying felony charge. ’

Thus, it appears that the better construction of the cases discussed in the dissent is that the Court construed the legislation in question as necessarily requiring a separate information filed to provide the opportunity for a preliminary examination for the defendant and to provide the circuit court with jurisdiction.

Further, the question before the Court is one of legislative intent, and we find it highly doubtful that the Legislature was deemed to be aware of decisions of this Court and relied on liquor law cases from the mid-1920’s to require separate charges in the present cases, which involve sentence enhancement and not a separate felony charge as found in the liquor law cases cited by the dissent.

32 The Third, Fourth, Fifth, Sixth, Eighth, Ninth, Tenth, and District of Columbia Circuit Courts have held that the Armed Career Criminal Act, 18 USC App 1202 did not create a separate offense mandating specific pleading or proof of recidivism that triggers enhanced sentencing. United States v Hawkins, 811 F2d 210 (CA 3, 1987); Field v Sheriff of Wake Co, NC, 831 F2d 530 (CA 4, 1987); United States v Affleck, 861 F2d 97 (CA 5, 1988); United States v Brewer, 853 F2d 1319 (CA 6, 1988); United States v Jackson, 262 US App DC 294; 824 F2d 21 (1987); United States v Rush, 840 F2d 574 (CA 8, 1988) (en banc); United States v West, 826 F2d 909 (CA 9, 1987); United States v Gregg, 803 F2d 568 (CA 10, 1986), cert den 480 US 920 (1987).

33 The penalties for possession of controlled substances in amounts of fifty grams or more, but less than 650 grams, are addressed in MCL 333.7401(2)(aXii) or (iii); MSA 14.15(7401)(2)(a)(ii) or (iii).

34 The controlled substance act, 1971 PA 196, MCL 335.348; MSA 18.1070(48) provided:

(1) Any person convicted of a second or subsequent offense under this act may be imprisoned for a term up to twice the term otherwise authorized or fined an amount up to twice that otherwise authorized, or both.

(2) For purposes of this section, an offense is considered a second or subsequent offense, if, prior to his conviction of the offense, the offender has at any time been convicted under this act or under any statute of the United States or of any state relating to narcotic drugs, marihuana, depressant, stimulant or hallucinogenic drugs.

The act authorized the sentencing judge to enhance the punishment for certain individuals. If a defendant was a second, or subsequent drug offender, the statute did not contemplate a separate proceeding.

In People v McFadden, 73 Mich App 232, 234; 251 NW2d 297 (1977), the defendant argued that the procedural requirements of the habitual offender act should be applied to this section of the controlled substance act. The Court held there was no express statutory requirement that the habitual offender act be applied to this provision and, further, the fact that the Legislature did not write the procedural requirements of the earlier habitual offender act into the controlled substance provision indicated no intent to provide such safeguards. Id., pp 234-235.

However, in 1979 this Court remanded a case for resentencing on the basis that the trial court improperly imposed a double sentence pursuant to MCL 335.348; MSA 18.1070(48). People v Wright, supra. The Court again cited Oyler v Boles, supra, in which the United States Supreme Court held that due process did not require notice prior to the trial that an habitual criminal proceeding would follow, but did require that the defendant have notice and a reasonable opportunity to be heard on the recidivist charge.

35 A panel of the Court of Appeals recognized and addressed this issue in People v Bailey, 103 Mich App 619; 302 NW2d 249 (1981). The Court noted that the defendant who claimed the trial court erred in sentencing him to a mandatory five-year minimum sentence pursuant to MCL 750.520f; MSA 28.788(6), despite the fact that no supplemental information was filed, was incorrect. Id., p 627. The Court held that there was no such procedural requirement under the act and declined to infer such a requirement.

36 The Court stated:

In People v Wright, 405 Mich 832 (1979), the Court examined the sentence enhancement provision of the Controlled Substances Act. MCL 335.348; MSA 18.1070(48). The defendant had been charged only with delivery of cocaine and conspiracy to deliver cocaine, but he was sentenced as a second offender to twice the term of imprisonment authorized. The Court said that doubling the sentence was improper and cited Oyler v Boles, 368 US 448; 82 S Ct 501; 7 L Ed 2d 446 (1962) in which the United States Supreme Court required, as a matter of due process, that a defendant receive reasonable notice and an opportunity to be heard on a recidivist charge. [Urynowicz, supra, p 143.]

37 Subsequent to that decision, a panel of the Court of Appeals found that Urynowicz overruled, sub silentio, the decision in People v McFadden, supra, that the habitual offender act did not have any application to the sentence-enhancement provision of the former controlled substance act. Stout, supra. The Court of Appeals vacated the defendant’s sentence which had been doubled because it was the defendant’s second conviction of a drug offense and stated:

In our view the quoted language from Urynowicz makes clear that a subsequent drug offender’s sentence may not be enhanced unless the prior drug offense is charged in either the information or a supplemental information and the prosecutor proves that the defendant is a recidivist drug offender. [Stout, supra, p 735.]

Likewise, this Court remanded a case for resentencing which posed the same issue as Wright, supra, and noted that a drug offender’s sentence could not be enhanced unless the prosecutor complied with the procedures under the habitual offender act:

Pursuant to GCR 1963, 853.2(4), in lieu of granting leave to appeal, the defendant’s sentences are vacated and the matter is remanded on March 21, 1983, to the Genesee Circuit Court for resentencing. The defendant’s sentence may not be enhanced pursuant to MCL 333.7413; MSA 14.15(7413) because he was not charged with being a subsequent offender. MCL 769.10, 769.13; MSA 28.1082, 28.1085; People v Urynowicz, 412 Mich 137 (1981); People v Stout, 116 Mich App 726, 734-735 (1982). [People v Lester, supra.]

38 The prosecutor does not contend the defendant waived the right to challenge the accuracy of the information contained in the report by failing to raise the issue at the sentencing hearing. See MCR 6.425(B).

39 Under the Criminal Rules of Procedure, MCR 6.425(B) provides that the court must permit the prosecutor, the defendant’s lawyer, and the defendant to review the presentence report at a reasonable time before the day of sentencing.

If the defendant challenges the information, under MCR 6.425(D)(3), the court must make a finding with respect to the challenge or determine that a finding is unnecessary because it will not take the challenged information into account when sentencing the defendant.

40 The sentencing hearing took place on Friday, January 31, 1986, and at this time the court inquired whether counsel had had an opportunity to go over all the presentence report and guidelines with the defendant. Counsel answered in the affirmative.