People v. Primer

506 N.W.2d 839, 444 Mich. 269

• Court: Michigan Supreme Court
• Decided: September 28, 1993
• Docket: Docket Nos. 91242, 93287, (Calendar Nos. 14-15)
• Status: Published

Opinions

Levin, J.

The question presented is whether a person convicted of a major controlled substance offense, who has no prior record of conviction of a drug offense, but has a prior record of conviction of another felony, may be punished as an habitual offender under the provisions of the Code of Criminal Procedure consistent with the 1978 amendment of those provisions stating that "[i]f the subsequent felony is a major controlled substance offense, the person shall be punished as provided” in the Public Health Code.¹

We hold that the legislative purpose was to assure that the mandatory sentences for the commission of a first or subsequent² major controlled substance offense would not be ameliorated as the result of the exercise of discretion regarding the length of sentence provided in the habitual offender provisions in the Code of Criminal Procedure, and not to preclude enhancement of a sentence under the habitual offender provisions that might be imposed on a person who has a record of prior felony conviction, albeit not for a major controlled substance offense.

We therefore affirm the decisions of the Court of Appeals, which affirmed the enhanced sentences imposed on James Earl Primer and Phillip Christopher Hegwood.

i

Primer sold less than one gram of cocaine to an undercover policewoman. He had a prior conviction record, which included larceny in a building, attempted larceny in a building, and malicious destruction of property over one hundred dollars. He did not, however, have a prior drug-related conviction.

Primer was charged with delivery of less than fifty grams of cocaine, and with being an habitual fourth offender. He tendered a plea of guilty of delivery of less than fifty grams and a conditional plea³ of being an habitual second offender.

A judge may impose a sentence for delivery of less than fifty grams of cocaine of not less than one year nor more than twenty years, or place the offender on probation for life.⁴ Primer was sentenced to serve seven to twenty-five years in prison. The Court of Appeals affirmed.⁵

Hegwood was charged with delivery of less than fifty grams of cocaine and as an habitual fourth offender. He tendered pleas of guilty of delivery of less than fifty grams of cocaine and to being an habitual second offender. The prosecutor agreed to recommend a sentence of no more than ten to thirty years on conviction as an habitual offender. Hegwood was sentenced to serve nine to thirty years. The Court of Appeals affirmed.⁶

Primer and Hegwood contend that they cannot be sentenced under the habitual offender provisions because of the specific statement added in 1978 that a person convicted of a major controlled substance offense "shall be punished” as provided in the Public Health Code.

ii

Section 13 of chapter 10 of the Code of Criminal Procedure provides that if a person is convicted as an habitual offender under § 10, 11, or 12, the court may sentence the offender to the punishment prescribed in § 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.⁷ In providing that a person convicted of a major controlled substance offense shall be punished as provided in the Public Health Code, the Legislature may have been concerned that a judge reluctant to impose a mandatory sentence provided in the Public Health Code might utilize the habitual offender provisions to eliminate the mandatory sentence on the basis that § 13 provides that the sentence imposed for the underlying offense — the mandatory sentence— shall be vacated and a new sentence imposed.

There is no mandatory minimum sentence, even for a fourth offender, under the habitual offender sentencing provisions. Accordingly, after sentencing a person under the habitual offender provisions to a term less than the mandatory sentence provided for in the Public Health Code, a judge— but for the proviso stating that where the conviction is for a major controlled substance, the person "shall be punished” as provided in the Public Health Code — could vacate the sentence imposed under the Public Health Code and substitute a term of years less than the mandatory sentence provided in the Public Health Code. The legislative purpose may thus have been to obviate such manipulation.

We do not read "shall be punished as provided” in the Public Health Code in this context as meaning that a greater sentence could not be imposed under the habitual offender provisions.⁸

The minimum sentences were well within the one- to twenty-year range provided for in the Public Health Code. Imposing maximum sentences greater than the twenty years provided in the Public Health Code did not violate the statutory edict requiring punishment as provided in the Public Health Code.

Affirmed.

Boyle, Riley, and Mallett, JJ., concurred with Levin, J.

1 Subsection, (c) of §§ 10, 11, and 12 of the Code of Criminal Procedure was amended by 1978 PA 77, MCL 769.10-769.12; MSA 28.1082-28.1084.

Subsection (c) of § 10 refers to §§ 335.301 to 335.367 of the Michigan Compiled Laws.

2 The Public Health Code provides for mandatory minimum sentences for certain first drug offenses; for delivery or possession with intent to deliver cocaine

• life imprisonment without possibility of parole where the amount is 650 grams or more;

• twenty to thirty years where the amount is 225 grams or more, but less than 650 grams;

• ten to twenty years where the amount is fifty grams or more, but less than 225 grams. MCL 333.7401; MSA 14.15(7401).

The Public Health Code also provides that a person convicted of certain drug offenses, e.g., delivery of fifty grams or more, who was previously convicted for violation of such serious offenses, "and is thereafter convicted of a second or subsequent violation . . . shall be imprisoned for life and shall not be eligible for probation, suspension of sentence, or parole during that mandatory term . . . .” MCL 333.7413; MSA 14.15(7413).

There are other provisions for mandatory sentences on a second or subsequent conviction. Id.

3 Primer reserved the right to raise the claim that he could not be proceeded against as an habitual second offender because the prior offense was not a drug offense.

4 1978 PA 368, amending § 7403 of the Public Health Code, MCL 333.7403; MSA 14.15(7403).

5 Unpublished opinion per curiam, decided March 6, 1991 (Docket No. 126402).

6 Unpublished opinion per curiam, decided November 26, 1991 (Docket No. 130239).

7 The statute provides in part:

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. Emphasis added.]

8 Primer and Hegwood rely on the following statement in People v Bewersdorf, 438 Mich 55, 71-72; 475 NW2d 231 (1991):

Our conclusion that the Legislature intended that the habitual offender act apply to ouil felonies, even though the underlying felony is itself an ouil offense, is supported by 1978 PA 77, which amended the habitual offender statute to exempt from its application certain major controlled substance offenses controlled by other provisions of law. See People v Elmore, 94 Mich App 304, 306, n 1; 288 NW2d 416 (1979), and People v Staples, 100 Mich App 19, 23; 299 NW2d 1 (1980).

The foregoing statement was not the primary basis of the Court’s opinion. The meaning of the language "shall be punished as provided” in the Public Health Code was not the issue there presented. The Court’s observation is not precedentially binding under the doctrine of stare decisis.