People v. Bewersdorf , 181 Mich. App. 430 ( 1989 )

Cavanagh, J.

Defendant pled guilty to operating a motor vehicle while under the influence of intoxicating liquor, third offense (ouil-3), MCL 257.625(6); MSA 9.2325(6), and to being an habitual offender, second offense, MCL 769.10; MSA 28.1082. Defendant was sentenced to one year in the county jail on the underlying ouil offense. The trial court then vacated that sentence and imposed an identical sentence of one year in the county jail on the habitual-offender conviction. Defendant appeals as of right. We affirm the ouil conviction but vacate the habitual-offender conviction and sentence.

Defendant first argues that he should not have been convicted under the enhancement provisions in both the ouil and the habitual-offender statutes. We agree for the reasons expressed in People v Tucker, 177 Mich App 174; 441 NW2d 59 (1989). We agree with Tucker that, as a matter of statutory construction, the enhancement provisions of the Michigan Vehicle Code, MCL 257.625(5), (6); MSA 9.2325(5), (6), conflict with the habitual-offender statute, MCL 769.10; MSA 28.1082. The Vehicle Code does not merely raise a misdemeanor to a felony, but similarly increases punishment. A "felony” is, by definition, a crime for which the maximum punishment exceeds one year. People v Blythe, 417 Mich 430, 437; 339 NW2d 399 (1983). Because a felony is distinguishable from a misdemeanor only by reason of the severity of punishment, we find the Legislature’s intent to increase punishment to be clear and unambiguous. Further support is found in § 902 of the Vehicle Code, MCL 257.902; MSA 9.2602:

Any person who is convicted of a violation of any of the provisions of this act declared to constitute a felony, unless a different penalty is expressly provided herein, shall be punished by imprisonment for not less than 1 year nor more than 5 years, or by a fine of not less than $500.00 nor more than $5,000.00, or by both such fine and imprisonment.

Thus, the "felony” designation substantially increases the punishment for ouil-3. The Vehicle Code was intended to remove intoxicated drivers from our highways by imposing prison terms, fines and license suspensions or revocations. Tucker, supra, p 182.

People v Eilola, 179 Mich App 315; 445 NW2d 490 (1989), cited in Judge Sawyer’s dissent in this case, is easily distinguished. Eilola involved the sentencing provisions of the retail-fraud statute. That statute, however, does not provide for gradations of punishment nor determinate sentences. Thus, there was no "sentencing scheme” to disturb. Id., p 322. Because only the severity of an offense is enhanced, the habitual-offender statute "dovetails harmoniously with the retail fraud statute.” Id. Here, however, the Vehicle Code offers no such "gradations” without increased punishment. The ouil enhancement scheme provides:

(5) A person who violates subsection (1) or (2) or a local ordinance substantially corresponding to subsection (1) or (2) within 7 years of a prior conviction may be sentenced to imprisonment for not more than 1 year, or a fine of not more than $1,000.00, or both. 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. For purposes of this section, "prior conviction” means a conviction under subsection (1) or (2), a local ordinance substantially corresponding to subsection (1) or (2), or a law of another state substantially corresponding to subsection (1) or (2).

(6) 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. [MCL 257.625(5), (6); MSA 9.2325(5), (6).]

For each subsequent offense, punishment is enhanced. Additionally, unlike the retail-fraud statute, the above sentencing scheme is requisite and is "disturbed” by further application of the habitual-offender statute. Thus, on closer examination, the conflict is apparent. We believe Tucker was correctly decided.

We conclude that the enhancement scheme provided in the Vehicle Code, evidencing a specific legislative intent and specific gradations of punishment, prevails to the exclusion of the general habitual-offender statute.

Defendant also argues he is entitled to withdraw his guilty plea because he was not advised of his right to have the witnesses against him appear at trial, in violation of MCR 6.101(F)(1)(c)(v). A review of the plea transcript indicates that the trial court asked defendant whether he understood that he had "the right to cross-examine the witnesses] against you,” to which defendant replied in the affirmative. This adequately advised defendant of his right to have the witnesses against him appear at trial. See Guilty Plea Cases, 395 Mich 96, 122-123; 235 NW2d 132 (1975).

Defendant’s ouil-3 conviction is affirmed. Defendant’s conviction as an habitual offender, second offense, is vacated. We need not address defendant’s remaining issues.

Affirmed in part, vacated in part, and remanded for reinstatement of defendant’s ouil-3 sentence.

Michael J. Kelly, P.J., concurred.