People v. Weatherholt , 214 Mich. App. 507 ( 1995 )

214 Mich. App. 507 (1995) 543 N.W.2d 34

PEOPLE
v.
WEATHERHOLT

Docket No. 161292.

Michigan Court of Appeals.

Submitted November 2, 1994, at Grand Rapids. Decided December 12, 1995, at 9:00 A.M.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Dennis M. LaBelle, Prosecuting Attorney, and Alan R. Schneider, Chief Assistant Prosecuting Attorney, for the people.

Brott, Kipley, Grunst & Settles, P.C. (by David M. Kipley), for the defendant.

Amicus Curiae:

Donald Martin, John D. O'Hair, and Timothy A. Baughman, for the Prosecuting Attorneys Association of Michigan.

Before: DOCTOROFF, C.J., and McDONALD, MARILYN KELLY, CORRIGAN, BANDSTRA, MARKMAN, and O'CONNELL, JJ.

MARILYN KELLY, J.

Pursuant to Administrative Order No. 1994-4, this panel was convened to resolve a conflict between the appellate opinion previously issued in this case^[1] and the opinion in People v Fish (On Remand), 207 Mich. App. 486; 525 NW2d 467 (1994). In both cases, the defendant faced sentence enhancement for multiple OUIL convictions. The issue is whether the defendant has a right to a jury for the purpose of determining if the prosecution can sustain its burden of proving defendant's prior OUIL convictions. We agree with the initial appellate holding in this case that a jury has no role in determining whether defendant has been convicted of prior drunk driving offenses.

Defendant was found guilty of operating a motor vehicle under the influence of intoxicating liquor (OUIL) and with an unlawful blood alcohol level in excess of 0.10 percent by weight of alcohol, pursuant to § 625(1) of the Motor Vehicle Code, MCL 257.625(1); MSA 9.2325(1). The information provided notice that defendant was being charged as a repeat offender. The prosecution informed defendant that it would seek an enhanced sentence upon conviction.

Following his conviction, defendant argued that the issue of whether he had earlier been convicted of OUIL should be submitted to the jury. The trial court disagreed, found defendant guilty of OUIL-third offense and imposed an enhanced sentence in accordance with MCL 257.625(6)(d); MSA 9.2325(6) (d).^[2]

On appeal, a panel of this Court concluded that the trial judge was correct in refusing to submit the issue to the jury. However, the panel was constrained under Administrative Order No. 1994-4 due to the earlier published decision in Fish. Fish held that, before the trial court imposes an enhanced sentence, the prosecutor must prove all elements of the offense, including the prior convictions, beyond a reasonable doubt.

On January 1, 1992, Michigan's rewritten drunk driving laws took effect. Subsections 11 and 12 of § 625, MCL 257.625(11) and (12); MSA 9.2325(11) and (12), established a procedure for the prosecutor to seek an enhanced sentence based upon one or more prior convictions. Subsections 11 and 12 provide:

(11) If the prosecuting attorney intends to seek an enhanced sentence under subsection (6)(b) or (d) or (10)(b) or (c) based upon the defendant having 1 or more prior convictions, the prosecuting attorney shall include on the complaint and information filed in district court, circuit court, recorder's court, municipal court, or probate court a statement listing the defendant's prior convictions.

(12) A prior conviction shall be established at sentencing by 1 or more of the following:

(a) An abstract of conviction.

(b) A copy of the defendant's driving record.

(c) An admission by the defendant.[^[3]]

We analogize this statute to that involving the second offender provisions of the Controlled Substances Act, MCL 333.7413; MSA 14.15(7413). The sentence enhancement sections of the Controlled Substances Act do not provide for a trial on the issue of prior convictions. People v Eason, 435 Mich. 228, 232; 458 NW2d 17 (1990). Unlike the Habitual Offender Act which contains requirements regarding fact-finding,^[4] the sentence enhancement sections of the Controlled Substances Act and the drunk driving laws do not contain such requirements. Therefore, in the words of Eason, "due process neither compels a separate charge nor imposes trial-type evidentiary burdens on the sentencing process." Id. at 244.

Moreover, subsections 11 and 12 clearly state that they are applicable where the prosecutor is seeking "an enhanced sentence." They also provide that a defendant's prior convictions "shall be established at sentencing." By adding subsections 11 and 12, the Legislature demonstrated that sentence enhancement is the intended thrust of the new statutory provisions. Therefore, we construe the sentence enhancement provisions of the drunk driving statute in a manner consistent with Eason.

Fish erroneously relied on the Supreme Court's decision in People v Bewersdorf,^[5] which held that the Legislature intended to allow sentence enhancement of OUIL felonies through application of the habitual offender statute. In Bewersdorf the majority stated:

While the habitual offender act, which is found in the Code of Criminal Procedure, establishes a procedure for enhancing a sentence, it is clear that the OUIL provisions of the Motor Vehicle Code establish crimes. Because OUIL-3 is a separate crime, the prosecutor must prove all elements of the offense, including the prior convictions. [Id. at 68.]

We agree with the initial panel in this case that the statement above was merely dicta. Furthermore, the Bewersdorf opinion discussed the drunk driving statute as it existed before its 1991 amendments, relying upon this Court's 1982 decision in People v Raisanen, 114 Mich. App. 840, 846; 319 NW2d 693 (1982). Subsections 11 and 12, added after Bewersdorf, are relevant to the issue of whether the statute simply creates a sentence enhancement scheme or whether it establishes a separate substantive crime. Given our finding that subsections 11 and 12 establish only a sentence enhancement scheme, defendant is not entitled to a jury trial on the issue of his prior convictions.

Affirmed.

NOTES

[1] The opinion, along with the order vacating it and convening this conflict-resolution panel, are found at 209 Mich. App. 801 (1995).

[2] Sentencing occurred after the amendment of § 625 by 1991 PA 98, but before the amendments made by 1993 PA 359, 1994 PA 211, 1994 PA 448, and 1994 PA 449. See now subsection 7 of § 625.

[3] Subsections 11 and 12 are now subsections 14 and 16. The substance of the subsections remains unchanged.

[4] We are referring to the Habitual Offender Act before its amendment by 1994 PA 110.

[5] 438 Mich. 55; 475 NW2d 231 (1991).