PEOPLE v. EASON

CAVANAGH, J. (concurring).

I agree with the majority that the Legislature did not intend defendant's status as a second offender under subsection (2) of § 7413 of the controlled substances act, MCL 333.7413(2); MSA 14.15(7413)(2), to be separately charged and proven. I also agree that neither the federal nor the state constitutional guarantees of due process require that defendant's prior conviction be treated as a new crime that must be separately charged and proven at a separate trial.

US Const, Am XIV; Const 1963, art 1, § 17.

However, I do not join the lead opinion's suggestion that no additional procedural protections are required under the Due Process Clause in a case, like this one, in which a factual finding at sentencing, unrelated to the proof establishing a defendant's underlying conviction, doubles the maximum sentence to which the defendant is exposed. As I interpret Specht v Patterson, 386 U.S. 605, 610; 87 S Ct 1209; 18 L Ed 2d 326 (1967), and McMillan v Pennsylvania, 477 U.S. 79; 106 S Ct 2411; 91 L Ed 2d 67 (1986), before an enhanced penalty under § 7413(2) may be imposed, a defendant is entitled to contest his alleged prior-offender status at an adversarial hearing where the prosecution carries the burden of proving the sentence-enhancing fact by at least a preponderance of the evidence, and where the defendant has the right to be represented by counsel, to present evidence, and to confront and cross-examine any witnesses against him. This hearing need not be conducted whenever a defendant is sentenced under § 7413(2), but may be conditioned upon the defendant's choice to contest the existence of his prior conviction. Still, the defendant's decision not to contest, but to admit a prior conviction and waive these safeguards must be preceded by adequate notice so that the decision is knowing and voluntary.

Nevertheless, even though the record permits an inference of inadequate notice and unintelligent waiver, this defendant simply has not raised such a claim. The defendant has never suggested that he or his counsel had inadequate time or information to prepare to contest his alleged prior conviction. Nor did he or his counsel request a continuance for that purpose either when the sentencing judge questioned defense counsel about the accuracy of the allegations in the presentence report, which included reference to defendant's prior drug conviction, or when the enhancement issue was subsequently raised by the judge. Defendant has never, even in this Court, claimed that he did not commit the prior offense or that the prior conviction is somehow invalid. He claims only that the absence of a separate charge and accompanying proof of his prior conviction requires his enhanced sentence to be vacated, and does not demand an opportunity to contest his prior conviction on remand. Absent either a claim by the defendant that his admission of his prior conviction was not knowing or voluntary, or a showing of prejudice, I conclude that there is no statutory or constitutional basis for vacating defendant's sentence and join the result reached by the majority.

See Oyler v Boles, 368 U.S. 448, 454; 82 S Ct 501; 7 L Ed 2d 446 (1962); State v Cooper, 744 S.W.2d 447, 449-450 (Mo App, 1987).

ARCHER, J., concurred with CAVANAGH, J.

LEVIN, J. ( to affirm).

Eason was charged with possession with intent to deliver less than 50 grams of a mixture containing cocaine.^fn1 The prosecutor did not charge Eason as a repeat offender in the information charging the current offense, nor did the prosecutor file a supplemental information within fourteen days after Eason's arraignment. Eason was convicted as charged. On the basis of a prior drug-related conviction, Eason was sentenced to imprisonment for twenty to forty years.^fn2

The Court of Appeals affirmed Eason's conviction but concluded that the procedures applicable under the habitual offender provisions of the Code of Criminal Procedure also apply where the prosecutor seeks sentence enhancement under the controlled substances article. Since the prosecutor had not filed a supplemental information charging Eason as a repeat offender within fourteen days after Eason's arraignment, as required in habitual offender proceedings, the Court vacated Eason's sentence.

MCL 769.10- 769.13; MSA 28.1082-28.1085.
When the prosecutor seeks sentence enhancement under the habitual offender provisions, the general rule is that he must file a supplemental information charging the defendant as an habitual offender within fourteen days of the arraignment or before trial if the defendant is tried within that fourteen-day period. People v Shelton, 412 Mich. 565, 566; 315 N.W.2d 537 (1982) (per curiam). If the prosecutor does not learn of the defendant's prior felony conviction until after the defendant's conviction of the most recent offense, the prosecutor may institute postconviction proceedings to sentence the defendant as an habitual offender. See MCL 769.13; MSA 28.1085. See also People v Hatt, 384 Mich. 302, 309; 181 N.W.2d 912 (1970), and Shelton, p 569. The only exception to the fourteen-day rule is where the delay in filing the supplemental information is caused by the need to verify an out-of-state conviction based on a rap sheet. See People v Hendrick, 398 Mich. 410; 247 N.W.2d 840 (1976).
See also MCR 6.112(C).

The Court of Appeals also concluded that the prosecutor's failure to timely file a supplemental information was not caused by the need to verify an out-of-state conviction or by a failure to learn of Eason's prior conviction until after the trial on the charged offense.

People v Eason, unpublished opinion per curiam of the Court of Appeals, decided January 22, 1988, pp 5-6 (Docket No. 91429).

The majority holds that the procedures applicable to sentence enhancement under the habitual offender provisions of the Code of Criminal Procedure do not apply to sentence enhancement under the controlled substances article. The majority goes on to hold that the "procedures" in the instant case were not violative of the Due Process Clause.

I agree with the majority that the Due Process Clause of the Fourteenth Amendment does not require the prosecutor to notify a defendant before trial on the current offense that, if he is convicted of that offense, he is subject to sentence enhancement on the basis of a prior conviction of a similar offense.

I would hold that the procedures applicable under the habitual offender provisions of the Code of Criminal Procedure apply to sentence enhancement under the controlled substances article. I would affirm the decision of the Court of Appeals because that Court correctly applied this Court's decisions concerning the requisite procedures.

I

Under both the controlled substances article of the Public Health Code and its predecessor, the Controlled Substances Act, this Court has required the prosecutor to charge the defendant as a second or subsequent offender when seeking sentence enhancement.

There is one reported decision involving the sentence enhancement provision for a second or subsequent conviction of unlawful possession or control of a narcotic drug under the Narcotic Drugs Act, 1952 PA 266, 1970 CL 335.153. That statute also did not expressly require the prosecutor to charge the defendant as a repeat offender when seeking an enhanced sentence. In People v Griffin, 39 Mich. App. 464, 466; 198 N.W.2d 21 (1972), the information charged the defendant as a third offender.

A

The only decision of this Court concerning the procedures to be followed when the prosecutor sought sentence enhancement under the Controlled Substances Act is People v Wright, 405 Mich. 832; 275 N.W.2d 1 (1979). There, the defendant was charged with delivery of cocaine and conspiracy to deliver cocaine. The prosecutor did not charge Wright as a second offender. Wright was convicted as charged.

1971 PA 196, MCL 335.341(1)(b); MSA 18.1070(41)(1)(b). The maximum sentence was imprisonment for seven years and a fine of $5,000.

MCL 750.157a(a); MSA 28.354(1)(a). The maximum sentence for conspiracy is the maximum sentence for the underlying offense plus an additional fine of not more than $10,000 at the discretion of the trial court.

At his arraignment, however, Wright was told that the maximum penalty for the charged offenses was imprisonment for seven years and a fine of $5,000, plus an additional fine of not more than $10,000 at the discretion of the trial court. These are the maximum sentences for a first offense.

Wright argued on appeal that he had been denied reasonable notice and an opportunity to be heard as guaranteed by the Due Process Clause of the Fourteenth Amendment. The basis for Wright's claim was that at his arraignment he had been misled regarding the maximum possible sentences, and that at the sentencing hearing he was not given an adequate opportunity to explain his prior drug-related conviction. Wright's due process claim was not based on the prosecutor's failure to inform him before trial of the most recent offenses of the possibility of sentence enhancement.

The Court of Appeals had affirmed Wright's sentence on the basis of People v McFadden, 73 Mich. App. 232; 251 N.W.2d 297 (1977). There, the Court of Appeals held that a procedure set forth in the habitual offender provisions of the Code of Criminal Procedure, MCL 769.13; MSA 28.1085, did not apply to sentence enhancement under the Controlled Substances Act. But see People v Stout, 116 Mich. App. 726; 323 N.W.2d 532 (1982).

See n 9.

This Court issued a peremptory order vacating Wright's sentences, and remanded the case for resentencing:

The sentencing court improperly imposed double sentence pursuant to MCL 335.348; MSA 18.1070(48). Oyler v Boles, 368 U.S. 448; 82 S Ct 501; 7 L Ed 2d 446 (1962). See MCL 769.10; MSA 28.1082, as amended by 1978 PA 77.

In Oyler v Boles, cited by this Court in Wright, the United States Supreme Court said that "a defendant must receive reasonable notice and an opportunity to be heard relative to [a] recidivist charge," but that "due process does not require that notice be given prior to the trial on the substantive offense."

Oyler, supra, p 452 (emphasis added).
At the sentencing hearing in Wright, the trial court elicited an acknowledgment from Wright that he had previously pled guilty to a drug-related offense. The court then informed Wright, apparently for the first time, that he would be sentenced pursuant to the repeat offender provision of the Controlled Substances Act:

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. [1971 PA 196, MCL 335.348(1); MSA 18.1070(48)(1).]

Oyler was notified before the sentencing hearing that the prosecutor was filing a supplemental information charging him as an habitual offender. Wright received no notification before the sentencing hearing was under way. Wright did not, however, as noted above, predicate his due process claim on the prosecutor's failure to provide earlier notice.

The majority suggests that the reference to Oyler in Wright is evidence that this Court decided Wright on the basis of a mistaken belief that the Due Process Clause required notice of the possibility of sentence enhancement before trial of the current offense, and that Wright was therefore wrongly decided.

See ante, p 249, n 34.
The majority also suggests that the reference to Wright in People v Urynowicz, 412 Mich. 137, 143; 312 N.W.2d 625 (1981) (per curiam), is further evidence of this Court's misunderstanding of the United States Supreme Court's decisions under the Due Process Clause. See ante, p 250. That assertion is discussed in the text accompanying ns 64-69.

The suggestion that this Court in Wright misunderstood the United States Supreme Court's ruling in Oyler is unsupported by the language of the order in Wright and (see n 11 and the accompanying text) by the contentions of the parties. There is evidence that the Court understood the applicable law.

The Court's order refers generally to improper sentencing. It does not mention the failure to give pretrial notice of the possibility of sentence enhancement as the basis for the conclusion that the sentence was improper. The notice in Wright may well, however, have been inadequate under Oyler. See n 12.

B

The Controlled Substances Act was repealed in 1978 and the Public Health Code was simultaneously enacted. The controlled substances article of the Public Health Code does not specify procedures to be followed when the prosecutor seeks sentence enhancement.

1978 PA 368, art 7, MCL 333.7101 et seq.; MSA 14.15(7101) et seq.

The procedural requirements for sentence enhancement under the new law were first addressed in People v Stout, 116 Mich. App. 726; 323 N.W.2d 532 (1982). Stout was charged with possession of less than 50 grams of cocaine, and possession of marihuana. The prosecutor filed a supplemental information charging Stout under the habitual offender provisions of the Code of Criminal Procedure. Stout was convicted as charged. The trial court dismissed the supplemental information, and sentenced Stout for the cocaine conviction pursuant to the repeat offender provision of the controlled substances article.

1978 PA 368, MCL 333.7403(2)(a)(iv); MSA 14.15(7403)(2)(a)(iv).

1978 PA 368, MCL 333.7403(2)(d); MSA 14.15(7403)(2)(d).

1978 PA 77, MCL 769.10 et seq.; MSA 28.1082 et seq.
Two of the prior convictions on which the supplemental information was based were drug offenses.

[A]n 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. [1978 PA 368, MCL 333.7413(2); MSA 14.15(7413)(2).]

Stout argued on appeal that his sentence should be vacated because he was not given notice of the repeat offender charge and because there was no hearing or trial concerning his prior drug-related convictions. The Court of Appeals agreed. Relying primarily on this Court's opinion in People v Urynowicz, 412 Mich. 137; 312 N.W.2d 625 (1981) (per curiam), the Court of Appeals said:

In our view . . . 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. Emphasis in original.]

In Urynowicz, the Court held that an enhanced sentence for a second or subsequent conviction of criminal sexual conduct could not be imposed unless the defendant was charged as a repeat offender. That case is discussed more fully in the text accompanying ns 57-69.

Since the trial court dismissed the supplemental information charging Stout under the habitual offender provisions of the Code of Criminal Procedure, and the prosecutor had not proved Stout's prior drug-related convictions, the Court of Appeals held that sentence enhancement was improper.

The majority cites People v McFadden, n 10 supra, see ante, p 249, n 34. There, the Court of Appeals said that the procedures set forth in the habitual offender provisions of the Code of Criminal Procedure did not apply to sentence enhancement under the former Controlled Substances Act. The Court of Appeals in Stout concluded that McFadden was overruled by this Court's decision in Urynowicz. See Stout, supra, p 734.

This Court has twice vacated sentences enhanced under the controlled substances article because the defendant was not charged as a second or subsequent offender. People v Lester, 417 Mich. 927; 330 N.W.2d 854 (1983); People v Cobb, 422 Mich. 901; 367 N.W.2d 335 (1985). In these cases, unlike Wright, supra, the Court's orders mention the prosecutor's failure to charge the defendant as a repeat offender as the basis for holding that sentence enhancement was improper.

The Court's orders in Lester and Cobb did not cite the United States Supreme Court's decision in Oyler, but relied instead on decisions of this Court and the Court of Appeals. In Lester, the Court cited Urynowicz and Stout. In Cobb, the Court cited only Urynowicz.

II

The Court's decisions applying the sentence enhancement provisions for repeat drug offenders are in a long line of decisions of this Court in which the prosecutor has always been required — absent unusual circumstances not present in the instant case — to notify the defendant before trial of the current offense that, if he is convicted, he will be subject to sentence enhancement on the basis of a prior conviction. The Court has imposed this requirement without regard to whether a particular statute that authorizes sentence enhancement specifies the procedures to be followed when the prosecutor seeks an enhanced sentence.

See n 3.

A

The Michigan liquor law authorized sentence enhancement for a second or subsequent conviction without specifying the procedures to be followed when the prosecutor sought sentence enhancement.

1

In People v Ancksornby, 231 Mich. 271; 203 N.W. 864 (1925), the defendant was charged with unlawful possession of intoxicating liquor and with selling and furnishing as a first offender. Ancksornby pled guilty to the information and, on the basis of an alleged post-plea acknowledgment of a prior conviction under the liquor law, the trial court imposed an enhanced sentence.

When Ancksornby was decided, the sentencing provision of the liquor law read:

Any person, who . . . shall violate any of the provisions of this act . . . shall be deemed guilty of a felony, and upon conviction therof be sentenced to pay a fine of not more than one thousand dollars and the costs of prosecution, or to imprisonment in the State Prison, Michigan Reformatory, or the Detroit House of Correction for a period of not less than six months nor more than one year, or by imprisonment in the county jail for not less than thirty days, nor more than one year, or by both fine and imprisonment in the discretion of the court, and for every second and subsequent offense, so committed, . . . he shall, upon conviction thereof, be sentenced to imprisonment in any penal institution of this State for a term of not less than six months nor more than two years, and in addition thereto the court may impose a fine not to exceed one thousand dollars. [1919 PA (Ex Sess) 3.]

Ancksornby appealed on the ground that an enhanced sentence could not be imposed because the prosecutor had not charged him as a second offender. The prosecutor confessed error. This Court held that Ancksornby's sentence was excessive and illegal:

The brief of plaintiff-appellee stated:

Where the punishment provided by statute for a second offense is greater than that for a first offense, the authorities are unanimous that the information or indictment should specifically aver that the crime charged is a second offense.

* * *

The charge was of a first offense. The sentence was greater than that allowed by law for a first offense. We concede, therefore, that the case should be reversed, and the cause remanded to the Superior Court for a proper sentence. . . . [Emphasis added.]

The trial judge was in error. He sentenced the defendant for an offense of which he had not been convicted. The statute provides an increased punishment for a second or subsequent offense, but it must be charged as such in the information. That was not done in this case. [ Id., p 272.]

In People v McDonald, 233 Mich. 98; 206 N.W. 516 (1925), the defendant was charged in the complaint and the information with unlawful possession of intoxicating liquor as a second offense. McDonald was tried, convicted and sentenced accordingly. At the preliminary examination, however, the prosecutor did not offer evidence concerning McDonald's prior conviction.

The Court said that "[t]he information must contain an averment of former conviction . . . to justify a conviction and sentence therefor." Although the former conviction was alleged in the information, "[a]s there was no proof of a former conviction submitted on the examination had, the averment thereof should have been stricken from the information and the objection of the defendant to the introduction [at the trial] of proof thereunder sustained." McDonald was followed in People v Van Vorce, 240 Mich. 75, 78; 215 N.W. 5 (1927).

Id., pp 100-101. In support of its holding, the Court cited, inter alia, three Michigan decisions: People v Buck, 109 Mich. 687; 67 N.W. 982 (1896), People v Butler, 122 Mich. 35; 80 N.W. 883 (1899), and People v Campbell, 173 Mich. 381; 139 N.W. 24 (1912).

Id., pp 106-107.

2

Referring to Ancksornby, McDonald, and Van Vorce, the majority says that the "better construction" of those decisions 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." The majority also appears to suggest that a first offense was a misdemeanor, while a second or subsequent offense was a felony, and that the distinction is somehow significant.

Ante, p 247, n 31.

See ante, p 247, n 31 ("we find it highly doubtful that the Legislature . . . 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").

The majority's attempt to distinguish Ancksornby, McDonald, and Van Vorce is unpersuasive. The assertion that the prosecutor was required to file a separate information to provide the defendant with an opportunity for a preliminary examination ignores that when the Court decided those cases, a defendant who was accused of violating the liquor law was entitled to a preliminary examination and was subject to circuit court jurisdiction without regard to whether he was charged as a first or repeat offender.

A preliminary examination was then required whenever the complaint and warrant alleged the commission of an offense "not cognizable by a justice of the peace." 1846 Rev Stat tit XXXI, ch 163, § 13, 1915 CL 15677. (A preliminary examination is now required whenever the complaint and warrant allege the commission of a "felony." See 1974 PA 63, MCL 766.4; MSA 28.922.) A justice of the peace had jurisdiction over certain statutorily enumerated offenses not here relevant and over "all other offenses punishable by fine not exceeding one hundred dollars, or punishable by imprisonment in the county jail not exceeding three months. . . ." 1899 PA 189, 1915 CL 15769. When the Court decided Ancksornby, McDonald, and Van Vorce, a first offense under the liquor law was punishable by a fine of one thousand dollars or imprisonment in a state or county facility for one year. See 1919 PA (Ex Sess) 3 (quoted in n 24).

The majority is again incorrect when it asserts that in the liquor law cases a first offense was a misdemeanor while a second or subsequent offense was a felony. When the liquor law was initially enacted, a first offense was indeed a misdemeanor. By the time the Court decided Ancksornby, McDonald, and Van Vorce, however, the Legislature had amended the liquor law to make a first offense a felony. In any event, the misdemeanor/felony distinction — now determinative of whether a preliminary examination is required and the jurisdictions of the district and circuit courts — was not determinative when the Court decided those cases.

See 1917 PA 338, § 51.

1919 PA 53, amending 1917 PA 338. The penalty provision was further amended by 1919 PA (Ex Sess) 3 (quoted in n 24).

See MCL 766.4; MSA 28.922.

See MCL 600.8311(a); MSA 27A.8311(a).

Although a "misdemeanor" when the liquor law was initially enacted, a first offense was not cognizable by a justice of the peace — and the defendant was entitled to a preliminary examination — because the maximum penalty for a first offense was a fine of two hundred dollars or imprisonment in the county jail for six months. 1917 PA 338, § 51. See n 31 and the accompanying text.

B

Another statutory scheme that authorizes sentence enhancement for a second or subsequent conviction without specifying the procedures to be followed when the prosecutor seeks sentence enhancement concerns driving under the influence of alcohol.

1

The Attorney General issued an opinion in 1940 concerning the proper practice when prosecuting a person who had previously been convicted of driving under the influence of alcohol. The Attorney General said:

At the time, the applicable sentencing provision read:

Every person who is convicted of a violation of section 3 of this act relating to . . . driving or permitting driving while under the influence of intoxicating liquor . . . shall be punished by imprisonment in the county jail or Detroit house of correction for not more than 90 days or by a fine of not less than $50.00 nor more than $100.00 or both such fine and imprisonment in the discretion of the court, together with costs of the prosecution. On a second or subsequent conviction he shall be guilty of a misdemeanor and punished by imprisonment for not more than 1 year, and, in the discretion of the court, a fine of not more than $1,000.00. [1939 PA 318.]

We feel that the proper procedure to be followed in cases of this nature is to charge the offender with a second or subsequent offense in the original complaint, have a preliminary examination before the proper magistrate, and in the event that the magistrate finds probable cause, have the accused bound over to the circuit court to stand trial. The information would charge a second or subsequent offense so as to apprize the accused and the court of the fact that such a second offense is charged. [OAG, 1939-1940, p 427 (February 29, 1940). Emphasis added.]

In People v Bosca, 25 Mich. App. 455; 181 N.W.2d 678 (1970), the information charged the defendant as a second offender under the drunk driving law. Bosca moved to quash the information on the basis that it was defective because it alleged both the current and the prior offense. The trial court denied Bosca's motion. The Court of Appeals affirmed, holding that "before a defendant's punishment for the current offense can be enlarged, the earlier conviction must be charged and proved." The Court of Appeals has followed Bosca, and this Court has expressly approved its holding and rationale.

With respect to first and second offenses, the language of the sentencing provision, 1958 PA 113, MCL 257.625; MSA 9.2325, was substantially identical to the language of the statutory predecessor, 1939 PA 318 (quoted in n 36).

Id., p 458.
The Court of Appeals also held that the prosecutor would not be allowed to introduce evidence of Bosca's prior conviction unless the jury first returned a guilty verdict on the charged offense.

See, for example, People v Leonowicz, 134 Mich. App. 152, 155; 350 N.W.2d 770 (1984), and People v Hutchinson, 35 Mich. App. 128, 131; 192 N.W.2d 395 (1971).

See People v Urynowicz, supra, pp 143-144 ("[The Court of Appeals] captured the essence of this Court's earlier decisions when [it stated] in Bosca that `before a defendant's punishment for the current offense can be enlarged, the earlier conviction must be charged and proved'").

2

The majority cites People v Mellor, 302 Mich. 537; 5 N.W.2d 455 (1942), a case involving a second conviction of drunk driving, in support of its argument that a prosecutor is not required to charge a prior conviction because an earlier conviction is merely a factor for the judge to consider in sentencing and not an element of a new charge. The defendant in Mellor was charged, convicted, and sentenced as a second offender. On appeal, Mellor argued that the prior conviction and the current offense should have been set forth in separate counts of the information.

Ante, pp 246-247.

The information read in pertinent part:

[H]e, the said Henry Mellor, having been heretofore, to-wit, on the 21st day of January, A.D. 1935, convicted in the Recorder's Court of the City of Detroit, Traffic and Ordinance Division, of the offense of operating a motor vehicle while under the influence of intoxicating liquor, and the offense heretofore set forth constitutes a second or subsequent offense; and the said Henry Mellor is so herein charged as a second or subsequent offender.

The transcript of the sentencing hearing read in pertinent part:

The Court: This is a case though of second offense. Sometimes the court feels that if the first offense is not too serious it entitles him to some consideration, but hardly on the second offense. One hundred dollars costs and ninety days and license revoked for one year.

See People v Mellor, Brief for Henry Mellor, Appellant, pp 15-16.

The Court rejected Mellor's contention and said that it was not error to allege both the current offense and the prior conviction in the same count. The Court did not say that there was no need to charge a defendant as a second offender — Mellor had been so charged.

Nor do we think the information is faulty because it does not contain two counts. The prior offense is not an element of the instant offense. It merely applies to punishment after conviction. [ Mellor, supra, p 540.]

To the extent the majority suggests that Mellor supports its holding that the prosecutor is not required to charge the defendant as a repeat offender ( ante, pp 246-247), it is clearly mistaken. See Bosca, supra, pp 457-458, where the Court of Appeals explained:

The [ Mellor] court's statements . . . that the "former conviction was merely an additional fact or circumstance to be considered in imposing a severer penalty for the second conviction" and that "the prior offense is not an element of the instant offense," cannot properly be read as negating the need both to charge and prove . . . the earlier conviction before the punishment for the currently charged offense can be enhanced. The currently charged offense can in truth be charged and proved without reference to the earlier conviction. In that sense the earlier conviction is not, as said in Mellor, an element of the "instant [or current] offense." But, nevertheless, before a defendant's punishment for the current offense can be enlarged, the earlier conviction must be charged and proved.

This Court approved the Bosca Court's analysis in People v Urynowicz, supra, pp 143-144 (quoted in text accompanying n 63).

3

The majority appears to attempt to distinguish drunk driving from the case at hand on the basis that a prior conviction is an "element" of a repeat drunk driving offense because a first offense is a misdemeanor whereas a subsequent offense may be a felony.

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. [ Ante, p 247, n 31.]

When the Court decided Mellor and the Attorney General issued his opinion, a second or subsequent conviction of drunk driving was a misdemeanor. When the Court of Appeals decided Bosca, a second conviction was a misdemeanor and a third or subsequent conviction within a ten-year period was, indeed, a felony. Thus, when the defendant in Bosca was charged as a second offender, he was charged with committing a misdemeanor, not a felony. The premise of the majority's analysis — that a subsequent offense is a felony and the prior offense was a misdemeanor — is thus factually incorrect. In all events, the prior conviction is no more an "element" when it constitutes a misdemeanor than when it constitutes a felony.

See 1939 PA 318 (quoted in n 36).

See 1958 PA 113, MCL 257.625; MSA 9.2325.

See Bosca, supra, p 456.

Even if the subsequent offense had been a felony, the majority's assertion that a prior conviction is an "element" of the current offense does not distinguish drunk driving. In drunk driving and in the instant case, proof of the prior conviction is not necessary for conviction of the current offense; the prior conviction is relevant only with respect to the sentence for the most recent offense. To the extent the prior conviction is an "element" of the current offense, the prior conviction is no more an "element" when it constitutes a misdemeanor than when it constitutes a felony.

The majority also says that the "better construction" of the drunk driving laws 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." I acknowledge that the difference in the maximum sentence between a first and subsequent conviction of drunk driving is determinative of a defendant's entitlement to a preliminary examination and of the jurisdictions of the justice of the peace and circuit court.

Ante, p 247, n 31.

The jurisdictional significance of the availability of an enhanced sentence was indeed one basis for the Attorney General's opinion in 1940. It was not, however, the only basis for the Attorney General's opinion. Nor was it a basis of the Court of Appeals decision in Bosca.

See n 37.

The Attorney General also recognized the importance of notifying the defendant that he was being charged as a repeat offender. See n 37.

See Bosca, supra, p 458, n 3, where the Court of Appeals explained:

Without such notice a defendant would not know whether the punishment which he faces upon a conviction is that which may be meted out to first offenders (90 days and $100) or second offenders (1 year and $1,000). A defendant needs this information, not only to decide whether it is in his interest to plead guilty but also in deciding whether to engage an attorney and the vigor of the defense which he may wish to put forth.

C

Still another statutory scheme that authorizes sentence enhancement for a second or subsequent conviction without specifying the procedures to be followed when the prosecutor seeks sentence enhancement is found in the provisions of the Penal Code concerning criminal sexual conduct.

1

This Court construed those provisions in People v Urynowicz, 412 Mich. 137; 312 N.W.2d 625 (1981) (per curiam). The information charged Urynowicz with first-degree criminal sexual conduct. He pled guilty in exchange for the dismissal of a supplemental information that had been filed under the habitual offender provisions of the Code of Criminal Procedure. The basis of the habitual offender charge was a prior conviction of gross indecency. That conviction also would have justified the imposition of a mandatory five-year minimum sentence under the criminal sexual conduct provisions of the Penal Code, but Urynowicz was not charged under the provision.

1974 PA 266, MCL 750.520b(1)(a); MSA 28.788(2)(1)(a). First-degree criminal sexual conduct was a "felony punishable by imprisonment in the state prison for life or for any term of years." MCL 750.520b(2); MSA 28.788(2)(2).

1978 PA 77, MCL 769.10(1)(b); MSA 28.1082(1)(b).

Under MCL 750.520f(1); MSA 28.788(6)(1), where the defendant has a previous conviction of a sexual offense, the sentence for the second or subsequent offense "shall provide for a mandatory minimum sentence of at least 5 years." See also MCL 750.520f(2); MSA 28.788(6)(2) (gross indecency is included within the category of prior sexual offenses requiring a five-year minimum sentence).

When taking Urynowicz' plea, the trial court told him that the maximum punishment for first-degree criminal sexual conduct was life imprisonment, but did not inform him of the mandatory five-year minimum sentence for a second conviction of criminal sexual conduct. Urynowicz was sentenced to life imprisonment.

The Court of Appeals reversed Urynowicz' conviction on the basis of the trial court's failure to inform Urynowicz of the mandatory minimum sentence. The prosecutor argued that the provision requiring a five-year minimum sentence was not operative in Urynowicz' sentencing because he had not been charged under that provision. This Court agreed with the prosecutor's analysis. The Court first observed that "[w]e have said in the past that second-offender provisions with mandatory sentence enhancement require that the information must charge the earlier conviction before a defendant may be liable for the additional punishment." After reviewing the decisions of this Court and the Court of Appeals, the Urynowicz Court concluded:

Before accepting Urynowicz' guilty plea, the trial court was required to inform Urynowicz of "the mandatory minimum prison sentence, if any, for the offense." GCR 1963, 785.7(1)(d).

Although the trial court was not obligated to impose a five-year sentence, it could nonetheless impose such a sentence because a first conviction of first-degree criminal sexual conduct was punishable by life imprisonment. See n 57.

Id., pp 140-141.

We believe that [the Court of Appeals] captured the essence of this Court's earlier decisions when [it said] in Bosca that "before a defendant's punishment for the current offense can be enlarged, the earlier conviction must be charged and proved." This defendant was not charged under § 520f. Consequently, there was no mandatory minimum of which advice . . . was required. [ Id., pp 143-144 (quoting Bosca, supra, p 458).]

2

The majority would jettison Urynowicz on the basis that "the Court erred in Urynowicz in concluding due process requires a separate proceeding and proof before enhancing the sentence of a second offender." The alleged flaw in Urynowicz is the Court's reference to Wright. The majority says that the reference to Wright "implied that due process required a separate proceeding whenever a defendant's sentence is increased on the basis of prior offenses."

Ante, p 250.

In Urynowicz, supra, p 143, the Court said:

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 U.S. 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.

Ante, p 250.

The majority's contention that Urynowicz was wrongly decided is predicated on two assumptions: 1) this Court decided Wright on the basis of an incorrect reading of the United States Supreme Court's decision in Oyler; and 2) this Court compounded its error by mentioning Wright in Urynowicz. As previously discussed, however, Wright was not decided on the basis of a mistaken belief that the Due Process Clause of the Fourteenth Amendment always requires notice of the possibility of sentence enhancement before trial on the most recent offense. Further, the decision in Urynowicz contains an accurate description of the United States Supreme Court's holding in Oyler, and of this Court's order in Wright.

See § (I)(A).

Compare Urynowicz, supra, p 143 ("The [ Wright] Court . . . cited Oyler v Boles 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") (citation omitted), with Oyler, supra, p 452 ("a defendant must receive reasonable notice and an opportunity to be heard relative to the recidivist charge even if due process does not require that notice be given prior to the trial on the substantive offense").

Even if the reference to Wright in Urynowicz did evidence a mistaken belief that the Due Process Clause of the Fourteenth Amendment was implicated on the facts of Urynowicz — which it did not — that "error" would not be an adequate basis on which to overrule Urynowicz. It is incorrect to suggest that the Due Process Clause was the basis of decision in Urynowicz. The Court discussed six different decisions. While Wright was based on the United States Constitution, the other five decisions relied on the statutory and common law of this state.

People v McDonald (see ns 26-27 and the accompanying text), People v Butler (see n 26), People v Mellor (see ns 42-47 and the accompanying text), People v Miller, 357 Mich. 400; 98 N.W.2d 524 (1959), People v Bosca (see ns 38-41 and the accompanying text), and People v Wright (see ns 7-14 and the accompanying text).

III

In requiring the prosecutor to charge the defendant as a second or subsequent offender when seeking an enhanced sentence, this Court has followed the rule advocated by most legal authorities and adopted in most jurisdictions.

A

The principle that an accused, subject to a heavier penalty because of his recidivism, must be charged as a recidivist resounds in legal treatises and encyclopedias:

[T]he indictment must set out every element of crime which enters into the punishment, since otherwise it does not set out fully the offense. . . . [Bishop, Statutory Crimes, § 167, p 184.]

[U]nder ordinary forms of the statutory provision, if the offence is the second or third, and by reason thereof the punishment is to be made heavier, this fact must appear in the indictment; because by the rules of criminal pleading, every particular which makes heavier the punishment to be inflicted must be set out. [Bishop, Criminal Law (9th ed), § 961, pp 710-711.]

The indictment must allege every fact and modification of fact legally essential to the punishment to be inflicted. [I Bishop, New Criminal Procedure (2d ed), § 81.]

The result is that in every case, with no exception, the common law requires each individual thing which itself or a statute has made in that wrongful aggregation out of which the punishment proceeds, to be alleged in the indictment. [ Id., § 84.]

In most jurisdictions, by statute, a person who has been convicted of certain offenses, like larceny or the unlawful sale of intoxicating liquors or drunkenness, for instance, is rendered liable to an increased punishment for a second or third offense. The previous conviction enters into the second or third offense to the extent of aggravating it, and increasing the punishment; and, where it is sought to impose the greater penalty for a second or third offense, the previous conviction or convictions, like every other material fact, must be distinctly alleged in the indictment. [Clark, Criminal Procedure, § 84, p 204.]

There are many cases in which a second conviction changes the grade of the offense or authorizes the infliction of an increased punishment, and where this is the case the former conviction enters as an element into the new offense and should be alleged as a necessary part of the description and character of the crime intended to be punished directly and not by recital. [Joyce, Indictments (2d ed), § 449, p 516.]

So a sentence to an increased penalty, imposed by statute upon a second conviction, cannot be rendered, except upon an allegation in the indictment, and upon proof, of a prior conviction. [Joyce, supra, p 518.]

Where a second conviction changes the grade of an offense, or authorizes a higher penalty than could otherwise be imposed, the former conviction enters as an element into the new offense, and must be alleged and proved as a necessary part of the description and character of the crime intended to be punished. [8 Ruling Case Law, § 293, p 276.]

A person accused of crime as a recidivist is entitled to be informed by indictment or information that he is being charged as such. [39 Am Jur 2d, Habitual Criminals and Subsequent Offenders, § 20, p 324.]

In some jurisdictions statutes have been enacted which, without setting up more than one offense or more than one degree of the same offense, permit the infliction of a heavier sentence when it is shown that the accused committed the crime in question under circumstances showing aggravation. The decisions construing these statutes have generally taken the position that in order to justify the imposition of the higher sentence, it is necessary that the matter of aggravation relied upon as calling for such sentence be charged in the indictment or complaint. [4 Anderson, Wharton's Criminal Law Procedure, § 1788, p 610.]

An indictment under which it is sought to impose a higher penalty by reason of a previous conviction must allege the fact of such conviction. [1 McClain, Criminal Law, § 28, p 28.]

See Evans v State, 150 Ind. 651, 653-654; 50 N.E. 820 (1898):

The doctrine that when a statute imposes a greater punishment upon second and subsequent convictions of an offense, that the former conviction must be alleged in the indictment and proved at the trial, or the same can only be punished as a first offense, is sustained by the great weight of the authorities.

B

In numerous cases decided in a host of other states, courts have held that repeat offenders, subject to heavier penalties because of their recidivism, must be charged as second or subsequent offenders although the statutes, analogous to the one before this Court, do not specify that an accused must be charged as a recidivist.

In State v Edinger, 331 N.W.2d 553, 554 (ND, 1983), the Supreme Court of North Dakota observed:

The weight of authority supports the view that, with no statutes to the contrary, in order to subject the defendant to an enhanced punishment for a second or subsequent offense, it is necessary to allege the prior conviction in the complaint or information.

Accord State v Ruble, 77 N.D. 79, 80; 40 N.W.2d 794 (1950), State v Cameron, 126 Vt. 244, 246-247; 227 A.2d 276 (1967), In re Harris, 80 Cal.App.2d 173, 176-177; 181 P.2d 433 (1947), and Haffke v State, 149 Neb. 83, 88-89; 30 N.W.2d 462 (1948).
In People v Ratner, 67 Cal.App.2d Supp 902, 903-904; 153 P.2d 790 (1944), the court, quoting Massey v United States, 281 F 293, 297 (CA 8, 1922), noted:

"It is the established rule, under such statutes, unless the statute designates a different mode of procedure, that, if the prosecutor desires to invoke the severer punishment provided as to second or subsequent offenders, the indictment or information must allege the fact of the prior conviction, and the allegation of such conviction must be proved in the trial to the jury." Some forty-five authorities were cited in support of the statement and more may be found in [ State v Scheminisky, 31 Idaho 504, 507-508; 174 P. 611 (1918), and the annotations in 58 ALR 64, 82 ALR 366, 116 ALR 229, 132 ALR 107, and 139 ALR 689].

Many of these cases, like the instant case, involve sentence enhancement provisions contained in drug offense statutes. Louisiana courts have required that prosecutors seeking heavier sentences against repeat offenders of a statute criminalizing possession of marijuana, include in the bill of information an allegation that the crime is a multiple offense. See State v Bouzigard, 286 So.2d 633 (La, 1973).

LSA-RS 40:966.

In accord State v Keys, 328 So.2d 154 (La, 1976); State v Cannon, 409 So.2d 568 (La, 1982); State v Jenkins, 451 So.2d 1142 (La App, 1984); State v Franklin, 449 So.2d 63 (La App, 1984).

In the case of a defendant charged with distribution under the Controlled Dangerous Substances Act, the Louisiana court held that a defendant not charged as a second offender for distributing ethchlorvynol could not be sentenced as such.

State v Murray, 357 So.2d 1121, 1124 (La, 1978).

In Sparkman v State Prison Custodian, 154 Fla. 688; 16 So.2d 772 (1944), the Florida Supreme Court, citing numerous Florida and other state cases where it was held that the fact of prior conviction(s) must be alleged to subject an accused to enhanced penalties, held that the general rule applied as well to prosecutions under the Uniform Narcotic Drug Law.

Included among those cases was People v Brown, 253 Mich. 537; 235 N.W. 245 (1931). In Brown, this Court held that the charge of an habitual offender must include the fact of his previous convictions. The statute at issue was an habitual offender statute (providing increased penalties for subsequent felonies) rather than a sentence enhancement provision (providing increased penalties for subsequent violations of a particular statute).
The citation in Sparkman, a sentence enhancement case, of Brown, an habitual offender case, bespeaks the court's view (a view shared by many other states) that there is no distinction between the procedures applicable under these two statutory patterns.

State v Fernandez, 156 So.2d 400 (Fla App, 1963), is in accord.
This case is particularly noteworthy for its rejection of the argument, made by the majority in the instant case, that charging the previous conviction is only required where the sentence enhancement provision changes the nature of the crime from a misdemeanor to a felony. Explained the court:

Admittedly the statute involved in the instant case differs from those statutes discussed in [ State v Curtis, 152 So.2d 754 (Fla App. 1963)] in that under the Narcotic Drug Law both first and second offenses are felonies while under the lottery laws a second offense changes the character of the crime from misdemeanor to felony. However, the fact that the allegation of a previous conviction was determinative of the proper jurisdiction in Curtis and is not so significant in this case does not preclude application of the rationale of the Curtis case to the instant case. [ Id., p 406.]

Other cases where courts have required that earlier convictions be charged under sentence enhancement provisions of the Uniform Drug Act include: People v Hightower, 414 Ill. 537; 112 N.E.2d 126 (1953), cert den 346 U.S. 875 (1953), app den 346 U.S. 882 (1953), and State v Holloway, 144 Conn. 295; 130 A.2d 562 (1957).
See also People v Breitweiser, 44 Ill. App.3d 284; 357 N.E.2d 890 (1976), where the court required that a defendant, subject to higher penalties under a sentence enhancement provision of the Cannabis Control Act, have been charged with his previous convictions.

The defendant in State v Loudermilk, 221 Kan. 157; 557 P.2d 1229 (1976), contended that his prior convictions should not have been contained in the indictment charging him as a subsequent violator of the narcotics laws. The court disagreed, explaining:

[W]e think the defendant was entitled to know, and to be specifically advised by the information of the specific offense with which he was charged and the seriousness thereof, including the class of felony of which he stood accused. The information before us recited the prior conviction in detail, and noted that the offense charged was a class B felony. This gave the defendant proper notice of the charge. [ Id., p 159.]

Courts have often spoken to this issue in alcohol offense cases. In Quintana v People, 169 Colo. 295; 455 P.2d 210 (1969), Quintana was charged with drunk driving and, in a separate count, with a prior conviction of drunk driving within the last five years. The allegation of the prior conviction contained in count two subjected the defendant to a higher penalty under the Colorado drunk driving statute. The Supreme Court of Colorado, finding the indictment to be in proper form, said:

A complaint charging the defendant with drunk driving under this statute and also with a second or subsequent conviction within five years, requires procedurally that each be the subject of a separate count. [ Id., p 298.]

In Smith v State of Florida, 75 Fla. 468; 78 So. 530 (1918), the defendant was charged with a violation of the beverage laws of that state. The Florida Supreme Court held that the defendant must be charged with prior offenses if it is intended that he be charged as a second offender. Id., p 473. Similarly, Kentucky courts have required that defendants subject to severer punishment under the sentence enhancement provision of the Prohibition Act be charged with the previous convictions.

In accord Norwood v Florida, 80 Fla. 613; 86 So. 506 (1920); Warren v State, 74 So.2d 688 (Fla, 1954).

See Alford v Commonwealth, 216 Ky. 405; 287 S.W. 937 (1926); Blanton v Commonwealth, 210 Ky. 571; 276 S.W. 533 (1925); English v Commonwealth, 216 Ky. 608; 288 S.W. 320 (1926); Beshears v Commonwealth, 239 Ky. 554; 39 S.W.2d 995 (1931); Dunnington v Commonwealth, 231 Ky. 327; 21 S.W.2d 471 (1929).
See also State v Briggs, 94 Kan. 92; 145 P. 866 (1915), app dis 242 U.S. 615 (1916), where the Supreme Court of Kansas applied the general rule to the recidivist provision in the Kansas Prohibitory Liquor Law.

Courts applied the same rule to various theft statutes containing sentence enhancement provisions. The vehicle theft statute at issue in Studdard v State, 225 Ga. 410, 411; 169 S.E.2d 327 (1969), provided:

"The indictment charging any offense under this section shall contain the same allegations as prior to the adoption of this section."

The Georgia Supreme Court said:

Prior to the adoption of such section, it had been consistently held that where the State sought to impose a greater penalty for an illegal act because of the defendant's alleged "incorrigible and dangerous character" resulting from prior convictions, such prior convictions must be alleged in the indictment. . . . [Citations omitted.] Such allegations are necessary to inform the defendant of the nature of the offense with which he is charged since they involve the penalty which may be invoked.

Illinois cases have similarly so held with respect to sentence enhancement statutes contained in Illinois theft statutes.

People v Weaver, 41 Ill.2d 434; 243 N.E.2d 245 (1968), cert den 395 U.S. 959 (1969), People v Ferrara, 11 Ill. App.2d 472; 250 N.E.2d 530 (1969), cert den 398 U.S. 927 (1970); People v Ramey, 22 Ill. App.3d 916; 317 N.E.2d 143 (1974); People v Martin, 97 Ill. App.3d 704, 705; 423 N.E.2d 493 (1981).
See also Evans v State, n 70 supra; Pickelsimer v State, 440 So.2d 47 (Fla App, 1983).

In cases focused on sundry other types of statutes, e.g., statutes prohibiting illegal cohabitation, joyriding, lotteries, unlawful use of weapons, pandering, prostitution, and insufficient fund checks, courts have required that prosecutors seeking increased sentences, charge the accused with the prior conviction(s).

See Hettle v State, 144 Ark. 564, 567; 222 S.W. 1066 (1920).

See Luna v Krutka, 142 Colo. 55, 56-57; 349 P.2d 565 (1960).

See State v Curtis, n 76 supra.

See People v Ostrand, 35 Ill.2d 520; 221 N.E.2d 499 (1966), People v Owens, 37 Ill.2d 131; 225 N.E.2d 15 (1967), People v Dixon, 46 Ill.2d 502; 263 N.E.2d 876 (1970), and Morgan v Commonwealth, 170 Ky. 400; 186 S.W. 132 (1916).

See People v Boykin, 298 Ill. 11, 21; 131 N.E. 133 (1921).

See State v Morgan, 389 So.2d 364 (La, 1980).

See State v Salyer, 196 Kan. 32; 410 P.2d 248 (1966).

The majority departs from this long-settled and widely accepted rule.

C

Particularly relevant are cases in which this general rule was followed although the Legislature had enacted other sentence enhancement statutes containing explicit procedural safeguards.

In Haffke v State, 149 Neb. 83; 30 N.W.2d 462 (1948), the Supreme Court of Nebraska was called upon to decide what procedures must be followed when imposing an enhanced sentence for second or subsequent convictions of driving under the influence of intoxicating liquor. Although the applicable statute was silent as to the procedures to be followed when imposing the more severe sentence, the Nebraska Habitual Criminal Act contained explicit procedural safeguards. The Haffke court held that the recently amended procedural requirements in the Habitual Criminal Act were applicable to all situations "where punishment is sought under any statute defining one crime and providing for an enhanced penalty upon conviction of a second or subsequent offense." The court said:

Although the precise issue in Haffke centered on the fact-finding role of the jury with respect to the allegation of prior conviction, the procedures adopted by the court included a requirement that the information contain an allegation of prior conviction. See id. at 94.

Neb Rev Stat, § 39-727 (1943).

1947 Laws, ch 105, § 1, p 294. The revised statute provided, inter alia:

Where punishment of an accused as an habitual criminal is sought, the facts with reference thereto must be charged in the indictment or information which contains the charge of the felony upon which the accused is prosecuted, but the fact that the accused is charged with being an habitual criminal shall not be an issue upon the trial of the felony charged and shall not in any manner be disclosed to the jury.

While the above statute by its terms applies only to the Habitual Criminal Act, yet it announces rules of practice and procedure that, as a matter of sound public policy, should apply to any statute which imposes the duty upon a court to inflict a greater punishment upon the repetition of an offense. [ Id. at 95.]

Other cases where courts required prosecutors to charge defendants as repeat offenders under "procedurally silent" statutes even though habitual offender statutes in the jurisdictions expressly provided that defendants must be charged as habitual violators, include State v McClay, 146 Me. 104; 78 A.2d 347 (1951), People v Hightower, 414 Ill. 537; 112 N.E.2d 126 (1953), People v Ratner, 67 Cal.App.2d Supp 902; 153 P.2d 790 (1944), and State v Waller, 167 Ind. App. 231; 339 N.E.2d 61 (1975).

In McClay, the Supreme Judicial Court of Maine held that the complaint must allege a defendant's prior convictions to support an enhanced sentence for a second or subsequent conviction of driving under the influence of alcohol.
The applicable statute, Me Rev Stat, ch 19, § 121 (1944), was silent concerning procedural matters. See 146 Me. 106-107 (quoting the text of the statute). At the time McClay was decided, Maine's habitual offender act conditioned the imposition of an enhanced sentence on an allegation of prior conviction. See Jenness v State, 144 Me. 40; 64 A.2d 184 (1949) (discussing the legislative history of the habitual offender act).

In Hightower, the defendant was charged with dispensing narcotic drugs in violation of § 23 of the Uniform Narcotic Drug Act. Ill Rev Stat, ch 38, ¶¶ 192.1-192.28 (1951). Also included in the indictment was a charge that the defendant had a prior conviction.
Section 23 of the Uniform Narcotic Drug Act provided for a severer punishment on subsequent offenses and did not specify whether a defendant's previous convictions must be set forth in the indictment. The defendant objected to the inclusion of his prior convictions in the information. The court disagreed:

We do not agree with defendant's contention that his prior conviction should have been deleted from the indictment. It is true that the Habitual Criminal Act of this State specifically provides that the fact of prior conviction and sentence in the penitentiary must be pleaded in the indictment for the present offense and that the Illinois Uniform Narcotic Drug Act contains no such provision. However, we are of the opinion that it is necessary to plead this fact to justify a conviction and sentence under the aggravated penalty clause. [ 414 Ill. 544-545.]

In Ratner, the court held that the defendant must be charged as a repeat offender to warrant imposition of an enhanced sentence for a second conviction of running a red light.
The applicable statute, Cal Vehicle Code, § 762 (1935), did not specify whether it was necessary to allege the defendant's prior conviction when seeking the more severe penalty. See 67 Cal.App. 2 d Supp 903. At the time Ratner was decided, the California Penal Code expressly conditioned the availability of an enhanced sentence for habitual offenders on an allegation of prior conviction. See In re Harris, n 71 supra, pp 434-435 (quoting Cal Penal Code, § 3024).

In Waller, the court held that the defendant's former conviction for driving under the influence had to be alleged and proved if the defendant was to be subject to more serious consequences as a result of his recidivism. In a footnote, the court said:

Although [ Barr v State, 205 Ind. 481; 187 N.E. 259 (1933)] notes that the habitual criminal statutes (then Ind Ann Stat §§ 2339 and 2340 [Burns 1926], now §§ 9-2207 and 9-2208) specifically require the prior convictions to be pleaded and proved, it cites and quotes opinions by English and American courts (including Evans v State, 150 Ind. 651; 50 N.E. 820 [1898]) which require it regardless of statute whenever a greater penalty is imposed for a subsequent conviction. [ 167 Ind. App. 236, n 3.]

D

Many of the cases and authorities cited in the preceding sections predate the enactment of habitual offender provisions in this and other states. Thus, the principle that a defendant may not be sentenced as a recidivist unless he was charged as a recidivist predates the enactment of habitual offender statutes. This principle was developed by the courts over the course of several decades in applying procedurally silent sentence enhancement provisions.

The habitual offender provisions were first enacted as part of the Code of Criminal Procedure in 1927. Michigan essentially adopted the language of New York's habitual offender statute.
The New York statute, authored by State Senator Caleb Baumes, served as a model for recidivist legislation enacted across the nation in the late 1920s. See People v Stoudemire, 429 Mich. 262, 267-271; 414 N.W.2d 693 (1987), for a discussion of what came to be called the "Baumes Laws."

IV

I agree with the majority that the Legislature's intent should be considered in deciding whether the prosecutor must charge a defendant as a repeat offender.

See ante, pp 231-233.

A

A statute should be construed to avoid absurd or unreasonable results. The majority says that it was the Legislature's intention that the prosecutor need not inform the defendant before trial on the current offense that if he is convicted of that offense, he will be subject to sentence enhancement on the basis of a prior drug-related conviction. Adoption of the majority's view would mean that a defendant who was subject to a more severe penalty would be afforded fewer procedural safeguards than a defendant who was subject to a less severe penalty. Absent a clear expression of legislative intent, the majority's construction should be rejected.

See Magreta v Ambassador Steel Co, 378 Mich. 689, 695-696; 148 N.W.2d 767 (1967), (On Rehearing), 380 Mich. 513; 158 N.W.2d 473 (1968), Williams v Secretary of State, 338 Mich. 202, 208; 60 N.W.2d 910 (1953), Ballinger v Smith, 328 Mich. 23, 31; 43 N.W.2d 49 (1950), Gardner-White Co v State Bd of Tax Administration, 296 Mich. 225, 230; 295 N.W. 624 (1941), Boyer-Campbell Co v Fry, 271 Mich. 282, 297; 260 N.W. 165 (1935), and Attorney General v Detroit United Railway, 210 Mich. 227, 254; 177 N.W. 726 (1920). See also King v Midland Co Dep't of Social Services, 73 Mich. App. 253, 258; 251 N.W.2d 270 (1977), and State Farm Mutual Automobile Ins Co v Kurylowicz, 67 Mich. App. 568, 578; 242 N.W.2d 530 (1976). See, generally, 2A Sands, Sutherland Statutory Construction (4th ed), § 45.12, p 54.

1

The Code of Criminal Procedure provides for sentence enhancement where a defendant who is convicted of a felony has previously been convicted of one or more felonies. These habitual offender provisions are not limited to cases where the defendant's most recent conviction is for the same or a similar offense as his prior conviction(s).

See MCL 769.10 et seq.; MSA 28.1082 et seq.

When the prosecutor seeks sentence enhancement under the habitual offender provisions, the general rule is that he must file a supplemental information charging the defendant as an habitual offender within fourteen days of the arraignment or before trial if the defendant is tried within that fourteen-day period. People v Shelton, 412 Mich. 565, 566; 315 N.W.2d 537 (1982) (per curiam). If the prosecutor does not learn of the defendant's prior felony conviction(s) until after the defendant's conviction of the most recent offense, the prosecutor may institute postconviction proceedings to sentence the defendant as an habitual offender.

The habitual offender provisions describe two sets of procedures. Section 13 provides for a separate proceeding concerning a person's prior felony conviction(s); there are provisions for the filing of a separate or supplemental information, trial by jury, and trial in accordance with the usual practice in criminal cases. See MCL 769.13; MSA 28.1085. The second sentence of § 12(3) refers to indictment and conviction as a previous offender. See MCL 769.12(3); MSA 28.1084(3).
In People v Stratton, 13 Mich. App. 350, 356; 164 N.W.2d 555 (1968), the Court of Appeals said:

The procedure set forth in section 13 is to be followed whenever it appears to the prosecutor " after conviction" of the current charge that the felon has a prior felony record. However, where it appears to the prosecutor before conviction of the current charge that the accused person is a prior felon, the accused person is to be informed against as a prior offender prior to conviction on the current charge. . . . [Emphasis in original.]

Two years later, this Court approved the analysis in Stratton. See People v Hatt, 384 Mich. 302, 309; 181 N.W.2d 912 (1970).
Relying on Hatt and Stratton, this Court in People v Fountain, 407 Mich. 96, 98; 282 N.W.2d 168 (1979) (per curiam), held that "[a] prosecutor who knows a person has a prior felony record must promptly proceed, if at all, against the person as an habitual offender." The Court also said, however, that "[t]he habitual offender charges should have been filed with the information which charged the last felony. . . ." Id., p 99.
In Shelton, supra, p 568, the Court held that Fountain required "prompt" filing of the supplemental information, not a simultaneous filing with the information charging the most recent offense. The Court defined "promptly" as within fourteen days of the defendant's arraignment or before trial if the defendant was tried within that fourteen-day period.
The only exception to the requirement that a prosecutor, who knows of the defendant's prior felony conviction(s), must charge the defendant as an habitual offender within fourteen days of the defendant's arraignment is where the delay in filing the supplemental information is caused by the need to verify out-of-state conviction(s) based on a rap sheet. See People v Hendrick, 398 Mich. 410; 247 N.W.2d 840 (1976).
See also MCR 6.112(C).

See MCL 769.13; MSA 28.1085. See also Stratton, n 101 supra, p 356, Hatt, n 101 supra, p 309, Fountain, n 101 supra, p 98, and Shelton, supra, p 569.

The rules of practice and procedure that have been developed for prosecutions under the habitual offender provisions are based on this Court's construction of the relevant statutes, and its exercise of its supervisory power over the practices and procedures in the courts of this state. Those rules are not based on the United States Constitution.

See n 101.

Const 1963, art 6, § 5. See People v Young, 410 Mich. 363, 367; 301 N.W.2d 803 (1981) (per curiam), and Fountain, n 101 supra, pp 99-100 (COLEMAN, C.J., concurring).
The rule requiring that the prosecutor promptly charge the defendant as an habitual offender seeks to avoid the appearance of prosecutorial impropriety and to provide fair notice to the defendant. See Fountain, n 101 supra, p 99, Young, p 367, and Shelton, supra, pp 568-569.

Chief Justice COLEMAN'S concurring opinion in People v Fountain, n 101 supra, cites Oyler for the proposition that the result in one of the two cases consolidated for appeal in Fountain was not required by the United States Constitution.

2

Under the habitual offender provisions, where a defendant with one prior felony conviction is convicted of a felony that is punishable "by imprisonment for a term less than life," the trial court "may place the person on probation or sentence the person to imprisonment for a maximum term which is not more than 1 1/2 times the longest term prescribed for a first conviction of that offense or for a lesser term."

1988 PA 90, MCL 769.10; MSA 28.1082.

Under the sentence enhancement provision of the controlled substances article, where a defendant with one prior drug-related conviction is convicted of another drug-related offense, he "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." However, where both the prior and current convictions involved 50 grams or more of a controlled substance, the defendant "shall be imprisoned for life and shall not be eligible for probation, suspension of sentence, or parole during that mandatory term."

1988 PA 144, MCL 333.7413(2); MSA 14.15(7413)(2).

(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). [1988 PA 144, MCL 333.7413(1); MSA 14.15(7413)(1).]

Section 7401(2)(a) proscribes the delivery and manufacture, and possession with intent to deliver or manufacture, a schedule 1 or 2 controlled substance. Section 7403(2)(a) proscribes the knowing or intentional possession of a schedule 1 or 2 controlled substance. Subsection (ii) applies to offenses involving 225 to 650 grams of a mixture containing the controlled substance. Subsection (iii) applies to offenses involving 50 to 225 grams.
When a violation of § 7401(2)(a) or § 7403(2)(a) involves 650 grams or more, the sentence for a first offense is mandatory imprisonment for life without the possibility of probation, suspension, or parole. See 1988 PA 60, MCL 333.7401, 333.7403; MSA 14.15(7401), 14.15(7403).

The construction placed on the controlled substances article by the majority attributes to the Legislature an intention to provide a defendant facing a possible fifty percent increase in the maximum sentence with the right to be informed of that possibility at an early stage in the proceedings, but deny early notice to a defendant who is facing a possible one hundred percent increase. It attributes to the Legislature an intention to provide a defendant facing a possible five- or ten-year increase in the maximum sentence with early notice of that possibility, but not a defendant facing the possibility of mandatory imprisonment for life.

The majority's construction thus attributes to the Legislature a purpose to act in disregard of the conception that the quantity and quality of needed procedural safeguards should be in direct relation to the severity of the possible penalty. I would wait for a clear expression of legislative intent before abandoning the well-established rule that the prosecutor must charge the defendant as a repeat offender when seeking an increased sentence on the basis of a prior conviction.

B

When the Legislature enacted the controlled substances article of the Public Health Code, it is presumed to have acted in contemplation of the longstanding and unbroken rule that the prosecutor is required to charge the defendant as a repeat offender whenever sentence enhancement is sought on the basis of a prior conviction. This has been the rule without regard to whether the statute that authorizes sentence enhancement contained an express requirement that the prosecutor charge the defendant as a repeat offender.

See People v Evans, 434 Mich. 314, 325, n 6; 454 N.W.2d 105 (1990) (endorsing the "presumption that the Legislature acts with knowledge of, and in harmony with, existing legislation"), and People v Harrison, 194 Mich. 363, 369; 160 N.W. 623 (1916) (in enacting the penalty provision of the local-option law, 1889 PA 207, § 16, the Legislature was presumed to have acted in contemplation of a general provision concerning the execution of judgments in criminal cases, 1846 RS, ch 168, § 4). See also Endykiewicz v State Hwy Comm, 414 Mich. 377, 390-391; 324 N.W.2d 755 (1982). See The Penza, 9 F.2d 527, 528 (CA 2, 1925) (Congress was presumed to have enacted a statute in contemplation of both statutory and customary maritime law). See, generally, 2A Sands, Sutherland Statutory Construction (4th ed), n 99 supra, § 45.12, p 55.

The Legislature could have provided for a departure from this longstanding and unbroken rule by stating that the prosecutor was not required to inform the defendant before trial on the current drug-related offense that, if he is convicted of that offense, he might receive an enhanced sentence on the basis of a prior drug-related conviction. The United States Constitution arguably would permit the Legislature to act in such a manner. When the Legislature disagrees with decisions of the Court, it often amends the statutes to correct the perceived error. The Legislature has not done so in this case.

Notice of the possibility of sentence enhancement before trial on the most recent offense is clearly not required by the Due Process Clause of the Fourteenth Amendment. See Oyler v Boles, supra.
If the Legislature were to enact a statute that relieved the prosecutor from providing pretrial notice only where a defendant's prior and current offenses are drug related, however, there might be a problem under the Equal Protection Clause of the Fourteenth Amendment. With respect to procedural safeguards, there is no apparent justification for treating a recidivist drug offender differently than an habitual armed robber. Statutes should be construed to avoid potential conflicts with the United States Constitution. See, generally, 2A Sands, Sutherland Statutory Construction (4th ed), n 99 supra, § 45.11, p 46.

For example, compare Beauchamp v Dow Chemical Co, 427 Mich. 1; 398 N.W.2d 882 (1986), with 1987 PA 28, MCL 418.131; MSA 17.237(131).

The sentence enhancement provision of the controlled substances article, MCL 333.7413; MSA 14.15(7413), was enacted by 1978 PA 368. On two separate occasions after this Court's decisions in Lester and Cobb (see the text accompanying n 22), the Legislature has amended the sentence enhancement provision, but has not altered the requirement that the prosecutor charge the defendant as a repeat offender. See 1988 PA 12 and 1988 PA 144.
Similarly, the Legislature amended the sentencing provisions concerning driving under the influence of alcohol, MCL 257.625; MSA 9.2325, on four separate occasions after the Court of Appeals decision in Bosca (see ns 38-41 and the accompanying text), and on two additional occasions since this Court's approval of that decision in Urynowicz, but did not change the requirement that the prosecutor charge the defendant as a repeat offender. See 1976 PA 285, 1978 PA 57, 1978 PA 391, 1980 PA 515, 1982 PA 309, and 1987 PA 109. The Legislature has not amended the sentence enhancement provision for repeat convictions of criminal sexual conduct, MCL 750.520f; MSA 28.788(6), after Urynowicz was decided.
This Court has sometimes adhered to statutory precedents on the basis of the Legislature's failure to amend the statute to correct an asserted error in construction, especially when the Legislature has subsequently revised other parts of the same statutory provision. See Dean v Chrysler Corp, 434 Mich. 655, 664-666; 455 N.W.2d 699 (1990), Smith v Detroit, 388 Mich. 637, 650-651; 202 N.W.2d 300 (1972), In re Clayton Estate, 343 Mich. 101, 106-107; 72 N.W.2d 1 (1955), and Consumers Power Co v Muskegon Co, 346 Mich. 243, 250-251; 78 N.W.2d 223 (1956).

C

In not expressly requiring the prosecutor to charge the defendant as a repeat offender, the sentence enhancement provision of the controlled substances article is similar to the sentence enhancement provisions for second or subsequent convictions of criminal sexual conduct, driving under the influence of alcohol, and violation of the liquor law. And in every single case in which the question was raised, this Court has held, or has expressly approved a decision of the Court of Appeals which held, that the prosecutor must charge the defendant as a repeat offender when seeking sentence enhancement.

I have not found — nor has the majority cited — a single case involving any of the sentence enhancement provisions here discussed in which this Court has affirmed an enhanced sentence where the defendant was not charged as a repeat offender.
Under the habitual offender provisions of the Code of Criminal Procedure, there are exceptions to the fourteen-day rule of People v Shelton. See n 101. In the instant case, the Court of Appeals concluded that the recognized exceptions were not applicable. See People v Eason, n 5 supra, pp 5-6.

This Court has, on several occasions, endorsed the view expressed by Justice Brandeis in his dissenting opinion in Burnet v Coronado Oil Gas Co, 285 U.S. 393, 406; 52 S Ct 443; 76 L Ed 815 (1932), where he said:

Stare decisis is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than that it be settled right. This is commonly true even where the error is a matter of serious concern, provided correction can be had by legislation. [Emphasis in original; citations omitted.]

This is not to say that it is necessarily improper for a court to abandon a longstanding and unbroken rule in the application of statutes. It does, however, mean that the Court should not do so lightly. The majority's attempt to portray this Court's precedents as wrongly decided is inadequate. That effort is founded on unsupportable characterizations of the Court's decisions. The majority does not claim that the long-established rule has led to unjust results. Nor can the majority relieve itself of the burden of justifying a rejection of settled law by "distinguishing" the prior cases. The bases of distinction proffered by the majority either do not explain at all or only explain partially the Court's decisions.

See, for example, Parker v Port Huron Hosp, 361 Mich. 1, 10; 105 N.W.2d 1 (1960) ("Only in the rare case when it is clearly apparent that an error has been made, or changing conditions result in injustice by the application of an outmoded rule, should we deviate from following the established rule").

D

The prosecutor argues, and the majority agrees, that it was the Legislature's intention that the prosecutor would not be required to give early notice of the possibility of sentence enhancement to a defendant who has a prior drug-related conviction. It is said that since the Legislature "required" the prosecutor to charge a defendant as a repeat offender under the habitual offender provisions of the Code of Criminal Procedure, the failure to restate a similar requirement in the sentence enhancement provision of the controlled substances article evidences an intention to deny to repeat drug offenders the procedural safeguards that are afforded to other recidivists.

It is again relevant that this Court has always required the prosecutor to charge the defendant as a repeat offender even when such a requirement was not mandated by the literal language of the statute authorizing sentence enhancement. Given this longstanding and unbroken rule, there was no reason for the Legislature to set forth in the controlled substances article a requirement that the prosecutor charge the defendant as a repeat offender. The Legislature's "omission" amounted to nothing more than a failure to restate a proposition that had always been thought obvious.

It is also relevant that the requirement that a prosecutor give early notice of the possibility of sentence enhancement to a defendant in an habitual offender proceeding is the product of this Court's construction of the applicable statutes and of the exercise of its supervisory authority over the courts of this state. The literal language of the habitual offender provisions no more requires early notice than does the literal language of the other sentence enhancement statutes where the Court has imposed a similar requirement. In this respect, there is no difference between the literal language of the various statutes.

See ns 103-104, and the accompanying text.

The majority's argument is based on the "theory" that the Legislature acted with a selective memory. The majority asserts that the Legislature enacted the controlled substances article in contemplation of this Court's decisions that the prosecutor must charge the defendant as a recidivist under the habitual offender provisions even though the literal language of the statute does not so require, but in ignorance of this Court's decisions that the prosecutor must charge the defendant as a repeat offender under all the other sentence enhancement provisions which also do not require early notice of the possibility of sentence enhancement.

The majority says that it is "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. . . ." If this is true, then it is also "highly doubtful" that the Legislature acted in contemplation of the habitual offender provisions of the Code of Criminal Procedure. Those provisions were enacted in 1927.

Ante, p 247, n 31.

See 1927 PA 175, ch IX, §§ 10-13.

In emphasizing the alleged verbal differences between the habitual offender provisions and the sentence enhancement provision of the controlled substances article, the majority employs a mode of analysis that has never before been thought to be persuasive. In McDonald, the Court held that the information must contain an allegation of prior conviction even though the statute authorizing sentence enhancement did not expressly so require, and in support of the rule there announced cited decisions involving sentence enhancement statutes that expressly required the prosecutor to charge the defendant as a repeat offender. So too in Urynowicz, and so too in the Attorney General's opinion concerning second or subsequent convictions of drunk driving. The "verbal difference argument" was the basis of People v McFadden, 73 Mich. App. 232; 251 N.W.2d 297 (1977), which was in turn the basis of the Court of Appeals decisions in Wright and Urynowicz, decisions which were reversed by this Court.

See n 26 and the accompanying text.

The Court cited, inter alia, People v Buck, People v Butler, and People v Campbell, n 26 supra.

The Court relied in part on Butler (see n 26), and acknowledged that the statute at issue in that case specifically required the prosecutor to charge the defendant as a repeat offender. See Urynowicz, supra, p 141.

The Attorney General relied on Ancksornby and McDonald, which involved a statute that did not expressly require the prosecutor to charge the defendant as a repeat offender, and on Buck, Butler, and Campbell, which involved statutes that did. See n 37.

See n 10.

See Urynowicz, supra, pp 139-140.

In sum, the basis for the majority's assertion concerning legislative intent is a distinction that has never before been thought significant.

E

The majority would reject the longstanding and unbroken rule that the prosecutor must charge the defendant as a repeat offender whenever sentence enhancement is sought on the basis of a prior conviction. It is a rule that until today was thought to be obvious — so obvious that the prosecutor in Ancksornby confessed error for failing to charge the defendant as a second offender, the prosecutor in Urynowicz advanced this rule before the Court, and the Attorney General adopted the rule in his 1940 opinion.

See n 25.

See Urynowicz, supra, p 138.

When the unsupportable characterizations and unpersuasive distinctions of the Court's precedents are "set aside," the only basis for the majority's abandonment of the longstanding and unbroken rule that the prosecutor must charge the defendant as a repeat offender is that this practice is not required by the Due Process Clause of the Fourteenth Amendment.

See, generally, Employment Div, Oregon Human Resources Dep't v Smith, 494 US ___, ___; 110 S Ct 1595; 108 L Ed 2d 876, 905 (1990) (Blackmun, J., dissenting):

[T]he majority is able to arrive at this view only by mischaracterizing this Court's precedents. The Court discards leading free exercise cases . . . as "hybrid." . . . In short, it effectuates a wholesale overturning of settled law concerning the Religion Clauses of our Constitution. One hopes that the Court is aware of the consequences, and that its result is not a product of overreaction to the serious problems the country's drug crisis has generated. [Emphasis added.]

This Court has not said that notice of the possibility of sentence enhancement before trial on the current offense was mandated by the United States Constitution. That such notice is not mandated by the United States Constitution is not a reason for abandoning precedent requiring the prosecutor to give early notice of the possibility of sentence enhancement.

V

Enough prologue. Correct analysis should begin with the Code of Criminal Procedure, enacted in 1927, by which the Legislature adopted a new sentence enhancement scheme for habitual offenders. The prior statute expressly required the prosecutor to charge the defendant as an habitual offender. The Code of Criminal Procedure expressly provides that it is not always necessary to charge the defendant as an habitual offender in the information charging the current offense. The Code, rather, authorized the commencement of a separate sentence enhancement proceeding after conviction of the charged offense if "at any time after conviction . . . it shall appear that a person convicted of a felony has previously been convicted of crimes. . . ."

1927 PA 175.

When any person shall be convicted of any offence, and shall be duly sentenced therefor to confinement in the state prison of this state, for one year or more, and it shall be alleged in the indictment on which such conviction is had, and admitted or proved on the trial, that the convict has before been sentenced to a like punishment by any court in this state, or in any other of the United States, for a period not less than one year, he shall be sentenced to be punished by imprisonment in the state prison not more than seven years, in addition to the punishment prescribed by law for the offence of which he shall then be convicted. [1846 RS, tit XXX, ch 161, § 12. Emphasis added.]

When any such convict shall have been twice before sentenced to imprisonment at hard labor, for a period of not less than one year at each time, by any court in this state, or in any other of the United States, he shall be sentenced to imprisonment at hard labor for life, or for a term of not less than seven years in addition to the punishment prescribed by law for the offence of which he shall then be convicted. [1846 RS, tit XXX, ch 161, § 13.]

The Court early held that the pleading requirement of § 12 also applied to § 13. People v Campbell, n 26 supra, p 386.

A person to be punishable under this and the last two preceding sections need not have been indicted and convicted as a previous offender in order to receive the increased punishment therein provided, but may be proceeded against as provided in the following section. [1927 PA 175, ch IX, § 12 (last sentence). Emphasis added.]

The "following section" is § 13, which read:

If at any time after conviction and either before or after sentence it shall appear that a person convicted of a felony has previously been convicted of crimes as set forth in any of the three foregoing sections, it shall be the duty of the prosecuting attorney of the county in which such conviction was had to file an information in such cause accusing the said person of such previous convictions. [1927 PA 175, ch IX, § 13. Emphasis added.]

1927 PA 175, ch IX, § 13.

A

In People v Judge of Recorder's Court, 251 Mich. 626; 232 N.W. 402 (1930), decided three years after passage of the Code, the prosecutor filed a supplemental information charging John Figgins as an habitual offender after he had been convicted of the charged offense. The trial court ruled that Figgins was entitled to a preliminary examination respecting the allegation of prior conviction. The prosecutor petitioned this Court for the issuance of a writ of mandamus to compel the trial court to vacate its order regarding the preliminary examination.

When Judge of Recorder's Court was decided, the Legislature had already once amended the habitual offender provisions of the Code of Criminal Procedure. See 1929 PA 24, 1929 CL 17338-17341. Section 13 and the last sentence of § 12 were not amended.

This Court held that in light of the Code of Criminal Procedure, it was no longer necessary to conduct a preliminary examination concerning the allegation of prior conviction. The Court explained:

Prior to the criminal code [ 1927 PA 175], there was no provision in the law for an independent trial to determine the fact of a prior conviction. It was tried out in the trial for the subsequent offense. It was necessary to charge it in the complaint and warrant and prove it on the examination and trial unless examination was waived. Otherwise the court was without jurisdiction to consider it in imposing sentence. But [ 1927 PA 175, ch IX, § 13], authorizes an independent trial of that question on the filing of a supplemental information after conviction and sentence for the subsequent offense. . . . The purpose of an examination is to determine if a crime has been committed and if there is probable cause for believing the accused party committed it. If no crime is charged, an examination is not required. In People v Palm, 245 Mich. 396 [ 223 N.W. 67 (1929)], it was held that a supplemental information, filed after conviction, alleging a prior conviction, does not charge any crime. [ Id., p 627. Emphasis added.]

The Court's statements indicate that it was not until the enactment of the Code of Criminal Procedure that a trial court had the authority to impose an enhanced sentence where the prosecutor did not proceed from the commencement of the prosecution against the defendant as a repeat offender.

That is, the defendant must have been charged in the complaint and warrant as a repeat offender, some evidence respecting the prior conviction must have been presented at the preliminary examination, the information charging the most recent offense must have contained an allegation of prior conviction, and the prior conviction must have been proved at trial.

The views expressed in Judge of Recorder's Court find support in earlier decisions of the Court applying the pre-Code habitual offender provisions, 1846 RS, tit XXX, ch 161, §§ 12-13 (quoted in n 129). See Campbell, n 129 supra, p 386 ("[I]t was necessary that the allegations of such former convictions should be contained in the information, and, if not admitted, proved on the trial, which statutory requirement must be complied with in order to give the court jurisdiction to sentence respondent as for a third offense . . . .") (emphasis added).

B

The lack of jurisdiction, adverted to in Judge of Recorder's Court and remedied in part by the enactment of the Code of Criminal Procedure, could be distinguished from a prosecution under the controlled substances article on the basis that the pre-Code habitual offender provisions expressly required the prosecutor to charge the defendant as a repeat offender, while the controlled substances article does not prescribe any particular procedure to be followed when seeking sentence enhancement for a second or subsequent drug-related conviction. In other words, the jurisdictional problem with imposing an enhanced sentence where the prosecutor has not proceeded from the commencement of the prosecution against the defendant as a repeat offender could be viewed as being limited to situations where the Legislature has affirmatively required that the prosecutor charge previous convictions.

See n 129.

Such a narrow reading of this Court's precedents concerning the jurisdiction of trial courts to impose enhanced sentences is, again, negatived by other decisions of this Court applying statutes that did not specify any particular procedures to be followed when seeking sentence enhancement on the basis of a prior conviction, as in People v McDonald, 233 Mich. 98; 206 N.W. 516 (1925), where the Court held that "[t]he information must contain an averment of former conviction, and there must be proof on the trial to maintain it, to justify a conviction and sentence therefor." The Court explained:

Id., pp 100-101.
The Court also said that "the rule herein laid down will apply to all future cases and to all statutes wherein increased punishment is provided for offenders who have theretofore been convicted." Id., p 106.

The violation complained of is aggravated by the fact of his former conviction. He is thereby subjected to an enhanced penalty. The purpose of averring and proving it is to give the court jurisdiction to impose it. [ Id., p 103. Emphasis added.]

The jurisdictional significance of proceeding from the commencement of prosecution against the defendant as a repeat offender — even where the statute authorizing sentence enhancement did not expressly so require — was confirmed in In re Brazel, 293 Mich. 632; 292 N.W. 664 (1940), where this Court compared the pre-Code habitual offender provisions and the liquor law provisions that were applied in McDonald.

The Court first noted the statement in People v Campbell, 173 Mich. 381, 386; 139 N.W. 24 (1912), that charging the defendant as a repeat offender was necessary to give the trial court the authority to sentence the defendant as an habitual offender. The Court then said:

It will be noted that [the habitual offender provisions] contained the express mandate that the prior convictions be alleged in the indictment on which conviction of any offense is had.

This was not true of the prohibition law of 1917, as amended, which contained certain provisions in respect to increased punishment for second and subsequent offenses. Attention is called to [1917 PA 338], where it will be noted that there was no provision requiring the prior convictions to be alleged in the indictment. However, this court held that in order to confer jurisdiction the information must include allegations which specify the prior convictions and that a respondent under such circumstances was entitled to a preliminary examination. [ Brazel, p 639. Emphasis added.]

In speaking of "jurisdiction," the Court was not referring to the respective jurisdictions of the circuit court and of the justice of the peace. When the Court decided the liquor law cases, the circuit court had jurisdiction over both a first and subsequent offense.

See ante, p 247, n 31, where the majority says that the "better construction" of the liquor law cases is that "the Court construed the legislation in question as necessarily requiring a separate information filed . . . to provide the circuit court with jurisdiction."

The jurisdiction of the justice of the peace was then limited to certain statutorily enumerated offenses not here relevant and to "all other offenses punishable by fine not exceeding one hundred dollars, or punishable by imprisonment in the county jail not exceeding three months. . . ." 1899 PA 189, 1915 CL 15769.
A first offense under the liquor law was punishable by a fine of one thousand dollars or imprisonment in a state or county facility for one year. 1919 PA (Ex Sess) 3, amending 1917 PA 338 (quoted in n 24). Thus, the justice of the peace did not have jurisdiction — and the circuit court did have jurisdiction — over a first offense.
The circuit court also had jurisdiction over a first offense in the habitual offender context. Those provisions only applied where the defendant was sentenced for the most recent conviction to imprisonment for one year or more. See 1846 RS, tit XXX, ch 161, §§ 12-13 (quoted in n 129). By definition, the habitual offender provisions could only be invoked where the charged offense was punishable by imprisonment for more than three months. Thus, the justice of the peace would not have had jurisdiction.

The Court's references to "jurisdiction" were references to the authority of a court — any court — to impose an enhanced sentence on the basis of a prior conviction. Before enactment of the Code of Criminal Procedure, without regard to whether the particular sentence enhancement statute expressly required the prosecutor to charge the defendant as a repeat offender, a trial court possessed the authority to impose an enhanced sentence only where the prosecutor had proceeded from the commencement of prosecution against the defendant as a repeat offender.

C

It is against this historical background that the Court should consider the prosecutor's argument that the procedural safeguards applicable under the habitual offender provisions of the Code of Criminal Procedure do not apply where sentence enhancement is sought under the controlled substances article of the Public Health Code.

1978 PA 368, MCL 333.7413(2); MSA 14.15(7413)(2).

Rather than disregard this Court's precedents concerning the authority of the trial court to impose an enhanced sentence and rather than hold that the trial court in this case did not have the authority to impose an enhanced sentence because the prosecutor did not proceed from the commencement of prosecution against the defendant as a repeat offender, I would hold that the procedures applicable under the habitual offender provisions of the Code of Criminal Procedure also apply where the prosecutor seeks an enhanced sentence pursuant to the provisions of the controlled substances article.

See, generally, People v Lester, 417 Mich. 927; 330 N.W.2d 854 (1983) (the Court, citing, inter alia, the habitual offender provisions of the Code of Criminal Procedure, held that "[t]he 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").

I would thus hold that it is not necessary for the defendant to have been charged in the complaint and warrant as a repeat offender or that some evidence respecting the prior conviction be presented at the preliminary examination. It is necessary, where the prosecutor knows of the defendant's prior conviction before trial on the most recent offense, that the prosecutor file a supplemental information charging the defendant as a repeat offender within fourteen days of the arraignment or before trial if the defendant is tried within that fourteen-day period. Where the prosecutor does not learn of the defendant's prior conviction until after the defendant is convicted of the most recent offense, the prosecutor may commence a postconviction proceeding to seek an enhanced sentence.

See n 101 and the accompanying text.

Id.

I acknowledge that the habitual offender provisions now state that where the defendant's most recent conviction is a "major controlled substance offense," the defendant "shall be punished as provided by" the controlled substances article of the Public Health Code. I would construe those provisions as evidencing a legislative intent to assure that the quantity and quality of a defendant's punishment — as distinguished from the procedures to be utilized in administering that punishment — are governed by the controlled substances laws and not by the general habitual offender provisions. In this regard, it is significant that the Legislature first "excluded" major controlled substance offenses from the habitual offender provisions at the same time it first adopted mandatory minimum terms of imprisonment for controlled substance offenses. In contrast, the sentencing provisions for habitual offenders are discretionary.

MCL 769.10- 769.12; MSA 28.1082-28.1084. This proviso was first enacted in 1978 and then specified that a defendant "shall be punished as provided by" the Controlled Substances Act, the statutory predecessor to the controlled substances article of the Public Health Code. See 1978 PA 77. Sections 10-12 of the Code of Criminal Procedure were later amended to refer to the controlled substances article. See 1988 PA 90.
Eason was not convicted of a "major controlled substance offense."

Indeed, the two changes were linked. 1978 PA 77, which first "excluded" major controlled substance offenses from the purview of the habitual offender provisions, did not take effect unless and until 1977 HB 4190 was also enacted. See 1978 PA 77, § 2. HB 4190 was eventually enacted into law as 1978 PA 147. See 1978 PA 77 (compiler's note). 1978 PA 147 amended the Controlled Substances Act to provide for the first time mandatory minimum terms of imprisonment for certain drug-related offenses. The definition of "major controlled substance offense" in the Code of Criminal Procedure corresponded to the offenses for which the Legislature had in the Controlled Substances Act mandated minimum terms of imprisonment.

The prosecutor in this case did not file a supplemental information charging Eason as a repeat drug offender within fourteen days of Eason's arraignment. The Court of Appeals concluded that the exceptions to the fourteen-day rule were not applicable. I agree with that determination and would affirm the judgment of the Court of Appeals vacating Eason's sentence and remanding the case for resentencing.