6.8Sentencing Habitual Offenders¹ 

Michigan’s sentencing law is designed so that the potential punishment for conviction of a crime may be increased in proportion to the offender’s number of previous felony convictions. MCL 769.10, MCL 769.11, and MCL 769.12 comprise the general habitual offender statutes. MCL 777.21(3) authorizes sentence enhancement under the statutory sentencing guidelines for habitual offenders. The general habitual offender statutes enhance the defendant’s maximum sentence.² In contrast, MCL 777.21(3) sets out how to calculate a habitual offender’s enhanced recommended minimum sentence range. Further, Article 7 of the Public Health Code, MCL 333.7101 et seq., (PHC) specifically permits, and in some cases requires, sentence enhancements for habitual offenders in the context of controlled substance offenses. See MCL 333.7413.

A.Application of the General Habitual Offender Statutes to Controlled Substance Offenses

The general habitual offender statutes, MCL 769.10(1)(c), MCL 769.11(1)(c), and MCL 769.12(1)(d), all require the court to enhance a person’s sentence under Article 7 of the PHC “[i]f the subsequent felony is a major controlled substance offense[.]” See e.g., MCL 333.7413(2). However, sentence enhancement under either the general habitual offender statutes or Article 7 of the PHC’s offender sentencing scheme is permissible where a defendant with prior felony nondrug convictions is subsequently convicted of a major controlled substance offense. People v Wyrick, 474 Mich 947 (2005). “[T]he prosecutor may seek a greater sentence under the habitual offender statute even when a defendant is sentenced under [Article 7 of the PHC].” Wyrick, 474 Mich at 947, citing People v Primer, 444 Mich 269, 271-272 (1993) (holding that “the legislative purpose [of the provisions of the Code of Criminal Procedure providing that if a subsequent felony is a major controlled substance offense, the person shall be punished as provided in Article 7 of the PHC,] was to assure that the mandatory sentences for the commission of a first or subsequent major controlled substance offense would not be ameliorated as the result of the exercise of discretion regarding the length of sentence provided in the habitual offender provisions in the Code of Criminal Procedure, and not to preclude enhancement of a sentence under the habitual offender provisions that might be imposed on a person who has a record of prior felony conviction, albeit not for a major controlled substance offense”). See also People v Edmonds, 93 Mich App 129, 135 n 1 (1979), which stated:

“It must be noted that application of the controlled substances act [now Article 7 of the PHC] penalty augmentation is proper when the defendant is being sentenced on a drug conviction. If the defendant commits a nondrug felony after one or more drug convictions then the habitual offender act applies upon conviction of that nondrug felony.”

Michigan courts have consistently held that a defendant’s sentence cannot be doubly enhanced by application of the habitual offender statutes and any enhancement provisions contained in the statutory language prohibiting the conduct for which the defendant was convicted. People v Elmore, 94 Mich App 304, 305-306 (1979); Edmonds, 93 Mich App at 135. See also People v Fetterley, 229 Mich App 511, 525, 540-541 (1998) (holding that double enhancement was improper where a defendant was convicted of offenses that were not major controlled substance offenses and his sentences were quadrupled when the trial court applied the enhancement provisions of Article 7 of the PHC and the habitual offender statutes to the defendant’s underlying offenses).

B.Notice Requirements

In contrast to the notice requirements that apply to general habitual offender sentence enhancements,³ no notice is required for enhancement under MCL 333.7413:

“[A] defendant charged under a statute which provides for imposition of an enhanced sentence on an individual previously convicted of an offense under the same statute is not entitled to notice within fourteen days of arraignment of the prosecutor’s intent to seek sentence enhancement or to a separate proceeding on the question whether he has previously been convicted of a narcotics offense.” People v Eason, 435 Mich 228, 231 (1990).