4.6Application of the Habitual Offender Provisions to Offenses Involving Statutory Escalation Schemes

Where the statute under which a defendant was convicted enhances the punishment based on prior convictions of that offense, use of the general habitual offender provisions is improper. People v Fetterley, 229 Mich App 511, 540-541 (1998). See also People v Honeycutt, 163 Mich App 757, 762 (1987) (because MCL 750.227b, the felony-firearm statute, mandates enhanced sentences for subsequent violations of that statute, application of the general habitual offender provisions is improper).

Enhancement under the general habitual offender statutes is also improper where the statutory language itself expressly prohibits the use of an offender’s previous conviction to enhance a sentence under the general habitual offender statutes if the conviction is used to enhance the offense under an internal statutory escalation scheme. These offenses are listed in the Michigan Judicial Institute’s Statutory Offense Enhancement Table.¹

However, “[w]here the legislative scheme pertaining to the underlying offenses elevates the offense, rather than enhances the punishment, on the basis of prior convictions, both the elevation of the offense and the enhancement of the penalty under the habitual offender provisions is permitted.” Fetterley, 229 Mich App at 540-541.

The following subsections discuss several examples of offenses that have specific habitual offender provisions and may also be enhanced under the general habitual offender statutes.

A.Subsequent Sex Offenders Registration Act (SORA) Offenses²

“MCL 28.729(1)^[3] sets forth a recidivism statutory scheme that creates three separate felonies that elevate on the basis of repeat offenses.” People v Allen, 499 Mich 307, 326 (2016). Because the Legislature intended “to elevate each offense, not merely the punishment,” a defendant convicted of a subsequent violation of SORA subject to an enhanced maximum sentence under MCL 28.729(1) may also be subject to enhancement of his or her maximum sentence under the general habitual offender statutes. Allen, 499 Mich at 311, 326-327.

Specifically, the Allen Court held that MCL 769.10 and MCL 28.729 do not conflict, and “the Court of Appeals mistakenly concluded that the phrase ‘first conviction of that offense’ in MCL 769.10(1)(a) referred to MCL 28.729(1)(a) (SORA-1)” rather than to the specific SORA offense of which the defendant was convicted. Allen, 499 Mich at 322-323 (holding that although “defendant was subject to a 7-year maximum term of imprisonment[ for SORA-2 under MCL 28.729(1)(b)], . . . the trial court appropriately exercised its discretion in sentencing defendant [as a second-offense habitual offender under MCL 769.10(1)(a)] to 1½ times that statutory maximum, i.e., 10.5 years”).⁴

B.Third or Subsequent Convictions of Operating While Intoxicated or Operating With Any Amount of Certain Controlled Substances in the Body⁵

The general habitual offender statutes apply to felony convictions of MCL 257.625, including in cases where the underlying felony is itself a prior conviction of MCL 257.625. People v Bewersdorf, 438 Mich 55, 68-69, 71 (1991) (holding that the statutory scheme in MCL 257.625 establishes separate crimes, the general habitual offender statutes clearly apply when an individual has committed a subsequent felony, and the habitual offender act “makes no exceptions with respect to” convictions under MCL 257.625). See also People v Stewart (On Remand), 219 Mich App 38, 43-44 (1996) (rejecting the defendant’s argument that habitual offender charges should be dismissed because the prior felonies used to enhance defendant’s sentence were two convictions of operating a motor vehicle while under the influence of intoxicating liquor, third offense, and reiterating that the general habitual offender statutes are “applicable to third and subsequent convictions” under MCL 257.625).

For offenses occurring after January 3, 2007,⁶ a defendant’s third or subsequent conviction under MCL 257.625(1) (operating while intoxicated) or MCL 257.625(8) (operating with any amount of certain controlled substances in the body) constitutes a felony regardless of the number of years that have elapsed between any prior conviction, i.e., even those convictions that occurred more than ten years before the defendant’s third conviction. MCL 257.625(9)(c); People v Perkins, 280 Mich App 244, 245-246 (2008). A defendant’s prosecution under MCL 257.625(9)(c), as amended by 2006 PA 564, does not violate the ex post facto clauses of the state or federal constitutions. Perkins, 280 Mich App at 251-252. The Michigan Court of Appeals explained that although the amended MCL 257.625(9)(c) “certainly works to [the defendant’s] disadvantage, [it] did not attach legal consequences to [his] prior offenses, which occurred before the amendment’s effective date. Rather, the amendment made the consequences of [the defendant’s] current offense[], which occurred after January 3, 2007, more severe on the basis of [the defendant’s] prior convictions.” Perkins, 280 Mich App at 251. See also People v Sadows, 283 Mich App 65, 66 (2009) (MCL 257.625, as amended by 2006 PA 564, does not violate the prohibition against ex post facto laws and does not deny a defendant his or her federal and state constitutional rights to equal protection and due process).

C.Subsequent Domestic Violence Convictions

A sentence for a subsequent conviction under the domestic violence statute, MCL 750.81, “which elevates an offense from a misdemeanor to a felony and increases the penalty for repeat offenses,” is subject to habitual offender enhancement. People v Stricklin, 322 Mich App 533, 541 (2018). “The domestic-violence statute does not impose mandatory determinate sentences for its violation, nor is it explicitly excepted from the habitual offender act”; rather it “contains the type of statutory scheme of commonly charged offenses that courts have repeatedly found to be subject to habitual-offender enhancement.” Id. at 541-542 (cleaned up).

Specifically, the court rejected the defendant’s argument “that the domestic-violence statute contains a method for enhancing his punishment based on recidivism and that his sentence should therefore not also be enhanced by the habitual-offender statute, MCL 769.12,” and held that the domestic-violence statute does “not merely enhance punishment based on recidivism but instead create[s] separate substantive crimes” to which the general habitual offender statute enhancements apply. Stricklin, 322 Mich App at 538, 540.

D.Subsequent Fleeing and Eluding Convictions

Both MCL 257.602a and MCL 750.479a prohibit fleeing and eluding a police or conservation officer. Any fleeing and eluding conviction is a felony offense, but both statutes set forth first-, second-, third-, and fourth-degree fleeing and eluding offenses with differing penalties. See MCL 257.602a; MCL 750.479a. Violation of both fleeing and eluding statutes can constitute a higher degree of fleeing and eluding on the basis of prior convictions. MCL 257.602a; MCL 750.479a. The general habitual offender statutes may be used to enhance a defendant’s sentence for a subsequent fleeing and eluding conviction even where the fleeing and eluding statute already provided for an enhanced sentence based on the defendant’s subsequent conviction of fleeing and eluding. People v Lynch, 199 Mich App 422, 424 (1993).