4.2Establishing a Defendant’s Habitual Offender Status
Sentence enhancement for habitual offenders is not required; the prosecuting attorney has discretion whether to seek an enhanced sentence. See MCL 769.13(1). The procedure for seeking an enhanced sentence is set out in MCL 769.13 and MCR 6.112(F).
A.Notice of Intent to Seek Enhancement
The prosecutor must file a written notice of intent to seek an enhanced sentence. MCL 769.13(1); MCR 6.112(F). The notice must “list the prior conviction or convictions that will or may be relied upon for purposes of sentence enhancement.” MCL 769.13(2). If applicable, the notice must also contain “any mandatory minimum sentence required by law as a result of the sentence enhancement.” MCR 6.112(F).
The prosecutor must file the notice with the court and serve it on the defendant or the defendant’s attorney within the time provided in MCL 769.13(1), discussed in detail in Section 4.2(A)(1), Section 4.2(A)(2), and Section 4.2(A)(3). MCL 769.13(2). “The notice may be personally served upon the defendant or his or her attorney at the arraignment on the information charging the underlying offense, or may be served in the manner provided by law or court rule for service of written pleadings.” Id. “The prosecuting attorney shall file a written proof of service with the clerk of the court.” Id. However, failure to do so may be harmless “if the defendant receive[s] the notice of the prosecutor’s intent to seek an enhanced sentence and the defendant [is] not prejudiced in his ability to respond to the habitual offender notification.” People v Head, 323 Mich App 526, 543-544 (2018) (holding that “the prosecutor’s failure to file a proof of service constituted a harmless error that [did] not require resentencing” where the “defendant had access to the charging documents, he had notice of the charges against him, including the habitual offender enhancement, and he also was informed of the habitual offender enhancement at the preliminary examination”). See also People v Burkett, 337 Mich App 631, 643-647 (2021) (holding the prosecutor’s failure to file proof of service was harmless error where defendant had timely actual notice, his ability to respond to the notice was not prejudiced, and he did not claim that the enhancement was inapplicable).
The prosecutor is not specifically required to sign the habitual offender notice. See Head, 323 Mich App at 545; MCL 769.13; MCR 6.112(F).
“The purpose of the notice requirement is to provide the accused with notice, at an early stage in the proceedings, of the potential consequences should the accused be convicted of the underlying offense.” Head, 323 Mich App at 543 (quotation marks and citation omitted).
Violation of the notice requirement in MCL 769.13(1) does not deprive a trial court of subject-matter jurisdiction to apply the habitual offender sentencing enhancement. People v Adams, 508 Mich 1023, 1023-1024 (2022) (noting that “[s]ubject-matter jurisdiction concerns a court’s authority to hear and determine a case and is dependent of the character or class of the case pending, not the particular facts of the case,” and MCL 769.13 “does not address classes of case or contain any language relating to subject-matter jurisdiction”) (quotation marks and citation omitted).
Notice must be filed “within 21 days after the defendant’s arraignment on the information charging the underlying offense[.]” MCL 769.13(1). See also MCR 6.112(F).
“[T]he applicable time period for measuring the 21-day period begins with the date of ‘defendant’s arraignment on the information charging the underlying offense,’” meaning the date of the arraignment on the indictment or information not the date of the arraignment on the warrant or complaint. People v Richards, 315 Mich App 564, 588 (2016) (quoting MCL 769.13(1) and noting that “there is a distinction between an arraignment on the information and an arraignment on the warrant or complaint”), rev’d in part on other grounds 501 Mich 921 (2017) (additional citations omitted).1 Accordingly, the prosecution’s notice of intent to seek an enhanced sentence was timely filed where “[d]efendant was arraigned on the information in circuit court . . . [and o]n that same day, the prosecution filed the first amended information, which contained a fourth-offense habitual offender notice.” Richards, 315 Mich App at 589.
Where the defendant is not arraigned, the notice must be filed “within 21 days after the filing of the information charging the underlying offense.” MCL 769.13(1); MCR 6.112(F).2
This rule applies “in the absence of an arraignment,” even if the defendant “never formally waived arraignment.” People v Marshall, 298 Mich App 607, 627 (2012) (holding that where “it [was] undisputed that defendant was never arraigned on the underlying offense in the circuit court, the first period [set out in MCL 769.13(1) was] not applicable,” and that “MCL 769.13(1) clearly contemplates that in the absence of an arraignment, the period for filing the habitual-offender notice is to be measured from the date the information charging the underlying offense is filed”), vacated in part on other grounds 493 Mich 1020 (2013).3
3.Notice After Defendant Has Been Convicted
“The prosecuting attorney may file notice of intent to seek an enhanced sentence after the defendant has been convicted of the underlying offense or a lesser offense, upon his or her plea of guilty or nolo contendere if the defendant pleads guilty or nolo contendere at the arraignment on the information charging the underlying offense, or within [the 21-day period after the arraignment].” MCL 769.13(3).
However, note that “an arguable conflict exists between MCR 6.302(B)(2) and MCL 769.13(3).” People v Brown, 492 Mich 684, 701 (2012). Specifically, “MCR 6.302(B)(2) requires the trial court to apprise a defendant of his or her maximum possible prison sentence as an habitual offender before accepting a guilty plea,” and MCR 6.310(C)(3) permits a defendant who is not so apprised to elect either to allow his or her plea and sentence to stand or to withdraw the plea. Brown, 492 Mich at 687. Noting that “MCL 769.13(3) . . . permits a prosecuting attorney to file a notice of intent to seek an enhanced sentence under the habitual-offender statute after a defendant has entered a plea,” the Court concluded that “the remedy provided by [MCR 6.310(C)(3)] will apply [even] when a defendant is not notified of the enhancement until after pleading guilty.” Brown, 492 Mich at 701-702 (remanding for the defendant to decide whether to allow his plea to stand or withdraw it where the defendant was not informed that he could receive an enhanced sentence as a habitual offender before pleading guilty).4
Before, during, or after trial, the court may permit the prosecutor to amend the notice of intent to seek an enhanced sentence “unless the proposed amendment would unfairly surprise or prejudice the defendant.” MCR 6.112(H).
B.Challenges to Prior Conviction(s)
A defendant charged as a habitual offender may challenge the accuracy or constitutional validity of any of the prior felony convictions listed in the prosecutor’s notice of enhancement. MCL 769.13(4). To challenge a prior conviction, the defendant must file a written motion with the court and serve the prosecutor with a copy of the motion. Id.
1.Establishing Prior Conviction(s)
“The existence of the defendant’s prior conviction or convictions shall be determined by the court, without a jury, at sentencing, or at a separate hearing scheduled for that purpose before sentencing.” MCL 769.13(5). See also People v Green, 228 Mich App 684, 699 (1998).
“The existence of a prior conviction may be established by any evidence that is relevant for that purpose, including, but not limited to, 1 or more of the following:
(a) A copy of a judgment of conviction.
(b) A transcript of a prior trial or a plea-taking or sentencing proceeding.
(c) A copy of a court register of actions.
(d) Information contained in a presentence report.
(e) A statement of the defendant.” MCL 769.13(5).
The defendant failed to demonstrate plain error regarding the establishment of his prior convictions where “[t]he prior convictions were established by the unchallenged information in the presentence investigation report and [the defendant] acknowledg[ed] that the prior record variables, which reflected defendant’s prior convictions, were properly scored.” People v Marshall, 298 Mich App 607, 627 (2012), vacated in part on other grounds 493 Mich 1020 (2013).5
2.Resolution of Challenge
MCL 769.13(6) describes the process by which the trial court must resolve a defendant’s properly raised challenge to the use of a prior conviction to enhance his or her sentence under the general habitual offender statutes:
•Challenges raised in a motion filed under MCL 769.13(4) can be resolved at sentencing or at a separate hearing before sentencing;
•Defendant must have the “opportunity to deny, explain, or refute any evidence or information” regarding prior conviction(s) before sentencing and to present relevant evidence;
•Defendant has “the burden of establishing a prima facie showing that an alleged prior conviction is inaccurate or constitutionally invalid”;
•If defendant makes a prima facie showing of inaccuracy or unconstitutionality, the prosecuting attorney has the burden of proving by a preponderance of the evidence “that the information or evidence is accurate,” or “that the prior conviction is constitutionally valid.”
1.Classification of the Prior Conviction6
The following types of convictions are prior felonies for purposes of the habitual-offender statutes (found in the Code of Criminal Procedure):
•Two-year misdemeanors, People v Smith, 423 Mich 427, 434 (1985);7
•Out-of-state convictions that involve a factual situation constituting a felony as that term is defined in Michigan, regardless of how the out-of-state offense is classified, People v Quintanilla, 225 Mich App 477, 478-479 (1997);8
•Prior convictions for offenses that were felonies at the time they were committed but were later reclassified as misdemeanors, People v Odendahl, 200 Mich App 539, 543-544 (1993), overruled on other grounds by People v Edgett, 220 Mich App 686 (1996);9 and
•Adult felony convictions resulting in a juvenile sentence, People v Jones, 297 Mich App 80, 85-86 (2012).10
2.Use of Certain Convictions Prohibited
Convictions statutorily prohibited. The habitual offender statutes expressly prohibit the use of a conviction to enhance a sentence “if that conviction is used to enhance a sentence under a statute that prohibits use of the conviction for further enhancement under [the habitual offender statutes].” MCL 769.10(3); MCL 769.11(3); MCL 769.12(3). This prohibition is discussed in detail in Section 4.6. See also the Michigan Judicial Institute’s table detailing the felony offenses for which an offender’s previous conviction may not be used for enhancement under the general habitual offender statutes if it is used to enhance the offense under the statute prohibiting the criminal conduct.
Prior district court convictions without representation. “Unless a defendant who is entitled to appointed counsel is represented by an attorney or has waived the right to an attorney, a subsequent charge or sentence may not be enhanced because of this conviction[.]” MCR 6.610(G)(3). Further, note that “the habitual offender statute applies only when ‘a person has been convicted of a felony’ and then ‘commits a subsequent felony[.]’” People v Urbanski, ___ Mich App ___, ___ (2023), quoting MCL 769.10(1) (holding that if the defendant is retried and convicted of a misdemeanor OWI he must not be sentenced as a habitual offender because the habitual offender statute does not apply to a misdemeanor conviction).
3.Multiple Convictions From the Same Criminal Transaction
When counting prior felonies under Michigan’s habitual offender statutes, each felony conviction that preceded the sentencing offense is counted, even if more than one conviction arose from the same criminal transaction. People v Gardner, 482 Mich 41, 44 (2008). The Court explained that the plain language of the habitual offender statutes, MCL 769.10, MCL 769.11, and MCL 769.12, “directs courts to count each separate felony conviction that preceded the sentencing offense, not the number of criminal incidents resulting in felony convictions.” Gardner, 482 Mich at 44, 49-50 (holding that defendant was properly sentenced as a third-offense habitual offender where his two prior felony convictions of felonious assault and felony-firearm arose from the same criminal incident).11
4.Convictions Older Than Ten Years
A trial court may consider felony convictions that are more than ten years old in determining a defendant’s habitual offender status. People v Zinn, 217 Mich App 340, 349 (1996). This is unlike the “10-year gap” rule, MCL 777.50, that limits the age of previous convictions that may be counted against a defendant for the purposes of scoring his or her prior record variables under the statutory sentencing guidelines.
Use of the same prior felony conviction to establish the crime of felony-firearm and the defendant’s status as a habitual offender does not violate the constitutional prohibitions against double jeopardy. People v Phillips, 219 Mich App 159, 162-163 (1996) (noting that the relevant statutory language does not prohibit or preclude use of the same underlying felony).
The same prior felonies may be used to establish a defendant’s habitual offender status for more than one subsequent felony conviction when the subsequent felonies were committed at different times. People v Anderson, 210 Mich App 295, 298 (1995). Because the habitual offender sentencing provisions do not create substantive offenses separate from the underlying prior convictions, a defendant’s double jeopardy protection is not implicated. Id.
1 For more information on the precedential value of an opinion with negative subsequent history, see our note.
2 Note that MCR 6.112(F) includes reference to the elimination of arraignment under MCR 6.113(E), which provides that “[a] circuit court may submit to the State Court Administrator pursuant to MCR 8.112(B) a local administrative order that eliminates arraignment for a defendant represented by an attorney, provided other arrangements are made to give the defendant a copy of the information and any notice of intent to seek an enhanced sentence [pursuant to MCL 769.13], as provided in MCR 6.112(F).”
3 For more information on the precedential value of an opinion with negative subsequent history, see our note.
4 Note that Brown refers to MCR 6.310(C); however, after Brown was decided MCR 6.310 was amended, and the text of MCR 6.310(C) pertinent to the holding in Brown was renumbered as MCR 6.310(C)(3). See ADM File No. 2019-27.
5 For more information on the precedential value of an opinion with negative subsequent history, see our note.
6 Note that “the habitual offender statute applies only when ‘a person has been convicted of a felony’ and then ‘commits a subsequent felony[.]’” People v Urbanski, ___ Mich App ___, ___ (2023), quoting MCL 769.10(1). See also MCL 769.11 and MCL 769.12 (addressing habitual offenders with 2 or more prior felonies and three or more prior felonies and using language requiring a “felony” similar to MCL 769.10).
7 For purposes of the Code of Criminal Procedure’s habitual-offender statutes, felony includes two-year misdemeanors because they are punishable by more than one year in state prison. People v Washington, 501 Mich 342, 357 (2018), citing Smith, 423 Mich at 434.
8 A prior conviction obtained in another state that, by offense title alone, would qualify only as a misdemeanor offense in Michigan, is not necessarily invalid for purposes of establishing a defendant’s habitual offender status. Quintanilla, 225 Mich App at 478-479. “The [habitual offender statutes] require[] that the offense be a felony in Michigan under Michigan law, irrespective of whether the offense was or was not a felony in the state or country where originally perpetrated. Hence, the facts of the out-of-state crime, rather than the words or title of the out-of-state statute under which the conviction arose, are determinative.” Id. at 479.
9 “[T]he purpose of the habitual offender statute [is] punishment for the recidivist, and . . . repealing a criminal law [does] not ‘remove from the offender the character of being a violator of the law.’” Odendahl, 200 Mich App at 543, quoting In re Jerry, 294 Mich 689, 692 (1940).
10 An adult conviction resulting in a juvenile sentence qualifies as a prior conviction for purposes of sentencing a defendant as a third-time habitual offender under MCL 769.11. Jones, 297 Mich App at 85-86 (noting that “MCL 769.11(1) focuses only on whether a defendant has been convicted, and does not contain any language regarding a defendant’s sentence”). MCL 769.10, governing second habitual offender status, and MCL 769.12, governing fourth habitual offender status, are textually similar to MCL 769.11, and would therefore presumably be subject to the same construction.
11 However, for purposes of MCL 769.12(1)(a), which provides for a mandatory 25-year minimum sentence for certain fourth habitual offenders, “[n]ot more than 1 conviction arising out of the same transaction shall be considered a prior felony conviction[.]” See Section 4.4(C) for discussion of MCL 769.12(1)(a).