4.5Sentencing an Offender for a Subsequent Major Controlled Substance Offense

When an offender has a previous felony conviction and is subsequently convicted of a major controlled substance offense, the habitual offender statutes require application of the sentencing provisions in Part 74 of the Public Health Code (PHC). MCL 769.10(1)(c); MCL 769.11(1)(c); MCL 769.12(1)(d). The PHC specifically permits, and in some cases requires, sentence enhancements for offenders who have second or subsequent convictions for offenses under Article 7 of the PHC, which covers controlled substance offenses. See MCL 333.7413.

See the Michigan Judicial Institute’s Controlled Substances Benchbook, Chapter 6, for a detailed discussion of sentencing habitual offenders under the PHC.

A.Application of General Habitual Offender Statutes

The general habitual offender provisions (MCL 769.10, MCL 769.11, and MCL 769.12) may be used to punish a defendant “convicted of a major controlled substance offense, who has no prior record of conviction of a drug offense, but has a prior record of conviction of another felony[.]” People v Primer, 444 Mich 269, 271-272 (1993). The Code of Criminal Procedure provisions requiring a person to be punished as provided in Article 7 of the PHC if a subsequent felony is a major controlled substance offense have a specific legislative purpose: “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.” Id.

See also People v Wyrick, 474 Mich 947, 947 (2005) (noting that “the prosecutor may seek a greater sentence under the habitual offender statute even when a defendant is sentenced under the Public Health Code” where the defendant had three prior felony convictions at the time he was sentenced for a major controlled substance offense); People v Franklin, 102 Mich App 591, 594 (1980) (where a defendant with no previous drug-related felony convictions was convicted of a major controlled substance offense, the Public Health Code’s enhancement provisions (MCL 333.7413(1) and MCL 333.7413(2)) were “inapplicable by [their] own terms,” but “[u]se of the general habitual offender statutes” to impose an enhanced sentence on the defendant based on the defendant’s multiple prior felony convictions “was permissible”).

B.Double Enhancement Prohibited

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); People v Edmonds, 93 Mich App 129, 135 (1979). See also People v Fetterley, 229 Mich App 511, 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).