Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:
Opinion Marilyn Kelly Michael F. Cavanagh
Elizabeth A. Weaver
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
Diane M. Hathaway
FILED AUGUST 13, 2009
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v No. 137284
JAMIE LYNN LOWE,
Defendant-Appellant.
BEFORE THE ENTIRE BENCH
MARKMAN, J.
This case presents the question whether MCL 333.7413(2), by authorizing a
trial court to enhance the sentence of a defendant who is a repeat drug offender to
a “term not more than twice the term otherwise authorized,” allows the trial court
to double both the defendant’s minimum and maximum sentences. We answer
this question in the affirmative. Accordingly, defendant’s sentence is affirmed.
I. BACKGROUND
Defendant pleaded guilty to possession of methamphetamine, MCL
333.7403(2)(b)(i), with a sentence enhancement as a repeat drug offender, MCL
333.7413(2). At sentencing, the trial court calculated defendant’s minimum
sentence range under the sentencing guidelines at 10 to 23 months. Pursuant to
§ 7413(2), the trial court, relying on People v Williams, 268 Mich App 416; 707
NW2d 624 (2005), doubled both the minimum and maximum sentences and
sentenced defendant to 46 months to 20 years in prison.1 Defendant did not object
to the sentence, but sought leave to appeal in the Court of Appeals, contending that
the trial court had erred by doubling his minimum sentence. The Court of Appeals
denied leave to appeal in a split decision, and defendant applied for leave to appeal
in this Court. We heard oral argument on his application.
II. STANDARD OF REVIEW
This Court reviews de novo questions of statutory interpretation. People v
Schaefer, 473 Mich 418, 427; 703 NW2d 774 (2005).
III. ANALYSIS
MCL 333.7413(2) provides for enhanced sentencing for defendants
convicted of a second or subsequent controlled substance offense:
Except as otherwise provided in subsections (1) and (3), an
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.[2]
1
Possession of methamphetamine typically carries a maximum sentence of
10 years. MCL 333.7403(2)(b)(i).
2
MCL 333.7413(5) provides:
For purposes of [§ 7413(2)] an offense is considered a second
or subsequent offense, if, before conviction of the offense, the
offender has at any time been convicted under this article or under
2
Defendant argues that the phrase “the term otherwise authorized” only refers to the
statutory maximum sentence, and that the trial court therefore erred by doubling
the minimum sentence guideline range. Consequently, his minimum sentence
should have been within the original minimum sentence guideline range of 10 to
23 months. The prosecutor responds that, based on Michigan’s indeterminate
sentencing scheme,3 “the term otherwise authorized” refers to the period
demarcated by both the minimum and maximum sentences and thus the court
correctly doubled that “term” by doubling both the minimum and maximum
sentences. Obviously, the resolution of the instant dispute rests on the meaning of
“the term otherwise authorized.”
The Court’s responsibility in interpreting a statute is to determine and give
effect to the Legislature’s intent. People v Koonce, 466 Mich 515, 518; 648
NW2d 153 (2002). The statute’s words are the most reliable indicator of the
Legislature’s intent and should be interpreted based on their ordinary meaning and
the context within which they are used in the statute. People v Morey, 461 Mich
325, 330; 603 NW2d 250 (1999). Once the Court discerns the Legislature’s intent,
any statute of the United States or of any state relating to a narcotic
drug, marihuana, depressant, stimulant, or hallucinogenic drug.
Defendant had been convicted of at least one prior drug-related offense.
3
An indeterminate sentence is one the specific duration of which is “not
fixed by the court but is left to the determination of penal authorities within
minimum and maximum time limits fixed by the court.” Black’s Law Dictionary
(5th ed).
3
no further judicial construction is required or permitted “because the Legislature is
presumed to have intended the meaning it plainly expressed.” People v Stone, 463
Mich 558, 562; 621 NW2d 702 (2001).
The word “term” is relevantly defined as “the time or period through which
something lasts” or “a period of time to which limits have been set.” Random
House Webster’s College Dictionary (1997). The “term” that a court is permitted
to double in § 7413(2) is the “term otherwise authorized.” “[O]therwise
authorized” undoubtedly refers to the term provided by law and for which a
defendant would be imprisoned absent any enhancement under § 7413(2). Thus,
the “term otherwise authorized” is a “period of time,” or more specifically a
“period of time to which limits have been set,” by law.
Because Michigan generally adheres to an indeterminate sentencing
scheme,4 the term for which a defendant would “otherwise” be imprisoned absent
an enhancement is not a definite period “through which [imprisonment] lasts.”
Rather, it is an indefinite “period” that is defined by a minimum and maximum
sentence. In the instant case, for example, defendant’s unenhanced sentence
would likely have been 23 months to 10 years.5 This sentence is best understood
4
Article 4, § 45, of the Michigan Constitution provides that the “legislature
may provide for indeterminate sentences as punishment for crime and for the
detention and release of persons imprisoned or detained under such sentences.”
5
This presumes that the trial court would have sentenced defendant at the
top of the minimum sentence guideline range just as it sentenced defendant at the
top of the enhanced guideline range.
4
as “the term otherwise authorized,” because: (a) it identifies the “period of time”
that a defendant has to remain in prison as a function of “limits [that] have been
set” by the minimum sentence guidelines and the statutory maximum;6 and (b) this
“period of time” has been calculated as “authorized” by law.
That the indeterminate sentence that a defendant typically receives under
Michigan law constitutes a “term” is supported by the ordinary parlance used by
the courts of this state to describe indeterminate prison sentences. See, e.g.,
People v Smith, 482 Mich 292, 297; 754 NW2d 284 (2008) (“The judge sentenced
defendant to three concurrent terms of 30 to 50 years’ imprisonment . . . .”)
(emphasis added); People v Williams, 475 Mich 245, 248; 716 NW2d 208 (2006)
(“[Defendant] was sentenced to a one- to fifteen-year term of imprisonment.”)
(emphasis added); People v Conyer, 281 Mich App 526, 527; 762 NW2d 198
(2008) (“Defendant was sentenced to serve consecutive prison terms of 30 to 120
months . . . .”) (emphasis added); People v Matuszak, 263 Mich App 42, 45; 687
NW2d 342 (2004) (“Defendant was sentenced to concurrent prison terms of
fifteen to thirty years . . . .”) (emphasis added). These are only a tiny sampling of
the hundreds of decisions in which a defendant’s indeterminate sentence range is
consistently referred to as a “term.”7 Such ordinary and persistent use of “term” to
6
Defendant would have had to serve no less than 23 months and no more
than 10 years.
7
See the results generated by a Lexis or Westlaw search with the following
parameters: sentence! /s “term of”.
5
describe this range establishes clearly, in our judgment, that the sentence
expressed by reference to both the minimum and maximum sentences constitutes a
“term.”
Thus, under Michigan’s scheme of indeterminate sentencing and the courts’
implementation of that scheme, the “term otherwise authorized” is not exclusively
the minimum sentence or the maximum sentence, but it is the actual indeterminate
sentence, which is defined by both the minimum and maximum limits for that
sentence. In other words, the “period of time” that a defendant could potentially
spend in prison lies somewhere between the minimum and the maximum
allowable sentences, and accordingly those sentences operate in tandem to define
the “term” for which a defendant has been sentenced. In order to double this
“term,” a trial court necessarily has to double both the minimum and maximum
sentences because both are required to constitute a particular “term.”8
Accordingly, § 7413(2)’s authorization for a trial court to imprison a defendant for
a “term not more than twice the term otherwise authorized” signifies that both the
minimum and maximum sentences must be doubled to fashion an enhanced
sentence that is twice the “term otherwise authorized.”9
8
We recognize that the statute does not require the trial court to double a
defendant’s sentence; rather, it allows an enhancement up to “not more than
twice” the original term. Merely for ease of discussion throughout this opinion,
we assume that the trial court’s chosen enhancement is twice the original term.
9
Because § 7413(2) specifically allows the court to double the guideline
range, as long as the minimum sentence of the enhanced term is within the
6
Moreover, interpreting “the term otherwise authorized” as the indeterminate
sentence created by both the minimum and maximum sentences is the only way to
give consistent effect to § 7413(2)’s directive that the defendant be “imprisoned
for a term not more than twice the term otherwise authorized,” when the trial court
doubles the “term otherwise authorized.” (Emphasis added.) The alternative
interpretation suggested by defendant, with which the dissent agrees, creates a risk
that this statutory directive will be violated, because defendant would have this
Court treat the maximum sentence, but not the minimum sentence, as a “term,”
even though both sentences, equivalently, constitute periods of time through which
defendant’s prison time may last.10 Assume that defendant is sentenced to 23
months to 20 years.11 It would be impossible for defendant to serve this maximum
sentence, because to do so would mean that defendant will have been imprisoned
for a term “more than twice the term otherwise authorized,” since defendant’s
interpretation necessarily means that the minimum sentence must be treated as a
doubled range, we conclude that there is also no departure from the guideline
range when such a sentence is imposed. See People v Williams, 268 Mich App at
430.
10
As the Court of Appeals noted in People v Williams, 268 Mich App at
427, “the clear and unambiguous language of MCL 333.7413(2) does not
differentiate or suggest a distinction . . . between maximum and minimum
sentences[.]” Accordingly, nothing within the statute can fairly be read to support
applying defendant’s suggested meaning of “term” to a maximum, but not a
minimum, sentence.
11
This is based on a minimum sentence at the top of the unenhanced
guideline range and twice the statutory maximum sentence. Thus, pursuant to
defendant’s argument, only the maximum sentence here is doubled.
7
“term otherwise authorized.” That is, the statute itself would have been violated
because defendant’s term of imprisonment, i.e., 20 years, would be 10 times
longer than the 23-month “term” that defendant asserts is “otherwise authorized,”
which directly conflicts with the statutory requirement that defendant can only be
imprisoned for a term “not more than twice” that “term.”
By contrast, when the “term otherwise authorized” is interpreted as the
indeterminate sentence designated by both the minimum and maximum sentences,
and when both of these sentences are doubled, the defendant will never be
imprisoned for a term 10 times the unenhanced term. Using the previous
illustration, when both the minimum and maximum sentences are doubled, the 23-
month minimum sentence would be doubled to 46 months, the 10-year maximum
sentence would be doubled to 20 years, and, accordingly, the “term otherwise
authorized,” i.e., 23 months to 10 years, would be doubled to 46 months to 20
years. When a trial court considers both the minimum and maximum sentences as
the “term otherwise authorized,” and doubles each of these to form the enhanced
term, the enhanced term will never be 10 times as long as the “term otherwise
authorized,” but will always be exactly twice as long as the unenhanced term.
Finally, the Legislature’s authorization for a defendant to be imprisoned for
an enhanced term is most reasonably understood to communicate that the
defendant should, in fact, serve more time-- indeed as a general matter,
approximately “twice” as much time-- for his enhanced term than for his
unenhanced term. Interpreting § 7413(2) to only allow the trial court to double the
8
defendant’s maximum sentence would not in reality ensure that the defendant will
serve any additional time when sentenced for a second drug offense, because the
minimum sentence would remain the same and nothing in an indeterminate
sentence prevents a defendant from being released after his minimum sentence has
been satisfied. Thus, interpreting § 7413(2) to allow both the minimum and
maximum sentences to be doubled is most consistent with what is almost certainly
the common understanding that a defendant who has been imprisoned for “twice”
his original “term” will serve twice what he would have otherwise served.12
Defendant also contends that MCL 777.21 supports his position that the
trial court can only double the maximum sentence under MCL 333.7413(2). MCL
777.21 states in relevant part:
(3) If the offender is being sentenced under section 10, 11, or
12 of chapter IX, determine the offense category, offense class,
offense variable level, and prior record variable level based on the
underlying offense. To determine the recommended minimum
sentence range, increase the upper limit of the recommended
minimum sentence range determined under part 6 for the underlying
offense as follows:
(a) If the offender is being sentenced for a second felony,
25%.
(b) If the offender is being sentenced for a third felony, 50%.
12
Admittedly, under Michigan’s indeterminate sentencing scheme, there is
no way of knowing how much time a defendant would actually have served under
his original sentence. The only certainty is the “term otherwise authorized,” and
logically the statute authorizes enhancing this known “term.”
9
(c) If the offender is being sentenced for a fourth or
subsequent felony, 100%.
(4) If the offender is being sentenced for a violation described
in section 18 of this chapter, both of the following apply:[13]
(a) Determine the offense variable level by scoring the
offense variables for the underlying offense and any additional
offense variables for the offense category indicated in section 18 of
this chapter.
(b) Determine the offense class based on the underlying
offense. If there are multiple underlying felony offenses, the offense
class is the same as that of the underlying felony offense with the
highest crime class. If there are multiple underlying offenses but
only 1 is a felony, the offense class is the same as that of the
underlying felony offense. If no underlying offense is a felony, the
offense class is G.
Defendant relies on the fact that § 21(3) allows a court to increase a defendant’s
minimum sentence range, but § 21(4), which applies to sentencing under MCL
333.7413(2), only specifies the various offense variables and offense classes to be
used in calculating the guideline range. Therefore, he argues, the Legislature’s
omission of a minimum sentencing enhancement in MCL 777.21(4) indicates that
the Legislature did not intend enhancement of minimum sentences for those
offenses.
We find defendant’s argument unpersuasive. MCL 777.21(4) simply
provides the methodology for a trial court to follow in calculating a defendant’s
13
Section 18 refers to MCL 777.18, in which the Legislature expressly
provided that the chapter of the Code of Criminal Procedure encompassing the
sentencing guidelines applies to felonies under MCL 333.7413(2).
10
minimum sentence guideline range. The lack of a minimum sentence
enhancement in that subsection provides no insight into whether MCL
333.7413(2) provides a minimum sentence enhancement, and it is unclear why a
lack of a minimum sentence enhancement under MCL 777.21(4) must mean that
the Legislature intended MCL 333.7413(2) to also lack a minimum sentence
enhancement.14 The Legislature’s silence in MCL 777.21(4) regarding a
minimum sentence enhancement cannot preclude the Legislature from providing a
minimum sentence enhancement in a separate statute.
IV. RESPONSE TO DISSENT
The dissent concludes that MCL 333.7413(2) should be interpreted to
authorize trial courts to enhance only the maximum sentence for repeat drug
offenders because such interpretation avoids a “potential conflict” between
§ 7413(2) and MCL 769.34(2). Post at 6. We agree with the dissent’s maxim of
interpretation that statutes concerning the “same subject matter must be read
together and, when possible, construed harmoniously,” post at 2, but disagree that
this compels the dissent’s interpretation. In arriving at this disagreement, we
consider the equally well-established maxim of interpretation that “the Legislature
is presumed to be aware of judicial interpretations of existing law when passing
14
Contrary to the dissent’s assertion that MCL 777.21(4) “does not provide
dispositive support” for our interpretation, post at 8-9 n 6, this subsection actually
does support our interpretation when considered specifically in the context of the
sentencing guidelines and MCL 333.7413(2). See infra at 12-14.
11
legislation.” Ford Motor Co v City of Woodhaven, 475 Mich 425, 439-440; 716
NW2d 247 (2006) (quotation marks omitted).
As the dissent correctly notes, post at 10, prior to enactment of the
sentencing guidelines, MCL 333.7413(2) had been interpreted to allow a trial
court to enhance both the minimum and maximum sentences when a defendant’s
“term,” defined by those minimum and maximum sentences, was set by statute.
See People v Williams, 205 Mich App 229, 230; 517 NW2d 315 (1994). The
sentencing guidelines now statutorily authorize both the minimum and maximum
sentences for a broad range of criminal offenses, thereby making the “terms” of
applicable offenses to which § 7413(2) had not previously applied the equivalent
of the “terms” of offenses to which § 7413(2) had previously applied. Thus, our
interpretation of § 7413(2) remains consistent with how it was interpreted in
Williams; applying that decision to the minimum sentence in the instant case is
merely a function of the Legislature’s decision to enact sentencing guidelines that
established minimum sentences.
The dissent further argues that, because the sentencing guidelines apply to
defendant’s underlying offense-- the possession of methamphetamine-- the
sentence must be within the minimum sentence guideline range as calculated for
that offense. Post at 6-7. However, the Legislature expressly provided that the
guidelines specifically apply to sentencing done pursuant to § 7413(2), MCL
777.18, and implemented a specific scheme for when “the offender is being
sentenced for a violation [of § 7413(2)],” MCL 777.21(4). Under this scheme, the
12
trial court is directed to calculate the minimum sentence range based on the
offense variables and offense class for the underlying felony. MCL 777.21(4).
Notably, § 21(4) includes no scoring for prior record variables, even though MCL
333.7413(2) only applies if a defendant has, in fact, committed a prior offense. In
light of this, it seems reasonable to conclude that the Legislature, knowing that
§ 7413(2) allowed an enhancement of the minimum sentence, intended the
minimum sentence guideline range to be calculated without respect to the
underlying offense’s repeat nature. If the Legislature had intended for § 7413(2)
to operate only as an enhancement of the maximum sentence, then MCL 777.21(4)
would have been unnecessary, and the Legislature would have had no reason to
apply the minimum sentence guidelines to sentencing under MCL 333.7413(2).
Instead, the Legislature could have simply directed the trial court to calculate the
minimum sentence guideline range for the underlying felony as if it were not a
subsequent drug offense, and then simply apply § 7413(2) to increase the
maximum sentence. Yet, it chose not to do this. Rather, construing the
legislatively established procedures for determining the minimum sentence
guideline range under § 7413(2), in combination with the recognition that the
Legislature was aware that § 7413(2) applied to “terms” that had statutory
minimums and maximums prior to the enactment of MCL 769.34(2), suggests that
the Legislature intended for the recidivist aspect of the subsequent drug offense to
13
be accounted for by enhancing both the defendant’s minimum and maximum
sentences pursuant to § 7413(2).15
Finally, the dissent contends that we reach our interpretation of “term”
through “impressive linguistic gymnastics,” without clarifying what these
“gymnastics,” impressive or otherwise, might be. Post at 12 n 10. In fact, we
have carefully reviewed the statutory language, and the common understanding of
that language, to arrive at our understanding of what constitutes the “term.” The
Legislature used the phrase “the term otherwise authorized,” unadorned by
“minimum” or “maximum” or any other modifier. In the dissent’s own words, “it
is logical that the unmodified word ‘term’ would be used in order to be applicable
to both.” Post at 12 n 10. More precisely, because the Legislature has not
modified “term” with either “minimum” or “maximum,” the phrase “the term
otherwise authorized” is most reasonably interpreted as the prison term to which a
defendant would be sentenced absent any enhancement. See also supra n 10. In
Michigan, such “term” is indeterminate and is established by reference to both the
minimum and maximum sentences.
15
The dissent’s suggestion that MCL 777.21(4) “merely demonstrates that
the Legislature intended minimum sentences for repeat drug offenders to be
calculated under the sentencing guidelines,” post at 8 n 6, is untenable in light of
the dissent’s interpretation that MCL 333.7413(2) only affects maximum
sentences, and in light of the fact that the Legislature has already provided
calculations for drug offenses under the sentencing guidelines.
14
V. CONCLUSION
We hold that MCL 333.7413(2) authorizes the trial court to double both the
minimum and maximum sentences in order to double defendant’s “term otherwise
authorized.” This understanding gives effect to the Legislature’s use of a word,
“term,” that is ordinarily used to characterize a defendant’s indeterminate sentence
range, as well as to all other phrases in the statute; it avoids the risk that, contrary
to § 7413(2), a defendant’s enhanced sentence will be “more than twice” the
unenhanced sentence; and it implements the reasonable expectation that a statute
authorizing a court to “double” a sentence will ordinarily ensure that, where the
trial court acts pursuant to this authorization, a defendant will serve more time in
prison under the enhanced sentence than he would have under the unenhanced
sentence. Accordingly, the trial court here properly exercised its authority under
§ 7413(2), and defendant’s sentence is affirmed.
Stephen J. Markman
Elizabeth A. Weaver
Maura D. Corrigan
Robert P. Young, Jr.
Diane M. Hathaway
15
STATE OF MICHIGAN
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v No. 137284
JAMIE LYNN LOWE,
Defendant-Appellant.
CAVANAGH, J. (dissenting).
I respectfully dissent from the majority’s conclusion that MCL 333.7413(2)
permits the sentencing judge to double the offender’s minimum and maximum
sentences. In my judgment, in the context of the overall sentencing scheme, the
provision at issue authorizes a sentencing judge to double only the penalty
provided within the controlled substances act, MCL 333.7101 et seq., which, in
this case, is only the maximum sentence. Therefore, I would reverse the judgment
of the Court of Appeals and remand the case to the trial court for resentencing.
I. INTRODUCTION
The issue in this case is the proper interpretation of the sentencing
enhancement provision in the controlled substances act, MCL 333.7413(2), which
states in relevant part that “an individual convicted of a second or subsequent
offense under [the controlled substances act] may be imprisoned for a term not
more than twice the term otherwise authorized . . . .” The majority holds that, in
addition to authorizing the doubling of the maximum sentence provided for the
offense in the controlled substances act, this provision authorizes the doubling of
the minimum sentence authorized by the sentencing guidelines in the Code of
Criminal Procedure. This interpretation, however, creates a conflict between
MCL 333.7413(2) and the provision in the Code of Criminal Procedure, MCL
769.34(2), that requires that all minimum sentences fall within the range
calculated under the sentencing guidelines absent a departure. I would instead
construe the statutory provisions harmoniously to the extent possible and hold that
MCL 333.7413(2) authorizes the doubling of only the penalties provided in the
controlled substances act and not the minimum sentences provided by the
sentencing guidelines.
II. OVERVIEW OF SENTENCING STATUTES
This case requires reading several sections of statutory code together
because, in Michigan, punishment and sentencing for drug offenses are governed
by the controlled substances act, which is article 7 of the Public Health Code, and
chapters IX and XVII of the Code of Criminal Procedure, MCL 769.1 et seq. and
MCL 777.1 et seq., respectively. Statutes regulating the same subject matter must
be read together and, when possible, construed harmoniously. As this Court has
stated, “‘[a]ll consistent statutes which can stand together, though enacted at
different dates, relating to the same subject . . . are treated prospectively and
2
construed together as though they constituted one act.’” Wayne Co v Auditor
General, 250 Mich 227, 234; 229 NW 911 (1930) (citation omitted). They are
“‘to be compared, harmonized if possible, and, if not susceptible of a construction
which will make all of their provisions harmonize, they are made to operate
together so far as possible consistently with the evident intent of the latest
enactment.’”1 Id. (citation omitted).
To begin with, chapter IX of the Code of Criminal Procedure provides the
general rules for sentencing, including how to calculate the appropriate minimum
and maximum terms under Michigan’s indeterminate sentencing scheme.
Maximum sentences are governed partly by MCL 769.8(1), which provides that
the maximum sentence for an offender’s first felony offense punishable by
imprisonment in a state prison shall be the “maximum penalty provided by
law . . . in all cases except as provided in this chapter [of the Code of Criminal
Procedure].” The maximum sentences for drug offenses are provided in the
controlled substances act. Minimum sentences are governed by MCL 769.34(2),
which clearly requires that the minimum of every sentence be set in accordance
with the Code of Criminal Procedure. It states that the minimum sentence for any
1
The members of this Court have expressed differing views regarding the
proper approach to statutory interpretation. Although the current justices have
disagreed on certain principles of statutory interpretation, there is agreement on
the point that statutes should be construed in light of and in harmony with other
relevant statutory provisions. See, e.g., Herman v Berrien Co, 481 Mich 352, 366;
750 NW2d 570 (2008); Baraga Co v State Tax Comm, 466 Mich 264, 275 n 6; 645
NW2d 13 (2002).
3
felony included in part 2 of the sentencing guidelines, MCL 777.11 et seq., “shall
be within the appropriate sentence range under the version of those sentencing
guidelines in effect on the date the crime was committed,” except “as otherwise
provided” in MCL 769.34(2) or (3).2 The sentencing guidelines are contained in
chapter XVII of the Code of Criminal Procedure and provide the means of
calculating minimum sentence ranges. The Code of Criminal Procedure also
includes instructions about when the upper limit of those ranges may be enhanced.
See MCL 769.34(2); MCL 777.1 et seq. The controlled substances act also
provides mandatory minimum sentences for some drug offenses, but the Code of
Criminal Procedure provides specific instructions about how to calculate
minimum sentences when another statute provides for a mandatory minimum
sentence.3 In sum, for every felony to which chapter IX applies, the minimum
sentence must be within the range calculated under the sentencing guidelines in
chapter XVII of the Code of Criminal Procedure, and every maximum sentence
must be the maximum provided by law.
2
MCL 769.34(2) provides an exception in circumstances in which a statute
mandates a minimum sentence or a judge expressly departs from the guidelines by
following the procedure outlined in MCL 769.34(3).
3
MCL 769.9(3) provides that for major controlled substance offenses that
have a mandatory minimum sentence, the court “shall fix the length of both the
minimum and maximum sentence within those specified limits, . . . and the
sentence so imposed shall be considered an indeterminate sentence.” In addition,
MCL 769.34(2)(a) provides that “[i]mposing a mandatory minimum sentence is
not a departure [from the sentencing guidelines] under this section.”
4
In addition to the sentences generally permitted for offenses, both the Code
of Criminal Procedure and the controlled substances act permit the sentences
otherwise authorized to be enhanced for defendants who were convicted of prior
offenses. The habitual-offender statutes in the Code of Criminal Procedure, MCL
769.10, 769.11, and 769.12, permit the maximum sentence otherwise allowed to
be increased on the basis of the number of previous offenses. In addition, the
controlled substances act provides in MCL 333.7413(2) that a person convicted of
a subsequent drug offense “may be imprisoned for a term not more than twice the
term otherwise authorized . . . .” The sentencing guidelines expressly incorporate
MCL 333.7413(2) by listing that statutory provision in MCL 777.18 along with
other statutory sections dealing with offenses that are based on an offender’s other
crimes. The sentencing guidelines instruct that in order to calculate a minimum
sentence for a violation listed in MCL 777.18, the trial court should score the
offense variables and determine the offense class on the basis of the underlying
offense. MCL 777.21(4)(a) and (b).
III. THE PROPER INTERPRETATION OF MCL 333.7413(2)
The issue in this case arises in light of the enhancement statute in the
controlled substances act, MCL 333.7413(2). Defendant was subject to a sentence
enhancement under this provision, which provides that, excluding some
circumstances not applicable here, “an individual convicted of a second or
subsequent offense under [the controlled substances act] may be imprisoned for a
term not more than twice the term otherwise authorized . . . .” The majority
5
concludes that the “term otherwise authorized” must refer to the “period of time”
between the minimum and maximum sentences, so that MCL 333.7413(2) allows
the doubling of both the minimum and maximum sentences otherwise authorized,
regardless of where in the statutory scheme the sentences are authorized. The
majority therefore upholds the doubling of the minimum sentence authorized by
the sentencing guidelines for defendant.
There is, however, a fundamental problem with this approach that the
majority fails to address. The majority’s interpretation creates a potential conflict
between the sentence enhancement provision of the controlled substances act,
MCL 333.7413(2), and the requirement of the Code of Criminal Procedure in
MCL 769.34(2) that all minimum sentences for applicable felonies must fall
within the range calculated under the sentencing guidelines. The sentencing
statutes in the Code of Criminal Procedure apply in this case. MCL 769.34(2)
provides that every minimum sentence for a felony listed in MCL 777.11 et seq.
must fall within the range permitted by the sentencing guidelines, except for
certain circumstances provided for in MCL 769.34(2) and (3) that do not apply
here.4 Defendant pleaded guilty of possession of methamphetamine under MCL
333.7403(2)(b)(i), which is “a felony punishable by imprisonment for not more
4
MCL 769.34(2)(a) does not apply because the statute under which
defendant was sentenced, MCL 333.7403(2)(b)(i), does not specify a mandatory
minimum sentence. MCL 769.34(3) does not apply because the sentencing judge
did not follow the procedure required to depart from the guidelines.
6
than 10 years or a fine of not more than $15,000.00, or both.” That offense is
listed in MCL 777.13m and, therefore, under MCL 769.34(2), the minimum
sentence defendant receives must fall within the range calculated under the
sentencing guidelines in chapter XVII. I can see no authority under chapter IX
that would exempt defendant from the requirement that the minimum sentence for
his offense be within the range calculated under the sentencing guidelines. In my
judgment, this is in conflict with the majority’s conclusion that MCL 333.7413(2)
could be read to authorize the doubling of the minimum sentence allowed by the
sentencing guidelines, given that doing so could result in a minimum sentence that
is not within the range provided by the guidelines.
As discussed below, I disagree with the majority’s interpretation of the
statute. But even if one accepts the majority’s reading of MCL 333.7413(2) as
correct when read in isolation, I think that the provision still must be read in
harmony with MCL 769.34(2). Because MCL 769.34(2) uses mandatory language
(“the minimum sentence . . . shall be within the appropriate sentence range”),
while the language in the controlled substances act, MCL 333.7413(2), is merely
permissive (“an individual . . . may be imprisoned for a term not more than twice
the term otherwise authorized”), if the majority’s interpretation of MCL
333.7413(2) were correct, I would still interpret MCL 769.34(2) as limiting MCL
7
333.7413(2).5 In my judgment, if the statutes are not harmonized in this manner,
the majority’s reading of MCL 333.7413(2) irreconcilably conflicts with MCL
769.34(2).6
5
Even if the statutes could not be read harmoniously, in Wayne Co, this
Court stated that if statutes were “‘not susceptible of a construction which will
make all of their provisions harmonize, they are made to operate together so far as
possible consistently with the evident intent of the latest enactment.’” Wayne Co,
250 Mich at 234 (citation omitted). Given that the controlled substances act,
including MCL 333.7413(2), predated the sentencing guidelines and the current
version of MCL 769.34(2) by 20 years, reading the mandatory language in MCL
769.34(2) to limit MCL 333.7413(2) would be consistent with the “evident intent
of the latest enactment” in the sentencing scheme of the Code of Criminal
Procedure.
6
The majority argues that, because generally “the Legislature is presumed
to be aware of judicial interpretations of existing law when passing legislation,”
the Legislature must have intended the reference to “term” in MCL 333.7413(2) to
include the new minimum sentencing guidelines. Ante at 11-12 (quotation marks
omitted). While this reading could harmonize MCL 333.7413(2) with the
sentencing guidelines in a general sense, it does not address the express conflict
between MCL 333.7413(2) and the mandatory language in MCL 769.34(2) that
the minimum sentence must fall within the sentencing range provided in the
sentencing guidelines. If the Legislature had merely stated that the minimum term
must be within the range “provided by law,” as stated in MCL 769.8(1) with
regard to the maximum term, this conflict would not exist. Instead, however, the
Legislature specifically stated that the minimum sentence must fall within the
range provided in the guidelines.
The majority further argues that the instructions in MCL 777.21(4) for
calculating minimum sentences under MCL 333.7413(2) suggest that “the
Legislature intended for the recidivist aspect of the subsequent drug offense to be
accounted for by enhancing both the defendant’s minimum and maximum
sentences pursuant to [MCL 333.7413(2)].” Ante at 13-14. I disagree. I suggest,
as an alternative, that the Legislature’s provision of instructions in the sentencing
guidelines for how to calculate minimum sentences for offenses under MCL
333.7413(2) merely demonstrates that the Legislature intended minimum
sentences for repeat drug offenders to be calculated under the sentencing
guidelines. Nevertheless, I agree with the majority that “MCL 777.21(4) simply
8
I do not find it necessary to reach this somewhat strained approach to
reconciling the statutes, however, because I disagree with the majority’s
interpretation of MCL 333.7413(2). I think that, in the context of the statutory
scheme as a whole, the better interpretation of MCL 333.7413(2) is that it only
permits the doubling of the penalties provided in the controlled substances act and
not the minimum sentencing ranges provided in the Code of Criminal Procedure.
In order to reach what I believe is the proper interpretation of MCL
333.7413(2), it is useful to consider the history of that provision. When the
controlled substances act was adopted into law in 1978, there were no statutory
sentencing guidelines and no statutorily required minimum sentences for most
offenses. See People v Primer, 444 Mich 269, 278 n 11; 506 NW2d 839 (1993)
(Cavanagh, J., dissenting). To the extent that statutorily provided minimum
sentences existed for drug offenses, they were provided within the controlled
substances act itself, and the minimum sentences were mandatory. Id. In other
words, at the time that MCL 333.7413(2) became law, the only “otherwise
authorized” terms to which MCL 333.7413(2) could have been referring were
those maximum sentences and, for a few offenses, mandatory minimum sentences
provided in the controlled substances act. It is clear that at that time, the
Legislature anticipated that the controlled substances act would need to be
provides the methodology for a trial court to follow in calculating a defendant’s
minimum sentence guideline range” and does not provide dispositive support for
either of our positions. Ante at 10-11.
9
construed in conjunction with the sentencing statutes in the Code of Criminal
Procedure because the Legislature expressly attempted to reconcile the Code of
Criminal Procedure’s habitual-offender-enhancement statutes, MCL 769.10,
769.11, and 769.12, with the controlled substances act.7 Therefore, when MCL
333.7413(2) was adopted, it could have been read to permit courts to double the
maximum and minimum sentences when the controlled substances act mandated
both, but to permit courts to double only the maximum sentence when the
controlled substances act provided only a maximum.8
7
Each of the habitual-offender statutes states that “[i]f the subsequent
felony is a major controlled substance offense, the person shall be punished as
provided by part 74 of the public health code, 1978 PA 368, MCL 333.7401 to
333.7461.” MCL 769.10(1)(c), 769.11(1)(c), and 769.12(1)(c).
8
For drug offenses that the controlled substances act provides mandatory
minimums for, which are generally the major controlled substance offenses, it may
be arguable whether MCL 333.7413(2) would permit doubling of the minimums
as well as the maximums. The history of the relationship between the habitual-
offender statutes and mandatory minimums is explained in Primer, 444 Mich at
278 n 11 (Cavanagh, J. dissenting):
“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.” [Citation omitted.]
10
Twenty years later, in 1998, the Legislature first adopted statutory
sentencing guidelines and amended the relevant sentencing provisions in the Code
of Criminal Procedure accordingly. It was only then that the potential conflict
between MCL 333.7413(2) and MCL 769.34(2) arose. As noted, where the new
sentencing guidelines directly conflicted with the controlled substances act, i.e.,
where the controlled substances act provided mandatory minimums, the
Legislature expressly reconciled the provisions. The Legislature did not, however,
expressly address how to reconcile MCL 333.7413(2) with the newly created
sentencing guidelines,9 and it therefore falls to this Court to harmonize those
provisions in light of the statutory scheme as a whole, if possible.
When considered in this context, the sentencing provisions in the Code of
Criminal Procedure that were enacted 20 years later, when the sentencing
It may be arguable whether MCL 769.10(1)(c), 769.11(1)(c), and
769.12(1)(c) were intended to permit the mandatory minimums to be doubled, as
well as the maximums, given that the habitual-offender statutes themselves
otherwise deal with maximum sentences. In light of this history, however, it
seems possible that the Legislature intended MCL 333.7413(2) to permit courts to
double both the maximum and the minimum when the controlled substances act
mandated both. It is further arguable whether the sentencing guidelines would act
as a limit on this authority today. In any event, it is not necessary to reach this
issue in this case because the statute under which defendant was convicted and
sentenced does not provide a mandatory minimum and is not a “major controlled
substance offense,” as defined in MCL 761.2. Therefore MCL 769.10(1)(c),
769.11(1)(c), and 769.12(1)(c) are not applicable in this case.
9
This could be because the Legislature did not consider the provisions to
conflict, if the Legislature was operating under the assumption that MCL
333.7413(2) only applied to, as it had up until that point, the mandatory minimum
and maximum sentences provided in the controlled substances act.
11
guidelines themselves were adopted, are not inconsistent with MCL 333.7413(2).
The plain text of MCL 769.34(2) makes clear that the Legislature contemplated
that, for all sentences to which the guidelines applied, the minimum sentence
should be calculated according to the sentencing guidelines. This intent is not
inconsistent with MCL 333.7413(2) if that provision is read to refer only to, as it
did before the enactment of the sentencing guidelines, the maximum, and perhaps
minimum, penalties expressly provided in the controlled substances act.10
Therefore, in order to harmonize the provisions and read the text in light of
the statutory scheme as a whole, I would hold that, under MCL 769.34(2), a repeat
drug offender’s minimum sentence must be calculated (and enhanced) using the
sentencing guidelines, as provided in the sentencing statutes in chapters IX and
XVII of the Code of Criminal Procedure. I would hold that, to the extent that it is
10
Using impressive linguistic gymnastics, the majority concludes that the
best understanding of MCL 333.7413(2) is that the “term otherwise authorized” is
not “exclusively the minimum sentence or the maximum sentence, but it is the
actual indeterminate sentence, which is defined by both the minimum and
maximum limits for that sentence.” Ante at 6. I agree that this is one possible
meaning of the phrase. But there are other possible meanings that I find more
plausible in the context of the entire statutory sentencing scheme, particularly
given that this provision was enacted 20 years before the Legislature enacted
statutory sentencing guidelines within the indeterminate sentencing scheme.
Indeed, throughout the statutory scheme, the Legislature refers to a “term” as the
maximum (or minimum) amount of time for which an offender may be
imprisoned. See, e.g., MCL 333.7416(1)(a) and (3); MCL 333.16177(2)(b). If the
Legislature had intended to encompass both the maximum and minimum terms
otherwise authorized in the controlled substances act, it is logical that the
unmodified word “term” would be used in order to be applicable to both. I do not
think that the majority’s limited and exclusive understanding of the word “term”
best harmonizes MCL 333.7413(2) with the statutory scheme as a whole.
12
applicable in a given case, MCL 333.7413(2) may only be used to enhance the
penalties provided in the controlled substances act. Therefore, in this case, I
would hold that it was improper to find that MCL 333.7413(2) authorized the
sentencing court to double defendant’s minimum sentence.
IV. CONCLUSION
In my judgment, the majority improperly interprets the words and
provisions of MCL 333.7413(2) outside the context of the statutory scheme and
achieves an understanding of the statute that is inconsistent with the law as a
whole. Therefore, I respectfully dissent. I would reverse the judgment of the
Court of Appeals and remand the case to the trial court for resentencing.
Michael F. Cavanagh
Marilyn Kelly
13