People v. Gardner

Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:

Opinion Clifford W. Taylor Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman

FILED JULY 23, 2008

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

v No. 131942

CAPRESE D. GARDNER,

Defendant-Appellant.

BEFORE THE ENTIRE BENCH

CORRIGAN, J.

In this case, we consider the correct method for counting prior felonies

under Michigan’s habitual offender statutes, MCL 769.10, 769.11, 769.12, and

769.13. These statutes establish escalating penalties for offenders who are

repeatedly convicted of felonies. This Court has ruled that the statutes imply that

each predicate felony must arise from separate criminal incidents. People v

Preuss, 436 Mich 714; 461 NW2d 703 (1990); People v Stoudemire, 429 Mich

262; 414 NW2d 693 (1987), mod by Preuss, supra at 739. Therefore, multiple

felonies that arise from the same criminal incident or transaction count as a single

felony under the habitual offender laws.
 We conclude that the holdings of Stoudemire and Preuss directly contradict

the plain text of the statutes. Therefore, we overrule these cases. The

unambiguous statutory language directs courts to count each separate felony

conviction that preceded the sentencing offense, not the number of criminal

incidents resulting in felony convictions. Accordingly, defendant was properly

sentenced and we affirm his sentences.

I. FACTS AND PROCEDURAL HISTORY

In 2001, a jury convicted defendant, Caprese D. Gardner, of second-degree

murder, MCL 750.317, being a felon in possession of a firearm (felon in

possession), MCL 750.224f, and possessing a firearm during the commission of a

felony (felony-firearm), MCL 750.227b. The facts underlying his convictions do

not bear on the current question before this Court. On August 30, 2001, the circuit

court sentenced defendant as a third offense habitual offender, MCL 769.11, to

concurrent prison terms of 25 to 50 years for the murder conviction and 2 to 10

years for the felon in possession conviction and a consecutive term of 5 years for

the felony-firearm conviction. On direct appeal, defendant challenged several of

the circuit court’s evidentiary rulings, but did not raise the present issue. The

2

Court of Appeals affirmed his convictions and sentences.1 This Court denied

defendant’s subsequent application for leave to appeal.2

In 2004, defendant sought relief from judgment under MCR 6.501 et seq.

He argued that his appointed trial and appellate attorneys had provided

constitutionally ineffective representation because they failed to investigate and

challenge the two prior convictions underlying his third offense habitual offender

status. For purposes of the habitual offender enhancement, defendant had

stipulated at trial prior convictions of felonious assault and felony-firearm. In his

motion for relief from judgment, defendant claimed that both of those convictions,

for which he had been sentenced on February 25, 1988, arose from the same

criminal act. Accordingly, he asserted that the two convictions should have been

counted as a single prior felony conviction for purposes of applying the habitual

offender laws under Stoudemire and Preuss. Thus, defendant argued that he

should have been sentenced only as a second offense habitual offender, MCL

769.10, and therefore would have been exposed to potentially shorter prison terms

for his murder and felon in possession convictions. He also argued that he had

good cause for belatedly raising this issue in a motion for relief from judgment

under MCR 6.508(D)(3)(a) because his appellate attorney was constitutionally

ineffective for failing to recognize and raise the issue in defendant’s prior appeal.

1
People v Gardner, unpublished opinion per curiam of the Court of
Appeals, issued April 13, 2003 (Docket No. 238186).
2
469 Mich 975 (2003).

3

 The circuit court denied defendant’s motion, opining that defendant had not

established good cause for his failure to raise this issue in his prior appeal. The

Court of Appeals denied defendant’s application for leave to appeal “for failure to

meet the burden of establishing entitlement to relief under MCR 6.508(D).”3

Defendant then applied for leave to appeal in this Court. We heard oral

argument on whether to grant his application or take other peremptory action. We

directed the parties to address whether Preuss and Stoudemire “correctly held that

multiple convictions arising out of a single criminal incident may count as only a

single prior conviction for habitual offender purposes and, if so, whether the

defendant is entitled to be resentenced.”4

II. STANDARDS OF REVIEW

The primary question requires us to interpret Michigan’s habitual offender

statutes. This Court reviews de novo questions of statutory interpretation. People

v Buehler, 477 Mich 18, 23; 727 NW2d 127 (2007). We also review de novo the

ultimate constitutional question whether an attorney’s ineffective assistance

deprived a defendant of his Sixth Amendment5 right to counsel. People v

LeBlanc, 465 Mich 575, 579; 640 NW2d 246 (2002).

3
People v Gardner, unpublished order of the Court of Appeals, entered
July 10, 2006 (Docket No. 267317).
4
477 Mich 1096 (2007).
5
US Const, Am VI.

4

 III. ANALYSIS

Defendant was sentenced as a third offense habitual offender under MCL

769.11, which reads, in pertinent part:

If a person has been convicted of any combination of 2 or
more felonies or attempts to commit felonies, whether the
convictions occurred in this state or would have been for felonies or
attempts to commit felonies in this state if obtained in this state, and
that person commits a subsequent felony within this state, the person
shall be punished upon conviction of the subsequent felony and
sentencing under section 13 of this chapter as follows . . . . [MCL
769.11(1) (emphasis added).]

The same relevant language has appeared in each habitual offender statute6 since

1978.7 In 1987 and 1990, respectively, the Stoudemire and Preuss courts

concluded that these statutes imply a same-incident or single-transaction method

of counting prior felonies for purposes of sentencing enhancement. Accordingly,

each predicate felony must “arise from separate criminal incidents.” Preuss, supra

at 717.

Habitual offender status may increase a defendant’s minimum and

maximum sentences.8 The sentencing judge generally has the option to increase a

6
MCL 769.10(1); MCL 769.11(1); MCL 769.12(1).
7
See Preuss, supra at 720.
8
Michigan has a primarily indeterminate sentencing scheme. For most
crimes, courts impose both a minimum and a maximum sentence. The maximum
sentence is set by statute on the basis of the sentencing offense. The
recommended minimum sentence range is set by statutory guidelines that take into
account the circumstances of the particular offense and offender. MCL 769.8;
MCL 769.34; People v Harper, 479 Mich 599, 612-613; 739 NW2d 523 (2007).

5

repeat offender’s maximum sentence.9 The high end of the statutory

recommended minimum sentence range under the sentencing guidelines (the

maximum minimum) also increases on the basis of the number of prior

convictions. Second offense, third offense and fourth offense10 habitual offenders

face increases in their maximum minimums of 25 percent, 50 percent and 100

percent, respectively. MCL 777.21(3)(a) through (c).

Here, defendant would have been subject to a maximum penalty of life in

prison for his second-degree murder conviction even without an habitual offender

enhancement. His unenhanced minimum sentence range—based on a prior record

variable score of 20 and an offense variable score of 65—was 180 to 300 months.

MCL 777.61. Because he was sentenced as a third offense habitual offender,

MCL 769.11(1), he was subject to an enhanced minimum sentence range of 180 to

450 months (a maximum minimum of 300 months increased by 50 percent), MCL

777.21(3)(b).

Defendant argues that, under Stoudemire and Preuss, he should have been

sentenced only as a second offense habitual offender, MCL 769.10(1), because his

two prior felony convictions arose from the same criminal incident. If he had been

sentenced as a second offense habitual offender, his statutory minimum sentence

9
MCL 769.10(1); MCL 769.11(1); MCL 769.12(1).
10
MCL 769.12(1) establishes enhanced maximum sentences for offenders
with three or more prior felony convictions. For ease of reference, we call these
offenders “fourth offense habitual offenders.”

6

range would have been 180 to 375 months (a maximum minimum of 300 months

increased by 25 percent). Although his 300-month (25-year) minimum sentence

falls within the minimum sentence ranges for both second and third offense

habitual offenders, as well as the enhanced range, defendant correctly argues that,

if the circuit court relied on an inaccurate higher range when it imposed the

sentence, resentencing would be required. People v Francisco, 474 Mich 82, 89-

92; 711 NW2d 44 (2006).

The prosecution does not contest defendant’s claim that his two prior

felony convictions of felonious assault and felony-firearm arose from the same

criminal incident. The prosecution also concedes that defendant may raise the

issue in his current motion for relief from judgment because, if Stoudemire and

Preuss correctly interpreted the habitual offender statutes, defendant has been

prejudiced by the constitutionally ineffective assistance of his appointed trial and

appellate attorneys.11 The prosecution argues, however, that Stoudemire and

11
Defendant’s appointed attorneys did not raise the error at sentencing, in a
motion for resentencing, or in a motion for remand in the Court of Appeals.
Accordingly, defendant properly raises his argument in connection with a claim
that he was denied his Sixth Amendment right to effective assistance of counsel.
Francisco, supra at 90 n 8. An attorney is ineffective for Sixth Amendment
purposes if his performance fell below an objective standard of reasonableness and
the defendant was prejudiced as a result. Strickland v Washington, 466 US 668,
688, 692; 104 S Ct 2052; 80 L Ed 2d 674 (1984); People v Pickens, 446 Mich 298,
338; 521 NW2d 797 (1994). Any amount of additional prison time imposed as a
result of an attorney’s deficient performance has Sixth Amendment significance.
Glover v United States, 531 US 198, 203; 121 S Ct 696; 148 L Ed 2d 604 (2001).
Although we accord substantial deference to an attorney’s strategic judgments, we
can identify no strategic reason for the failure of defendants’ attorneys here to
(continued…)

7

Preuss were incorrectly decided and that defendant was properly sentenced as a

third offense habitual offender under the plain language of the statute. We agree.

Our goal in construing a statute is “to ascertain and give effect to the intent

of the Legislature.” People v Pasha, 466 Mich 378, 382; 645 NW2d 275 (2002).

The touchstone of legislative intent is the statute’s language. “If the statute's

language is clear and unambiguous, we assume that the Legislature intended its

plain meaning and we enforce the statute as written.” People v Weeder, 469 Mich

493, 497; 674 NW2d 372 (2004). Accordingly, when statutory language is

unambiguous, judicial construction is not required or permitted.12 Id.

(…continued)

raise such an obvious point of error that increased the possible minimum prison

sentence to which defendant was exposed. Therefore, defendant has properly

stated a claim of ineffective assistance of counsel.

For the same reasons, defendant has also properly alleged good cause and
actual prejudice, as is necessary to seek relief in a motion for relief from judgment.
MCR 6.508(D)(3). A defendant may establish good cause for not raising an
argument for relief sooner by showing that his appellate attorney rendered
ineffective assistance by failing to raise the issue in a proper post-trial motion or
first-tier appeal. People v Reed, 449 Mich 375, 378; 535 NW2d 496 (1995)
(opinion by Boyle, J.). Appellate counsel’s failure to “assert all arguable claims”
or decision to “winnow out weaker arguments and focus on those more likely to
prevail is not evidence of ineffective assistance.” Id. at 391. Here, however, as
noted, we cannot identify any excuse for counsel’s failure to raise an obvious error
that would have guaranteed resentencing under Francisco. Because the nature and
strength of the argument are obvious, the omission is not evidence of a reasonable
professional decision to winnow out weaker arguments.
12
“[O]nly a few provisions are truly ambiguous and . . . a diligent
application of the rules of interpretation will normally yield a ‘better,’ albeit
perhaps imperfect, interpretation of the law . . . .” Lansing Mayor v Pub Service
Comm, 470 Mich 154, 166; 680 NW2d 840 (2004). A provision is not ambiguous
just because “reasonable minds can differ regarding” the meaning of the provision.
(continued…)

8

 Here, the relevant language states that [i]f a person has been convicted of

any combination of 2 or more felonies or attempts to commit felonies . . . and that

person commits a subsequent felony within this state,” the person shall be

sentenced under the habitual offender laws. MCL 769.11(1). The text clearly

contemplates the number of times a person has been “convicted” of “felonies or

attempts to commit felonies.” Nothing in the statutory text suggests that the

felony convictions must have arisen from separate incidents. To the contrary, the

statutory language defies the importation of a same-incident test because it states

that any combination of convictions must be counted. Indeed, Stoudemire and

Preuss essentially acknowledged the clear import of the language. Nonetheless, in

each case, the Court explicitly ignored the text, turning instead to legislative

history and the Court’s own views regarding the intents of the New York and

Michigan legislatures.13

(…continued)
Id. at 165. “Rather, a provision of the law is ambiguous only if it ‘irreconcilably
conflict[s]’ with another provision, or when it is equally susceptible to more than a
single meaning.” Id. at 166 (citation omitted). See Klapp v United Ins Group
Agency, Inc, 468 Mich 459; 663 NW2d 447 (2003), for an example of truly
ambiguous contractual language.
13
Justice Archer vigorously dissented in Stoudemire, arguing that the clear
statutory language did not impose or permit a same-incident test. Stoudemire,
supra at 282, 289 (Archer, J., dissenting). Justice Archer observed that, since
1865, this Court has recognized a fundamental rule of statutory construction:
“When the language used in a statute is plain and unambiguous, a common-sense
reading of the provision will suffice. No interpretation is necessary.” Id. at 280.
Justice Archer dissented in Preuss for the same reasons. Preuss, supra at 743
(Archer, J., concurring in part and dissenting in part).

9

 In 1987, the Stoudemire Court offered an initial interpretation of the

relevant statutory language by observing that the original language of Michigan’s

habitual offender statutes, enacted by 1927 PA 175, was borrowed almost

wholesale from New York’s habitual offender statutes. Stoudemire, supra at 267.

Accordingly, the Court referred to the remarks of the New York statutes’ author,

New York State Senator Caleb Baumes, who opined that the statutes were aimed

at protecting the public from the professional criminal “‘who has been convicted

once, twice, three times, sentenced and served his time and come . . . out and

resumed operations again . . . .’” Id. at 268, quoting Baumes, The Baumes law and

legislative program in New York, 52 ABA Rep 511, 521 (1927) (emphasis added

in Stoudemire). The Court concluded that New York courts had interpreted the

New York statutes in keeping with Baumes’s intent by establishing “that multiple

convictions on the same day constitute only one ‘conviction’ for purposes of the

habitual offender statute.” Stoudemire, supra at 269, citing People v Spellman,

136 Misc 25; 242 NYS 68 (1930). The Stoudemire Court acknowledged, but

rejected, other New York cases that conflicted with Spellman, concluding that

“[t]hese opinions do not reflect awareness of the legislative intent clearly

expressed by Senator Baumes” and observing that those courts’ construction of the

statutes had been superseded when the New York Legislature amended the

statutes. Stoudemire, supra at 269 n 14.

10

 The Stoudemire Court concluded:

By borrowing New York’s statute in its entirety, the
Legislature indicated that it was motivated by the same purpose that
underlay the New York statute. The Legislature intended that the
habitual offender statute’s fourth-felony provision, like the parallel
provision in the New York statute, should apply only to a person
who had had three opportunities to reform—who had been convicted
and sentenced and then subsequently committed another felony for
which he was also convicted and sentenced, and then subsequent to
the second conviction committed yet another felony, for which he
was again convicted and sentenced. [Id. at 271 (emphasis added).]

The Court also compared the intents of legislatures in other jurisdictions—as

interpreted by courts in those jurisdictions—that had adopted methods for

counting felonies based on whether the offenses grew out of the same occurrence,

were committed on the same day, or were charged in the same indictment. Id. at

272-276. In accord, the Court held, consistently “with the legislative purpose

underlying the habitual offender statute, that multiple convictions arising out of a

single incident may count as only a single prior conviction for purposes of the

statute.” Id. at 278. The Court concluded that, to the extent that the statutory text

read otherwise, the Court should focus on legislative intent in order to avoid

absurdity, hardship, or injustice. Id. at 266-267.

Significantly, Stoudemire avoided the import of the statutory text, in part,

by dismissing the Legislature’s 1978 revisions of the text in 1978 PA 77. Before

1978, the relevant portion of MCL 769.11 stated: “A person who after having

been twice convicted within this state of a felony or an attempt to commit a felony

. . . commits any felony within this state, is punishable upon conviction as

11

[provided in this section].” (Emphasis added.)14 Despite the revisions, the

Stoudemire majority nonetheless relied on its perceptions of the history of the

original 1927 act. The Court explicitly recognized that “the phrase ‘If a person has

been convicted of 3 or more felonies,’ arguably has a different import than the

phrase ‘A person who after having been 3 times convicted . . . .’” Stoudemire,

supra at 278. But the Court dismissed this significant change, concluding that

“when considered in the context of the other changes made in the statute it is clear

that the Legislature intended only to improve the statute’s grammar, not to alter its

underlying meaning.” Id.15

In 1990, the Preuss Court refined the Stoudemire holding by clarifying that

the prior offenses need not “be separated by intervening convictions or sentences,”

but it retained the rule “that a defendant’s prior offenses must arise from separate

incidents.” Preuss, supra at 737. Specifically, by reference to the fourth offense

habitual offender statute, the Court concluded that

the statute does not require that a fourth offender’s three prior
convictions, the sentences for those convictions, or the offenses upon
which those convictions and sentences are based, occur in any

14
The change was consistent throughout the habitual offender laws. For
instance, before 1978, MCL 769.12 similarly stated: “A person who after having
been 3 times convicted within this state, of felonies or attempts to commit felonies
. . . .” (Emphasis added.)
15
Justice Cavanagh offers the puzzling assertions that “[t]here has been no
change in the statutory language between 1940 and today that affects its
inapplicability to ‘different counts growing out of the same act,’” quoting People v
Podisad, 295 Mich 541, 547; 295 NW 257 (1940), and that we “fail[] to identify
the changes in the language that would have had this effect.” Post at 5 n 6, 10.

12

 particular sequence. The statute requires only that the fourth offense
be preceded by three convictions of felony offenses, and that each of
those three predicate felonies arise from separate criminal incidents.
[Id. at 717 (emphasis added).]

Preuss criticized the Stoudemire Court’s “flawed” interpretation of

Michigan’s statutes, concluding that the Stoudemire Court had erred in its attempt

to divine the intent underlying the New York statutes on which Michigan’s

statutes were modeled. Id. at 720, 727-731. For instance, Preuss observed that

Stoudemire had “relied erroneously on the only New York decision that held that a

fourth offender’s second and third offenses must each follow conviction and

sentence on the earlier offense.” Id. at 727. Further, the Preuss Court opined that

Senator Baumes’s comments did not establish his intent “on the issue of the

sequentiality of prior convictions.” Id. at 729. Perhaps most significantly, the

Preuss Court observed that, to the extent that Baumes’s views suggested “that the

fourth offense must follow a completed sentence,” his views “conflict[ed] with the

language of 1927 PA 175, which literally requires only that the commission of the

fourth offense follow three prior ‘convictions,’ not sentences.” Id. at 730

(emphasis in original).

Thus, the Preuss Court acknowledged that the unambiguous statutory

language—“If a person has been convicted of any combination of 3 or more

felonies or attempts to commit felonies . . . and that person commits a subsequent

felony”—refers only to the number of prior felony convictions and “implies that

no particular sequence for the first three offenses or convictions was intended.”

13

Id. at 720-721, 730. Nonetheless, the Court chose to disregard this language,

opining that “a literal reading of a statute may be modified if that reading leads to

a clear or manifest contradiction of the apparent purpose of the act, or if necessary

to correct an absurd and unjust result . . . .”16 Id. at 721. Accordingly, the Court

“turn[ed] to sources of legislative intent other than the language to determine

whether declining to read into the statute a sequentiality requirement for predicate

offenses would contradict the Legislature’s purpose in enacting the statute.” Id. at

721.

In doing so, the Preuss Court erred when it construed the unambiguous

terms of the statute by reference to legislative history. Weeder, supra at 497.

Ironically, not only did it reject the Stoudemire Court’s attempt at the same task,

16
Justice Cavanagh incorrectly asserts that Preuss “found nothing in the
amended language to compel a change in the longstanding requirement that
‘multiple convictions arising out of a single incident may count as only a single
prior conviction under the statute.’” Post at 11, quoting Preuss, supra at 720. To
the contrary, both Preuss and Stoudemire recognized that the new language
“arguably has a different import,” Stoudemire, supra at 278, and “implies that no
particular sequence for the first three offenses or convictions was intended.”
Preuss, supra at 721. But in each case, the Court avoided the plain meaning of the
statutory text in favor of legislative history or on the basis of the Court’s
conclusion that the plain language of the text produced an absurd or unjust result.
Preuss, supra at 721; Stoudemire, supra at 266, 271, 278.

There is no need to address the merits of the absurd results rule in this
opinion. Even assuming the existence of such a rule of interpretation, the result
reached here is by no means absurd. A reasonable lawmaker could easily have
intended the result reached here. That is, such a lawmaker could easily have
intended that courts count each separate felony conviction in determining habitual
offender status. There is nothing at all absurd about treating a defendant who has
been convicted of three felonies as a third offense habitual offender.

14

but its opinion highlights the problems inherent in such attempts by offering a

different judicial construction of the inconclusive “history” of the very same

enactments.17 Further, Preuss failed to grapple at all with the import of the 1978

revisions, relying instead—just as the Court had in Stoudemire—on its

impressions of the Legislature’s intent when adopting the original 1927 language.

On the basis of these impressions, Preuss concluded that the “legislative history of

the statute suggests that it was directed at the ‘persistent’ or ‘repeat’ offender.”

Preuss, supra at 738. Having reached this conclusion, the Court then interpreted

the statute as if these words appeared in its text, stating:

17
Indeed, the Preuss Court itself proceeded to examine inconclusive
statements from a report of the Commission of Inquiry Into Criminal Procedure.
Preuss, supra at 721-722, citing State of Michigan, Report of the Commission of
Inquiry Into Criminal Procedure (February 8, 1927). The Court noted the
commission’s desire to improve former repeat-offender statutes that imposed
escalating punishments on the basis of preceding punishments. Preuss, supra at
722-723. The Court concluded that the commission’s goals were to “make it
tougher for criminals to avoid apprehension, conviction, and adequate
punishment,” to “apply [habitual offender enhancements] to a broader class of
criminals than they would have applied to had the prior language about prior
sentence been retained,” and to “punish[] repeat offenders harshly.” Id. at 724.
Significantly, the Court acknowledged that the report “does not contain any
express statement concerning the commission’s intent regarding whether a
defendant’s prior convictions, offenses, or sentences must occur in any particular
sequence in order for him to be subject to fourth-offender penalties.” Id. at 722.
Indeed, the new provision in its original 1927 form—which applied when an
offender had been “three times convicted”—“literally applied to defendants who
had previously been convicted three times before they committed their fourth
offense, even if they had not yet been sentenced on any or all of those prior
convictions.” Id. at 724. Nonetheless, the Court cited the report, among other
authorities, as evidence that the Legislature intended a same-incident test. Id. at
738.

15

 A common-sense interpretation of these phrases is that the
Legislature did not have in mind the person who had only one
criminal episode in which he managed to commit several different
crimes. Instead, “repeat” suggests some time interval between
crimes, and “persistent” suggests a criminal who continues in his
criminal pursuits after these intervals. Neither of these concepts may
easily be reconciled with an interpretation of the statute which would
allow a court to impose fourth-offender penalties on a defendant
whose three prior convictions arose out of the same criminal
incident. [Id.]

We reject the approaches of both Stoudemire and Preuss, which run counter

to principles of statutory construction. Indeed, in criticizing Stoudemire, the

Preuss Court reinterpreted the very history on which Stoudemire relied and

reached a different result. Thus, these two opinions exemplify the problems

inherent in preferring judicial interpretation of legislative history to a plain reading

of the unambiguous text. As we have stated, construing an unambiguous statute

by relying on legislative history “‘[a]t the very most . . . allows the reader, with

equal plausibility, to pose a conclusion of his own that differs from that of the

majority.’” Donajkowski v Alpena Power Co, 460 Mich 243, 259; 596 NW2d 574

(1999), quoting Rogers v Detroit, 457 Mich 125, 164; 579 NW2d 840 (1998)

(Taylor, J., dissenting), which was overruled by Robinson v Detroit, 462 Mich 439

(2000).18 Further, “not all legislative history is of equal value . . . .” In re

18
As perhaps best put by United States Supreme Court Justice Antonin
Scalia,
[c]ommittee reports, floor speeches, and even colloquies between
Congressmen . . . are frail substitutes for bicameral vote upon the
text of a law and its presentment to the President . . . . It is at best
dangerous to assume that all the necessary participants in the law-
(continued…)

16

Certified Question, 468 Mich 109, 115 n 5; 659 NW2d 597 (2003). Some

historical facts may allow courts to draw reasonable inferences about the

Legislature’s intent because the facts shed light on the Legislature’s affirmative

acts. For instance, we may consider that an enactment was intended to repudiate

the judicial construction of a statute, or we may find it helpful to compare multiple

drafts debated by the Legislature before settling on the language actually enacted.

Other facts, however, such as staff analyses of legislation, are significantly less

useful because they do not necessarily reflect the intent of the Legislature as a

body. Id. Shifting interpretations of the intent of the New York Legislature—

particularly as embodied in the comments of a single state senator—certainly fall

into this latter category.

Significantly, defendant here essentially concedes that a proper

interpretation of the habitual offender statutes precludes the use of a same-incident

method for counting prior convictions. Defendant merely advances policy

considerations and suggests that the Legislature has acquiesced to the

interpretations of the statutes offered by this Court in Stoudemire in Preuss. But,

as with attempts at divining legislative intent from legislative history, “legislative

(…continued)
enactment process are acting upon the same unexpressed
assumptions. And likewise dangerous to assume that, even with the
utmost self-discipline, judges can prevent the implications they see
from mirroring the policies they favor. [Thompson v Thompson,
484 US 174, 191-192; 108 S Ct 513; 98 L Ed 2d 512 (1988) (Scalia,
J., concurring) (citations omitted).]

17

acquiescence is an exceedingly poor indicator of legislative intent.” Donajkowski,

supra at 258. Instead, “sound principles of statutory construction require that

Michigan courts determine the Legislature’s intent from its words, not from its

silence.” Id. at 261; see also People v Hawkins, 468 Mich 488, 507; 668 NW2d

602 (2003) (“As we have repeatedly stated, the ‘legislative acquiescence’ principle

of statutory construction has been squarely rejected by this Court because it

reflects a critical misapprehension of the legislative process.”). As we observed in

Donajkowski, “‘[c]ommentators have noted that one can posit myriad reasons

explaining the Legislature's failure to correct an erroneous judicial decision . . . .’”

Donajkowski, supra at 259, quoting Rogers, supra at 164 n 2 (Taylor, J.,

dissenting). Moreover, “‘it should not be assumed that the Legislature even agrees

it has a duty to correct interpretations by the courts that it considers erroneous.’”

Donajkowski, supra at 260, quoting Rogers, supra at 164-165 (Taylor, J.,

dissenting). Indeed, as Justice Taylor observed, “‘[i]n Autio v Proksch

Construction Co, 377 Mich 517, 527; 141 NW2d 81 (1966), Justice Souris

described [the doctrine of legislative acquiescence] as “a pernicious evil designed

to relieve a court of its duty of self-correction” . . . .’” Donajkowski, supra at 260,

quoting Rogers, supra at 165 (Taylor, J., dissenting). See Donajkowski, supra at

258-262, for a full discussion.19

19
The dissenters would have us engage in a guessing game regarding the
meaning of legislative silence. For instance, Justice Cavanagh notes that, before
Congress amended 18 USC 924(e)(1) to explicitly include a same-incident test,
(continued…)

18

 When the Legislature’s language is clear, we are bound to follow its plain

meaning. The Legislature is fully capable of amending statutory language if it

sees fit to do so. Indeed, legislatures throughout the country have enacted habitual

offender statutes that explicitly include same-incident methods for counting prior

felonies. Arizona’s habitual offender laws, for instance, explicitly provide:

“Convictions for two or more offenses committed on the same occasion shall be

counted as only one conviction for purposes of this section.” Ariz Rev Stat Ann

13-604(M) (emphasis added).20 The California Penal Code provides that “any

person convicted of a serious felony who previously has been convicted of a

serious felony . . . shall receive . . . a five-year enhancement for each such prior

conviction on charges brought and tried separately.” Cal Penal Code 667(a)(1)

(emphasis added). The Illinois habitual offender laws offer a particularly helpful

(…continued)
courts had already begun grafting such a test onto the statute. Post at 9-10. But
we rarely know whether a legislature’s intent in amending a statute reflects the
intent it originally had when it enacted the statute. Indeed, when a conforming
amendment occurs in the wake of a judicial decision, for all we know, the judicial
decision may have sparked debate because some legislators perceived the decision
as error, but the legislature may ultimately have concluded that the incorrect
interpretation nonetheless reflected the better current policy. For these reasons,
we decline to second-guess the Legislature when it has spoken unambiguously. It
is not this Court’s role to correct judicially perceived mistakes rooted in the
Legislature’s silence or inaction. To the contrary, our separate duty is to engage in
self-correction when appropriate. Donajkowski, supra at 260.
20
See also Ariz Rev Stat Ann 13-604(S) (“A person who . . . stands
convicted of a serious offense . . . , whether a completed or preparatory offense,
and who has previously been convicted of two or more serious offenses not
committed on the same occasion shall be sentenced to life imprisonment . . . .”)
(emphasis added).

19

comparison because the definition of habitual offender status includes general

language somewhat similar to that in our own statutes:

Every person who has been twice convicted in any state or
federal court of an offense that contains the same elements as an
offense now classified in Illinois as a Class X felony, criminal sexual
assault, aggravated kidnapping or first degree murder, and is
thereafter convicted of a Class X felony, criminal sexual assault or
first degree murder, committed after the 2 prior convictions, shall be
adjudged an habitual criminal. [720 Ill Comp Stat 5/33B-1(a)
(emphasis added).]

The statute also explicitly provides, however, that “[a]ny convictions which result

from or are connected with the same transaction, or result from offenses

committed at the same time, shall be counted for the purposes of this Section as

one conviction.” 720 Ill Comp Stat 5/33B-1(c) (emphasis added).21

21
Also compare Mo Rev Stat 558.016(3) (“A ‘persistent offender’ is one
who has pleaded guilty to or has been found guilty of two or more felonies
committed at different times.” (emphasis added); 21 Okla Stat tit 21, § 51.1(B)
(“Felony offenses relied upon shall not have arisen out of the same transaction or
occurrence or series of events closely related in time and location.” (emphasis
added)); 18 USC 924(e)(1) (providing that under what was formerly titled the
federal Armed Career Criminal Act, “[i]n the case of a person who violates [18
USC 922(g)] and has three previous convictions by any court referred to in [18
USC 922(g)(1)] for a violent felony or a serious drug offense, or both, committed
on occasions different from one another, such person shall be fined under this title
and imprisoned not less than fifteen years”) (emphasis added).

These statutes exemplify other legislatures’ use of plain language to
establish same-incident tests. We note them in contrast to the text of Michigan’s
statutes. We do not “read positive meaning into Michigan legislative silence
regarding, for instance, a Missouri statute,” as Justice Cavanagh suggests. Ante at
9 n 10. Justice Cavanagh has it backwards. The Legislature has spoken through
its plain language, which we seek to uphold. It is defendant and our dissenting
colleagues who wish to import a same-incident test where there is none, assuming
(continued…)

20

 For these reasons, we overrule Stoudemire and Preuss. “[S]tare decisis is

not to be applied mechanically to forever prevent the Court from overruling earlier

erroneous decisions determining the meaning of statutes.” Robinson v Detroit,

462 Mich 439, 463; 613 NW2d 307 (2000). Rather, if a case was incorrectly

decided, we have a duty to reconsider whether it should remain controlling law.

Id. at 464. In doing so, we “review whether the decision at issue defies ‘practical

workability,’ whether reliance interests would work an undue hardship, and

whether changes in the law or facts no longer justify the questioned decision.” Id.

These criteria weigh in favor of overruling Stoudemire and Preuss.

Most significantly, the same-incident test has not created reliance interests

that will be thwarted by overruling Stoudemire and Preuss; overruling these cases

will not cause “significant dislocations” or frustrate citizens’ attempts to conform

their conduct to the law. See id. at 466-467. “[T]o have reliance the knowledge

must be of the sort that causes a person or entity to attempt to conform his conduct

to a certain norm before the triggering event.” Id. at 467. The nature of a criminal

act defies any argument that offenders attempt to conform their crimes—which by

definition violate societal and statutory norms—to a legal test established by

Stoudemire and Preuss. Moreover, to the extent that these cases implicate reliance

interests, such interests weigh in favor of overruling them. Michigan citizens and

(…continued)

that the Legislature’s silence in the wake of Stoudemire and Preuss signifies

approval of the test those cases added.

21

prosecutors should be able to read the clear words of the statutes and “expect . . .

that they will be carried out by all in society, including the courts.” Id.

In fact, should a court confound those legitimate citizen
expectations by misreading or misconstruing a statute, it is that court
itself that has disrupted the reliance interest. When that happens, a
subsequent court, rather than holding to the distorted reading
because of the doctrine of stare decisis, should overrule the earlier
court’s misconstruction. [Id.]

We also note that the factor of practical workability bears little on our

decision to overrule our previous erroneous interpretations of the habitual offender

laws. The Legislature’s clear directive to count each felony is no less workable—

and indeed is arguably simpler to apply in practice—than the current, judicially

imposed same-incident rule.

IV. RESPONSE TO THE DISSENTS

Justice Cavanagh concedes that our interpretation “may, arguably, be

supported by the language of the habitual-offender statutes . . . .” Post at 5. But

his arguments are rooted in his assertion that there are “competing, arguably

plausible interpretations . . . .”22 Post at 8-9. He then concludes that, because

purported competing interpretations are possible, it is appropriate to consult

legislative history and apply the rule of lenity. Post at 8-9. To the contrary, as we

have explained and as defendant essentially concedes, there is nothing textually

ambiguous about the Legislature’s directive to apply habitual offender sentencing
22
Justice Kelly similarly opines that “the language of the habitual offender
statutes is at least equally supportive of the conclusion that the statues are
inapplicable to multiple convictions arising from the same act.” Post at 7-8.

22

laws when “a person has been convicted of any combination of 2 or more felonies

or attempts to commit felonies . . . .” MCL 769.11(1).

In his only argument based on the text of the statute, Justice Cavanagh

asserts that the statute’s use of the phrase “subsequent felony” indicates that

enhancement does not apply to simultaneous criminal acts. Post at 4-5.23 We

agree that, if an offender is convicted and sentenced for two simultaneous felonies,

neither simultaneous conviction may be used to enhance the sentence for the other

under the habitual offender statutes. But Justice Cavanagh’s extension of this

point to imply a same-incident test misinterprets the statute’s use of the word

“subsequent.” “Subsequent” describes the sequential relationship between the

sentencing felony and the prior convictions (“If a person has been convicted of

any combination of . . . felonies or attempts to commit felonies . . . and that person

commits a subsequent felony. . . .”). “Subsequent” does not describe a relationship

among the prior convictions.

Justice Cavanagh also purports to rely on “this Court’s consistent

statements concerning the purpose of the habitual-offender statutes.” Post at 6.

He cites cases from 1929, the 1940s, and, most recently, 1970 and 1976. Post at 2,

5 n 6, and 6. Yet, as Justice Cavanagh acknowledges, the Legislature amended the

statutes in 1978. 1978 PA 77. He ignores the import of the 1978 revisions, as did

the Court in Stoudemire and Preuss. Thus, he urges that “in more than 150 years,

23
Justice Kelly cites Justice Cavanagh on this point. Post at 8 n 24.

23

no Michigan court has ever held, until today, that convictions for multiple crimes

committed in a single criminal transaction count as separate convictions for

habitual-offender purposes.” Post at 11-12, citing People v Palm, 245 Mich 396,

400; 223 NW 67 (1929). Justice Kelly similarly opines that the “1978

amendments did not alter the command that ‘multiple convictions arising out of a

single incident may count as only a single prior conviction under the statute . . . .’”

Post at 8. But, instead of explaining this conclusory statement, she merely cites

Preuss. Post at 8.

We reject the dissents’ suggestions that this Court should divine legislative

intent not from the Legislature’s enactments, but from precedent of this Court that

preexisted those enactments. Indeed, this Court addressed this very reasoning

when we overruled Dedes v Asch, 446 Mich 99; 521 NW2d 488 (1994), in

Robinson. We explained:

The majority in Dedes interpreted the phrase “the proximate
cause” to mean “a proximate cause.” It did this on the basis of an
analysis that not to do so would produce a marked change in
Michigan law, and that the Legislature, in its “legislative history,”
gave no indication that it understood that it was making such a
significant change. This approach can best be described as a judicial
theory of legislative befuddlement. Stripped to its essence, it is an
endeavor by the Court to use the statute’s “history” to contradict the
statute’s clear terms. We believe the Court had no authority to do
this. [Robinson, supra at 459-460.]

The Legislature has no duty to satisfy us that its legislative enactment is a “good”

one. Legislation must be constitutional; this alone is enough. Once the

Legislature has cleared the hurdle of constitutionality, we are to treat its enactment

24

as law. When, as here, the text enacted by the Legislature and signed by the

Governor is unambiguous, our duty is to uphold its plain meaning.

Both dissents’ analyses would essentially require the Legislature to explain

to this Court’s satisfaction its reasons for changing the statutory text. The

Legislature has no such duty to us and, because its text is clear, it is irrelevant

whether the legislators concluded that this Court misinterpreted the pre-1978

statutes in its previous decisions or, instead, that a new policy for counting prior

felonies was preferable. Significantly, various legislators’ reasons for enacting the

text may have differed and may have been rooted in either of these conclusions.

But their agreed-on choice of language is controlling. If that language is perfectly

forthright, our task is simply to implement it. We reject the implications of the

dissents’ views, which would ultimately require the Legislature, when amending

laws, to add redundant explanations for its otherwise plain language such as: “By

X, we mean X. We do not mean the Supreme Court’s previous interpretations of

Y.”

We express no opinion regarding the correctness of any court’s

interpretations of the pre-1978 versions of the statutes. Questions concerning

earlier versions of the text are not before us. Moreover, to whatever extent courts

correctly divined past legislatures’ intents using previously enacted language,

those intents should not guide our interpretation of the unambiguous language of

the current versions of the statutes; the acts of past legislatures do not bind the

power of successive legislatures to enact, amend, or repeal legislation. Studier v

25

Michigan Pub School Employees’ Retirement Bd, 472 Mich 642, 660; 698 NW2d

350 (2005). In this case, we acknowledge the Legislature’s explicit changes to the

statutory language and, in doing so, by no means do we employ “a new view of

statutory interpretation,” as Justice Cavanagh contends. Post at 11 n 12. To the

contrary, we consider the statute’s plain language, and it is difficult to imagine

how the Legislature could possibly have written the statute to more clearly

indicate that all prior convictions count than by stating that “[i]f a person has been

convicted of any combination of 2 or more felonies or attempts to commit felonies

. . . and that person commits a subsequent felony within this state, the person shall

be punished [as provided in this section].” MCL 769.11(1) (emphasis added).

Significantly, Justice Cavanagh’s central contention is that the habitual

offender statutes “are plainly intended to apply to habitual offenders, individuals

who persist in criminal activity regardless of their prior convictions.” Post at 1.

But the goal of punishing persistent offenders by no means requires a same-

incident test. Rather, the Legislature apparently and reasonably saw fit to punish

an offender who has committed multiple prior felonies in a harsher manner than an

offender who has committed only a single prior felony. We see no reason why the

Legislature may not punish persistence by discriminating in a graduated fashion

among those who have committed a single prior felony, MCL 769.10, those who

have committed two prior felonies, MCL 769.11, and those who have committed

three or more prior felonies, MCL 769.12, regardless of whether the offender

committed the prior felonies on a single occasion. In sum, Justice Cavanagh’s

26

analysis is fundamentally flawed because it offers a judicial construction to

deconstruct an unambiguous statute. Nothing about the statute’s text renders it

susceptible to multiple interpretations and, therefore, judicial “construction” is not

even permissible. Further, Justice Cavanagh repeats the mistakes of the Court in

Stoudemire and Preuss by dismissing the 1978 revisions of the habitual offender

laws and, instead, relying on debatable legislative history and court cases

addressing the previous versions of the statutes.

Finally, Justice Kelly’s exegesis of the doctrine of stare decisis misses the

mark. As we have already discussed, the recent Stoudemire and Preuss decisions

are not part of a long line of cases interpreting identical statutory language; rather,

Stoudemire and Preuss purported to interpret the post-1978 language. Moreover,

the Stoudemire and Preuss decisions are themselves inconsistent precedents.

Justice Kelly would maintain Preuss as stare decisis because it is workable, free

from absurdity, “not mischievous in practice,” and no changes in the law or facts

undermine it. Post at 11. But the same things can be said of Stoudemire.

Accordingly, the heart of Justice Kelly’s analysis contradicts her preference for

Preuss, which itself overruled Stoudemire in part. Indeed, as we have thoroughly

discussed, Preuss exemplifies the need for adhering to plain statutory language

instead of upholding precedent merely for precedent’s sake. The Preuss Court

followed Stoudemire in choosing to avoid the plain statutory text. Stoudemire,

supra at 278; Preuss, supra at 720-721. But Preuss then overruled Stoudemire in

part after selectively reinterpreting other states’ caselaw, comments by legislators,

27

and committee reports addressing the original 1927 Michigan act and the prior

New York act. For these reasons, upholding Preuss certainly would not serve to

“‘avoid an arbitrary discretion in the courts . . . .’” Post at 2, quoting The

Federalist No. 78, p 471 (Alexander Hamilton) (Clinton Rossiter ed, 1961). To

the contrary, binding the Court to “strict rules”—such as the tenets of statutory

interpretation—avoids arbitrariness.24 Post at 2. Moreover, as we have explained,

there is nothing “destabilizing” about today’s decision under Robinson or

otherwise. See post at 1, 3. No undue hardship will result because of reliance on

our previous holdings, nor will we frustrate citizens’ attempts to conform their

conduct to the law. Robinson, supra at 464, 466-467. In the unlikely event that

those who would commit additional felonies in this state laid plans for future

crime in reliance on receiving less punishment than the plain language of the

habitual offender statutes prescribes, Justice Kelly correctly assumes that such

reliance garners little sympathy in our eyes. Post at 4 n 11.

V. CONCLUSION

Michigan’s habitual offender laws clearly contemplate counting each prior

felony conviction separately. The text of those laws does not include a same-

incident test. This Court erred by judicially engrafting such a test onto the

24
Concerning Justice Kelly’s criticisms of the majority for its supposed
“disregard” for the doctrine of stare decisis, we reference the concurring statement
of Justice Markman in Rowland v Washtenaw Co Rd Comm, 477 Mich 197, 223
(2007).

28

unambiguous statutory language. Accordingly, we overrule Preuss and

Stoudemire.

Defendant was properly sentenced as a third offense habitual offender

because he “ha[d] been convicted of . . . 2 or more felonies . . . and commit[ted] a

subsequent felony within this state . . . .” MCL 769.11(1). Because defendant was

properly sentenced, resentencing is not required on the basis of his claim that he

received ineffective assistance of counsel. When an attorney fails to raise “an

objection that would have been supported by a decision which subsequently was

overruled,” a defendant cannot show that he was prejudiced within the meaning of

Strickland. Lockhart v Fretwell, 506 US 364, 366; 113 S Ct 838; 122 L Ed 2d 180

(1993). Under these circumstances, a focus on “mere outcome determination” is

insufficient because the result of the proceeding is not fundamentally unfair or

unreliable. Id. at 369. “To set aside a conviction or sentence solely because the

outcome would have been different but for counsel’s error may grant the

defendant a windfall to which the law does not entitle him.” Id. at 369-370, citing

United States v Cronic, 466 US 648, 658; 104 S Ct 2039; 80 L Ed 2d 657 (1984).

Accordingly, we affirm defendant’s sentences. We deny leave to appeal

with respect to defendant’s remaining issues because he has failed to meet the

burden of establishing entitlement to relief under MCR 6.508(D).

Maura D. Corrigan
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman

29

 STATE OF MICHIGAN

SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

v No. 131942

CAPRESE D. GARDNER,

Defendant-Appellant.

WEAVER, J. (concurring in result only).

I concur with the result of majority opinion that defendant need not be

resentenced. In this case, defendant did not suffer any material injustice. Any

error in defendant’s sentencing constituted harmless error.

Elizabeth A. Weaver
 STATE OF MICHIGAN

SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

v No. 131942

CAPRESE D. GARDNER,

Defendant-Appellant.

CAVANAGH, J. (dissenting).

This case considers the scope of Michigan’s habitual-offender statutes,

MCL 769.10, 769.11, 769.12, and 769.13. Because I believe this Court has, until

today, properly understood legislative intent and properly applied the habitual-

offender statutes to persons who persist in crime after having been convicted, I

respectfully dissent.

The habitual-offender statutes, enhancing punishment for subsequent

convictions, are plainly intended to apply to habitual offenders, individuals who

persist in criminal activity regardless of their prior convictions. Defendant was

sentenced under MCL 769.11(1) as a third-offense habitual offender. Defendant

argues, and the prosecution does not contest, that the two underlying felonies

supporting this sentence enhancement arose from the same criminal incident. In

fact, there could not be a clearer case of felonies arising from the same criminal

incident; the two prior convictions of possession of a firearm during the
commission of a felony and felonious assault arose from the very same act

committed on April 11, 1987.

Applying both of these convictions as predicates for a third-offense

habitual-offender sentence enhancement would be invalid under People v Preuss,

436 Mich 714; 461 NW2d 703 (1990), People v Stoudemire, 429 Mich 262; 414

NW2d 693 (1987), and the uniform holdings of this Court since the Legislature

enacted the habitual-offender statutes in 1927.1 Preuss held that, for purposes of

the habitual-offender statutes, each of the predicate felony convictions must “arise

from separate criminal incidents.”2 Preuss, 436 Mich at 717. Preuss affirmed the

same holding found not only in Stoudemire, but also in People v Podsiad, 295

Mich 541, 547; 295 NW 257 (1940) (stating that the habitual-offender statutes are

“inapplicable to convictions on different counts growing out of the same act”), and

People v Lowenstein, 309 Mich 94, 100-101; 14 NW2d 794 (1944) (holding that

multiple convictions from the same criminal transaction did not subject the

defendant to additional punishment under the habitual-offender statutes). Clearly,

1
The current habitual-offender statutes were enacted as 1927 PA 175. The
relevant language was last amended by 1978 PA 77. However, in People v Palm,
245 Mich 396, 400; 223 NW 67 (1929), this Court observed that habitual-offender
sentence enhancement was not “new” in this state; such statutes have been in force
since 1857. This Court has never, until today, held that such statutes apply to
multiple offenses committed on one occasion.
2
Preuss specifically addressed MCL 769.12, the habitual-offender statute
addressing three or more prior convictions, but that decision applies to all three
statutes specifying sentence enhancements in the common scheme of the habitual-
offender statutes.

2

the present defendant’s two previous felony convictions, arising from the same

act, do not arise from separate criminal incidents. Under Preuss, defendant would

be subject to sentence enhancement as a second-offense habitual offender, not as a

third-offense habitual offender.

The majority overrules Preuss. Ante at 2. The majority asserts that this

Court has failed to understand the language of the habitual-offender statutes since

such statutes were enacted and, thus, incorrectly failed to count multiple offenses

toward habitual-offender sentence enhancement. I disagree.

The language of MCL 769.11(1), and the statutory system of which it is a

part, indicates that the Legislature intended to require that predicate felonies for

habitual-offender sentencing arise from separate criminal incidents. “It is

elementary that statutes in pari materia are to be taken together in ascertaining the

intention of the legislature, and that courts will regard all statutes upon the same

general subject matter as part of 1 system.” Dearborn Twp Clerk v Jones, 335

Mich 658, 662; 57 NW2d 40 (1953). MCL 769.10 is the first in a series of three

statutes in the Code of Criminal Procedure that together allow enhanced penalties

3

on an increasing scale for an offender’s second,3 third,4 and fourth5 offenses.

MCL 769.10 states that “[i]f a person has been convicted of a felony . . . and that

person commits a subsequent felony,” then that person is subject to a second-

offense enhancement. (Emphasis added.) MCL 769.11 states that “[i]f a person

has been convicted of any combination of 2 or more felonies . . . and that person

commits a subsequent felony,” then that person is subject to what is usually

termed a third-offense enhancement. (Emphasis added.) Finally, MCL 769.12

states that “[i]f a person has been convicted of any combination of 3 or more

felonies . . . and that person commits a subsequent felony,” then that person is

subject to what is usually termed a fourth-offense enhancement. (Emphasis

added.)

This system of graduated enhancements for subsequent felonies clearly

indicates that the Legislature did not intend habitual-offender sentence

3
Section 10 of chapter IX of the Code of Criminal Procedure applies to a
second offense and allows a sentence enhancement of no more than “1-1/2 times
the longest term prescribed for a first conviction” of an offense otherwise
punishable by less than life imprisonment. MCL 769.10(1)(a). See also MCL
777.21(3)(a).
4
Section 11 of chapter IX of the Code of Criminal Procedure applies to a
third or higher offense and allows a sentence enhancement of up to twice the
longest term otherwise allowed for an offense punishable by less than life
imprisonment. MCL 769.11(1)(a). See also MCL 777.21(3)(b).
5
Section 12 of chapter IX of the Code of Criminal Procedure applies to a
fourth or higher offense and allows a sentence enhancement of up to life
imprisonment for offenses otherwise punishable by imprisonment for five years or
more. MCL 769.12(1)(a). See also MCL 777.21(3)(c).

4

enhancement to apply to simultaneous criminal acts. As this Court long ago

recognized, “[i]t is obvious that the [provisions of the habitual-offender statutes]

relate to convictions for subsequent felonies. They apply only to persons who,

after having been convicted of one felony, commit an additional crime, and are

inapplicable to convictions on different counts growing out of the same act.”

Podsiad, 295 Mich at 546-547 (emphasis added).6

In this case, defendant could not have been sentenced as a second-offense

habitual offender when he was first convicted of the two underlying crimes

committed at the same time. But now, without intervening convictions, defendant

has been sentenced as a third-offense habitual offender because of simultaneous,

not subsequent, convictions. The majority interprets the habitual-offender statutes

as applying to multiple, simultaneous convictions. While this interpretation may,

arguably, be supported by the language of the habitual-offender statutes, this

Court’s longstanding, uniform interpretation is at least equally supported by the

language of the statutes. I find the latter more convincing in light of the plain

language of the habitual-offender statutes, the overall sentencing system

prescribed by the Legislature, and legislative history.

6
The majority disagrees that the graduated enhancement scheme of the
habitual-offender statutes implies that they are “inapplicable to convictions on
different counts growing out of the same act.” Podsiad, supra at 547. But
Podsiad, decided in 1940, demonstrates that this is hardly a novel understanding
of the statutory scheme. There has been no change in the statutory language
between 1940 and today that affects its inapplicability to “different counts
growing out of the same act.”

5

 The requirement that predicate felonies arise from separate criminal

incidents is supported by this Court’s consistent statements concerning the purpose

of the habitual-offender statutes. The statutes increase punishment because of a

person’s “‘apparent persistence in the commission of crime . . . .’” People v

Hendrick, 398 Mich 410, 416; 247 NW2d 840 (1976), quoting People v Palm, 245

Mich 396, 401; 223 NW 67 (1929). “The habitual criminal act was passed to

provide a punishment for repeated commissions of felonies.” In re Southard, 298

Mich 75, 78; 298 NW 457 (1941).7 Obviously, persistence and repetition are not

apparent when two convictions arise simultaneously from a single act.

This Court’s statements on the legislative intent behind the habitual-

offender statutes have relied, to one degree or another, on legislative history. The

majority denounces legislative history as a means of statutory construction. The

majority implies that, by use of legislative history, a statute can be made to say

whatever its interpreter wishes it to say. Ante at 15-17. If this were so, one

imagines the majority could marshal evidence from legislative history supporting

7
See also Palm, 245 Mich at 401 (stating that the basis for sustaining the
habitual-offender statutes is that “‘the Legislature may require the courts to take
into consideration the persistence of the defendant in his criminal course’”)
(citation omitted), Lowenstein, 309 Mich at 100-101 (stating that “the fact that
defendant was convicted and sentenced on both counts” does not “result in
conviction for two felonies such as to subject the defendant to additional
punishment under the habitual criminal act”), and People v Hatt, 384 Mich 302,
306-307; 181 NW2d 912 (1970) (stating that the “only purpose of [the habitual-
offender statutes] is to impose a longer sentence because of the apparent
persistence by the defendant in the commission of acts of a criminal nature”).

6

its interpretation of MCL 769.11. The majority cannot. Such evidence does not

exist. The uniform evidence from legislative history supports the rule of Preuss,

that crimes committed in a single criminal incident are counted as one for the

purposes of the habitual-offender statutes.

The United States Supreme Court does not share the majority’s dim view of

consulting legislative history when there are competing, arguably plausible

interpretations of a statute.8 Taylor v United States, 495 US 575; 110 S Ct 2143;

109 L Ed 2d 607 (1990), is the seminal case interpreting the scope of what was

formerly called the Armed Career Criminals Act (ACCA), specifically 18 USC

924(e), a federal analog of MCL 769.11 involving firearms offenses. In Taylor,

the Supreme Court identified plausible alternative interpretations of the scope of

certain statutory language in a particular provision of the ACCA. The Court then

stated: “Before examining these [plausible, alternative interpretations], we think it

helpful to review the background of [18 USC 924(e)].” Id. at 581. The Court then

8
See, e.g., Safeco Ins Co of America v Burr, ___ US ___; 127 S Ct 2201;
167 L Ed 2d 1045 (2007) (extensively reviewing legislative history of the Fair
Credit Reporting Act); Ledbetter v Goodyear Tire & Rubber Co, Inc, ___ US ___;
127 S Ct 2162; 167 L Ed 2d 982 (2007) (referring to legislative history of title VII
of the Civil Rights Act of 1964). In Wilkie v Robbins, ___ US ___, ___; 127 S Ct
2588, 2606 n 12; 168 L Ed 2d 389 (2007), the Court stated that “we know that
Congress patterned the [Hobbs] Act after two sources of law: ‘the Penal Code of
New York and the Field Code, a 19th-century model penal code.’” (Citations
omitted.) This legislative history regarding the statutory sources offered insight to
the Court, just as it did for this Court in Stoudemire (likewise reviewing the
background of Michigan habitual-offender laws adapted from the New York penal
code).

7

conducted a rigorous review of legislative history related to the statutory language

in question. Id. at 581-590.

I agree with the United States Supreme Court: legislative history should not

be ignored when it may illuminate a court considering reasonable, alternative

interpretations of a statute. Where, as here, legislative history singularly supports

one arguably reasonable interpretation of a statute over another, it is a worthy

guide to the proper choice between the interpretations.9 The former interpretation

of MCL 769.11, given by this Court from the enactment of the law in 1927 to

today, is reasonable. It is supported by the language of the statute. It is also

uniformly supported by legislative history.

Further, when there are plausible, competing interpretations of a criminal

statute, the rule of lenity should apply. “‘[W]hen there are two rational readings of

a criminal statute, one harsher than the other, we are to choose the harsher only

when Congress has spoken in clear and definite language.’” Scheidler v Nat’l Org

for Women, Inc, 537 US 393, 409; 123 S Ct 1057; 154 L Ed 2d 991 (2003),

quoting McNally v United States, 483 US 350, 359-360; 107 S Ct 2875; 97 L Ed

2d 292 (1987). In other words, when there are two plausible meanings, the more

9
While legislative history may support several legislative intentions
directed toward those individuals targeted by the habitual-offender statutes—
punishment, removal from society, or rehabilitation—there is no such diversity
regarding the identity of the individuals to whom the statutes are meant to apply.
Uniformly, the evident intent is to target habitual offenders, those who persist in
criminal activity despite prior convictions.

8

lenient should apply when years of a person’s life are at stake. The majority

isolates a statute outside its clear statutory scheme to arrive at the harsher result.

But even if the majority’s interpretation is plausible, the rule of lenity should

apply, and the rule of Preuss, expressing the consistent holdings of this Court,

should stand.

The majority lists several statutes from other jurisdictions as examples of

habitual-offender statutes with language clearly requiring that predicate felonies

arise from separate criminal episodes.10 Ante at 19-20 and nn 20-21. Among

these is the ACCA, a federal habitual-offender statute, as mentioned. The

majority notes that the federal statute contains express language stating that

predicate felonies must be “committed on occasions different from one another

. . . .” 18 USC 924(e)(1). What the majority fails to observe is that at the time

the United States Supreme Court implied, and the United States Court of Appeals

for the Eighth Circuit held, that predicate felonies used under federal habitual-

offender statutes must be committed on occasions different from one another, the

statute did not expressly say that. Rather, the courts reviewed legislative history

10
The majority asserts that these statutes from other states indicate that the
Michigan Legislature “is fully capable of amending its language if it sees fit to do
so.” Ante at 19. The majority would read positive meaning into Michigan
legislative silence regarding, for instance, a Missouri statute, but refuses to do so
in light of decades of settled Michigan law. The Michigan Legislature may well
have remained silent because no Michigan court until today has ever held that
multiple convictions arising from the same act count as multiple offenses for
purposes of habitual-offender enhancement.

9

to conclude that this must be the meaning of the statute. Congress amended the

statute after the courts so held, and, in fact, Congress relied on the court rulings

to so amend the statute.11

The majority repeatedly implies that changes in the statutory language

have altered the habitual-offender statutes to the extent that they now apply to

crimes committed during the same criminal transaction, but the majority fails to

identify the changes in the language that would have had this effect. That is

because there are no such changes or language. The 1978 statutory revisions

relate to the time of conviction; they do not relate to the timing of the

commission of the underlying crimes.

In Preuss, we reviewed the 1927 and the 1978 statutory language. We

concluded that the language, both before and after amendment, required only that

the defendant have been convicted of a felony before commission of the crime for

which the enhanced sentence was being imposed. We revised Stoudemire’s

holding that the sentence for a previous crime must have been completed before

that crime could be used in counting predicate felony convictions. Thus,

analyzing MCL 769.12, we stated that the statute applies “to defendants who had

previously been convicted three times before they committed their fourth offense,

11
See Petty v United States, 481 US 1034 (1987), United States v Petty,
828 F2d 2 (CA 8, 1987), United States v Petty, 798 F2d 1157 (CA 8, 1986), and
134 Cong Rec S17360, 17370 (daily ed November 10, 1988). For a history of this
development, see also United States v McElyea, 158 F3d 1016, 1018-1020 (CA 9,
1998); Stoudemire, 429 Mich at 275-276.

10

even if they had not yet been sentenced on any or all of those prior convictions.”

Preuss, 436 Mich at 724. Yet we found nothing in the amended language to

compel a change in the longstanding requirement that “multiple convictions

arising out of a single incident may count as only a single prior conviction under

the statute.” Id. at 720.

The amended language does not relate to the timing of the commission of

the underlying crimes; it relates only to the timing of the convictions for them.

The majority does not show precisely how the amended language relates to the

timing of the commission of previous crimes. The majority’s overruling of a

century and a half of Michigan jurisprudence is not based on the 1978 revisions.12

Again, in more than 150 years, no Michigan court has ever held, until today, that

12
It appears that the majority is driven by a new view of statutory
interpretation, not by any change in the statute itself. Inasmuch as the majority’s
interpretation of the habitual-offender statutes is plausible, it would have been
equally plausible under the 1927 version because neither the former nor the
current language expressly addresses the timing of the underlying crime’s
commission. Addressing the application of arguably changing methods of
interpretation, the United States Supreme Court recently stated:

But even were we to posit for argument’s sake that changes in
interpretive approach take place from time to time, we could not
agree that the existence of such a change would justify
reexamination of well-established prior law. Principles of stare
decisis, after all, demand respect for precedent whether judicial
methods of interpretation change or stay the same. Were that not so,
those principles would fail to achieve the legal stability that they
seek and upon which the rule of law depends. [CBOCS West, Inc v
Humphries, ___ US ___, ___; 128 S Ct 1951; 170 L Ed 2d 864
(2008).]

11

convictions for multiple crimes committed in a single criminal transaction count as

separate convictions for habitual-offender purposes. See Palm, 245 Mich at 400.

The majority asserts that its ruling is “arguably simpler to apply in

practice” than the longstanding same-incident rule.” Ante at 22. While it may be

true that it is easier to count multiple felonies than to discern whether prior

convictions arose from a single criminal incident, that does not mean that the

Legislature intended the habitual-offender statutes to apply in that manner.

Further, the longstanding rule that convictions arising from the same incident be

counted as one conviction for habitual-offender purposes has not proved difficult

to interpret or particularly susceptible to judicial discretion.13 The rule has been

workable since the statutes were enacted.

The defendant in this case has been sentenced to imprisonment for five

years as a second-offense felony-firearm offender. MCL 750.227b(1).14 His

13
I find the majority’s concern regarding judicial discretion somewhat
puzzling because, as the majority observes, the statutes themselves give courts and
prosecutors broad discretion in when and how they apply. Giving notice of the
intent to seek a sentence enhancement for a defendant who is an habitual offender
is at the discretion of the prosecutor. See MCL 769.13(1). Imposing a sentence
enhancement is discretionary for the sentencing court. See MCL 769.10(1)(a) and
(b); MCL 769.11(1)(a) and (b); MCL 769.12(1)(a) and (b).

14
MCL 750.227b(1)states that a

person who carries or has in his or her possession a firearm when he
or she commits or attempts to commit a felony . . . is guilty of a
felony, and shall be imprisoned for 2 years. Upon a second
conviction under this section, the person shall be imprisoned for 5
(continued…)

12

simultaneous crimes have been counted for purposes of extending his sentence.

Defendant will spend years, if not a lifetime, in prison. But defendant should be

subject to further sentence enhancement as a second-offense, not a third-offense,

habitual offender. The habitual-offender statutes apply to subsequent, not

simultaneous, felonies. The statutes are intended to enhance the sentences of

persistent criminals, not multiple offenders. Defendant’s 25-year minimum

sentence is within the recommended minimum sentence range for a second-

offense habitual offender, but, because the sentencing court incorrectly counted

separate convictions arising from the same criminal incident, in fact arising from

the same act, resentencing is required. People v Francisco, 474 Mich 82, 89-91;

711 NW2d 44 (2006). I would not overrule Preuss and the uniform holdings of

this Court that Preuss represents. I would remand this case to the sentencing court

for it to impose a sentence on defendant as a second-offense habitual offender.

Michael F. Cavanagh
Marilyn Kelly

(…continued)
years. Upon a third or subsequent conviction under this subsection,
the person shall be imprisoned for 10 years.

13

 STATE OF MICHIGAN

SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

v No. 131942

CAPRESE D. GARDNER,

Defendant-Appellant.

KELLY, J. (dissenting).

This is another case in which the majority disregards the doctrine of stare

decisis. I join Justice Cavanagh’s well-reasoned dissent. I write separately to

strongly disapprove of the majority’s efforts to overturn all caselaw with which it

disagrees, however destabilizing the effect may be. This is not a new area of

contention among us. I have previously argued that the majority’s willingness to

overrule precedent weakens our legal system at its foundation.1 Because of the

importance of the issue, it warrants continuing attention.2

I agree with Justice Cavanagh that People v Preuss and its antecedents

correctly held that “multiple convictions arising out of a single incident may count

1
See, e.g., Rowland v Washtenaw Co Rd Comm, 477 Mich 197, 253-257;
731 NW2d 41 (2007) (Kelly, J., concurring in part and dissenting in part).
2
See Welch v Texas Dep’t of Hwys & Pub Transportation, 483 US 468,
494; 107 S Ct 2941; 97 L Ed 2d 389 (1987) (opinion of Powell, J.) (“[T]he
doctrine of stare decisis is of fundamental importance to the rule of law.”).
as only a single prior conviction under the statute . . . .”3 Obviously, I would not

overrule that line of decisions. Yet, aside from this basic disagreement, I am

concerned that the majority’s approach to the doctrine of stare decicis tends to turn

it on its ear. The majority correctly observes that stare decisis should not be

mechanically applied to prevent the overruling of previous caselaw. Then it errs

by moving in the opposite direction. In contravention of the purpose of the

doctrine, it mechanically applies stare decisis to permit the overruling of every

case it believes was incorrectly decided.

Stare decisis is short for stare decisis et non quieta movere, which means

“stand by the thing decided and do not disturb the calm.” It has been a part of

American jurisprudence since the country was founded.4 Alexander Hamilton

wrote that to “avoid an arbitrary discretion in the courts, it is indispensable that

they should be bound down by strict rules and precedents which serve to define

and point out their duty in every particular case that comes before them . . . .”5

Early in the twentieth century, Justice (then-Judge) Cardozo wrote that the “labor

of judges would be increased almost to the breaking point if every past decision

3
People v Preuss, 436 Mich 714, 720; 461 NW2d 703 (1990).
4
The doctrine can be traced back to medieval England. Healy, Stare
decisis as a constitutional requirement, 104 W Va L R 43, 56-62 (2001). It
assumed its modern form in the late eighteenth and early nineteenth centuries. Id.
at 55.
5
The Federalist No. 78, p 471 (Alexander Hamilton) (Clinton Rossiter ed,
1961).

2

could be reopened in every case, and one could not lay one’s own course of bricks

on the secure foundation of the courses laid by others who had gone before him.”6

The present majority on this Court has adopted what are commonly known

as the “Robinson factors” to discern whether precedent should be overruled.7 “In

determining whether to overrule a prior case, this Court first considers whether the

earlier case was wrongly decided.”8 But that is only the first step that must be

taken. The Court must then examine (1) whether the decision remains workable,

(2) the degree of reliance on the decision, and (3) whether changes in the law or

facts have undermined the basis of the decision.9 While this analysis appears

straightforward, applying it can be difficult.

First, as demonstrated by the instant case, the justices of this Court often

disagree about whether a previous decision was incorrectly decided. Yet, in this

Court’s post-Robinson cases, if a majority concludes that the previous decision

was wrong, it will likely be overruled.10 The remainder of the Robinson analysis

6
Benjamin N. Cardozo, The Nature of the Judicial Process (New Haven:
Yale University Press, 1921), p 149.
7
Robinson v Detroit, 462 Mich 439; 613 NW2d 307 (2000).
8
Rowland, 477 Mich at 214, citing Robinson, 462 Mich at 463-468.
9
Robinson, 462 Mich at 464.
10
See, e.g., Rowland, 477 Mich at 215 n 13 (stating that the Robinson
factors did not counsel against overruling precedent); Paige v Sterling Hts, 476
Mich 495, 512 n 21; 720 NW2d 219 (2006) (stating that “the only instances in
which we might decline to overrule [erroneous precedent]” is when doing so
would produce chaos) (emphasis added); People v Nutt, 469 Mich 565, 591; 677
NW2d 1 (2004) (concluding that the Court is compelled to overrule erroneous
(continued…)

3

appears to be gratuitous. For instance, in the area of criminal law, the majority has

held that reliance interests simply are not implicated.11 In addition, the majority

often merges the reliance prong with the initial determination of whether the

precedent was correctly decided. This last point effectively eviscerates the

reliance prong of the Robinson analysis, because a “wrong” decision supposedly

can never generate reliance.12 The predictable result of the majority’s current

approach is that, once a party meets its initial burden of demonstrating that a prior

decision was wrong, the precedent is overturned.

This result flies in the face of the doctrine of stare decisis. Key to the

doctrine is the concept that some precedent should be upheld notwithstanding its

(…continued)

precedent); People v Hickman, 470 Mich 602, 610 n 6; 684 NW2d 267 (2004)

(noting that no special justification is necessary to overrule erroneous precedent);

People v Petit, 466 Mich 624, 633-634; 648 NW2d 193 (2002) (stating that courts

should overturn erroneous decisions).

11
Ante at 21; see also People v Kazmierczak, 461 Mich 411, 425; 605
NW2d 667 (2000) (implying that reliance is not worthy of “sympathy” in the
criminal context). The majority fails to recognize that criminals are not the only
people who rely on criminal statutes. For instance, legislators appropriate funds
for the Department of Corrections on the basis of predictions of how many
individuals will be incarcerated. The majority’s new interpretation of the habitual
offender statutes could render previous calculations inaccurate and appropriations
insufficient because criminals will now be subject to lengthier prison terms.
12
See Pohutski v City of Allen Park, 465 Mich 675, 694; 641 NW2d 219
(2002), quoting Robinson, 462 Mich at 467 (‘“[S]hould a court confound . . .
legitimate citizen expectations by misreading or misconstruing a statute, it is that
court itself that has disrupted the reliance interest. When that happens, a
subsequent court, rather than holding to the distorted reading because of the
doctrine of stare decisis, should overrule the earlier court’s misconstruction.”’).

4

flaws.13 As stated by Justice Brandeis: “Stare decisis is usually the wise policy,

because in most matters it is more important that the applicable rule of law be

settled than that it be settled right.”14

Relying on caselaw from the United States Supreme Court, many

commentators suggest that there exists a hierarchy of precedents. Under this

hierarchy, stare decisis applies differently to different areas of the law.15 The

13
See Hubbard v United States, 514 US 695, 716; 115 S Ct 1754; 131 L Ed
2d 779 (1995) (Scalia, J., concurring in part) (stating that the decision to overrule
must be supported by “reasons that go beyond mere demonstration that the
overruled opinion was wrong [otherwise the doctrine would be no doctrine at
all]”); Allied-Bruce Terminix Cos, Inc v Dobson, 513 US 265, 283-284; 115 S Ct
834; 130 L Ed 2d 753 (1995) (O’Connor, J., concurring) (reiterating her view that
the majority had been wrong in deciding the same issue in a previous case but
joining the majority in this case because there was no special justification to
overrule it); Mathews v United States, 485 US 58, 66-67; 108 S Ct 883; 99 L Ed
2d 54 (1988) (Brennan, J., concurring) (“I write separately only because I have
previously joined or written four opinions dissenting from this Court’s holdings
that the defendant’s predisposition is relevant to the entrapment defense. . . . Were
I judging on a clean slate, I would still be inclined to adopt the view that the
entrapment defense should focus exclusively on the Government’s conduct. But I
am not writing on a clean slate; the Court has spoken definitively on this point.
Therefore, I bow to stare decisis . . . .”); Scott v Illinois, 440 US 367, 374-375; 99
S Ct 1158; 59 L Ed 2d 383 (1979) (Powell, J., concurring) (“Despite my
continuing reservations about the Argersinger rule, it was approved by the Court
in the 1972 opinion and four justices have reaffirmed it today. It is important that
this Court provide clear guidance to the hundreds of courts across the country that
confront this problem daily. Accordingly, and mindful of stare decisis, I join the
opinion of the Court.”).
14
Burnet v Coronado Oil & Gas Co, 285 US 393, 406; 52 S Ct 443; 76 L
Ed 815 (1932) (Brandeis, J., dissenting).
15
See, e.g., Sinclair, Precedent, super-precedent, 14 Geo Mason L R 363,
368-370 (2007); Sellers, The doctrine of precedent in the United States of
America, 54 Am J Comp L 67, 68-69, 84-85 (Supp, 2006); Eskridge, Overruling
(continued…)

5

hierarchy approach gives the greatest weight to statutory precedents.16 It states

that caselaw interpreting statutes should rarely be overturned because the

Legislature is the appropriate branch of government to correct an erroneous

interpretation.17

Even if one rejects the hierarchy approach, the overruling of precedent

requires some special justification.18 The current majority of the Michigan

Supreme Court, however, has ignored this broadly acknowledged requirement.19

While Robinson borrowed its analysis directly from federal law, it failed to

incorporate the special-justification requirement that permeates that body of law.20

(…continued)

statutory precedents, 76 Geo L J 1361, 1362-1363 (1988); Barrett, Statutory stare

decisis in the courts of appeals, 73 Geo Wash L R 317 (2005).

16
Neal v United States, 516 US 284, 295; 116 S Ct 763; 133 L Ed 2d 709
(1996); Patterson v McLean Credit Union, 491 US 164, 172-173; 109 S Ct 2363;
105 L Ed 2d 132 (1989); Illinois Brick Co v Illinois, 431 US 720, 736; 97 S Ct
2061; 52 L Ed 2d 707 (1977); see also Fisher, Statutory construction: Keeping a
respectful eye on Congress, 53 SMU L R 49, 51-52 (2000); Barret, 73 Geo Wash
L R at 320-321 (2005).
17
As stated by the United States Supreme Court: “Considerations of stare
decisis have special force in the area of statutory interpretation, for here, unlike in
the context of constitutional interpretation, the legislative power is implicated, and
Congress remains free to alter what we have done.” Patterson, 491 US at 172-
173.
18
Id.; Arizona v Rumsey, 467 US 203, 212; 104 S Ct 2305; 81 L Ed 2d 164
(1984); People v Hickman, 470 Mich 602, 617 n 6; 684 NW2d 267 (2004) (Kelly,
J., dissenting); see also Note, The unworkable unworkability test, 80 NYU L R
1665, 1669-1670 (2005).
19
See Hickman, 470 Mich at 617 n 6 (Kelly, J., dissenting).
20
Robinson, 462 Mich at 463-464.

6

“The most significant aspect of this ‘special justification’ approach is that it

requires more than a conviction that the challenged precedent was wrongly

decided.”21 Requiring a special justification also promotes predictability in the

Court’s application of stare decisis by making it more difficult to apply the

doctrine selectively.

In the instant case, the majority overrules longstanding caselaw interpreting

a statute without any special justification. The majority simply concludes that the

earlier caselaw was incorrectly decided, and, because the caselaw interpreted a

criminal statute, no reliance interests are implicated. According to the majority,

the habitual offender statutes clearly apply to multiple offenses committed on one

occasion. As Justice Cavanagh explains, this contradicts more than 150 years of

precedent.22

The majority claims that it relies on the 1978 amendment of the habitual

offender statutes. It refuses to comment on “the correctness of any court’s

interpretations of the pre-1978 versions of the statutes.”23 Willful ignorance of

prior caselaw does not make it disappear. Contrary to the majority’s assertion, the

post-1978 language of the habitual offender statutes does not clearly apply to

multiple offenses committed on one occasion. Rather, the language of the habitual

offender statutes is at least equally supportive of the conclusion that the statutes
21
Note, 80 NYU L R at 1670 (2005).
22
Ante at 2 n 1, 11-12.
23
Ante at 24.

7

are inapplicable to multiple convictions arising from the same act. This is because

they set out a “system of graduated enhancements for subsequent felonies . . . .”24

Accordingly, the 1978 amendments did not alter the command that

“multiple convictions arising out of a single incident may count as only a single

prior conviction under the statute . . . .”25 Because the amended statutory language

does not compel the result reached by the majority, it is appropriate to consider

this Court’s understanding of the preamendment statutory language. This long

history should not be ignored simply because it does not suit the majority’s

analysis.

Nor is it illogical or inconsistent to stand by Preuss even though Preuss

itself rejected, in part, People v Stoudemire.26 Preuss held, contrary to some of the

reasoning articulated in Stoudemire, that the habitual offender statutes did not

require that a prior conviction be separated by intervening convictions or

sentences.27 However, Preuss specifically maintained Stoudemire’s holding that a

defendant’s prior offenses must arise from separate incidents.28 Thus, Preuss and

Stoudemire are controlling precedent on the point in issue.29

24
Ante at 4.

25
Preuss, 436 Mich at 720.

26
People v Stoudemire, 429 Mich 262; 414 NW2d 693 (1987).

27
Pruess, 436 Mich at 738-739.

28
Id. at 436 Mich 737.

29
Whether Preuss correctly rejected Stoudemire’s reasoning concerning the

timing of the convictions is not at issue here.

8

 The majority asserts that binding courts to a strict-constructionist view of

statutory interpretation ensures that courts are not arbitrary in their decision-

making. The majority’s decision in this case belies that claim. The statutory

language at issue does not necessarily lead to the conclusion reached by the

majority. Nonetheless, the majority is willing to change a longstanding rule of law

that conflicts with its interpretation. Frequently, fair-minded people will disagree

about what the language of a statute requires. Just because a majority of the

justices on this Court proclaims a statute free from ambiguity does not make it so.

This is precisely why it is so important that something more than a notion that an

earlier case was incorrectly decided should be required before precedent is

overruled.

Stare decisis is not an ironclad mandate. Because justices sometimes err, it

is appropriate for us to reconsider earlier decisions.30 When we do so, however,

stare decisis requires that we give those decisions thoughtful and thorough

consideration before tossing them aside. Our decision about whether an earlier

case must be overruled should be guided by more than a notion that the case was

incorrectly decided.31

30
See Sington v Chrysler Corp, 467 Mich 144, 184; 648 NW2d 624 (2002)
(Kelly, J., dissenting).
31
The majority relies on Justice Markman’s concurring statement in
Rowland to counter my argument that it too freely overturns precedent with which
it disagrees. Justice Markman’s primary assertion in Rowland was that our
disagreement is less about our esteem for precedent than about the merits of the
(continued…)

9

 In the matter before us, I would uphold Preuss, because it was correctly

decided. Moreover, the doctrine of stare decisis dictates that it be upheld. Preuss

remains workable, and no changes in the law or facts have undermined it. No

special circumstances exist indicating that it should be overruled. Because Preuss

interpreted statutory law, the Court should be especially hesitant to overrule it. If

(…continued)
opinions being overruled. Rowland, 477 Mich at 224. He then cited opinions in
which I agreed with the precedent that the majority overruled. As I stated in
Rowland, “[t]his amounts to little more than a circumstantial ad hominem logical
fallacy.” Id. at 257 n 12 (Kelly, J., dissenting).
Whether I will support precedents with which I disagree is a question not
often brought to light but one I regularly confront. In recent years, I have
frequently disagreed with the majority on the merits and resolution of issues
presented to us. Once I have been outvoted and dissent, I face whether to reiterate
my dissent in future cases raising the same issues. Often, I accede to the opinion
of the majority. For instance, I recently joined the majority opinion in State News
v Michigan State Univ, __ Mich __; __ NW2d __ (Docket No. 133682, decided
July 16, 2008), even though it cited Michigan Federation of Teachers v Univ of
Michigan, __ Mich __; __ NW2d __ (Docket No. 133819, decided July 16, 2008),
in which I dissented. Also, in the past 10 years, I have voted to deny leave in
cases too numerous to list based on decisions reached by the majority, despite my
disagreement with those decisions. This further indicates my frequent willingness
to abide by and maintain precedents with which I disagree.
Contrary to Justice Markman’s belief, our respective records demonstrate
that our disagreements stem frequently not solely from our view of the merits of
issues but from our differing esteem for stare decisis. See Rowland, 477 Mich at
257 n 12 (Kelly, J., dissenting), citing Todd C. Berg, Esq., Overruling Precedent
and the MSC, The Justices’ Scorecard, Michigan Lawyers Weekly,
(accessed December 22, 2006).
The majority’s reference to Justice Markman’s accusations in Rowland
concerning my record and views should be seen for what it is, a red herring, a
distraction from the main point: the majority is choosing to overrule longstanding
precedent in this case, as in so many before it, for wholly inadequate reasons.

10

Preuss misinterpreted legislative intent, the Legislature can amend the habitual

offender statutes to permit their application to multiple offenses committed on one

occasion.32 Preuss is free from absurdity, not mischievous in practice, and is

consistent with other adjudications of this Court.33 For these reasons, as well as

those articulated by Justice Cavanagh, I dissent.

Marilyn Kelly

32
For the reasons stated by Justice Cavanagh, I disagree with the majority’s
conclusion that the Legislature has amended the statutes to permit their application
to multiple offenses committed on one occasion. Ante at 10-11.
33
Rowland, 477 Mich at 255 n 8 (Kelly, J., concurring in part and
dissenting in part).

11