People v. Poole , 218 Mich. App. 702 ( 1996 )

555 N.W.2d 485 (1996) 218 Mich. App. 702

PEOPLE of the State of Michigan, Plaintiff-Appellee,
v.
Terry Lamont POOLE, Defendant-Appellant.

Docket Nos. 169867, 169987.

Court of Appeals of Michigan.

Submitted March 16, 1996, at Lansing. Decided September 17, 1996, at 9:00 a.m. Released for Publication November 8, 1996.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Michael D. Thomas, Prosecuting Attorney, and Catherine Langevin Semel, Assistant Prosecuting Attorney, for People.

State Appellate Defender by Richard B. Ginsberg, for defendant on appeal.

Before HOLBROOK, P.J., and TAYLOR and W.J. NYKAMP,^[*] JJ.

TAYLOR, Judge.

Defendant was convicted following separate jury trials of delivery of 50 grams or more, but less than 225 grams, of cocaine, M.C.L. § 333.7401(2)(a)(iii); M.S.A. § 14.15(7401)(2)(a)(iii), and possession with intent to deliver 50 grams or more, but less than 225 grams, of cocaine, M.C.L. § 333.7401(2)(a)(iii); M.S.A. § 14.15(7401)(2)(a)(iii).^[1] He was sentenced to serve consecutive prison terms of thirteen to twenty years and nonparolable life imprisonment, respectively. He appeals as of right, and we affirm.

I

Defendant first argues that the lower court erred in denying his motion to declare void the search warrant for 602 Holden Street and to suppress the fruits of that search because substantial evidence did not exist for the magistrate to conclude that probable cause existed to search the residence. In reviewing a magistrate's decision to issue a search warrant, this Court must evaluate the search warrant and underlying affidavit in a common-sense and realistic manner. This Court must then determine whether a reasonably cautious person could have concluded, under the totality of the circumstances, that there was a substantial basis for the magistrate's finding of probable cause. People v. Sloan, 450 Mich. 160, 168, 538 N.W.2d 380 (1995); People v. Russo, 439 Mich. 584, 603, 487 N.W.2d 698 (1992).

Defendant specifically argues that the search warrant affidavit did not establish probable cause to believe that a nexus existed between him and 602 Holden Street. We disagree.

A search warrant affidavit must provide sufficient facts from which a magistrate could find that the information supplied was based on personal knowledge and that either the unnamed person was credible or the information was reliable. M.C.L. § 780.653; M.S.A. § 28.1259(3). Here, the affiant averred that informant Norman Wilson had been told by Kevin Jackson that defendant had moved to the Holden Street address. Such multiple hearsay statements may be used to establish probable cause where the ordinary requirements of personal knowledge and reliability or credibility are met. People v. Harris, 191 Mich.App. 422, 425-426, 479 N.W.2d 6 (1991); People v. Brooks, 101 Mich.App. 416, 419, 300 N.W.2d 582 (1980). Jackson's statement that defendant had moved to the Holden Street address was made with personal knowledge and could be viewed as credible given that defendant had just moved out of Jackson's home. Moreover, defendant's connection with the Holden Street address was independently verified by the affiant, who checked defendant's jail records and found that they listed Holden Street as the address where a relative could be contacted. The affiant further averred that a person named "Whinnie" had stated he was at "Terry's place" on Holden Street. Although this information did not confirm defendant's current residence, it did bolster the information provided by Kevin Jackson that defendant was then residing at the Holden Street address. Harris, supra. Finally, "Whinnie's" credibility as an informant was shown by the statements he made against his penal interest. See People v. Head, 211 Mich.App. 205, 209, 535 N.W.2d 563 (1995). Accordingly, under the totality of the circumstances, we conclude that a substantial basis existed for the district judge's finding of probable cause to search 602 Holden Street. Defendant's motion to suppress was properly denied.

II

On September 9, 1992, defendant delivered cocaine to a police officer. On September 17, 1992, the police found cocaine in defendant's jacket while executing a search warrant. Defendant subsequently was convicted by separate juries at separate trials of delivery of more than 50 grams but less than 225 grams of cocaine on August 27, 1993, and possession with intent to deliver more than 50 grams but less than 225 grams of cocaine on September 3, 1993. Defendant was sentenced to serve consecutive prison terms of thirteen to twenty years and life without parole, respectively.

Defendant argues that the trial court erred in sentencing him as a second-offender under M.C.L. § 333.7413(1); M.S.A. § 14.15(7413)(1) because the offense resulting in his second conviction occurred before he was convicted for the first offense. We disagree.

M.C.L. § 333.7413; M.S.A. § 14.15(7413) prescribes the penalties for repeat controlled substance offenders. The first three subsections of § 7413 describe different groups of offenses and provide different enhanced penalties for each group. Section 7413(1) requires nonparolable life sentences for individuals who commit a second or subsequent offense involving more than fifty grams of a schedule 1 or 2 narcotic drug or cocaine, or conspiring to commit such offenses. Section 7413(3) subjects individuals who are second or subsequent offenders under M.C.L. § 333.7410(2) and (3); M.S.A. § 14.15(7410)(2) and (3) (delivery or possession with intent to deliver schedule 1 or 2 narcotics or cocaine to a minor within 1,000 feet of a school property) to mandatory enhanced prison terms (although the court may depart from the mandatory minimum sentence upon a finding of substantial and compelling reasons). Section 7413(2) provides discretionary enhanced sentences for individuals who are convicted of any other second or subsequent offenses under the controlled substances act (delivery offenses involving less than fifty grams, possession offenses involving twenty-five to fifty grams, and conspiracies to commit these offenses).

M.C.L. § 333.7413; M.S.A. § 14.15(7413) provides, in pertinent part:

(1) An individual who was convicted previously for a violation of any of the following offenses and is thereafter convicted of a second or subsequent violation of any of the following offenses shall be imprisoned for life and shall not be eligible for probation, suspension of sentence, or parole during that mandatory term:

(a) A violation of section 7401(2)(a)(ii) or (iii).

(b) A violation of section 7403(2)(a)(ii) or (iii).

(c) Conspiracy to commit an offense proscribed by section 7401(2)(a)(ii) or (iii) or section 7403(2)(a)(ii) or (iii).

More plainly stated, these sections prohibit the manufacture, creation, delivery, or possession with intent to manufacture, create, or deliver, at least 50 grams but less than 225 grams, or at least 225 grams but less than 650 grams of a schedule 1 or 2 narcotic or cocaine; or possession of at least 50 grams but less than 225 grams, or at least 225 grams but less than 650 grams, of a schedule 1 or 2 narcotic drug or cocaine; or conspiracy to commit one of the foregoing offenses. See Managing a Trial Under the Controlled Substances Act (Michigan Judicial Institute, 1995), pp 332-333.

As applicable to defendant, M.C.L. § 333.7413(1); M.S.A. § 14.15(7413)(1) provides that an individual who was convicted previously of delivery of more than 50 grams but less than 225 grams of cocaine and is thereafter convicted of possession with intent to deliver more than 50 but less than 225 grams of cocaine shall be imprisoned for life without eligibility for parole. Thus, the trial court imposed a nonparolable life sentence for defendant's conviction of possession with intent to deliver 50 grams or more but less than 225 grams of cocaine because defendant had previously been convicted of delivering more than 50 but less than 225 grams of cocaine.

The issue is whether the trial court properly construed M.C.L. § 333.7413(1); M.S.A. § 14.15(7413)(1) as requiring that defendant receive a nonparolable sentence for his second conviction. The goal of statutory construction is to ascertain and give effect to the intent of the Legislature. People v. Stanaway, 446 Mich. 643, 658, 521 N.W.2d 557 (1994). If a statute is clear, the courts must enforce its directive. People v. Morris, 450 Mich. 316, 325, 537 N.W.2d 842 (1995). It is only where a statute is unclear and susceptible to more than one interpretation that judicial construction is allowed. Id. The Legislature is presumed to have intended the meaning it plainly expressed. People v. Cannon, 206 Mich.App. 653, 655, 522 N.W.2d 716 (1994). Although penal in nature, § 7413(1) is part of the Public Health Code, which is to be "liberally construed for the protection of the health, safety, and welfare of the people." M.C.L. § 333.1111(2); M.S.A. § 14.15(1111)(2). Thus, it is a court's duty to construe § 7413(1) in a manner that most effectively protects the health, safety, and welfare of the public and effects the object sought to be advanced by the statute. Morris, supra at 327, 537 N.W.2d 842.

Section 7413(1) is not ambiguous, and it clearly requires a nonparolable life sentence where a defendant was "convicted previously" of an enumerated offense and thereafter is "convicted" of an enumerated offense. At the time defendant was convicted of possession with intent to deliver 50 grams or more but less than 225 grams of cocaine, he had been "convicted previously" of an enumerated offense. Thus, defendant's situation fits within the terms of § 7413(1), and the trial court properly sentenced him to a nonparolable term in prison.

Defendant argues that § 7413(1) should not have been applied to him because he committed his second offense before he had been convicted of the first offense. This argument is simply not supported by the unambiguous statutory language used by the Legislature, which we must enforce. For defendant's argument to prevail, we would have to rewrite § 7413(1). This statute, as written, provides for a nonparolable life sentence for a defendant "convicted previously" who "is thereafter convicted." Defendant, however, would require this Court to change "is thereafter convicted" to read "[who] thereafter commits" an offense. This we cannot do.

The trial court's construction of the statute is consistent with People v. Roseburgh, 215 Mich.App. 237, 239, 545 N.W.2d 14 (1996), which found that sentence enhancement under § 7413(2) only requires convictions to follow one another with no temporal requirement regarding the sequence of the crimes. Although Roseburgh is not controlling because it dealt with a different subsection of the statute, it is persuasive and a similar result is appropriate in this case.

We are aware that other repeat offender statutes have been construed by our courts to require that a prior conviction precede the commission of the second offense. However, the statutory language under examination in those cases was sufficiently different to render those cases inapplicable. Roseburgh, supra at 239, n. 1, 545 N.W.2d 14. In People v. Preuss, 436 Mich. 714, 461 N.W.2d 703 (1990), the Court held that a defendant could not be punished as a fourth-offense habitual offender unless the fourth offense was preceded by three felony convictions. Yet, an examination of the language in the habitual offender statutes makes this result appropriate and lends support to our interpretation of § 7413(1). The habitual offender statutes, M.C.L. §§ 769.10-769.12; M.S.A. §§ 28.1082-28.1084, provide that a person who "commits" a subsequent felony after being convicted of one, two, or three prior felonies, may be punished as a repeat felony offender. The important distinction is the fact that the Legislature used the word "commits" and not "convicted" in describing what must occur after a person has a prior felony conviction.

Similarly, People v. Erwin, 212 Mich.App. 55, 60, 536 N.W.2d 818 (1995), stated that a drunk-driving conviction may not be used for enhancement purposes unless the date of conviction precedes the date of the second offense. This statement was entirely appropriate because the repeat offender provisions of the drunken-driving statute, M.C.L. § 257.625(7)(b) and (d); M.S.A. § 9.2325(7)(b) and (d), provide that if "the violation occurs within seven years of a prior conviction" or if "the violation occurs within ten years of two or more prior convictions," a defendant may be treated as a repeat offender. Once again, the Legislature did not use the word "conviction" but used the word "violation" in describing what must occur after a first conviction. The wording used in these three repeat offender statutes shows clearly that the Legislature has demonstrated that it knows how to use language requiring that a defendant must commit an offense after a conviction before the defendant may be considered a repeat offender when it so chooses, i.e., it uses words like "commit" and "violation" to describe what must occur after the first conviction. Morris, supra at 329-330, 537 N.W.2d 842 (if the Legislature means to limit the reach of a statute, it has demonstrated the ability to do so); People v. Bewersdorf, 438 Mich. 55, 72, 475 N.W.2d 231 (1991) (the Legislature has demonstrated when it intends to do so, that it is capable of excluding a particular category of felonies from the sentence enhancement of the habitual offender act). We must respect this legislative distinction. The dissent, however, fails to do so.

The case that is most supportive of the defendant's position, and facially problematic to our approach, is People v. Stewart, 441 Mich. 89, 95, 490 N.W.2d 327 (1992), which limited People v. Sawyer, 410 Mich. 531, 302 N.W.2d 534 (1981). Yet, properly understood, Stewart and Sawyer stand in harmony with our analysis. Sawyer was a case in which the Court construed the repeat offender portion of the felony-firearm statute that requires a lengthier sentence "upon a second" or "third" conviction. Sawyer held that a defendant should not be sentenced as a second felony-firearm offender unless the second offense is committed after the first conviction. In reasoning to this conclusion, the Court stated that a number of purposes are served when the Legislature increases punishment for repeat offenders, including providing more severe punishment for people who decline to change their ways following an opportunity to reform. The clinching rationale for the Court's holding was the rule of lenity, which holds that ambiguities in penal statutes must be resolved against the imposition of harsher punishments. People v. Smith, 423 Mich. 427, 446, 378 N.W.2d 384 (1985).^[2] Thus, the construction that held that the second offense must occur after the first conviction was doctrinally sound.^[3] This rule was limited in Stewart, where the Court stated that a defendant may be convicted of felony-firearm, third offense, if the third offense is preceded by two felony-firearm convictions that arose out of separate criminal incidents.

The holdings of Sawyer and Stewart are inapplicable to the case at bar because the rule of lenity is inapplicable. The felony-firearm statute is part of the Penal Code, which is subject to the rule of lenity,^[4] whereas § 7413(1) is part of the Public Health Code, which must be liberally construed for the protection of the health, safety, and welfare of the public. The Stewart Court believed the Legislature wanted to provide an opportunity to reform oneself after having been first convicted before the additional prison time required for repeat felony-firearm offenders was applicable. Here, however, there is no good reason to make the same assumption. Indeed, the Legislature in passing drug laws has focused more on protecting the public than providing drug dealers with an opportunity for reform. The Legislature has provided for nonparolable life sentences for first-time offenders who possess,^[5] deliver, or possess with an intent to deliver more than 650 grams of a schedule 1 or 2 narcotic or cocaine.

For all the foregoing reasons, the trial court properly interpreted § 7413(1) as requiring that defendant be sentenced to a nonparolable life term. We recognize that many would consider this penalty to be harsh. Nevertheless, judicial misgivings regarding the wisdom of a Legislative sentencing policy do not provide, absent a violation of the constitution, a legal foundation for overriding legislative intent. Morris, supra at 335, 537 N.W.2d 842. The wisdom of this policy is a political question to be resolved in the political forum. Id.

III

Defendant next argues that a mandatory life sentence constitutes "cruel and/or unusual" punishment because he was not given a chance to reform before facing a mandatory life sentence.^[6] In determining whether a sentence is cruel or unusual we look to the gravity of the offense and the harshness of the penalty, comparing the penalty to those imposed for other crimes in this state as well as the penalty imposed for the same offense by other states and considering the goal of rehabilitation. People v. Launsburry, 217 Mich.App. 358, 363, 551 N.W.2d 460 (1996). Past decisions of the Michigan Supreme Court have found mandatory drug sentences in violation of Const. 1963, art. 1, § 16 as cruel or unusual punishment. People v. Lorentzen, 387 Mich. 167, 176, 194 N.W.2d 827 (1972), held that a statute mandating a minimum term of twenty years' imprisonment for the sale of any amount of marijuana was unconstitutionally excessive. In People v. Bullock, 440 Mich. 15, 30, 485 N.W.2d 866 (1992), the Supreme Court held that a mandatory life sentence for possession of 650 grams or more of cocaine violated the constitutional ban against "cruel or unusual" punishments.^[7] The Supreme Court, however, refused to extend the Bullock holding to cases involving delivery or possession with intent to deliver more than 650 grams of cocaine, or conspiracy to do the same. People v. Fluker, 442 Mich. 891, 498 N.W.2d 431 (1993); People v. Stewart, 442 Mich. 890, 498 N.W.2d 430 (1993); People v. Lopez, 442 Mich. 889, 498 N.W.2d 251 (1993); People v. Loy-Rafuls, 442 Mich. 915, 503 N.W.2d 453 (1993). See also People v. DiVietri, 206 Mich.App. 61, 63-65, 520 N.W.2d 643 (1994).

At the outset, we reject defendant's claim that a mandatory life sentence is cruel or unusual per se unless he was given an opportunity to reform before imposition of such a sentence. This claim is of no avail to this defendant in any case because he did have a chance to reform himself. He could have realized he had made a gross mistake and have reformed himself after committing his first offense. People v. Bettistea (After Remand), 181 Mich.App. 194, 202, 448 N.W.2d 781 (1989). The opportunity to reform began immediately after he committed his first offense, not after he was first arrested or convicted.

We further reject defendant's claim that his mandatory life sentence constitutes cruel or unusual punishment given the gravity of the offense and our Supreme Court's refusal to extend Bullock to delivery-related drug offenses. As previously stated, mandatory life sentences have been found to be constitutional for first-time offenders who (1) possess with intent to deliver more than 650 grams of cocaine, (2) deliver more than 650 grams of cocaine, or (3) conspire to deliver or to possess with the intent to deliver more than 650 grams. Here, defendant was a repeat drug offender who was convicted of delivering more than 50 but less than 225 grams of cocaine and of possession with intent to deliver the same amount. We find, under the rationale of Fluker, Stewart, Lopez, and Loy-Rafuls, that the Legislature may impose a mandatory life sentence upon repeat cocaine dealers who deliver or possess with intent to deliver more than fifty grams of cocaine without violating the constitutional prohibition against cruel or unusual punishment.

IV

Defendant next argues that he was deprived of his right to effective assistance of counsel because his counsel's failure to request consolidation of his two cases for trial subjected him to a nonparolable life sentence. Defendant claims that if his counsel had had his two charges consolidated, and if he had been convicted of both charges, then he could not have been subject to a nonparolable life sentence because there would not have been a prior conviction.

In People v. Pickens, 446 Mich. 298, 302, 521 N.W.2d 797 (1994), the Supreme Court adopted the federal test for reviewing claims of ineffective assistance of counsel under the Michigan Constitution. The Pickens Court stated that to find prejudice a court must conclude that there is a reasonable probability that, absent counsel's errors, the factfinder would have had a reasonable doubt respecting guilt. Id. at 312, 521 N.W.2d 797. The Pickens Court id., n. 12, then stated as follows:

Furthermore,

"an analysis focusing solely on mere outcome determination, without attention to whether the result of the proceeding was fundamentally unfair or unreliable, is defective. To set aside a conviction or sentence solely because the outcome would have been different but for counsel's errors may grant the defendant a windfall to which the law does not entitle him." [Lockhart v. Fretwell, 506 U.S. (364), (369), 113 S. Ct. 838, 842, 122 L. Ed. 2d 180, 189 (1993).]

Also, the lead opinion in People v. Reed, 449 Mich. 375, 401, n. 21, 535 N.W.2d 496 (1995), states:

The proper inquiry is not whether "there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different." Strickland [v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) ]. An analysis that focuses "solely on outcome determination, without attention to whether the result of the proceeding was fundamentally unfair or unreliable, is defective." Lockhart v. Fretwell, supra at 369, 113 S.Ct. at 842.

Thus, in order to establish that counsel was ineffective, defendant must show that but for counsel's error there is a reasonable probability that the result of the proceeding would have been different and that the result of the proceeding was fundamentally unfair or unreliable. Pickens, supra; Reed, supra.

We are satisfied that defendant is not entitled to any relief regarding this claim. Because defendant did not move to create an evidentiary record to support this claim, our review is limited to the existing record. People v. Armendarez, 188 Mich.App. 61, 73-74, 468 N.W.2d 893 (1991). Defendant has failed to demonstrate that a motion to consolidate necessarily would have been granted. Further, defendant has not overcome the strong presumption that counsel's assistance constituted sound trial strategy. Stanaway, supra at 687, 521 N.W.2d 557. Counsel may not have wanted to consolidate the two cases because the chances for an acquittal in either case would have been reduced if the jury heard both cases against defendant. This is especially the case here because the proofs relating to the possession with intent to deliver charge were not as strong as the proofs relating to the delivery charge. Further, if the motion to consolidate had been granted and defendant was convicted of both charges, he still would have been subject to a very lengthy prison term once the sentences were made consecutive pursuant to M.C.L. § 333.7401(3); M.S.A. § 14.15(7401)(3) and doubled under M.C.L. § 333.7413(2); M.S.A. § 14.15(7413)(2). It can be anticipated that this would have precipitated a claim that moving for consolidation of the two cases was ineffective assistance of counsel. The limning of the dilemma with which counsel was faced bespeaks the strategic nature of the decision that was made.

Finally, defendant claims that he is entitled to resentencing with respect to his delivery conviction, for which he received thirteen to twenty years. Even if defendant is correct, he is not entitled to any relief because we are upholding his mandatory life sentence. People v. Turner, 213 Mich.App. 558, 585, 540 N.W.2d 728 (1995).

Affirmed.

W.J. NYKAMP, J., concurred.

HOLBROOK, Presiding Judge, concurring in part and dissenting in part.

I agree with the majority that defendant's conviction should be affirmed. However, because the second-offender provision of M.C.L. § 333.7413(1); M.S.A. § 14.15(7413)(1) does not apply in this case, I would remand for resentencing.

In this case, defendant committed the delivery offense^[1] (offense I) on September 9, 1992, and eight days later, on September 17, 1992, committed the possession with intent to deliver offense^[2] (offense II). He was convicted of offense I on August 27, 1993, and convicted of offense II on September 3, 1993. At sentencing, the prosecutor argued that M.C.L. § 333.7413(1); M.S.A. § 14.15(7413)(1) required that defendant receive a nonparolable life sentence for his conviction of offense II because his conviction of offense I preceded that conviction. The trial court expressly noted its lack of sentencing discretion under subsection 7413(1) and imposed a term of nonparolable life imprisonment for defendant's conviction of offense II.

M.C.L. § 333.7413; M.S.A. § 14.15(7413) provides, in pertinent part:

(1) An individual who was convicted previously for a violation of any of the following offenses and is thereafter convicted of a second or subsequent violation of any of the following offenses shall be imprisoned for life and shall not be eligible for probation, suspension of sentence, or parole during that mandatory term:

(a) A violation of section 7401(2)(a)(ii) or (iii).

(b) A violation of section 7403(2)(a)(ii) or (iii).

(c) Conspiracy to commit an offense proscribed by section 7401(2)(a)(ii) or (iii) or section 7403(2)(a)(ii) or (iii).

To determine whether subsection 7413(1) requires that an offense resulting in a second conviction occur after a defendant's previous conviction, we must look first at the express terms of the statute. The statute clearly includes a temporal component, inasmuch as it includes phrases such as "convicted previously" and "thereafter convicted of a second or subsequent violation." These temporal phrases, however, are susceptible of more than one interpretation. Most important for our purposes is to determine how the phrase "second or subsequent" is to be applied, i.e., "second or subsequent" to what? On the one hand, the phrase could mean that the "second or subsequent violation" occur following the "previous" conviction. On the other hand, the phrase could mean that the violation for which a mandatory life term is to be imposed simply have occurred "second or subsequent" to an earlier violation.

In People v. Roseburgh, 215 Mich.App. 237, 545 N.W.2d 14 (1996), the defendant committed offense I and then offense II and was thereafter convicted of offense II, then offense I. The Roseburgh panel considered whether subsections 7413(2) and (5), M.C.L. § 333.7413(2) and (5); M.S.A. § 14.15(7413)(2) and (5),^[3] of the controlled substances act applied "to enhance a defendant's sentence where the crime resulting in the second conviction occurred before the crime resulting in the first conviction," and held that, "[a]lthough the convictions must follow one another, the statute includes no temporal requirement regarding the sequence of the crimes, and in the absence of any authority to do so, we decline to add such a requirement." Id. at 238-239, 545 N.W.2d 14. The Roseburgh panel's interpretation of subsections 7413(2) and (5) is neither binding on this panel nor is it persuasive. Indeed, the panel's reasoning is faulty because it nullifies a key phrase in both subsections, i.e., "second or subsequent offense." In Roseburgh, the panel upheld a term of life imprisonment where the offense (offense I) for which a life sentence was imposed occurred before any second or subsequent offense (offense II). Such an interpretation of the phrase "second or subsequent offense" begs the question: "second or subsequent" to what?

The factual situation in this case presents a different possible interpretation of the phrase "second or subsequent violation." Here, defendant committed offense I, then offense II, and was thereafter convicted of offense I, then offense II. Unlike the sequence of events in Roseburgh, the offense (offense II) for which defendant received a life sentence did occur "second or subsequent" to an earlier offense (offense I), but not "second or subsequent" to the previous conviction. To the extent that the language of subsection 7413(1) is susceptible of more than one interpretation, judicial construction in accordance with established rules of statutory construction is necessary to resolve the ambiguity.^[4]People v. Morris, 450 Mich. 316, 325, 537 N.W.2d 842 (1995); People v. Nantelle, 215 Mich.App. 77, 544 N.W.2d 667 (1996).

The Supreme Court in People v. Reeves, 448 Mich. 1, 8; 528 N.W.2d 160 (1995), stated:

In enacting statutes, the Legislature recognizes that courts will apply common-law rules to resolve matters that are not specifically addressed in the statutory provision. 2B Singer, Sutherland Statutory Construction (5th ed.), § 50.01, p. 90. "[W]ords and phrases that have acquired a unique meaning at common law are interpreted as having the same meaning when used in statutes dealing with the same subject" matter as that with which they were associated at the common law. Pulver v. Dundee Cement Co., 445 Mich. 68, 75, 515 N.W.2d 728 (1994); People v. Young, 418 Mich. 1, 13, 340 N.W.2d 805 (1983).

Where the Legislature "has shown no disposition to depart from the common-law definition, therefore it remains." People v. Schmitt, 275 Mich. 575, 577, 267 N.W. 741 (1936).

Michigan appellate courts have long followed the majority common-law rule that, for purposes of penalty enhancement under repeat offender statutes, it is a prerequisite that the prior conviction precede the commission of the principal offense. People v. Stoudemire, 429 Mich. 262, 283, 414 N.W.2d 693 (1987) (Archer, J, dissenting), cited with approval in People v. Preuss, 436 Mich. 714, 732, 461 N.W.2d 703 (1990). See also People v. Podsiad, 295 Mich. 541, 546-547, 295 N.W. 257 (1940); People v. Sawyer, 410 Mich. 531, 536, 302 N.W.2d 534 (1981); People v. Alexander, 422 Mich. 932, 369 N.W.2d 461 (1985); People v. Johnson, 86 Mich.App. 77, 79-80, 272 N.W.2d 200 (1978); People v. Smith, 90 Mich.App. 572, 574, 282 N.W.2d 399 (1979), vacated on other grounds 407 Mich. 906, 289 N.W.2d 928 (1979); People v. Jones, 171 Mich.App. 720, 726, n. 5, 431 N.W.2d 204 (1988); People v. Erwin, 212 Mich.App. 55, 60, 536 N.W.2d 818 (1995). See generally, anno: Chronological or procedural sequence of former convictions as affecting enhancement of penalty under habitual offender statutes, 7 A.L.R. 5th 263, § 2a, pp. 289-293. For example, in People v. Sawyer, supra, our Supreme Court construed the meaning of the phrase "prior conviction" in the second-offender provision of the felony-firearm statute.^[5] In that case, the defendant committed a robbery while armed with a firearm on two separate occasions. The prosecution initiated separate trials for these two offenses, and the defendant ultimately pleaded guilty of two counts of felony-firearm at a single plea proceeding. The trial court considered the first offense as a prior conviction and imposed a five-year term of imprisonment rather than the two-year term for offenders without a prior conviction. Our Supreme Court held that, although a literal reading of the statute would lead to the conclusion that the defendant had a second conviction and technically was subject to the repeat-offender provisions of the statute, the Legislature did not intend such a result:

There are a number of purposes served when the Legislature provides increased punishment for repeat offenders. These include deterrence and the proper desire of society to provide more severe punishment for a person who declines to change his or her ways following an opportunity to reform. These purposes are not served by imposing a more severe punishment on the day when a defendant first pleads guilty, and we accordingly believe that the Legislature intended a five-year term of imprisonment for a second conviction should only be imposed where the second offense is subsequent to the first conviction. [Id. 410 Mich. at 535-536, 302 N.W.2d 534.]

More recently, our Supreme Court placed a further gloss on Sawyer when it stated in People v. Stewart, 441 Mich. 89, 94-95, 490 N.W.2d 327 (1992):

Our statement in Sawyer that "a five-year term of imprisonment for a second conviction should only be imposed where the second offense is subsequent to the first conviction," 410 Mich. [at] 536, 302 N.W.2d 534, should be understood to mean that a defendant may not be convicted as a repeat offender unless the prior conviction(s) precede the offense for which the defendant faces enhanced punishment. There is no requirement that all prior offenses be neatly separated by intervening convictions.

Given that the statutory phrase "second or subsequent violation" is susceptible of more than one interpretation, we are obligated to apply the established common-law rule. In a footnote, the panel in Roseburgh, supra at 239, n. 1, 545 N.W.2d 14, refused to apply this rule by analogy beyond the habitual offender statutes because the "statutory language is sufficiently different to render those cases inapplicable to the issue presented here." While it is true that no previous Michigan case has applied this common-law rule to the second-offender provisions of the controlled substances act, the rule has been applied not only to the habitual offender statutes (Stoudemire, supra; Preuss, supra; Johnson, supra; Jones, supra), but also to the repeat-offender provisions of the felony-firearm statute (Sawyer, supra; Stewart, supra), and to the second-offender provisions of the drunk-driving statute (Erwin, supra). Certainly, the legislative intent in enacting such penalty-enhancing statutes is the same whether the conduct involved is general recidivism or recidivism of specific offenses, such as possession of a firearm during the commission of a felony, or driving a motor vehicle while under the influence of liquor, or dealing in large amounts of illegal narcotics.

Here, defendant Poole committed two offenses one week apart and was convicted of those offenses in separate court proceedings approximately one year later. At the time defendant committed his second offense, however, he had not been convicted of his first offense. Thus, application of the common-law rule to the facts of this case furthers both the Legislature's intent in enacting the second-offender provisions of the controlled substances act and the underlying principle of the common-law rule. Accordingly, I would remand this matter to the trial court for resentencing.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.

[1] We note that the judgment of sentence in No. 93-7218-FH lists an incorrect statutory citation for the conviction of the offense of possession with intent to deliver cocaine.

[2] The rule of lenity applies only in the absence of a firm indication of legislative intent. People v. Wakeford, 418 Mich. 95, 113-114, 341 N.W.2d 68 (1983). In fact, M.C.L. § 750.2; M.S.A. § 28.192 provides that the rule that a penal statute is to be strictly construed shall not apply to the Michigan Penal Code and all its provisions shall be construed according to the fair import of their terms, to promote justice and to effect the objects of the law.

[3] Sawyer was a four to three decision. Justice T.G. Kavanagh stated he was sympathetic to the efforts of the majority to read sense into the statute by construing it as they did, but dissented because he felt constrained to enforce the statute as the Legislature wrote it.

[4] See, however, n. 2, ante at 491.

[5] The Supreme Court found this penalty violated the Michigan constitutional prohibition against cruel or unusual punishment. People v. Bullock, 440 Mich. 15, 485 N.W.2d 866 (1992). Nevertheless, the Legislature's desire not to give any opportunity for rehabilitation was made clear by the statute.

[6] Defendant does not argue that his sentence is" disproportionate" as that term was used in People v. Milbourn, 435 Mich. 630, 650, 461 N.W.2d 1 (1990), because Milbourn has no applicability to legislatively mandated sentences. People v. Bullock, supra at 34, n. 17, 485 N.W.2d 866.

[7] The Bullock Court erroneously stated that Michigan required mandatory life sentences only for first-degree murders and drug offenses involving more than 650 grams. Bullock, supra at 39-40, 485 N.W.2d 866. However, People v. Fernandez, 427 Mich. 321, 337, 398 N.W.2d 311 (1986), states that treason and placing explosives with an intent to destroy that causes injury to a person also carry mandatory life sentences. The Bullock Court also failed to note the statute we are considering in this case that also provides for life without parole for certain repeat drug offenders.

[1] M.C.L. § 733.7401(2)(a)(iii); M.S.A. § 14.15(7401)(2)(a)(iii).

[2] M.C.L. § 733.7401(2)(a)(iii); M.S.A. § 14.15(7401)(2)(a)(iii).

[3] Subsections 2 and 5 provide in pertinent part:

(2) Except as otherwise provided in subsections [7413](1) and (3), an individual convicted of a second or subsequent offense under this article may be imprisoned for a term not more than twice the term otherwise authorized or fined an amount not more than twice that otherwise authorized, or both.

* * * * * *

(5) For purposes of subsection (2), an offense is considered a second or subsequent offense, if, before conviction of the offense, the offender has at any time, been convicted under this article....

[4] The majority's wholehearted capitulation to the legislative branch is, if nothing else, interesting. The majority exalts legislative form over substance, yet fails to address the effect of the statutory phrase "second or subsequent violation," thereby implicitly conceding the error of their position. See Gross v. General Motors Corp., 448 Mich. 147, 159, 528 N.W.2d 707 (1995) (as far as possible, a court must give effect to every phrase, clause, and word of a statute).

[5] See M.C.L. § 750.227b; M.S.A. § 28.424(2).