People v. Leonowicz , 134 Mich. App. 152 ( 1984 )

134 Mich. App. 152 (1984) 350 N.W.2d 770

PEOPLE
v.
LEONOWICZ

Docket No. 70189.

Michigan Court of Appeals.

Decided March 29, 1984.

Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, L. Brooks Patterson, Prosecuting Attorney, Robert C. Williams, Chief Appellate Counsel, and Graham K. Crabtree, Assistant Prosecuting Attorney, for the people.

Talpos, Arnold & Rooyakker, P.C. (by John C. Talpos), for defendant on appeal.

Before: M.J. KELLY, P.J., and CYNAR and J.C. KINGSLEY,^[*] JJ.

PER CURIAM.

Defendant was charged with operating a vehicle while under the influence of intoxicating liquor (DUIL), MCL 257.625; MSA 9.2325. Over objection of the prosecutor, the district judge permitted defendant to plead guilty to a second charge of operating a vehicle while impaired (DWI), MCL 257.625b; MSA 9.2325(2), and subsequently dismissed the charge of DUIL. The circuit court affirmed, and the prosecutor appeals to this Court by leave granted.

The complaint charged that defendant:

"did then and there operate a certain vehicle, to-wit: 1974 Dodge upon a certain highway or other place open to the general public, including any area designated for the parking of vehicles, to-wit: John R. Street, while under the influence of intoxicating liquor; contrary to MCL 257.625(1), (3), of the CL of 1970 as amended; MSA 9.2325.

"Operating a vehicle under the influence of intoxicating liquor misdemeanor: 90 days and/or not less than $100.00 nor more than $500.00, together with costs.

"Upon conviction of the above charge the prosecutor gives the court to further understand that the said offense is hereby charged as a second offense operating a vehicle while his ability to operate a motor vehicle was visibly impaired due to the consumption of intoxicating liquor in that the said Michael Steven Leonowicz was previously convicted of driving while his ability to operate a motor vehicle was visibly impaired due to the consumption of intoxicating liquor in the 37th District Court for Macomb County on 2-4-81; contrary to MCL 257.625b(1), (2), of the CL 1970 as amended.

"Operating a vehicle impaired — second or subsequent offense misdemeanor: 1 year and/or $1,000.00."

Defendant maintains that this complaint sets forth two separate offenses, namely DUIL and DWI, second offense, and that the trial court was at liberty to allow defendant to plead to the latter charge. The prosecution argues that the complaint charges one count of DUIL, and further contains a notice provision informing defendant that he might be subject to an enhanced sentence due to his prior conviction for DWI. We agree with the prosecution.

In that part of the motor vehicle code proscribing the operation of a vehicle while under the influence of drugs or liquor, the Legislature created a scheme of graduated punishment. See People v Pipkin, 93 Mich. App. 817; 287 NW2d 352 (1979). While a first conviction for DWI was punishable by no more than 90 days imprisonment and/or a fine not to exceed $300, a second or subsequent conviction carried a possible penalty of one year and/or a $1,000 fine. MCL 257.625b; MSA 9.2325(2).^[1] The statute governing DUIL contains similar sentence enhancement provisions. MCL 257.625; MSA 9.2325. If these provisions are to be used the prior offense must be charged and proved; if it is not charged the defendant will not know what punishment he faces. People v Bosca, 25 Mich. App. 455, 458; 181 NW2d 678 (1970). It was therefore correct procedure to notify defendant of the sentencing implications of his prior DWI conviction. Although that conviction could not be used for sentence enhancement were defendant to be convicted of DUIL, the principal charge, it could be so used if defendant were found guilty of the lesser-included offense of DWI.

Defendant argues that, although the prosecution may subjectively have intended the second section of its complaint as a notice provision, it may objectively be interpreted only as an allegation of a separate offense. We do not agree. Again, the disputed paragraph reads:

"Upon conviction of the above charge the prosecutor gives the court to further understand that the said offense is hereby charged as a second offense operating a vehicle while his ability to operate a motor vehicle was visibly impaired due to the consumption of intoxicating liquor in that said Michael Steven Leonowicz was previously convicted of [DWI] * * *." (Emphasis supplied.)

The emphasized language strongly suggests that what follows is a sentence enhancement provision and not a second charge. Additionally, as a matter of English sentence construction, the phrase "said offense" would seem to refer to "the above charge" rather than to any independent charge. As previously noted the sentence enhancement could operate in this case only if defendant were found guilty of the lesser-included offense, DWI; thus the statement that the charged offense was prosecuted as a "second offense [DWI]" is not completely accurate. Defendant has alleged no prejudice arising from this defect, and we perceive none. In summary, although the complaint could have been more artfully drawn, we read the disputed paragraph as a notice of possible sentence enhancement rather than a statement alleging a second independent offense.

The complaint charged only one offense, a count of DUIL. In Genesee Prosecutor v Genesee Circuit Judge, 391 Mich. 115; 215 NW2d 145 (1974), the Supreme Court held that a judge may not, over the prosecutor's objection, accept a plea of guilty to a lesser-included offense and dismiss the charge of the greater offense.^[2] See also People v Anderson, 409 Mich. 474; 295 NW2d 482 (1980).

Defendant concedes that DWI is a lesser-included offense of DUIL,^[3] but argues that such is not the case with DWI, second violation. We find no cause to make such a distinction. The prior DWI conviction is not an element of DWI, second offense, but merely serves to enhance the maximum punishment. See People v Bosca, 25 Mich. App. 455; 181 NW2d 678 (1970).^[4] Defendant's remaining arguments are without merit.

The district court was in error in accepting defendant's plea to DWI, second offense, and dismissing the principal charge.

Reversed and remanded.

NOTES

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

[1] The drunk driving laws have since undergone some significant changes pursuant to 1982 PA 309-311, effective March 30, 1983.

[2] Defendant refers us to Wayne County Prosecuting Attorney v Recorder's Court Judge, 47 Mich. App. 615, 616; 209 NW2d 610 (1973), a decision which found "no authority supporting the proposition that the circuit judge has no jurisdiction to accept a plea of guilty to a lesser included offense of the crime charged". In Genesee Prosecutor, supra, the Supreme Court created such authority. As a result, the Wayne County case was reversed in an order, 391 Mich. 791 (1974).

[3] People v Harold Johnson, 96 Mich. App. 652; 293 NW2d 664 (1980).

[4] Although Bosca addressed a prosecution for DUIL, second offense, its holding is readily transferable to DWI, second offense, as the same principles are involved.