People v Doyle

545 N.W.2d 627 (1996) 451 Mich. 93

PEOPLE of the State of Michigan, Plaintiff-Appellant,
v.
Michael Robert DOYLE, Defendant-Appellee.

No. 98809, Calender No. 3.

Supreme Court of Michigan.

Argued October 10, 1995. Decided April 2, 1996.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Richard Thompson, Prosecuting Attorney, Joyce F. Todd, Chief, Appellate Division, and Richard H. Browne, Assistant Prosecuting Attorney, Pontiac, for the People.

Robert S. Zawideh, Warren, for defendant.

Donald Martin, President, John D. O'Hair, Prosecuting Attorney, and Timothy A. Baughman, Chief, Research, Training and Appeals, Lansing, for the Prosecuting Attorneys Association of Michigan, amicus curiae.

OPINION

MALLETT, Justice.

We granted leave in this case to determine whether this Court's decision in People v. Bewersdorf,^[1] is retroactively applicable to conduct that took place before the release of that opinion. We hold that People v. Bewersdorf applies retroactively to the present defendant, Mr. Robert Doyle. We reverse the judgment of the Court of Appeals and remand this case to the circuit court for further proceedings with regard to the supplemental information.

I

A. History of People v. Bewersdorf

In Bewersdorf, this Court, for the first time, interpreted the relationship between the habitual offender act and the Motor Vehicle Code. We held that the habitual offender act^[2] is applicable to third and subsequent convictions for operating a motor vehicle while under the influence of intoxicating liquor (OUIL),^[3] and therefore, reversed the Court of Appeals. This Court concluded that the Motor Vehicle Code and the habitual offender act were not conflicting; rather, they "dovetail[ed] harmoniously." 438 Mich. 55, 59, 475 N.W.2d 231 (1991). Accordingly, on the basis of a literal interpretation of the plain language of the statutes, a defendant who is convicted of OUIL-3d is guilty of a felony. Thus, if a defendant is subsequently convicted of another OUIL-3d offense, he can be charged as an habitual offender.

However, this result was not always so clear. Before this Court's decision in Bewersdorf, the Court of Appeals decided People v. Tucker, 177 Mich.App. 174, 441 N.W.2d 59 (1989), in which it held that a person who had two or more OUIL-3d convictions could not be charged as an habitual offender. A different panel of the Court of Appeals chose to follow the Tucker holding in People v. Bewersdorf, 181 Mich.App. 430, 450 N.W.2d 271 (1989). This Court overruled both decisions.^[4]

B. History of People v. Doyle

During the pendency of the Bewersdorf appeal to this Court (between January 8 and August 22, 1991), the present defendant chose once again to drive while drunk. Defendant's conduct took place on June 26, 1991, in Oakland County, two months before the release of the Bewersdorf opinion. Defendant was charged with operating a vehicle while under the influence of intoxicating liquor, third or subsequent offense (OUIL-3d), M.C.L. § 257.625(6); M.S.A. § 9.2325(6),^[5] driving a vehicle while his license was suspended or revoked, second or subsequent offense (DWLS-2d), M.C.L. § 257.904(3); M.S.A. § 9.2604(3), and being an habitual offender, second offense, M.C.L. § 769.10; M.S.A. § 28.1082.^[6]

Approximately two months after the release ofBewersdorf, on October 8, 1991, before pleading guilty to the OUIL-3d and DWLS-2d charges, Mr. Doyle moved to dismiss the habitual offender information. The court granted Mr. Doyle's motion, concluding that application of Bewersdorf to conduct occurring before the release of the opinion would violate the Ex Post Facto Clauses of the United States^[7] and Michigan Constitutions.^[8] Thus, Mr. Doyle pleaded guilty of OUIL-3d and DWLS-2d. On November 19, 1991, he was sentenced to two to five years for the OUIL-3d conviction, a $500 fine was imposed, his license was revoked for five years, and he was given credit for forty-six days in jail. Additionally, he was sentenced to one year for the DWLS-2d conviction.^[9]

At the plea proceedings, the prosecution placed the defendant on notice that it intended to appeal the dismissal of the habitual offender charge. Subsequently, the ruling was affirmed by the Court of Appeals. 203 Mich.App. 294, 296, 512 N.W.2d 59 (1994). The Court of Appeals held that "the due process provisions of the United States Constitution and the Michigan Constitution bar the retroactive application of judicial decisions that have the effect of enhancing the possible penalty for a criminal conviction." The Court found that application of Bewersdorf to Mr. Doyle's conduct would effectively increase the authorized penalty for a crime after the fact, in violation of ex post facto principles. Further, the Court found that retroactive application of Bewersdorf in that case did not obligate it to apply Bewersdorf retroactively in this case. Finally, in response to the prosecution's argument that due process considerations are not implicated because there has been no change in the law, the Court stated, "it is unrealistic to say that Bewersdorf did not change the law." 203 Mich.App. at 297, 512 N.W.2d 59.

The dissent was based on the fact that when Mr. Doyle was arrested and charged on June 26, 1991, Administrative Order No. 1990-6^[10] was not in effect. Thus, at the time the defendant was arrested, "he could expect that should his case reach the Court of Appeals, the panel that would consider his case might disagree with the Tucker/ Bewersdorf ruling, and he would be bound by any contrary ruling...." 203 Mich.App. at 299, 512 N.W.2d 59.

II

Mr. Doyle has argued that this Court created "new law" in Bewersdorf, which, if applied retroactively to his conduct, will violate the constitution, specifically the ex post facto prohibitions found in both the Michigan and United States Constitutions. The Court of Appeals agreed with Mr. Doyle and affirmed the trial court's dismissal of the habitual offender information. We disagree.

It is well recognized that the Ex Post Facto Clause does not apply directly to the judiciary. Marks v. United States, 430 U.S. 188, 97 S. Ct. 990, 51 L. Ed. 2d 260 (1977). However, ex post facto principles are applicable to the judiciary by analogy through the Due Process Clauses of the Fifth and Fourteenth Amendments. Bouie v. City of Columbia, 378 U.S. 347, 84 S. Ct. 1697, 12 L. Ed. 2d 894 (1964). This Court has acknowledged the application of the ex post facto analogy to the judiciary first in People v. Dempster, 396 Mich. 700, 714-718, 242 N.W.2d 381 (1976), and later in People v. Stevenson, 416 Mich. 383, 395, 331 N.W.2d 143 (1982).

Therefore, retroactive application of a judicial decision will only violate due process when it acts as an ex post facto law. An ex post facto law has been defined by the United States Supreme Court as one "``that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action,' or ``that aggravates a crime, or makes it greater than it was, when committed.'" Bouie, supra at 353, 84 S.Ct. at 1702 (emphasis in original). As a result of the due process analogy, it has been stated that "an unforeseeable judicial enlargement of a criminal statute, applied retroactively, operates precisely like an ex post facto law...." Id. at 353, 84 S.Ct. at 1702 (emphasis added). "The retroactive application of an unforeseeable interpretation of a criminal statute, if detrimental to a defendant, generally violates the Due Process Clause." Hagan v. Caspari, 50 F.3d 542, 545 (C.A.8, 1995) (emphasis added).

Further, this Court has recognized that a judicial decision that increases the authorized penalty for a crime is also a violation of the ex post facto prohibition. Stevenson, supra at 397, 331 N.W.2d 143. In Stevenson, this Court stated that "[p]roviding fair notice that conduct is criminal is one of the central values of the Ex Post Facto Clause ... [b]ut fair notice is not the sole purpose of the clause." Id. at 396, 331 N.W.2d 143. Generally, the basic principles protected by the Due Process Clause guarantees preclude retroactive application of a "judicial construction of a criminal statute [that] is ``unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue....'" Bouie, supra at 354, 84 S.Ct. at 1703, quoting Hall, General Principles of Criminal Law (2d ed), p 61.

In the present case, the Court of Appeals holding is based, in part, on Stevenson:

[T]he due process provisions of the United States Constitution and the Michigan Constitution bar the retroactive application of judicial decisions that have the effect of enhancing the possible penalty for a criminal conviction.... Among other things, a court cannot by judicial construction increase the authorized penalty for a crime after the fact... Because that is precisely what the application of Bewersdorf to this case would do, that case cannot be applied to this one. [Doyle, supra at 296, 512 N.W.2d 59.]

We reject this holding by the Court of Appeals. Contrary to the Court of Appeals decision, this Court finds that retroactive application of Bewersdorf to Mr. Doyle does not implicate any due process^[11] or ex post facto concerns. Our decision is based on our belief that Bewersdorf was not an unforeseeable decision that had the effect of "changing" the law. Therefore, Bewersdorf did not establish a "new" rule of law in Michigan jurisprudence.

In Bewersdorf, this Court discussed at length and clarified the relationship between OUIL felony offenses and the habitual offender act. The Court held that an OUIL-3d conviction, which is a felony pursuant to M.C.L. § 257.902; M.S.A. § 9.2602 of the Motor Vehicle Code, can support charging the defendant as an habitual offender when it is a second or subsequent OUIL-3d conviction. The habitual offender statute affects only the maximum term of the defendant's sentence by allowing the judge, in his discretion, to increase the maximum sentence by one and one-half times. Thus, the Court noted that the Legislature has provided the courts with discretion whether to impose such enhanced punishment.^[12] Further, the Court repeated that in enacting the habitual offender act, "``the legislature did not intend to make a separate substantive crime out of being an habitual criminal but rather, for deterrent purposes, intended to augment the punishment for second or subsequent felonies.'" 438 Mich. at 67, 475 N.W.2d 231, quoting People v. Shotwell, 352 Mich. 42, 46, 88 N.W.2d 313 (1958). This Court noted that the constitutionality of the habitual offender act has been consistently upheld.

Guided by the rules of statutory construction, the Court next focused on the legislative intent underlying the habitual offender statute and stated:

In the habitual offender act, the Legislature has directed that when an individual commits a "subsequent felony within this state, the person shall be punished" in accordance with the act's provisions. The language is clear and unambiguous; it makes no exceptions with respect to OUIL felony convictions. People v. Shotwell, supra at 46, 88 N.W.2d 313 (emphasis added).

In the Court of Appeals, the Bewersdorf majority, relying on People v. Tucker, supra, ruled that the habitual offender act may not be used to enhance defendant's sentence for OUIL-3. Although the panel in Tucker conceded that an application of the plain meaning of the habitual offender act would mean that "enhancement is clearly available ... since the habitual offender statute clearly applies to all felonies," 177 Mich.App at 179, 441 N.W.2d 59, it nevertheless chose to analyze the OUIL statute and habitual offender act so as to place them in conflict. [438 Mich. at 68-69, 475 N.W.2d 231.]

Accordingly, this Court held that Tucker was wrongly decided and that the two acts are not conflicting.

We reject the Tucker panel's forced construction that placed the two statutes in conflict. We prefer a course which, in the words of the dissenting Bewersdorf Court of Appeals judge, enables the two acts to "dovetail harmoniously."

[T]he Legislature intended that the sentence for an OUIL-3 felony, if it is a first felony conviction, shall be as provided in the Motor Vehicle Code: imprisonment for not less than one or more than five years.... However, any subsequent OUIL felony conviction is subject to the repeat offender provisions of the habitual offender act regardless of whether the underlying felony conviction is also an OUIL-3 offense. [438 Mich. at 69-70, 475 N.W.2d 231.]

Therefore, Bewersdorf was based on a clear reading of unambiguous statutory provisions, both of which were in effect long before defendant's June 26, 1991, drunk driving offense. In Bewersdorf, this Court addressed a question of statutory interpretation that had never been previously decided at this level. We determined that the proper answer lay in the clear language of the statute, as enacted by the Legislature. In light of that language, it cannot be maintained that our Bewersdorf decision was "unforeseeable." We did not change the law. We gave effect to an unambiguous statute, implementing the intent of the Legislature. Thus, the law was as we interpreted it to be, because of the nature of the unambiguous statutory language.

III

"[T]he general rule is that judicial decisions are to be given complete retroactive effect.... [C]omplete prospective application has generally been limited to decisions which overrule clear and uncontradicted case law." Hyde v. Univ of Michigan Bd. of Regents, 426 Mich. 223, 240, 393 N.W.2d 847 (1986). If a judicial decision is "unexpected" and "indefensible" in light of the law existing at the time of the conduct, retroactive application of such a decision is problematic. Tebo v. Havlik, 418 Mich. 350, 343 N.W.2d 181 (1984), illustrates such a situation. In remaining consistent with our decision in Tebo, we find that there are special circumstances that, if present here, would require that Bewersdorf be given only prospective application. However, we find that Tebo may be distinguished from the case presented by Mr. Doyle.

In Tebo, this Court was presented with the question whether its decision in Putney v. Haskins, 414 Mich. 181, 324 N.W.2d 729 (1982), interpreting the "name and retain" provision of the dramshop act, was to be given retroactive effect. The statutory^[13] "name and retain" provision states that a dramshop action can be maintained only if "the alleged intoxicated person is a named defendant in the action and is retained in the action until the litigation is concluded by trial or settlement." The purpose of the provision is to avoid collusive litigation in which, following a settlement, the plaintiff and the allegedly intoxicated defendant are both aligned against the tavern (the "dramshop" defendant). Putney, supra at 186-188, 324 N.W.2d 729.

Similar to the procedural development of the present case, an earlier decision by the Court of Appeals spoke directly to the "name and retain" issue. In Buxton v. Alexander, 69 Mich.App. 507, 245 N.W.2d 111 (1976), the Court held that a dramshop action could go forward following an agreement under which the allegedly intoxicated driver remained a named defendant, but the plaintiff would indemnify the driver and her insurer. This Court denied leave to appeal. 399 Mich. 827 (1977).

Five years later, this Court granted leave in Putney and rejected the approach taken in Buxton, holding instead that the "name and retain" provision is violated by any settlement between the plaintiff and the allegedly intoxicated defendant. This Court concluded in Putney at 190, 324 N.W.2d 729, "We are obligated to enforce the statute as written."

If broadly applied, the rule of Putney would have required dismissal of many dramshop suits in which attorneys had followed the course that appeared proper in light of Buxton. Careful professional judgments had been made in reliance on the Court of Appeals decision in Buxton. Therefore, in Tebo this Court granted leave to appeal the issue of the retroactivity of Putney, and ordered that no dismissals take place until the question was decided. 417 Mich. 887 (1983); Administrative Order No. 1983-1, 417 Mich. cxviii.

In its several Tebo opinions, this Court explained why the special circumstances described above required prospective application of the rule of Putney, notwithstanding the fact that the ruling was grounded in the plain language of the statute.^[14] This Court said, "[a]lthough it has often been stated that the general rule is one of complete retroactivity, this Court has adopted a flexible approach." 418 Mich. at 360, 343 N.W.2d 181 (emphasis added). Further, the Court stated, "where statutory construction has been involved, this Court has limited the retroactivity of a decision where justice so required." Id. at 361, 343 N.W.2d 181. This Court found that justice required limiting the retroactivity of its Putney decision.

In light of the unquestioned status of Buxton at the time Putney was decided by this Court, it would be unjust to apply Putney retroactively to persons other than those before the Court in that case.

In contrast to the harsh effect which the full retroactivity of Putney would have on injured plaintiffs, prospective application will have little effect on dramshop defendants in those pending cases where settlement agreements have been made, even though the defense of Putney will be unavailable. [418 Mich. at 363-364, 343 N.W.2d 181.]

Accordingly, this Court found these circumstances problematic for retroactivity purposes.

Obviously, the procedural development of the "name and retain" issue is similar to the development in the present case.^[15] However, there is a substantial difference between Tebo and this case. In Tebo, lawyers and parties had made significant decisions in direct reliance on Buxton for a period of five years. This Court notes the significance of the institutional pressures encouraging settlement. Given this pressure, the Court stated that reliance on Buxton could "hardly be deemed unreasonable." See 418 Mich. at 363, n. 3, 343 N.W.2d 181.

Defendant argues that pursuant to MCR 7.215(C)(2), this Court "specifically" put him on notice that Tucker was the law on which he could rely. We believe that it cannot be seriously maintained that drunk drivers, such as Mr. Doyle, were relying on the rule of Tucker in conducting their behavior. No person would decide to drive drunk for a third time because, pursuant to Tucker, such conduct would be a felony that could result in a five-year prison sentence,^[16] but not a prison sentence of seven and a half years.^[17] We therefore find defendant's reliance argument to be absurd.

We are also unpersuaded that our Bewersdorf decision was unforeseeable. Obviously, the Court of Appeals Tucker interpretation was clearly erroneous in light of the plain language of the statute. As noted by the dissent, Tucker was not even binding on the Court of Appeals at the time Bewersdorf reached that level. See Administrative Order No. 1990-6.^[18] If Mr. Doyle chose to apprise himself of the state of the "law" of which he was probably familiar, this having been his sixth OUIL conviction, he would have found that Tucker was resting on shaky ground, given that oral argument had already been heard in Bewersdorf at the time of his offense. Accordingly, we are not persuaded that our decision in Bewersdorf was "unexpected," "unforeseeable" or "indefensible" in light of all pertinent considerations. Furthermore, we do not disturb the viability of our holding in Tebo v. Havlik, because we find that case to be completely distinguishable from the case before us.

IV

In this case, the Court of Appeals was unpersuaded by the prosecution's position, which this Court now adopts, that Bewersdorf did not "change" the law. The Court states, "[b]ecause ``[a] new decision that explicitly overrules an earlier holding obviously "breaks new ground" or "imposes a new obligation,"' it is unrealistic to say that Bewersdorf did not change the law." 203 Mich.App. at 297, 512 N.W.2d 59, quoting Butler v. McKellar, 494 U.S. 407, 412, 110 S. Ct. 1212, 1216, 108 L. Ed. 2d 347 (1990). Additionally, the Court stated that its Tucker decision was "the law" on the date of defendant's offense and that retroactive application of Bewersdorf "would [therefore] undermine the rule of law in this state." 203 Mich.App. at 298, 512 N.W.2d 59.

This approach taken by the Court of Appeals overlooks the hierarchical nature of the court system, as well as the special rule of the Legislature when it provides a clear statutory enactment. In the view of the Court of Appeals majority, the "rule of law" in this state is more offended by the retroactive application of a controling decision by this Court, than it is by a continued application of an erroneous and overruled decision by the Court of Appeals. As stated in part II, we find that Bewersdorf was not an unforeseeable decision that had the effect of changing the law.

The Court of Appeals reliance on Butler for the proposition that it is "unrealistic" to say that Bewersdorf did not change the law was misplaced. In Butler, the United States Supreme Court was faced with the question whether its decision in Arizona v. Roberson, 486 U.S. 675, 108 S. Ct. 2093, 100 L. Ed. 2d 704 (1988), announced a "new rule" of law that was not dictated by the precedent established by another United States Supreme Court decision, Edwards v. Arizona, 451 U.S. 477, 101 S. Ct. 1880, 68 L. Ed. 2d 378 (1981).^[19] Accordingly, Butler addresses the situation in which the highest Court in this country renders its decision in such a way that it changes, modifies or overrules another of its own cases that is established precedent at the time of the new ruling. Butler involves a change in judge-made law. This is not what happened in Bewersdorf.

Moreover, the Court of Appeals mistakenly relied on this Court's decision in People v. Stevenson. That case abrogated the common-law "year and a day" rule in homicide cases. This Court held that the abrogation could not be applied to Mr. Stevenson because to do so would violate due process. However, like Butler, Stevenson is also distinguishable on the basis that it altered a longstanding judge-made common-law rule.

Certainly there is a distinction between a decision made by this Court that overrules precedent established by this Court and a decision made by this Court that overrules a lower court decision. For purposes of determining whether retroactivity is proper, the latter situation does not invoke the same kinds of due process considerations that are central to a determination in the former.

We do recognize that a published decision of the Court of Appeals is controling precedent for trial courts. MCR 7.215(C)(2).^[20] Defendant argues that Bouie requires that the criminal law applied to him have existed when the conduct in issue occurred. He argues that because Tucker was precedent for the trial courts, it was the "law" at the time he committed the prohibited conduct. However, it is without question that at the time of defendant's offense the statutory language of the habitual offender act was unambiguous and clear. Therefore, the habitual offender act, by its plain language, applied to defendant's second OUIL-3d conviction.

"A judicial inquiry investigates, declares and enforces liabilities as they stand on present or past facts and under laws supposed already to exist. That is its purpose and end. Legislation, on the other hand, looks to the future and changes existing conditions by making a new rule to be applied thereafter to all or some part of those subject to its power." [Ross v. Oregon, 227 U.S. 150, 163, 33 S. Ct. 220, 223, 57 L. Ed. 458 (1913).]

In Bewersdorf, this Court fulfilled its judicial role and gave effect to valid laws that existed before June 26, 1991. Unfortunately, Tucker's previous erroneous interpretation of the statute served to thwart the legislative intent and the mandated result.

V

Lastly, we find no merit in defendant's argument that retroactive application of Bewersdorf will perpetuate the same "evil" that existed in People v. Moon, 125 Mich.App. 773, 337 N.W.2d 293 (1983). Moon involved a situation in which the defendant received, as a condition of probation, a jail term twice as long as had been permissible under the statutory language in effect on the date of the offense. The Court of Appeals found that this increase in punishment was a violation of the Ex Post Facto Clause. However, Moon involved a post-conduct legislative amendment, not a judicial interpretation of an unambiguous statute. Thus, it is not applicable to the present case.

We find that People v. Dempster, supra, is also inapposite to the present case. Dempster was a securities case in which this Court concluded that it would violate due process if Ms. Dempster and her corporate codefendant were convicted under a criminal statute that applied to them only as the result of the judicial gloss supplied in this Court's Dempster opinion. This Court stated:

This court is not able, within the bounds of due process, to "interpret" a criminal statute which contains an ambiguous exemption such that it results in conviction of the defendant charged in the specific case. That is not the "fair warning" demanded by the Constitution. [396 Mich. at 715, 242 N.W.2d 381 (emphasis added).]

Thus, Dempster involved this Court's interpretation of an ambiguous substantive criminal statute, not the interpretation of a precise unambiguous sentence-enhancement statute.

VI

Accordingly, we hold that, as in this case, where a precisely drafted statute, unambiguous on its face, is interpreted by this Court for the first time, there has not been a "change" in the law. Where the Legislature has passed an unambiguous statute, that statute is the law. Our role is to enforce the law as written. Our holding today is grounded in the belief that it is perfectly clear that anyone reading the habitual offender act and the Motor Vehicle Code easily could have concluded that the Tucker decision was contrary to their plain meanings. See Hagan v. Caspari, supra at 547.

The decision of the Court of Appeals is reversed. This matter is remanded to the trial court for further proceedings consistent with this opinion.

BRICKLEY, MICHAEL F. CAVANAGH, BOYLE, RILEY and WEAVER, JJ., concur.

LEVIN, Justice. (concurring).

For the reasons stated in dissent in People v. Bewersdorf, 438 Mich. 55, 78, 475 N.W.2d 231 (1991), I am unable to join in the majority's characterization of the statute as "a precisely drafted statute, unambiguous on its face...."^[1]

The majority also states:

Our holding today is grounded in the belief that it is perfectly clear that anyone reading the habitual offender act and the Motor Vehicle Code easily could have concluded that the Tucker [^[2]] decision was contrary to their plain meanings. [Op., p. 636. Emphasis added.]

This Court denied leave to appeal in People v. Tucker, 433 Mich. 873 (1989). The only "anyone" on this Court to whom it may have been "perfectly clear" "that the Tucker decision was contrary to" the plain meanings of the habitual offender act and the Motor Vehicle Code was Chief Justice Brickley, who alone was shown as "would grant leave to appeal."

I join in reversing the Court of Appeals because this Court granted leave to appeal in Bewersdorf^[3] on July 18, 1990, almost a year before defendant Michael Robert Doyle once again drove while he was drunk. Bewersdorf was decided on August 22, 1991, over six weeks before Doyle chose to plead guilty to the drunk driving charges, and moved to dismiss the habitual offender information. The prosecution notified Doyle in the course of the plea proceedings that it intended to appeal a dismissal of the habitual offender charge.

Although I believe, for the reasons stated in dissent in Bewersdorf, that it was not correctly decided, I agree with the majority, for essentially the reasons stated in the majority opinion, that no adequate reason has been proffered why Bewersdorf should not be applied retroactively to the charges of which Doyle was convicted on his plea of guilty over six weeks after Bewersdorf was decided.

NOTES

[1] 438 Mich. 55, 475 N.W.2d 231 (1991), cert den sub nom Johnson v. Michigan 502 U.S. 1111, 112 S. Ct. 1214, 117 L. Ed. 2d 452 (1992), reh den 503 U.S. 999, 112 S. Ct. 1710, 118 L. Ed. 2d 417 (1992).

[2] M.C.L. § 769.10 et seq.; M.S.A. § 28.1082 et seq.

[3] M.C.L. § 257.625(6); M.S.A. § 9.2325(6), as amended by 1987 PA 109, M.C.L. § 257.902; M.S.A. § 9.2602. The current provision is M.C.L. § 257.625(6)(d); M.S.A. § 9.2325(6)(d), as amended by 1993 PA 359.

[4] A brief chronology is helpful to an understanding of the issues in this case. In May of 1989, the Court of Appeals decided People v. Tucker. This Court denied leave to appeal in that case on September 20, 1989. 433 Mich. 873. In December of 1989, a different panel of the Court of Appeals decided People v. Bewersdorf, following the rationale of the Tucker decision. The prosecutor sought leave to appeal to this Court and leave was granted on July 18, 1990. 435 Mich. 867. This Court's opinion in Bewersdorf was subsequently released on August 22, 1991.

[5] According to the sentencing transcript, Mr. Doyle had also been convicted of drunk driving on October 22, 1982, and on June 16, 1988. Thus, for purposes of this OUIL-3d charge, the June 26, 1991, incident was the third time that Mr. Doyle engaged in this behavior.

[6] It appears from the record that Mr. Doyle was previously convicted of OUIL-3d for conduct occurring on January 30, 1989, May 22, 1989, and January 29, 1990. Accordingly, Mr. Doyle's June 26, 1991, arrest for OUIL was his sixth.

[7] U.S. Const., art. I, § 10, cl. 1; art. I, § 9, cl. 3.

[8] Const. 1963, art. 1, § 10.

[9] At the time of Mr. Doyle's plea in this case (XX-XXXXXX), he also pleaded guilty in another case (XX-XXXXXX) to the same charges of OUIL-3d and DWLS-2d. Further, he pleaded guilty of unlawful use of a license plate. On November 19, 1991, in case number XX-XXXXXX, the same sentence and fine were imposed, including an extra ninety days to be served concurrently with the other two sentences for the unlawful use of a license plate. The sentences imposed in this case, XX-XXXXXX, were to be served concurrently with those imposed in case number XX-XXXXXX.

[10] Administrative Order No. 1990-6, as modified by AO 1994-4 provides in pertinent part:

A panel of the Court of Appeals must follow the rule of law established by a prior published decision of the Court of Appeals issued on or after November 1, 1990. The prior published decision remains controlling authority unless reversed or modified by the Supreme Court or a special panel of the Court of Appeals as provided in this order. A panel which follows a prior published decision only because it is required to do so shall so indicate in the text of its opinion, citing this administrative order and providing a statement of wherein and why it disagrees with the prior published opinion.

[11] See discussion, infra, part III.

[12] If this Court was inclined to address defendant's deprivation of due process argument, we would be hard pressed to say that the habitual offender act increases the punishment for a crime. The enhancement in sentencing is discretionary, not mandatory, and the minimum term is left undisturbed. Defendant's argument, which gained the support of the Court of Appeals, that the possibility of enhancement is the equivalent of an increase in punishment, is less than certain.

[13] Currently M.C.L. § 436.22(6); M.S.A. § 18.993(6).

[14] The Court rescinded Administrative Order No. 1983-1 shortly after issuing the Tebo opinion.

[15] statutory enactment

2. Buxton, 69 Mich.App. 507, 245 N.W.2d 111

3. Lv. den. 399 Mich. 827

4. Putney, 414 Mich. 181, 324 N.W.2d 729

5. Tebo, 418 Mich. 350, 343 N.W.2d 181 Administrative Order No. 1984-3, 417 Mich. cxviii, 418 Mich. lxxxiv.

Doyle:

1. statutory enactment

2. Tucker, 177 Mich.App. 174, 441 N.W.2d 59

3. Lv. den. 433 Mich. 873

4. Bewersdorf, 438 Mich. 55, 475 N.W.2d 231

5. Doyle

[16] M.C.L. § 257.625(6); M.S.A. § 9.2325(6), as amended by 1987 PA 109, M.C.L. § 257.902; M.S.A. § 9.2602. The current provision is M.C.L. § 257.625(6)(d); M.S.A. § 9.2325(6)(d), as amended by 1993 PA 359.

[17] M.C.L. § 769.10; M.S.A. § 28.1082.

[18] N 11 supra.

[19] Butler involved a habeas corpus petition in which the defendant collaterally attacked his capital murder conviction and death sentence. On the same day that the defendant's habeas corpus petition was denied, the United States Supreme Court announced its decision in Roberson barring police-initiated interrogation following a suspect's request for counsel in a separate investigation. Previously, in Edwards the Court held that during continuous custody, the police were required to refrain from all further questioning once the accused invoked his right to counsel on any offense.

Pursuant to Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060, 103 L. Ed. 2d 334 (1989), the question faced by the Court was whether to apply its new decision, which was not dictated by precedent existing at the time that defendant's conviction became final, to defendant's case on collateral review.

Generally, the Court holds that "new rules will not be applied or announced in cases on collateral review unless they fall into one of two exceptions." Penry v. Lynaugh, 492 U.S. 302, 313, 109 S. Ct. 2934, 2944, 106 L. Ed. 2d 256 (1989). "Under the first exception, ``a new rule should be applied retroactively if it places "certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe."``" Butler, supra at 415, 110 S.Ct. at 1218, quoting Teague, supra at 307, 109 S.Ct. at 1073. "Under the second exception, a new rule may be applied on collateral review ``if it requires the observance of those procedures that ... are "implicit in the concept of ordered liberty." Butler, supra at 416, 110 S.Ct. at 1218, quoting Teague, supra at 311, 109 S.Ct. at 1076.

In Butler, the Court held that although Roberson announced a "new rule," it did not fall within either of the two exceptions. Thus, the defendant was not entitled to the benefit of retroactive application of the Roberson ruling.

[20] MCR 7.215(C)(2) provides:

A published opinion of the Court of Appeals has precedential effect under the rule of stare decisis. The filing of an application for leave to appeal to the Supreme Court or a Supreme Court order granting leave to appeal does not diminish the precedential effect of a published opinion of the Court of Appeals.

[1] Op., p. 636.

[2] People v. Tucker, 177 Mich.App. 174, 441 N.W.2d 59 (1989).

[3] 435 Mich. 867. The Court of Appeals in People v. Bewersdorf, 181 Mich.App. 430, 450 N.W.2d 271 (1989), followed Tucker, one judge dissenting. There were, thus, five Court of Appeals judges who were of the opinion that it was not perfectly clear that Tucker was contrary to the plain meaning of the statutes.