People v. Lee

592 N.W.2d 779 (1999) 233 Mich. App. 403

PEOPLE of the State of Michigan, Plaintiff-Appellee,
v.
Albert LEE, Jr., Defendant-Appellant.

Docket No. 197532.

Court of Appeals of Michigan.

Submitted January 6, 1999, at Detroit. Decided January 15, 1999, at 9:05 a.m. Released for Publication March 23, 1999.

Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, Arthur A. Busch, Prosecuting Attorney, Donald A. Kuebler, Chief, Appeals, Research, and Training, and Earl R. Spuhler, Assistant Prosecuting Attorney, for the people.

Kathryn L. Simmons, P.C. (by Kathryn L. Simmons), Lake Orion, for the defendant on appeal.

Before: HOEKSTRA, P.J., and DOCTOROFF and O'CONNELL, JJ.

PER CURIAM.

Defendant pleaded guilty of delivery of less than fifty grams of cocaine, M.C.L. § 333.7401(2)(a)(iv); MSA 14.15(7401)(2)(a)(iv), pursuant to a plea agreement whereby charges in an unrelated case were reduced. We granted his delayed application for leave to appeal. He challenges the consecutive nature of his 2 1/2-to 20-year sentence imposed on resentencing. We affirm.

Defendant was originally sentenced in the instant case on March 14, 1995, to a term of 4½ to 20 years' imprisonment. On March 15, 1995, he was sentenced in an unrelated case by a different judge to 1½ to 4 years' imprisonment for possession of less than twenty-five grams of cocaine and one year for possession of marijuana. Defendant thereafter moved for resentencing in the instant case, arguing that the sentencing guidelines had been improperly scored. The parties stipulated that a scoring error had occurred and defendant was granted resentencing. On August 30, 1995, the trial court resentenced defendant to 2-1/2 to 20 years' imprisonment for his delivery conviction and ordered that the sentence be served consecutively to the felony sentences previously imposed on March 15, 1995, in the unrelated case. The trial court determined that consecutive sentencing was required by M.C.L. § 333.7401(3); MSA 14.15(7401)(3).

Defendant's sole argument on appeal is that the trial court erred in determining that it was required to impose a consecutive sentence on resentencing where, at the time of his original sentencing, no other sentence existed to which a consecutive sentence could be imposed. Defendant contends that the trial court had no authority to impose a consecutive sentence under subsection 7401(3), because the prerogative of consecutive sentencing is accorded only to the court last in time to impose a sentence. Whether consecutive sentencing is authorized by subsection 7401(3) is a question of law, which we review de novo. People v. Denio, 454 Mich. 691, 698, 564 N.W.2d 13 (1997).

A consecutive sentence may be imposed only if specifically authorized by statute. People v. Chambers, 430 Mich. 217, 222, 421 N.W.2d 903 (1988). Subsection 7401(3), provides, in relevant part:

A term of imprisonment imposed pursuant to subsection (2)(a) or section 7403(2)(a)(i), (ii), (iii), or (iv) shall be imposed to run consecutively with any term of imprisonment imposed for the commission of another felony.

The primary goal of judicial interpretation of statutes is to ascertain and to give effect to the intent of the Legislature. People v. Stanaway, 446 Mich. 643, 658, 521 N.W.2d 557 (1994). The Legislature is presumed to have intended the meaning it plainly expressed. People v. Roseburgh, 215 Mich.App. 237, 239, 545 N.W.2d 14 (1996). If statutory language is clear, judicial construction is normally neither necessary nor permitted, and the statute must be enforced as it is written. Denio, supra at 699, 564 N.W.2d 13; Roseburgh, supra at 239, 545 N.W.2d 14.

The term "another felony," as used in subsection 7401(3), includes "any felony for which the defendant has been sentenced either before or simultaneously with the controlled substance felony enumerated in § 7401(3) for which a defendant is currently being sentenced." People v. Morris, 450 Mich. 316, 320, 537 N.W.2d 842 (1995). The intent of the Legislature in enacting subsection 7401(3) was to deter the commission of certain enumerated controlled substance offenses by requiring that sentences imposed for the enumerated offenses run consecutively to sentences imposed for other felonies. Morris, supra at 327, 537 N.W.2d 842.

By its clear terms, subsection 7401(3) mandates consecutive sentencing for any sentence imposed for a major controlled substance felony after a defendant has been sentenced for any other felony. People v. Hardy, 212 Mich.App. 318, 323, 537 N.W.2d 267 (1995). Subsection 7401(3) draws no distinction between an original sentence and a sentence imposed on resentencing. The only relevant inquiry under the statute is whether, at the time of sentencing for the enumerated offense, the defendant has already been sentenced for another felony. Because the language of the statute is clear, it must be enforced as written. Denio, supra at 699, 564 N.W.2d 13; Roseburgh, supra at 239, 545 N.W.2d 14. Further, we fail to see how limiting the scope of subsection 7401(3) to original sentences, thereby excluding sentences imposed on resentencing, would further the legislative intent of deterring the commission of the enumerated criminal offenses.

Here, at the time defendant was resentenced on August 30, 1995, he was already serving sentences for other felonies, those sentences having been imposed on March 15, 1995. Accordingly, under subsection 7401(3), any sentence imposed by the trial court on August 30, 1995, was required to be imposed to run consecutively to defendant's prior felony sentences. Hardy, supra at 323, 537 N.W.2d 267. Therefore, the trial court did not err in imposing a consecutive sentence.

We find that defendant's reliance on Chambers, supra, and People v. Cuppari (After Remand), 214 Mich.App. 633, 637, 543 N.W.2d 68 (1995), is misplaced. In Chambers, our Supreme Court construed the statutory language of M.C.L. § 768.7b; MSA 28.1030(2), which is markedly different from the language of subsection 7401(3). People v. Hunter, 202 Mich.App. 23, 26, 507 N.W.2d 768 (1993). In addition, the comments in Cuppari regarding the effect of resentencing are inapplicable to consecutive sentencing under subsection 7401(3). Again, there is no language in subsection 7401(3) limiting its applicability to original sentences.

We acknowledge defendant's policy argument that affirming his consecutive sentence may have a chilling effect on a defendant's decision whether to exercise his right to challenge an otherwise improper sentence. However, "arguments that a statute is unwise or results in bad policy should be addressed to the Legislature." People v. Kirby, 440 Mich. 485, 493-494, 487 N.W.2d 404 (1992). Under the Michigan Constitution, the judiciary is limited to implementing statutes, and the power to enact laws is vested in the Legislature alone. In re Manufacturer's Freight Forwarding Co., 294 Mich. 57, 63, 292 N.W. 678 (1940).

Affirmed.