PEOPLE OF MI V WILLIAM J MCFEELYAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
June 9, 1998
Oakland Circuit Court
LC No. 96-147251 FH
WILLIAM J. MCFEELY,
Before: Wahls, P.J., and Jansen and Gage, JJ.
Defendant appeals by leave granted his plea-based conviction for operating a motor vehicle
while under the influence of intoxicating liquor, third offense, MCL 257.625(1) and (7); MSA
9.2325(1) and (7), and his sentence of two years’ probation, with the first year to be served in the
county jail. We affirm. This case is being decided without oral argument pursuant to MCR 7.214(E).
We reject defendant’s claim that MCL 257.625(7) does not authorize the use of his 1992
conviction for attempted OUIL to serve as a predicate for elevating his current conviction to a felony.
At the time of defendant’s plea, MCL 257.625(7)(e)1 defined a “prior conviction” for enhancement
purposes as “ a conviction for . . . [an] attempted violation of subsection (1) . . . or former section
625(1) or (2) . . . or a local ordinance substantially corresponding to subsection (1). . . or former
section 625(1) or (2) . . . .” MCL 257.625(d) provides that prior convictions, including convictions for
attempted OUIL, may be used for enhancement purposes if those prior convictions were secured within
ten years preceding the instant violation. Before the Legislature enacted 1991 PA 98, effective January
1, 1992, which added subparagraph 13 to MCL 257.625 and, thereby, expressly provided for
punishment for a conviction of attempted OUIL conviction, there was no provision in the motor vehicle
code that provided for punishment of an attempt conviction. 2 Because there was no express provision
in the motor vehicle code to punish an attempted OUIL before January 1, 1992, any prosecution and
resulting conviction for a
ttempted OUIL must have been secured under the general attempt statute,
MCL 750.92. Wayne Co Prosecutor v Recorder’s Court Judge, 177 Mich App 762, 764; 442
NW2d 771 (1989). The Legislature is presumed to be aware of this fact and to have considered the
effect of enacting MCL 257.625(e) on this fact. Walen v Dep’t of Corrections, 443 Mich 240, 248;
505 NW2d 519 (1993); People v Tracy, 186 Mich App 171, 177; 463 NW2d 457 (1990).
Accordingly, by defining a prior conviction for enhancement purposes as i clusive of convictions for
attempted OUIL, and by expressly allowing for attempt convictions secured up to ten years preceding
the instant violation to be used for enhancement purposes, such ten-year period necessarily inclusive of
the time when attempted OUIL convictions could only be secured under the general attempt statute, the
language employed unambiguously and certainly demonstrates the Legislature’s intent that convictions
for attempted OUIL secured under the general attempt statute be used for enhancement purposes.
People v Nantelle, 215 Mich App 77, 80; 544 NW2d 667 (1996).
We also reject defendant’s claim that the use of his prior attempt conviction violates the Ex Post
Facto Clauses of the United States and Michigan Constitutions. US Const, art I, § 9; Const 1963, art
1, § 10. Because it is the current OUIL offense, committed after MCL 257.625(7) was amended to
allow use of the 1992 prior conviction for enhancement purposes, that is punished more harshly by the
amended statute, and not the 1992 offense, the amended statute is not ex post facto. People v Miller,
357 Mich 400, 410; 98 NW2d 524 (1959); People v Shastal, 26 Mich App 347, 351-352; 182
NW2d 638 (1970).
Likewise, we reject defendant’s due process argument. The record is devoid of any factual
support for the conclusion that defendant bargained for the attempt conviction to avoid a possible future
use of the conviction for enhancement purposes. Additionally, there can be no invested right in an
existing law which precludes its change. Rookledge v Garwood, 340 Mich 444, 457; 65 NW2d 785
Finally, we reject defendant’s argument that the trial court lacked authority to order a five-year
revocation of his driver’s license. The Legislature’s use of the phrases “not less than 1 year” and “not
less than 5 years” in MCL 257.52(1); MSA 9.1852(1) certainly and unambiguously indicate the intent
of the Legislature to impose mandatory minimum periods of revocation, see e.g., MCL
333.7401(2)(a)(ii)-(iv); MSA 14.15(7401)(2)(a)(ii)-(iv), while affording the trial court the discretion to
impose longer terms of revocation than one and five years where the circumstances warrant it, People v
Lawes, 258 AD 643, 644-646; 17 NYS2d 748, 750-751 (1940).
/s/ Myron H. Wahls
/s/ Kathleen Jansen
/s/ Hilda R. Gage
MCL 257.625 was amended by 1996 PA 491, effective April 1, 1997, resulting in subparagraph
7(e) being redesignated as subparagraph 7(g). The language of the provision remains unchanged.
MCL 257.625(13) has been amended in ways not relevant to the issue raised by defendant and
redesignated as subparagraph 17. 1996 PA 491; 1994 PA 449.