PEOPLE OF MI V VICTOR GREGG HALE
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
April 23, 2009
Plaintiff-Appellee,
v
No. 282687
Oakland Circuit Court
LC No. 2007-214241-FH
VICTOR GREGG HALE,
Defendant-Appellant.
Before: Beckering, P.J., and Talbot and Donofrio, JJ.
PER CURIAM.
Defendant appeals as of right his jury trial conviction for operating a motor vehicle while
under the influence of intoxicating liquor, third offense (“OUIL 3rd”), MCL 257.625(1); MCL
257.625(9). The trial court sentenced defendant as a fourth habitual offender, MCL 769.12, to 2
to 20 years’ imprisonment for the OUIL 3rd conviction. Because the instant offense occurred
after the effective date of the amended MCL 257.625, a conviction over ten years old can be
used to enhance a sentence for a conviction under MCL 257.625 without violating ex post facto,
the principles of statutory construction, or procedural due process, and, because a juvenile
disposition can be used to enhance a sentence for a conviction under MCL 257.625, we affirm.
Defendant first argues that his conviction under MCL 257.625, as amended by 2006 PA
564 that removed the ten-year limitation on the use of prior offenses, violates the ex post facto
clauses of the United States and Michigan Constitutions, is an improper retroactive application of
the statute, as amended, and could implicate due process concerns if enforced.
In order to preserve a constitutional challenge for appellate review, a defendant is
required to have first raised the issue in the trial court. People v Hogan, 225 Mich App 431, 438;
571 NW2d 737 (1997). Defendant failed to raise his arguments, that the trial court’s application
of MCL 257.625 violated the ex post facto clauses of the United States and Michigan
Constitutions, and deprived defendant of his procedural due process rights, before the trial court;
therefore, these arguments are not preserved on appeal. Id. To preserve a challenge to a trial
court’s interpretation or application of a statute, defendant must first raise the argument before
the trial court. People v Kimble, 470 Mich 305, 312; 684 NW2d 669 (2004). Defendant failed to
argue that the trial court improperly applied MCL 257.625 retroactively; therefore, this argument
is not preserved on appeal. This Court reviews unpreserved claims for plain error affecting
defendant’s substantial rights. People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999).
An unpreserved challenge to a trial court’s interpretation or application of a statute is also
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reviewed for plain error affecting defendant’s substantial rights. Id. See also, Kimble, supra at
312. To overcome forfeiture of an issue under the plain error rule, a defendant bears the burden
of persuasion to demonstrate that: “(1) error occurred, (2) the error was plain, i.e., clear or
obvious, and (3) the plain error affected a substantial right of the defendant.” People v Pipes,
475 Mich 267, 279; 715 NW2d 290 (2006). Even if a defendant can show that a plain error
affected a substantial right, reversal is appropriate only where “the plain, forfeited error resulted
in the conviction of an actually innocent defendant or when an error seriously affect[ed] the
fairness, integrity or public reputation of judicial proceedings.” Carines, supra at 763 (internal
quotations omitted.)
Defendant’s position, that a prior conviction more than ten years old may not be used to
obtain a conviction for OUIL 3rd under MCL 257.625, as amended, consists of a three-part
argument. First, defendant contends that a prior conviction more than ten years old cannot be
used to enhance a conviction for OUIL 3rd under MCL 257.625 without violating the ex post
facto clauses of the Michigan and United States Constitutions. Second, defendant argues that the
use of such prior convictions violates the principles of statutory construction. Third, defendant
argues that the use of prior convictions more than ten years old to obtain a conviction for OUIL
3rd could deprive a defendant of his procedural due process rights.
With respect to defendant’s first argument, this Court has recently held that a defendant
may, without offending the ex post facto clauses of the United States and Michigan
Constitutions, be prosecuted for OUIL 3rd, under the amendment to MCL 257.625, on the basis
of prior convictions that occurred more than ten years before the January 3, 2007, amendment.
People v Perkins, 280 Mich App 244, 246; 760 NW2d 669 (2008). The Perkins Court held
specifically that, “for offenses occurring after the effective date of amended MCL 257.625, the
state may properly charge defendants on the basis of prior convictions that occurred more than
10 years before the date of the amendment.” Id. Accordingly, to the extent that defendant
argues that the use of convictions over ten years old in order to obtain a conviction under MCL
257.625 violates the ex post facto clauses of the United States and Michigan Constitutions his
argument fails.
Defendant next argues that the use of a conviction more than ten years old cannot be used
to enhance a conviction under MCL 257.625, as amended, without violating the principles of
statutory construction. In particular, defendant contends that the use of his conviction that was
more than ten years old at the time MCL 257.625 was amended was an improper retroactive
application of the statute. As the Perkins Court observed, with regard to the amendment of MCL
257.625(9)(c):
2006 PA 564 amended the governing statute in this case. Before the amendment,
a defendant was guilty of a felony rather than a misdemeanor for violating the
statute only if he or she had been convicted of two or more drunken driving
offenses within the previous 10 years. The amendment eliminated the 10-year
window and added language permitting the use of any previous conviction in
enhanced sentencing, regardless of the time that elapsed between it and the
defendant's current offense. The statute now provides, in pertinent part, "If a
person is convicted of violating subsection (1) or (8)” and “the violation occurs
after 2 or more prior convictions, regardless of the number of years that have
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elapsed since any prior conviction, the person is guilty of a felony . . . .” [Perkins,
supra at 250-251 (internal citations and footnotes omitted).]
The amendment to MCL 257.625 was to become effective on January 3, 2007, and the
amendment is also known as “Heidi’s Law.” 2006 PA 564.
In People v Russo, 439 Mich 584, 594; 487 NW2d 698 (1992), our Supreme Court
observed that, “[t]he general rule of statutory construction in Michigan is that a new or amended
statute applies prospectively unless the Legislature has expressly or impliedly indicated its
intention to give it retrospective effect.” Further, “[t]here is no vested right in the running of a
statute of limitations except when it has completely run and the action is barred.” Id. In Russo,
the Court explained that, with respect to statutes of limitation, “[e]xtending the length of time
allowed to bring a criminal prosecution that is not time-barred is a procedural change and fails to
alter either the rights of a defendant or any substantive elements of the crime charged.” Id. at
595.
Defendant contends that the Legislature’s removal of the ten-year limitation period for
the use of prior convictions for purposes of prosecutions under MCL 257.625, as applied in this
case, constituted a retroactive elimination of a statute of limitations that had elapsed. However,
as this Court recognized in Perkins, “this analysis ignores the fact that defendant[] [is] not being
prosecuted for the prior offenses.” Perkins, supra at 252. Rather, in Perkins, as well as here,
“the amended statute did not attach legal consequences to defendant’s prior impaired-driving
conviction, but attached legal consequences to defendant’s future conduct.” Id. at 251-252,
quoting People v Callon, 256 Mich App 312, 318; 662 NW2d 501 (2003).
Defendant does not dispute that the charge for which he was convicted in this case arose
from his act of operating a motor vehicle while under the influence of intoxicating liquor that
occurred on April 10, 2007. Defendant also does not dispute that the amendment to MCL
257.625 took effect on January 3, 2007, and defendant’s conviction in this case arises from
events that occurred after the date MCL 257.625 was amended. Accordingly, because defendant
was convicted under MCL 257.625 for conduct that occurred after MCL 257.625 was amended,
the statute was applied prospectively, and not retroactively. Defendant was punished, albeit
more severely, solely for his conduct relating to this case, and not for his prior convictions.
Defendant contends that the Legislature intended to delay the effective date of the
amendment to MCL 257.625 because the Legislature provided that an amendment to MCL
257.208 was effective on October 31, 2010. 2006 PA 565 amended MCL 257.208(2), which sets
forth time periods after which the Secretary of State may destroy its records. Its current version
reads as follows:
Except as otherwise provided in this section, records of convictions of any offense
for which points are provided under section 320a(1)(a), (b), (c), or (g) or section
320a(8) may be destroyed after being maintained on file for 10 years.
The amended version that is to take effect on October 31, 2010 will provide:
Except as otherwise provided in this section, records of convictions of any offense
for which points are provided under section 320a(1)(a), (b), (c), or (g) or section
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320a(8) may be destroyed after being maintained on file for 10 years. However,
if a person is convicted of violating section 625, the record of that conviction shall
be maintained for the life of the person.
That the Legislature intended to delay the effective date of MCL 257.208(2) until
October 31, 2010 is reflected in the plain and explicit language of the act that will amend the
statute. 2006 PA 565. If the Legislature intended to delay the effective date of the amendment
to MCL 257.625, it would similarly have expressed such intent in the statutory language.
Instead, 2006 PA 564 specifically provides in plain and unambiguous language that: “This
amendatory act takes effect January 1, 2007.” Accordingly, defendant’s argument, that the
Legislature intended to delay the effective date of the amendment of MCL 257.625, fails.
Defendant’s final argument is that the application of the amendment of MCL 257.625
“raises serious due process concerns . . . because due process will require that more hearings be
held to determine whether those convictions [over ten years old] were constitutionally valid.”
Defendant does not argue that his right to procedural due process was violated by the application
of the amendment to MCL 257.625. Rather, he argues that in hypothetical cases, an additional
hearing would be required where the defendant claims that a prior conviction violated his
Constitutional rights. Defendant’s argument offers the solution to the hypothetical problem it
presents. In other words, where a defendant claims that a prior conviction was constitutionally
infirm, and as such, cannot be used for purposes of sentence enhancement, the defendant should
challenge the information regarding his prior conviction on this basis at his sentencing. As our
Supreme Court observed, in the context of sentence enhancement for prior convictions for
felony-firearm, “due process is satisfied as long as the sentence is based on accurate information
and the defendant has a reasonable opportunity at sentencing to challenge that information.”
People v Miles, 454 Mich 90, 100; 559 NW2d 299 (1997), quoting People v Williams, 215 Mich
App 234, 236; 544 NW2d 480 (1996). MCL 257.625(15) provides:
If the prosecuting attorney intends to seek an enhanced sentence under this section
or a sanction under section 625n based upon the defendant having 1 or more prior
convictions, the prosecuting attorney shall include on the complaint and
information, or an amended complaint and information, filed in district court,
circuit court, municipal court, or family division of circuit court, a statement
listing the defendant's prior convictions.
Under defendant’s hypothetical scenario, if one or more of a defendant’s convictions was
obtained unconstitutionally, where the defendant has a full and fair opportunity to challenge the
information regarding the prior conviction at sentencing, due process is satisfied. Miles, supra at
100.
Further, this Court has concluded that in the context of a challenge to Michigan’s habitual
offender statute, MCL 769.13, there is “no valid reason why convictions over ten years old . . .
may not be used by a trial court in determining a proper sentence.” People v Zinn, 217 Mich
App 340, 349; 551 NW2d 704 (1996), quoting People v Line, 145 Mich App 567, 571-572; 378
NW2d 781 (1985). Moreover, as this Court observed in People v Haynes, 256 Mich App 341,
349; 664 NW2d 225 (2003), with reference to the 1998 amendment to MCL 750.625, that
“defendant had been placed on constructive notice . . . that his prior conviction would subject
him to enhanced punishment for any future OUIL convictions.” Defendant’s articulation of
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potential due process concerns does not entitle him to relief. All of defendant’s arguments
relating to this issue fail.
Defendant next argues that a juvenile disposition did not constitute a prior conviction for
purposes of his conviction for OUIL 3rd. “Statutory interpretation is a question of law that is
reviewed by this Court de novo.” People v Derror, 475 Mich 316, 324; 715 NW2d 822 (2006).
“[T]he goal of judicial interpretation of a statute is to ascertain and give effect to the intent of the
Legislature.” People v Koonce, 466 Mich 515, 518; 648 NW2d 153 (2002). This Court first
examines the plain language of the statute, and where the statutory language is clear, “no further
judicial construction is required or permitted, and the statute must be enforced as written.”
People v Morey, 461 Mich 325, 330; 603 NW2d 250 (1999). However, “if the statute defines a
given term, that definition is controlling.” People v Giovannini, 271 Mich App 409, 413; 722
NW2d 237 (2006).
Here, defendant argues that a provision in the Michigan Probate Code precludes the use
of a juvenile disposition for sentencing purposes. In support of its position, defendant relies
upon MCL 712A.23, which states:
Evidence regarding the disposition of a juvenile under this chapter and evidence
obtained in a dispositional proceeding under this chapter shall not be used against
that juvenile for any purpose in any judicial proceeding except in a subsequent
case against that juvenile under this chapter. This section does not apply to a
criminal conviction under this chapter.
However, the prosecution argues that the motor vehicle code specifically defines “conviction”
as:
A final conviction, the payment of a fine, a plea of guilty or nolo contendere if
accepted by the court, or a finding of guilt for a criminal law violation or a
juvenile adjudication, probate court disposition, or juvenile disposition for a
violation that if committed by an adult would be a crime, regardless of whether
the penalty is rebated or suspended. [MCL 257.8a.]
MCL 257.625(25) provides in pertinent part:
[A]s used in this section, “prior conviction” means a conviction for any of the
following, whether under a law of this state, a local ordinance substantially
corresponding to a law of this state, a law of the United States substantially
corresponding to a law of this state, or a law of another state substantially
corresponding to a law of this state:
(a) Except as provided in subsection (26), a violation or attempted violation of
any of the following:
(i) This section, except a violation of subsection (2), or a violation of any prior
enactment of this section in which the defendant operated a vehicle while under
the influence of intoxicating or alcoholic liquor or a controlled substance, or a
combination of intoxicating or alcoholic liquor and a controlled substance, or
while visibly impaired, or with an unlawful bodily alcohol content.
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Because the motor vehicle code specifically includes juvenile adjudications within the
definition of what constitutes a “conviction,” defendant’s argument that a juvenile disposition
cannot be used to obtain a conviction for OUIL 3rd lacks merit. Giovannini, supra at 412-413.
Further, this Court, in People v Weatherholt, 214 Mich App 507, 512; 543 NW2d 35 (1995),
held that the version of MCL 257.625 in force at that time set forth a sentencing enhancement
scheme based on prior convictions, and did not define OUIL 3rd as a distinct offense. Our
Supreme Court, in People v Smith, 437 Mich 293, 298-299; 470 NW2d 70 (1991), reaffirmed the
principle, set forth in People v McFarlin, 389 Mich 557, 575; 208 NW2d 504 (1973), that MCL
712A.23 does not foreclose a sentencing court from considering a juvenile disposition in
imposing a sentence for an adult conviction. Defendant does not contest that his juvenile
disposition arose from a violation of MCL 257.625. Hence, defendant’s argument that an OUIL
3rd conviction may not be obtained on the basis of a juvenile disposition relating to an alcoholrelated traffic violation fails.
Affirmed.
/s/ Jane M. Beckering
/s/ Michael J. Talbot
/s/ Pat M. Donofrio
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