Opinion
Docket No. 171180.
Submitted February 15, 1995, at Grand Rapids.
Decided April 28, 1995, at 9:05 A.M.
Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, James J. Gregart, Prosecuting Attorney, and Judith B. Ketchum, Assistant Prosecuting Attorney, for the people.
Jeanice Dagher-Margosian, for the defendant on appeal.
Before: NEFF, P.J., and SAWYER and MARKEY, JJ.
I
In lower court Docket No. 92-000236-FH, defendant pleaded guilty of possession of less than twenty-five grams of cocaine, MCL 333.7403(2)(a) (v); MSA 14.15(7403)(2)(a)(v), and of being an habitual offender, fourth offense, MCL 769.12; MSA 28.1084. In lower court Docket No. 93-000766-FH, defendant pleaded guilty of resisting and obstructing a police officer, MCL 750.479; MSA 28.747, and of being an habitual offender, third offense, MCL 769.11; MSA 28.1083. Both guilty pleas were taken at the same time, and were in exchange for the prosecution's agreement to drop a number of additional charges.
Defendant was sentenced to four to fifteen years' imprisonment as an habitual offender in Docket No. 92-000236-FH, and to sixteen to forty-eight months' imprisonment as an habitual offender in Docket No. 93-000766-FH. The circuit court ordered defendant's sentences to run consecutively because he was on bond, and had absconded from that bond, while awaiting trial on the cocaine charge when he committed the crime of resisting and obstructing a police officer. Defendant appeals as of right from the consecutive nature of his sentences and we affirm.
II
The issue raised by defendant involves whether it is constitutionally permissible to use the same prior felonies to support different habitual offender convictions. Defendant argues that the consecutive nature of his sentences violates his constitutional right against double jeopardy because in each case the same prior felonies were used to support his convictions as an habitual offender.
A
Defendant's claim must be evaluated in light of the protection afforded by the state and federal constitutions. According to both constitutions, criminal defendants are protected from, among other things, multiple punishments for the same offense. US Const, Am V; Const 1963, art 1, § 15; People v Whiteside, 437 Mich. 188, 200; 468 N.W.2d 504 (1991). Thus, if the habitual offender statute creates a substantive offense, being punished twice on the basis of identical prior felonies would violate a defendant's right against double jeopardy.
In People v Oswald (After Remand), 188 Mich. App. 1; 469 N.W.2d 306 (1991), this Court considered whether the habitual offender statute created a substantive offense. The defendant argued that because of the additional jail time he was facing as an habitual offender, he was entitled to twenty peremptory challenges. This Court disagreed, holding:
At the time of the defendant's trial, he would be entitled to twenty peremptory challenges pursuant to the then-existing MCR 6.102(B) and MCL 768.13; MSA 28.1036 if his "charged offense" was punishable by life imprisonment. Oswald, supra at 9.
The habitual-offender statute does not create a substantive offense that is separate from and independent of the principal charge. Rather, it is a sentence-enhancement procedure with a deterrent and punitive purpose. [ Id. at 12.]
B
Because the habitual offender statute does not create a separate offense, defendant's double jeopardy argument must fail. Defendant was punished once for his controlled substance violation, and once for resisting and obstructing a police officer, clearly two separate crimes, each of which occurred on separate occasions. Whiteside, supra. The additional jail time he received because of his habitual offender status did not result from additional substantive offenses. See also People v Hambrick, 169 Mich. App. 554, 557; 426 N.W.2d 702 (1988), and People v Gren, 152 Mich. App. 20, 26; 391 N.W.2d 508 (1986). Accordingly, the double jeopardy protection against multiple punishments for the same offense is not implicated. Moreover, Michigan courts have already determined that the habitual offender statute does not violate a defendant's right against double jeopardy. In re Pardee, 327 Mich. 13, 18; 41 N.W.2d 466 (1950); People v Potts, 55 Mich. App. 622; 223 N.W.2d 96 (1974).
Accordingly, defendant's consecutive sentences for separate crimes do not violate his right against double punishment.
Affirmed.