Michigan Supreme Court Lansing, Michigan
Chief Justice: Justices: Clifford W. Taylor Michael F. Cavanagh Elizabeth A. Weaver Marilyn Kelly 

# Opinion

Maura D. Corrigan Robert P. Young, Jr. Stephen J. Markman

FILED JULY 23, 2008 PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee,

v No. 131942 CAPRESE D. GARDNER, Defendant-Appellant.

BEFORE THE ENTIRE BENCH CORRIGAN, J. In this case, we consider the correct method for counting prior felonies under Michigan’s habitual offender statutes, MCL 769.10, 769.11, 769.12, and 769.13. These statutes establish escalating penalti es for offenders who are repeatedly convicted of felonies . This Court has ruled that the statutes imply that each predicate felony must arise from separate criminal incidents. People v Preuss, 436 Mich 714; 461 NW2d 703 (1990); People v Stoudemire, 429 Mich 262; 414 NW2d 693 (1987), mod by Preuss, supra at 739. Th erefore, multiple felonies that arise from the same criminal in cident or transaction count as a single felony under the habitual offender laws.We conclude that the holdings of Stoudemire and Preuss directly contradict the plain text of the statutes. Th erefore, we overrule these cases. The unambiguous statutory language directs courts to count each separate felony conviction that preced ed the sentencing offense, not the number of criminal incidents resulting in felony convictions. Accordingly, defendant was properly sentenced and we affirm his sentences.
I. FACTS AND PROCEDURAL HISTORY In 2001, a jury convicted defendant, Ca prese D. Gardner, of second-degree murder, MCL 750.317, being a felon in possession of a firearm (felon in possession), MCL 750.224f, a nd possessing a firearm duri ng the commission of a felony (felony-firearm), MCL 7 50.227b. The facts underlyi ng his convictions do not bear on the current question before this Court. On Au gust 30, 2001, the circuit court sentenced defendant as a third offe nse habitual offender, MCL 769.11, to concurrent prison terms of 25 to 50 years for the murder conviction and 2 to 10 years for the felon in possession conviction and a consecutive term of 5 years for the felony-firearm conviction. On direct appeal, defenda nt challenged several of the circuit court’s evidentiary rulings, but did not raise the present issue. The

2Court of Appeals affirmed his convictions and sentences. 1 This Court denied defendant’s subsequent appli cation for leave to appeal. 2 In 2004, defendant sought reli ef from judgment under MCR 6.501 et seq

. He argued that his appointed trial and appellate attorneys had provided constitutionally ineffective repres entation because they fa iled to investigate and challenge the two prior convictions underl ying his third offense habitual offender status. For purposes of the habitual offender enhancement, defendant had stipulated at trial prior convictions of felonious assault and felony-firearm. In his motion for relief from judgment, defendant claimed that both of those convictions, for which he had been sentenced on Fe bruary 25, 1988, aro se from the same criminal act. Accordingly, he asserted that the two co nvictions should have been counted as a single prior fel ony conviction for purposes of applying the habitual offender laws under Stoudemire and Preuss . Thus, defendant argued that he should have been sentenced only as a second offense habitual offender, MCL 769.10, and therefore woul d have been exposed to pote ntially shorter prison terms for his murder and felon in possession convictions. He also argued that he had good cause for belatedly rai sing this issue in a motio n for relief from judgment under MCR 6.508(D)(3)(a) be cause his appellate atto rney was constitutionally ineffective for failing to recognize and raise the issue in defendant’s prior appeal.

1 People v Gardner, unpublished opinion per cu riam of the Court of Appeals, issued April 13, 2003 (Docket No. 238186). 2 469 Mich 975 (2003).

3The circuit court denied d efendant’s motion, opining that defendant had not established good cause for his failure to raise this issue in his prior appeal. The Court of Appeals denied defe ndant’s application for leave to appeal “for failure to meet the burden of establishing ent itlement to relief under MCR 6.508(D).” 3 Defendant then applied for leave to app eal in this Court. We heard oral argument on whether to grant his application or take ot her peremptory action. We directed the parties to address whether Preuss and Stoudemire “correctly held that multiple convictions arising out of a singl e criminal incident may count as only a single prior conviction for habitual offender purposes and, if so, whether the defendant is entitled to be resentenced.” 4
II. STANDARDS OF REVIEW The primary question requires us to interpret Michig an’s habitual offender statutes. This Court reviews de novo questions of statutory interpretation. People v Buehler, 477 Mich 18, 23; 727 NW2d 127 (2 007). We also review de novo the ultimate constitutional question whether an attorney’s ineffective assistance deprived a defendant of his Sixth Amendment 5 right to counsel. People v LeBlanc , 465 Mich 575, 579; 640 NW2d 246 (2002).

3 People v Gardner, unpublished order of the Co urt of Appeals, entered July 10, 2006 (Doc ket No. 267317). 4 477 Mich 1096 (2007). 5 US Const, Am VI.

4III. ANALYSIS Defendant was sentenced as a third offense habitual offender under MCL 769.11, which reads, in pertinent part: If a person has been convicte d of any combination of 2 or more felonies or attempts to commit felonies , whether the convictions occurred in th is state or would have been for felonies or attempts to commit felonies in this state if obtained in this state, and that person commits a subsequent felony within this state , the person shall be punished upon convicti on of the subsequent felony and sentencing under section 13 of this chapter as follows . . . . [MCL 769.11(1) (emphasis added).] The same relevant language has appeared in each habitual offender statute 6 since 1978. 7 In 1987 and 1990 , respectively, the Stoudemire and Preuss courts concluded that these statut es imply a same-incident or single-transaction method of counting prior felonies for purposes of sentencing enhancemen t. Accordingly, each predicate felony must “arise fro m separate criminal incidents.” Preuss, supra at 717. Habitual offender status may increase a defendant’s minimum and maximum sentences. 8 The sentencing judge genera lly has the option to increase a

6 MCL 769.10(1); MCL 769 .11(1); MCL 769.12(1). 7 See Preuss, supra at 720. 8 Michigan has a primarily indetermin ate sentencing scheme. For most crimes, courts impose both a minimum a nd a maximum sentence. The maximum sentence is set by statute on the basi s of the sentenci ng offense. The recommended minimum sentence range is set by statutory guidelines that take into account the circumstances of the particul ar offense and offende r. MCL 769.8; MCL 769.34; People v Harper, 479 Mich 599, 612-613; 739 NW2d 523 (2007).

5repeat offender’s maximum sentence. 9 The high end of the statutory recommended minimum sentence range und er the sentencing guidelines (the maximum minimum) also increases on the basis of the number of prior convictions. Second offense, th ird offense and fourth offense 10 habitual offenders face increases in their maximum minimums of 25 percent, 50 percent and 100 percent, respectively. MC L 777.21(3)(a) through (c). Here, defendant woul d have been subject to a maximum penalty of life in prison for his second-degree murder convicti on even without an habitual offender enhancement. His unenhanced minimum sentence range—based on a prior record variable score of 20 and an offense variable score of 65—was 180 to 300 months. MCL 777.61. Because he was sentenced as a third offense habitual offender, MCL 769.11(1), he was subject to an enha nced minimum sentence range of 180 to 450 months (a maximum minimum of 300 months increased by 50 percent), MCL 777.21(3)(b). Defendant argues that, under Stoudemire and Preuss , he should have been sentenced only as a second offense habitual offender, MCL 769.10(1), because his two prior felony convictions arose from the same criminal incident. If he had been sentenced as a second offense habitual offender, his statutory minimum sentence

9 MCL 769.10(1); MCL 769.1 1(1); MCL 769.12(1). 10 MCL 769.12(1) establishes enhanced maximum sentences for offenders with three or more prior fel ony convictions. For ease of reference, we call these offenders “fourth offense habitual offenders.”

6range would have been 180 to 375 mont hs (a maximum mini mum of 300 months increased by 25 percent). Although his 300-month (2 5-year) minimum sentence falls within the minimum sentence ra nges for both second and third offense habitual offenders, as well as the enhanced range, defen dant correctly argues that,
if the circuit court relied on an inaccurat e higher range when it imposed the sentence, resentencing would be required. People v Francisco, 474 Mich 82, 89

- 92; 711 NW2d 44 (2006). The prosecution does not contest d efendant’s claim that his two prior felony convictions of feloni ous assault and felony-fi rearm arose from the same criminal incident. The pros ecution also concedes that defendant may raise the issue in his current motion for relief from judgment because, if Stoudemire and
Preuss correctly interpreted the habitual offender statutes, defendant has been prejudiced by the constituti onally ineffective assistance of his appointed trial and appellate attorneys. 11 The prosecution argues, however, that Stoudemire and

11 Defendant’s appointed attorneys did no t raise the error at sentencing, in a motion for resentencing, or in a motion for remand in the Court of Appeals. Accordingly, defendant properly raises hi s argument in connec tion with a claim that he was denied his Si xth Amendment right to effectiv e assistance of counsel. Francisco, supra at 90 n 8. An attorney is ineffective for Sixth Amendment purposes if his performance fe ll below an objective stan dard of reasonableness and the defendant was prejudiced as a result. Strickland v Washington, 466 US 668, 688, 692; 104 S Ct 2052; 80 L Ed 2d 674 (1984); People v Pickens, 446 Mich 298, 338; 521 NW2d 797 (1994). Any amount of additional prison time imposed as a result of an attorney’s d eficient performance has Sixt h Amendment significance. Glover v United States, 531 US 198, 203; 121 S Ct 696; 148 L Ed 2d 604 (2001). Although we accord substantia l deference to an attorney’s strategic judgments, we can identify no strategic reas on for the failure of defenda nts’ attorneys here to (continued...)

7Preuss were incorrectly decided and that defe ndant was properly sentenced as a third offense habitual offend er under the plain language of the statute. We agree. Our goal in construing a statute is “to ascertain and give effect to the intent of the Legislature.” People v Pasha, 466 Mich 378, 382; 645 NW2d 275 (2002). The touchstone of le gislative intent is the statut e’s language. “If the statute's language is clear and unambiguous, we assu me that the Legisl ature intended its plain meaning and we enforce the statute as written.” People v Weeder , 469 Mich 493, 497; 674 NW2d 372 (2004). Accordingly, when statutory language is unambiguous, judicial constructio n is not required or permitted. 12 Id.

(...continued) raise such an obvious poin t of error that increased th e possible minimum prison sentence to which defendant was exposed. Therefore, defendant has properly stated a claim of ineffective assistance of counsel. For the same reasons, defendant has al so properly alleged good cause and actual prejudice, as is necess ary to seek relief in a motion for relief from judgment. MCR 6.508(D)(3). A defenda nt may establish good cau se for not raising an argument for relief sooner by showing that his appe llate attorney rendered ineffective assistance by failing to raise the issue in a proper post-trial motion or first-tier appeal. People v Reed, 449 Mich 375, 378; 535 NW2d 496 (1995) (opinion by Boyle, J.). Appellate counse l’s failure to “assert all arguable claims” or decision to “winnow out weaker argum ents and focus on those more likely to prevail is not ev idence of ineffective assistance.” Id. at 391. Here, however, as noted, we cannot identify any excuse for counsel’ s failure to raise an obvious error that would have guaran teed resentencing under Francisco . Because the nature and strength of the argument are obvious, the omissi on is not evidence of a reasonable professional decision to wi nnow out weaker arguments. 12 “[O]nly a few provisions are truly ambiguous and . . . a diligent application of the rules of interpreta tion will normally yield a ‘better,’ albeit perhaps imperfect, in terpretation of the law . . . .” Lansing Mayor v Pub Service Comm , 470 Mich 154, 166; 680 NW2d 840 (2004). A provision is not ambiguous just because “reasonable minds can differ regard ing” the meaning of the provision. (continued...)

8Here, the relevant language states that [i]f a person has been convicted of any combination of 2 or more felonies or a ttempts to commit felo nies . . . and that person commits a subsequent felony within this state,” the person shall be sentenced under the habitual offender laws. MCL 769. 11(1). The text clearly contemplates the number of times a person has been “convicted” of “felonies or attempts to commit felonies.” Nothing in the statutory text suggests that the felony convictions must have arisen from se parate incidents. To the contrary, the statutory language defies the importation of a same-incident test because it states that any combination of convictions must be counted. Indeed, Stoudemire and
Preuss essentially acknowledged th e clear import of the language. Nonetheless, in each case, the Court explicitly ignored the text, turning instead to legislative history and the Court’s own views regard ing the intents of the New York and Michigan legislatures. 13

(...continued) Id. at 165. “Rather, a provision of the law is ambiguous only if it ‘irreconcilably conflict[s]’ with another provision, or when it is equally suscep tible to more than a single meaning.” Id. at 166 (citation omitted). See Klapp v United Ins Group Agency, Inc, 468 Mich 459; 663 NW2d 447 (2003), for an example of truly ambiguous contractual language. 13 Justice Archer vigoro usly dissented in Stoudemire , arguing that the clear statutory language did not impose or permit a same-incident test. Stoudemire, supra at 282, 289 (Archer, J., dissenting). Justice Archer observed that, since 1865, this Court has recogni zed a fundamental rule of statutory construction: “When the language used in a statute is plain and unambiguous, a common-sense reading of the provision will suffice. No interpretation is necessary.” Id . at 280. Justice Archer dissented in Preuss for the same reasons. Preuss, supra at 743 (Archer, J., concurring in p art and dissenting in part).

9In 1987, the Stoudemire Court offered an initial interpretation of the relevant statutory language by observing that the original language of Michigan’s habitual offender statutes , enacted by 1927 PA 17 5, was borrowed almost wholesale from New York’s ha bitual offender statutes. Stoudemire, supra at 267. Accordingly, the Court referred to the remarks of the Ne w York statutes’ author, New York State Senator Caleb Baumes, wh o opined that the statutes were aimed at protecting the public fro m the professional criminal “‘who has been convicted once, twice, three times, sentenced and served his time and come . . . out and resumed operations again . . . .’” Id. at 268, quoting Baumes, The Baumes law and legislative program in New York, 52 ABA Rep 511, 521 (19 27) (emphasis added
in Stoudemire ). The Court concluded that New York courts had interpreted the New York statutes in keepin g with Baumes’s in tent by establishing “that multiple convictions on the same day constitute on ly one ‘conviction’ fo r purposes of the habitual offender statute.” Stoudemire , supra at 269, citing People v Spellman , 136 Misc 25; 242 NYS 68 ( 1930). The Stoudemire Court acknowledged, but rejected, other New York cases that conflicted with Spellman , concluding that “[t]hese opinions do not reflect awareness of the legislative intent clearly expressed by Senator Baumes ” and observing that those courts’ construction of the statutes had been supers eded when the New York Legislature amended the

statutes. Stoudemire , supra at 269 n 14.

10The Stoudemire Court concluded: By borrowing New York’s st atute in its entirety, the Legislature indicated that it was mo tivated by the sa me purpose that underlay the New York statute. The Legislature intended that the habitual offender statute’s fourth -felony provision, like the parallel provision in the New York statute, should apply only to a person who had had three opportunities to reform— who had been convicted and sentenced and then subsequen tly committed another felony for which he was also convicted and se ntenced, and then subsequent to the second conviction committed yet another felony, for which he was again convicted and sentenced . [ Id

. at 271 (emphasis added).] The Court also compared the intents of legislatures in other jurisdictions—as interpreted by courts in those jurisd ictions—that had adopted methods for counting felonies based on whether the o ffenses grew out of the same occurrence, were committed on the same day, or were charged in the sa me indictment. Id. at 272-276. In accord, the Court held, co nsistently “with the legislative purpose underlying the habitual offen der statute, that multiple co nvictions arising out of a single incident may count as only a singl e prior conviction for purposes of the
statute.” Id. at 278. The Court concluded that, to the extent that the statutory text read otherwise, the Court sh ould focus on legislative in tent in order to avoid absurdity, hardship , or injustice. Id. at 266-267. Significantly, Stoudemire avoided the import of the statutory text, in part, by dismissing the Legislatu re’s 1978 revisions of the te xt in 1978 PA 77. Before 1978, the relevant portion of MC L 769.11 stated: “A person who after having been twice convicted within this state of a felony or an attempt to commit a felony . . . commits any felony within this st ate, is punishable upon conviction as

11[provided in this section].” (Emphasis added.) 14 Despite the revisions, the Stoudemire majority nonetheless relied on its perceptions of the history of the original 1927 act. The Court explicitly recognized that “the phrase ‘If a person has been convicted of 3 or more felonies,’ arguably has a different import than the phrase ‘A person who aft er having been 3 times convicted . . . .’” Stoudemire , supra at 278. But the Court dismissed th is significant change, concluding that “when considered in the contex t of the other changes made in the statute it is clear that the Legislature intended only to improve the statute’ s grammar, not to alter its underlying meaning.” Id. 15 In 1990, the Preuss Court refined the Stoudemire holding by clarifying that the prior offenses need not “b e separated by int ervening convictions or sentences,” but it retained the rule “that a defendant’s prior offenses must arise from separate incidents.” Preuss, supra at 737. Specifically, by reference to the fourth offense habitual offender statute, the Court concluded that the statute does not require that a fourth offender’s three prior convictions, the sentences for thos e convictions, or the offenses upon which those convictions and sentences are based, occur in any

14 The change was consistent throughou t the habitual o ffender laws. For instance, before 1978, MCL 769.12 si milarly stated: “A person who after having been 3 times convicted within this state, of felonies or attempts to commit felonies . . . .” (Emphasis added.) 15 Justice Cavanagh offers the puzzling a ssertions that “[t]here has been no change in the statutory language between 1940 and today that affects its inapplicability to ‘differen t counts growing out of the same act,’” quoting People v Podisad, 295 Mich 541, 547; 295 NW 257 (1940), and that we “fail[] to identify the changes in the language that would have had this effect.” Post at 5 n 6, 10.

12particular sequence. The statute requires only that the fourth offense be preceded by three convictions of felony offenses, and that each of those three predicate felonies aris e from separate criminal incidents

. [ Id. at 717 (emphasis added).] Preuss criticized the Stoudemire Court’s “flawed” interpretation of Michigan’s statutes, concluding that the Stoudemire Court had erred in its attempt to divine the intent underlying the New York statutes on which Michigan’s statutes were modeled. Id

. at 720, 727-731. For instance, Preuss observed that Stoudemire had “relied erroneously on the only New Yo rk decision that held that a fourth offender’s second and third offe nses must each fo llow conviction and sentence on the earlier offense.” Id. at 727. Further, the Preuss Court opined that Senator Baumes’s comments did not estab lish his intent “on the issue of the sequentiality of prior convictions.” Id. at 729. Perhaps mo st significantly, the
Preuss Court observed that, to th e extent that Baumes’s views suggested “that the fourth offense must follow a completed sentence ,” his views “conflict[ed] with the language of 1927 PA 175, which literally requires only that the commission of the fourth offense follow three prior ‘convictions,’ not sentences.” Id. at 730 (emphasis in original). Thus, the Preuss Court acknowledged that th e unambiguous statutory language—“If a person has been convict ed of any combina tion of 3 or more felonies or attempts to commit felonies . . . and that person commits a subsequent felony”—refers only to the number of prio r felony convictions and “implies that no particular sequence for the first three offenses or conv ictions was intended.”

13Id. at 720-721, 730. Nonetheless, the Co urt chose to disregard this language, opining that “a literal reading of a statute may be modified if that reading leads to a clear or manifest contradiction of the app arent purpose of the act, or if necessary to correct an absurd a nd unjust result . . . .” 16 Id. at 721. Accordingly, the Court “turn[ed] to sources of legislative intent other than the language to determine whether declining to read into the statute a sequentia lity requirement for predicate offenses would contra dict the Legislature’s purpose in enacting the statute.” Id. at 721. In doing so, the Preuss Court erred when it construed the unambiguous terms of the statute by reference to legislative history. Weeder, supra at 497. Ironically, not only did it reject the Stoudemire Court’s attempt at the same task,

16 Justice Cavanagh incorrectly asserts that Preuss “found nothing in the amended language to compel a change in the longstandi ng requirement that ‘multiple convictions arising out of a singl e incident may count as only a single prior conviction under the statute.’” Post at 11, quoting Preuss, supra at 720. To the contrary, both Preuss and Stoudemire recognized that the new language “arguably has a different import,” Stoudemire, supra at 278, and “implies that no particular sequence for the first three offen ses or convictions was intended.” Preuss, supra at 721. But in each cas e, the Court avoided th e plain meaning of the statutory text in favor of legislative history or on the basis of the Court’s conclusion that the plain language of the text produced an absurd or unjust result. Preuss, supra at 721; Stoudemire, supra at 266, 271, 278. There is no need to address the merits of the absurd results rule in this opinion. Even assuming the existence of su ch a rule of interpretation, the result reached here is by no means absurd. A reasonable lawmaker could easily have intended the result reached h ere. That is, such a la wmaker could easily have intended that courts count each separate felony conviction in de termining habitual offender status. There is nothing at all absurd about treating a defendant who has been convicted of three felonies as a third offense habitual offender.

14but its opinion highlights th e problems inherent in such attempts by offering a different judicial construction of the inc onclusive “history” of the very same

enactments. 17 Further, Preuss failed to grapple at all wi th the import of the 1978 revisions, relying instead—jus t as the Court had in Stoudemire —on its impressions of the Legislature’s intent wh en adopting the origin al 1927 language. On the basis of these impressions, Preuss concluded that the “legislative history of the statute suggests that it was directed at the ‘persistent’ or ‘repeat’ offender.” Preuss, supra at 738. Having reached this conc lusion, the Court then interpreted the statute as if these words appeared in its text, stating:

17 Indeed, the Preuss Court itself proceeded to examine inconclusive statements from a report of the Commission of Inquiry Into Criminal Procedure. Preuss, supra at 721-722, citing State of Mich igan, Report of the Commission of Inquiry Into Criminal Pr ocedure (February 8, 1927 ). The Court noted the commission’s desire to improve former re peat-offender statutes that imposed escalating punishments on the basis of preceding punishments

. Preuss , supra at 722-723. The Cour t concluded that the commissi on’s goals were to “make it tougher for criminals to avoid appr ehension, conviction, and adequate punishment,” to “apply [habitual offend er enhancements] to a broader class of criminals than they would have applied to had the prior la nguage about prior sentence been retained,” and to “pun ish[] repeat offenders harshly.” Id. at 724. Significantly, the Court ack nowledged that the report “does not contain any express statement concerning the commission’s inte nt regarding whether a defendant’s prior convictions, offenses, or sentences must occur in any particular sequence in order for him to be subj ect to fourth-offender penalties.” Id. at 722. Indeed, the new provision in its original 1927 form —which applied when an offender had been “three times convicted ”—“literally applied to defendants who had previously been conv icted three times before they committed their fourth offense, even if they had not yet been sentenced on any or all of those prior convictions.” Id. at 724. Nonetheless, the Co urt cited the report, among other authorities, as evidence th at the Legislature intended a same-incident test. Id. at 738.

15A common-sense interpretation of these phrases is that the Legislature did not have in mi nd the person who had only one criminal episode in which he ma naged to commit several different crimes. Instead, “repeat” suggest s some time interval between crimes, and “persistent” suggests a criminal who continues in his criminal pursuits after these intervals. Neither of these concepts may easily be reconciled with an interpret ation of the statute which would allow a court to impose fourth -offender penalties on a defendant whose three prior convictions aro se out of the same criminal incident. [ Id .] We reject the approaches of both Stoudemire and Preuss , which run counter to principles of stat utory constructi on. Indeed, in criticizing Stoudemire, the
Preuss Court reinterpreted the very history on which Stoudemire relied and reached a different result. Thus, these two opinions exemp lify the problems inherent in preferring judicial interpretation of legislativ e history to a plain reading of the unambiguous text. As we have stated, construing an unambiguous statute by relying on legislative hi story “‘[a]t the very most . . . allows th e reader, with equal plausibility, to pose a conclusion of his own that differs from that of the majority.’” Donajkowski v Alpena Power Co, 460 Mich 243, 259; 596 NW2d 574 (1999), quoting Rogers v Detroit, 457 Mich 125, 164; 579 NW2d 840 (1998) (Taylor, J., dissenting) , which was overruled by Robinson v Detroit, 462 Mich 439 (2000). 18 Further, “not all legislative history is of equal value . . . .” In re

18 As perhaps best put by United St ates Supreme Court Justice Antonin Scalia, [c]ommittee reports, floor speeche s, and even co lloquies between Congressmen . . . are frail substitu tes for bicameral vote upon the text of a law and its presentment to th e President . . . . It is at best dangerous to assume th at all the necessary p articipants in the law

- (continued...)

16Certified Question, 468 Mich 109, 115 n 5; 659 NW2d 597 (2 003). Some historical facts may allow courts to draw reasonable inferences about the Legislature’s intent because the facts shed light on th e Legislature’s affirmative acts. For instance, we may consider that an enactment was intended to repudiate the judicial construction of a statute, or we may find it help ful to compare multiple drafts debated by the Legislatu re before settling on the lang uage actually enacted. Other facts, however, such as staff analyses of legislation, are significantly less useful because they do not n ecessarily reflect the intent of the Legislature as a body. Id. Shifting interpretations of the intent of the New York Legislature— particularly as embodied in the comments of a single state senator—certainly fall into this latter category. Significantly, defendant here esse ntially concedes that a proper interpretation of the habitual offender statutes precludes the use of a same-incident method for counting prior convictions. Defendant merely advances policy considerations and sugges ts that the Legislatu re has acquiesced to the interpretations of the statut es offered by this Court in Stoudemire in Preuss. But, as with attempts at divining legislative intent from legislative history, “legislative
(...continued) enactment process are acting upon the same unexpressed assumptions. And likewise dangerous to assume that, even with the utmost self-discipline, judges can prevent the implications they see from mirroring the polic ies they favor. [ Thompson v Thompson, 484 US 174, 191-192; 108 S Ct 513; 98 L Ed 2d 512 (1988) (Scalia, J., concurring) (citations omitted).]

17acquiescence is an exceedingly poor indi cator of legislative intent.” Donajkowski,

supra at 258. Instead, “sound principles of statutory construction require that Michigan courts determine the Legislature’s intent from its words, not from its silence.” Id. at 261; see also People v Hawkins, 468 Mich 488, 507; 668 NW2d 602 (2003) (“As we have repeatedly stated , the ‘legislative acquiescence’ principle of statutory construction has been squarely rejected by this Court because it reflects a critical misapprehension of the legislative process. ”). As we observed in Donajkowski , “‘[c]ommentators have noted that one can posit myriad reasons explaining the Legislature's fa ilure to correct an erroneous judicial decision . . . .’” Donajkowski , supra at 259, quoting Rogers , supra at 164 n 2 (Taylor, J., dissenting). Moreover, “‘it should not be assumed that the Legi slature even agrees it has a duty to correct interpretations by th e courts that it c onsiders erroneous.’” Donajkowski, supra at 260, quoting Rogers, supra at 164-165 (Taylor, J., dissenting). Indeed, as Ju stice Taylor observed, “‘[i]n Autio v Proksch
Construction Co , 377 Mich 517, 527; 141 NW2d 81 (1966), Justice Souris described [the doctrine of legislative acquiescence] as “a pern icious evil designed to relieve a court of its duty of self-correction” . . . .’” Donajkowski, supra at 260, quoting Rogers, supra at 165 (Taylor, J., dissenting). See Donajkowski, supra at 258-262, for a full discussion. 19

19 The dissenters would ha ve us engage in a gue ssing game regarding the meaning of legislative silence. For in stance, Justice Cavana gh notes that, before Congress amended 18 USC 924(e)(1) to exp licitly include a same-incident test, (continued...)

18When the Legislature’s language is cle ar, we are bound to follow its plain meaning. The Legislature is fully capable of amending statutory language if it sees fit to do so. Indeed, legislatures th roughout the country have enacted habitual offender statutes that explicitly include same-incident methods for counting prior felonies. Arizona’s habitu al offender laws, for inst ance, explicitly provide: “Convictions for two or more offenses committed on the same occasion shall be counted as only one conviction for purposes of this section.” Ariz Rev Stat Ann 13-604(M) (emphasis added). 20 The California Penal Code provides that “any person convicted of a seri ous felony who previously has been convicted of a serious felony . . . shall receive . . . a five-year enhancement for each such prior conviction on charges brought a nd tried separately .” Cal Penal Code 667(a)(1) (emphasis added). The Illinois habitual offender laws offer a particularly helpful
(...continued) courts had already begun grafting su ch a test onto the statute. Post at 9-10. But we rarely know whether a legi slature’s intent in amen ding a statute reflects the intent it originally had when it enacted the statute. Indeed, when a conforming amendment occurs in the wake of a judici al decision, for all we know, the judicial decision may have sparked debate because some legislators perceived the decision as error, but the legislature may ultimat ely have concluded that the incorrect interpretation nonetheless refl ected the better current po licy. For these reasons, we decline to second-guess th e Legislature when it has sp oken unambiguously. It is not this Court’s role to correct judi cially perceived mistakes rooted in the Legislature’s silence or inaction. To the contrary, our separate duty is to engage in self- correction when appropriate. Donajkowski, supra at 260. 20 See also Ariz Rev St at Ann 13-604(S) (“A p erson who . . . stands convicted of a serious offen se . . . , whether a comple ted or preparatory offense, and who has previously be en convicted of two or more serious offenses not committed on the same occasion shall be sentenced to life imprisonment . . . .”) (emphasis added).

19comparison because the defin ition of habitual offender status includes general language somewhat similar to that in our own statutes: Every person who has been twice convicted in any state or federal court of an offense that c ontains the same elements as an offense now classified in Illinois as a Class X felony, criminal sexual assault, aggravated kidnapping or first de gree murder, and is thereafter convicted of a Class X felony, criminal sexual assault or first degree murder, committed after the 2 prior convictions, shall be adjudged an habitual criminal . [720 Ill Comp Stat 5/33B-1(a) (emphasis added).] The statute also explicitly provides, however, that “[a]ny convictions which result from or are connected with the same transaction, or result from offenses committed at the same time , shall be counted for the pur poses of this Section as one conviction.” 720 Ill Comp Stat 5/33B-1(c) (emphasis added). 21

21 Also compare Mo Rev Stat 558.016(3 ) (“A ‘persistent offender’ is one who has pleaded guilty to or has been found guilty of two or more felonies committed at different times .” (emphasis added); 21 Ok la Stat tit 21, § 51.1(B) (“Felony offenses relied upon shall not have arisen out of the same transaction or occurrence or series of events cl osely related in time and location .” (emphasis added)); 18 USC 924(e)(1) (providing that under wh at was formerly titled the federal Armed Career Criminal Act, “[i]n the case of a person who violates [18 USC 922(g)] and has three p revious convictions by an y court referred to in [18 USC 922(g)(1)] for a viol ent felony or a serious drug offense, or both, committed on occasions different from one another , such person shall be fined under this title and imprisoned not less than fifteen years”) (emphasis added). These statutes exemplify other legisl atures’ use of plain language to establish same-incident tests. We note them in contrast to the text of Michigan’s statutes. We do not “read positive meaning in to Michigan legi slative silence regarding, for instance, a Missouri stat ute,” as Justice Cavanagh suggests. Ante at 9 n 10. Justice Cavanagh has it backward s. The Legislatu re has spoken through its plain language, which we seek to uphol d. It is defendant and our dissenting colleagues who wish to im port a same-incident test where there is none, assuming (continued...)

20For these reasons, we overrule Stoudemire and Preuss. “[S]tare decisis is not to be applied mechanically to fo rever prevent the Cour t from overruling earlier erroneous decisions determining the meaning of statutes.” Robinson v Detroit , 462 Mich 439, 463; 613 NW2d 307 (2000). Rather, if a case was incorrectly decided, we have a duty to reconsider whether it shou ld remain controlling law. Id. at 464. In doing so, we “review whethe r the decision at issu e defies ‘practical workability,’ whether relian ce interests would work an undue h ardship, and whether changes in the law or facts no lo nger justify the ques tioned decision.” Id. These criteria weigh in favor of overruling Stoudemire and Preuss

. Most significantly, the sam e-incident test has not created reliance interests that will be thwart ed by overruling Stoudemire and Preuss; overruling these cases will not cause “significant disl ocations” or frustrate citi zens’ attempts to conform their conduct to the law. See id . at 466-467. “[T]o have reliance the knowledge must be of the sort that causes a person or entity to a ttempt to conform his conduct to a certain norm before the triggering event.” Id. at 467. The nature of a criminal act defies any argument that offenders attempt to co nform their crimes—which by definition violate societal and statutory norms—to a le gal test established by Stoudemire and Preuss. Moreover, to the extent that these cases implicate reliance interests, such interests weigh in favor of overruling them. Mi chigan citizens and

(...continued) that the Legislature’s s ilence in the wake of Stoudemire and Preuss signifies approval of the test those cases added.

21prosecutors should be able to read the clear word s of the statutes and “expect . . . that they will be carried out by all in society, including the courts.” Id. In fact, should a court confou nd those legitimate citizen expectations by misreading or miscons truing a statute, it is that court itself that has disrupted the reliance interest. When that happens, a subsequent court, rather than holding to the distorted reading because of the doctrine of stare decisis, should overrule the earlier court’s misconstruction. [ Id. ] We also note that the factor of p ractical workability bears little on our decision to overrule our prev ious erroneous interpretations of the habitual offender laws. The Legislature’s clear directive to count each felony is no less workable— and indeed is arguably simpler to apply in practice—than the cu rrent, judicially imposed same-incident rule.
IV. RESPONSE TO THE DISSENTS Justice Cavanagh concedes that ou r interpretation “may, arguably, be supported by the language of the habi tual-offender statutes . . . .” Post at 5. But his arguments are rooted in his asser tion that there are “competing, arguably plausible interpretations . . . .” 22 Post at 8-9. He then c oncludes that, because purported competing interpretations are possible, it is appropriate to consult legislative history and apply the rule of lenity. Post at 8-9. To the contrary, as we have explained and as defe ndant essentially concedes, there is nothing textually ambiguous about the Legislature’s directiv e to apply habitual offender sentencing

22 Justice Kelly similarly op ines that “the language of the habitual offender statutes is at least equally supportive of the conclusion th at the statues are inapplicable to multiple convictions arising from the same act.” Post at 7-8.

22laws when “a person has been convicted of any combination of 2 or more felonies or attempts to commit feloni es . . . .” MCL 769.11(1). In his only argument based on the te xt of the statute, Justice Cavanagh asserts that the statute’s use of the ph rase “subsequent felony” indicates that enhancement does not apply to simultaneous criminal acts. Post at 4-5. 23 We agree that, if an offender is convicted and sentenced fo r two simultaneous felonies, neither simultaneous conviction may be used to enhance the se ntence for the other under the habitual offender statutes. But Justice Cava nagh’s extension of this point to imply a same-incident test misi nterprets the statute’s use of the word “subsequent.” “Subsequent” describes the sequential relationship between the sentencing felony and the prior convictions (“If a pers on has been convicted of any combination of . . . felonies or attempts to commit felonies . . . and that person commits a subsequent felony . . . .”). “Subsequent” does not describe a relationship

among the prior convictions. Justice Cavanagh also purports to rely on “this Court’s consistent statements concerning the purpose of the habitual-offen der statutes.” Post at 6. He cites cases from 1929, the 1940s, a nd, most recently, 1970 and 1976. Post at 2, 5 n 6, and 6. Yet, as Justice Cavana gh acknowledges, the Legislature amended the statutes in 1978. 1978 PA 77. He ignores the import of the 1978 revisions, as did the Court in Stoudemire and Preuss . Thus, he urges that “in more than 150 years,

23 Justice Kelly cites Justice Cavanagh on this point. Post at 8 n 24.

23no Michigan court has ever held, until toda y, that convictions for multiple crimes committed in a single criminal transac tion count as separate convictions for habitual-offender purposes.” Post at 11-12, citing People v Palm, 245 Mich 396, 400; 223 NW 67 (1929). Justice Kelly similarly opines that the “1978 amendments did not alter the command that ‘multiple convictions arising out of a single incident may count as only a single prior conviction under the statute . . . .’”
Post at 8. But, instead of ex plaining this conclusory statement, she merely cites
Preuss

. Post at 8. We reject the dissents’ suggestions that this Court should divine legislative intent not from the Legislature’s enactment s, but from precedent of this Court that preexisted those enactments. Indeed, th is Court addressed this very reasoning when we overruled Dedes v Asch, 446 Mich 99; 521 NW2d 488 (1994), in Robinson . We explained: The majority in Dedes interpreted the phrase “the proximate cause” to mean “a proximate cause.” It did this on the basis of an analysis that not to do so wo uld produce a mark ed change in Michigan law, and that the Legislat ure, in its “legislative history,” gave no indication that it unders tood that it was making such a significant change. This approach can best be described as a judicial theory of legislative befuddlement. Stripped to its essence, it is an endeavor by the Court to use the st atute’s “history” to contradict the statute’s clear terms. We believe the Court had no authority to do this. [ Robinson, supra at 459-460.] The Legislature has no duty to satisfy us that its legislative enactment is a “good” one. Legislation must be constitutional; this alone is enough. Once the Legislature has cleared the hur dle of constitutionality, we are to treat its enactment

24as law. When, as here, the text enacted by the Le gislature and signed by the Governor is unambiguous, our duty is to uphold its plain meaning. Both dissents’ analyses would essentia lly require the Legislature to explain to this Court’s satisfaction its reasons for changing the statutory text. The Legislature has no such duty to us and, be cause its text is cl ear, it is irrelevant whether the legislators c oncluded that this Court misinterpreted the pre-1978 statutes in its previous decisions or, in stead, that a new polic y for counting prior felonies was preferable. Significantly, vari ous legislators’ reasons for enacting the text may have differed and ma y have been rooted in e ither of these conclusions. But their agreed-on choice of la nguage is controlling. If th at language is perfectly forthright, our task is simply to implemen t it. We reject the implications of the dissents’ views, which would ultimately require the Legislature, when amending laws, to add redundant explanations for its otherwise plain language such as: “By X, we mean X. We do not mean the Supr eme Court’s previous interpretations of
Y.” We express no opinion regarding the correctness of any court’s interpretations of the pre-1 978 versions of the statut es. Questions concerning earlier versions of the text are not before us . Moreover, to what ever extent courts correctly divined past legislatures’ inte nts using previously enacted language, those intents should not guide our interpretation of the unambiguous language of the current versions of the statutes; the acts of past le gislatures do not bind the power of successive legislatures to en act, amend, or repeal legislation. Studier v

25Michigan Pub School Em ployees’ Retirement Bd, 472 Mich 642, 660; 698 NW2d 350 (2005). In this case, we acknowledge the Legislature’s explicit changes to the statutory language and, in doing so, by no means do we employ “a new view of statutory interpretation,” as Justice Cavanagh contends. Post at 11 n 12. To the contrary, we consider the statute’s plain language, and it is difficult to imagine how the Legislature coul d possibly have written th e statute to more clearly indicate that all prior convic tions count than by stating that “[i]f a person has been convicted of any combination of 2 or more felonies or attempts to commit felonies . . . and that person commits a subsequent fe lony within this stat e, the person shall be punished [as provided in this sec tion].” MCL 769.11(1) (emphasis added). Significantly, Justice Cavanagh’s cent ral contention is that the habitual offender statutes “are plainly intended to ap ply to habitual o ffenders, individuals who persist in criminal activity regard less of their prior convictions.” Post at 1. But the goal of punishin g persistent offenders by no means requires a same

incident test. Rather, the Legislature ap parently and reasonably saw fit to punish an offender who has committed multiple prio r felonies in a harsher manner than an offender who has committed only a single pr ior felony. We see no reason why the Legislature may not punish persistence by discriminating in a graduated fashion among those who have committed a single prior felony, MCL 769.10, those who have committed two prior felonies, MCL 769.11, and those who have committed three or more prior felonies, MCL 769.12, regardless of whether the offender committed the prior felonies on a single oc casion. In sum, Justice Cavanagh’s

26analysis is fundamentally flawed because it offers a judicial construction to deconstruct an unambiguous statute. No thing about the statute’s text renders it susceptible to multiple interpretations and, therefore, judicial “construction” is not even permissible. Further, Justice Cavanagh repeats th e mistakes of the Court in Stoudemire and Preuss by dismissing the 1978 revisi ons of the habitual offender laws and, instead, relying on debatable legislative history and court cases addressing the previous vers ions of the statutes. Finally, Justice Kelly’s exegesis of th e doctrine of stare decisis misses the mark. As we have alr eady discussed, the recent Stoudemire and Preuss decisions are not part of a long line of cases interp reting identical statutory language; rather, Stoudemire and Preuss purported to interpret the post -1978 language. Moreover, the Stoudemire and Preuss decisions are themselves inconsistent precedents. Justice Kelly would maintain Preuss as stare decisis because it is workable, free from absurdity, “not mischievous in practice,” and no changes in the law or facts undermine it. Post at 11. But the same th ings can be said of Stoudemire. Accordingly, the heart of Justice Kelly’s analysis c ontradicts her preference for
Preuss , which itself overruled Stoudemire in part

. Indeed, as we have thoroughly discussed, Preuss exemplifies the need for adhering to plain statutory language instead of upholding precedent merely for p recedent’s sake. The Preuss Court followed Stoudemire in choosing to avoid the plain statutory text. Stoudemire,

supra at 278; Preuss, supra at 720-721. But Preuss then overruled Stoudemire in part after selectively reinterpreting other states’ caselaw, comments by legislators,

27and committee reports addressing the orig inal 1927 Michigan act and the prior New York act. For th ese reasons, upholding Preuss certainly would not serve to “‘avoid an arbitrary discretion in the courts . . . .’” Post at 2, quoting The Federalist No. 78, p 471 (Alexander Ham ilton) (Clinton Rossiter ed, 1961). To the contrary, binding the Court to “strict rules”—such as the tenets of statutory interpretation—avoids arbitrariness. 24 Post at 2. Moreover, as we have explained, there is nothing “destabilizing” about today’s decision under Robinson or otherwise. See post at 1, 3. No undue hardship will result b ecause of reliance on our previous holdings, nor will we frustrate citizens’ attempts to conform their conduct to the law. Robinson, supra at 464, 466-467. In the unlikely event that those who would commit additional felonies in this state laid plans for future crime in reliance on receiving less punishme nt than the plain language of the habitual offender statutes prescribes, Ju stice Kelly correctly assumes that such reliance garners little sympathy in our eyes. Post at 4 n 11.
V. CONCLUSION Michigan’s habitual offender la ws clearly contemplate counting each prior felony conviction separately. The text of those laws does not include a same

incident test. This Cour t erred by judicially engraf ting such a test onto the

24 Concerning Justice Kelly’s criticism s of the majority for its supposed “disregard” for the do ctrine of stare decisis, we reference the concurring statement of Justice Markman in Rowland v Washte naw Co Rd Comm , 477 Mich 197, 223 (2007).

28unambiguous statutory language. Accordingly, we overrule Preuss and Stoudemire. Defendant was properly sentenced as a third o ffense habitual offender because he “ha[d] been convicted of . . . 2 or more felonies . . . and commit[ted] a subsequent felony within this state . . . .” MCL 769.11(1). Because defendant was properly sentenced, resentencing is not required on the ba sis of his claim that he received ineffective assistance of counsel. When an atto rney fails to raise “an objection that would have b een supported by a decision which subsequently was overruled,” a defendant cannot show that he was prejudiced with in the meaning of Strickland

. Lockhart v Fretwell, 506 US 364, 366; 113 S Ct 838; 122 L Ed 2d 180 (1993). Under thes e circumstances, a focus on “mere outcome determination” is insufficient because the resu lt of the proceeding is not fundamentally unfair or unreliable. Id. at 369. “To set aside a convicti on or sentence solely because the outcome would have been different but for counsel’s e rror may grant the defendant a windfall to which the law does not entitle him.” Id. at 369-370, citing United States v Cronic, 466 US 648, 658; 104 S Ct 2 039; 80 L Ed 2d 657 (1984). Accordingly, we affirm defendant’s se ntences. We deny leave to appeal with respect to defendant’s remaining issues because he has failed to meet the burden of establishing entitlement to relief under MCR 6.508(D).
Maura D. Corrigan Clifford W. Taylor Robert P. Young, Jr. Stephen J. Markman

29v S T A T E O F M I C H I G A N SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee,
No. 131942
CAPRESE D. GARDNER, Defendant-Appellant.

WEAVER, J. ( concurring in result only ). I concur with the result of majority opinion that defendant need not be resentenced. In this case, defendant did not suffer any material injustice. Any error in defendant’s sentencing constituted harmless error.

Elizabeth A. Weaverv S T A T E O F M I C H I G A N SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, No. 131942
CAPRESE D. GARDNER, Defendant-Appellant.

CAVANAGH, J. ( dissenting ). This case considers the scope of Mi chigan’s habitual -offender statutes, MCL 769.10, 769.11, 769.12, and 769. 13. Because I believe this Court has, until today, properly understood legislative inte nt and properly applied the habitualoffender statutes to persons who persist in crime after havi ng been convicted, I respectfully dissent. The habitual-offender stat utes, enhancing punish ment for subsequent convictions, are plainly intended to apply to habitual offend ers, individuals who persist in criminal activity regardless of their prior convictions. Defendant was sentenced under MCL 769.11(1) as a third- offense habitual o ffender. Defendant argues, and the prosecution does not contes t, that the two underlying felonies supporting this sentence enhancement arose from the same criminal incident. In fact, there could not be a clearer case of fel onies arising from the same criminal incident; the two prior convictions of possession of a firearm during thecommission of a felony and felonious a ssault arose from th e very same act committed on April 11, 1987. Applying both of these convictions as predicates for a third-offense habitual-offender sentence enhancement would be invalid under People v Preuss , 436 Mich 714; 461 NW2d 703 (1990), People v Stoudemire , 429 Mich 262; 414 NW2d 693 (1987), and the uniform holdings of this Court since the Legislature enacted the habitu al-offender statutes in 1927. 1 Preuss held that, for purposes of the habitual-offender statutes, each of th e predicate felony convictions must “arise from separate criminal incidents.” 2 Preuss, 436 Mich at 717. Preuss affirmed the same holding found not only in Stoudemire , but also in People v Podsiad , 295 Mich 541, 547; 295 NW 257 (1940) (statin g that the habitual -offender statutes are “inapplicable to convictions on different counts growing out of the same act”), and People v Lowenstein , 309 Mich 94, 100-101; 14 NW 2d 794 (1944) (holding that multiple convictions from th e same criminal transaction did not subject the defendant to additional punishment under the habitual-offender statutes). Clearly,

1 The current habitual-offender statutes were enacted as 1927 PA 175. The relevant language was last amended by 1978 PA 77. However, in People v Palm , 245 Mich 396, 400; 223 NW 67 (1929), th is Court observed th at habitual-offender sentence enhancement was not “n ew” in this state; such st atutes have been in force since 1857. This Court has never, until to day, held that such statutes apply to multiple offenses committe d on one occasion.

2 Preuss specifically addressed MCL 769. 12, the habitual-offender statute addressing three or more prio r convictions, but that d ecision applies to all three statutes specifying sentence enhancements in the common scheme of the habitual

offender statutes.

2the present defendant’s two previous fel ony convictions, arising from the same act, do not arise from separate criminal incidents. Under Preuss , defendant would be subject to sentence enhancement as a s econd-offense habitual offender, not as a third-offense habitual offender. The majority overrules Preuss

. Ante at 2. The majority asserts that this Court has failed to understand the language of the habitual-offen der statutes since such statutes were enacted and, thus, in correctly failed to co unt multiple offenses toward habitual-offen der sentence enhancement. I disagree. The language of MCL 769.11(1), and the statutory system of which it is a part, indicates that the Legislature inte nded to require that predicate felonies for habitual-offender sentencing arise from se parate criminal incidents. “It is elementary that statutes in pari materia are to be taken togeth er in ascertaining the intention of the legislature, and that cour ts will regard all stat utes upon the same general subject matter as part of 1 system.” Dearborn Twp Clerk v Jones , 335 Mich 658, 662; 57 NW2d 40 (1953). MCL 769.10 is the first in a series of three statutes in the Code of Criminal Procedu re that together allow enhanced penalties

3on an increasing scale for an offender’s second, 3 third, 4 and fourth 5 offenses. MCL 769.10 states that “[i]f a person has been convicted of a felony . . . and that person commits a subsequent felony,” then that pers on is subject to a second

offense enhancement. (Emphasis added.) MCL 769.11 states th at “[i]f a person has been convicted of any combination of 2 or more felonies . . . and that person commits a subsequent felony,” then that person is subject to what is usually termed a third-offense enhancement. (Emphasis added.) Finally, MCL 769.12 states that “[i]f a person has been conv icted of any combination of 3 or more felonies . . . and that person commits a subsequent felony,” then that person is subject to what is usually termed a fourth-offense enhan cement. (Emphasis added.) This system of gradua ted enhancements for subsequent felonies clearly indicates that the Legislature did not intend habitual-offender sentence

3 Section 10 of chapter IX of the Code of Criminal Pro cedure applies to a second offense and allows a sentence enha ncement of no more than “1-1/2 times the longest term prescribed for a first conviction” of an offense otherwise punishable by less than life imprisonmen t. MCL 769.10(1)(a). See also MCL 777.21(3)(a).

4 Section 11 of chapter IX of the Code of Criminal Pro cedure applies to a third or higher offense and allows a sentence enhancem ent of up to twice the longest term otherwise allowed for an offense punishable by less than life imprisonment. MCL 76 9.11(1)(a). See also MCL 777.21(3)(b).

5 Section 12 of chapter IX of the Code of Criminal Pro cedure applies to a fourth or higher offense and allows a sentence enhancement of up to life imprisonment for offenses oth erwise punishable by impris onment for five years or more. MCL 769.12(1)(a). See also MCL 777.21(3)(c).

4enhancement to apply to simultaneous criminal acts. As this Court long ago recognized, “[i]t is obvious that the [provisions of th e habitual-offender statutes] relate to convictions for subsequent felonies. They apply only to persons who, after having been convicte d of one felony, commit an additional crime, and are inapplicable to convictions on different counts growing out of the same act.” Podsiad , 295 Mich at 546- 547 (emphasis added). 6 In this case, defendant could not have be en sentenced as a second-offense habitual offender when he was first convicted of the two underlying crimes committed at the same time. But now, w ithout intervening co nvictions, defendant has been sentenced as a third-offense ha bitual offender becau se of simultaneous, not subsequent, convictions. The majority interprets the habitual-offender statutes as applying to multiple, simultaneous convictions. While this interpretation may, arguably, be supported by the language of the habitu al-offender statutes, this Court’s longstanding, uniform interpretati on is at least equally supported by the language of the statutes. I find the latt er more convincing in light of the plain language of the habitual-offender stat utes, the overall sentencing system prescribed by the Legislature, and legislative history.

6 The majority disagrees that the g raduated enhancement scheme of the habitual-offender statutes implies that they are “inapplicable to convictions on different counts growing ou t of the same act.” Podsiad , supra at 547. But Podsiad , decided in 1940, demonstrates that this is hardly a novel understanding of the statutory scheme. There has been no change in the statutory language between 1940 and today that affects it s inapplicability to “different counts growing out of the same act.”

5The requirement that predicate fel onies arise from separate criminal incidents is supported by this Court’s consistent statem ents concerning the purpose of the habitual-offender statutes. The st atutes increase punishment because of a person’s “‘apparent persistence in th e commission of crime . . . .’” People v Hendrick , 398 Mich 410, 416; 247 NW2d 840 (1976), quoting People v Palm , 245 Mich 396, 401; 223 NW 67 (1929). “The habitual criminal act was passed to provide a punishment for repeat ed commissions of felonies.” In re Southard , 298 Mich 75, 78; 298 NW 457 (1941). 7 Obviously, persistence and repetition are not apparent when two convictions arise simultaneously from a single act. This Court’s statements on the legi slative intent behi nd the habitual

offender statutes have relied, to one degree or another, on legislative history. The majority denounces legislative history as a means of statutory construction. The majority implies that, by use of legislativ e history, a statute can be made to say whatever its interpreter wishes it to say. Ante at 15-17. If this were so, one imagines the majority coul d marshal evidence from legislative history supporting

7 See also Palm , 245 Mich at 401 (stating that the basis for sustaining the habitual-offender statutes is that “‘the Le gislature may require the courts to take into consideration the persistence of the defendant in his criminal course’”) (citation omitted), Lowenstein, 309 Mich at 100-101 (stating that “the fact that defendant was convicted and sentenced on both counts” does not “result in conviction for two felonies such as to subject the defendant to additional punishment under the hab itual criminal act”), and People v Hatt , 384 Mich 302, 306-307; 181 NW2d 912 (197 0) (stating that the “only purpose of [the habitual

offender statutes] is to impose a longer sentence because of the apparent persistence by the defendant in the commission of acts of a criminal nature”).

6its interpretation of MCL 769.11. The ma jority cannot. Su ch evidence does not exist. The uniform eviden ce from legislative histor y supports the rule of Preuss , that crimes committed in a single criminal incident are counte d as one for the purposes of the habitual-offender statutes. The United States Supreme Court does not share the majority’s dim view of consulting legislative history when th ere are competing, arguably plausible interpretations of a statute. 8 Taylor v United States , 495 US 575; 110 S Ct 2143; 109 L Ed 2d 607 (1990), is the seminal case interpre ting the scope of what was formerly called the Armed Career Criminal s Act (ACCA), specifically 18 USC 924(e), a federal analog of MCL 769. 11 involving firearms offenses. In Taylor , the Supreme Court identified plausible alt ernative interpretations of the scope of certain statutory language in a particular provision of th e ACCA. The Court then stated: “Before examining thes e [plausible, alternative in terpretations], we think it helpful to review the backgr ound of [18 USC 924(e)].” Id. at 581. The Court then

8 See, e.g., Safeco Ins Co of America v Burr , ___ US ___; 127 S Ct 2201; 167 L Ed 2d 1045 (2007) (extensively rev iewing legislative hi story of the Fair Credit Reporting Act); Ledbetter v Goodyear Ti re & Rubber Co, Inc , ___ US ___; 127 S Ct 2162; 167 L Ed 2d 982 (2007) (referring to legisl ative history of title VII of the Civil Rights Act of 1964). In Wilkie v Robbins , ___ US ___, ___; 127 S Ct 2588, 2606 n 12; 168 L Ed 2d 389 (2007), the Court stated that “we know that Congress patterned the [Hobbs] Act after two sources of la w: ‘the Penal Code of New York and the Field Code, a 19th-cen tury model penal code.’” (Citations omitted.) This legislative history regarding the statutory sources offered insight to the Court, just as it did for this Court in Stoudemire (likewise reviewing the background of Michigan ha bitual-offender laws adapte d from the New York penal code).

7conducted a rigorous review of legislative history related to the statutory language in question. Id. at 581-590. I agree with the United States Supreme Court: legislative hi story should not be ignored when it may illuminate a c ourt considering reasonable, alternative interpretations of a statute. Where, as here, legislative history singularly supports one arguably reasonable interp retation of a statute over another, it is a worthy guide to the proper choice between the interpretations. 9 The former interpretation of MCL 769.11, given by th is Court from the enactment of the law in 1927 to today, is reasonable. It is supported by the lang uage of the statute. It is also uniformly supported by legislative history. Further, when there are plausible, co mpeting interpretations of a criminal statute, the rule of lenity should apply. “‘[W]hen there are two rational readings of a criminal statute, one harsher than the other, we are to choo se the harsher only when Congress has spoken in cl ear and definite language.’” Scheidler v Nat’l Org for Women , Inc , 537 US 393, 409; 123 S Ct 1 057; 154 L Ed 2d 991 (2003), quoting McNally v United States, 483 US 350, 35 9-360; 107 S Ct 2875; 97 L Ed 2d 292 (1987). In other words, when there are two pl ausible meanings, the more

9 While legislative history may suppo rt several legislative intentions directed toward those individuals targ eted by the habitual -offender statutes— punishment, removal from so ciety, or rehabilitation—there is no such diversity regarding the identity of the individuals to whom the st atutes are meant to apply. Uniformly, the evident intent is to target habitual o ffenders, those who persist in criminal activity despit e prior convictions.

8lenient should apply when years of a p erson’s life are at stake. The majority isolates a statute outside its clear statutor y scheme to arrive at the harsher result. But even if the majority’s interpretation is plausible, the rule of lenity should apply, and the rule of Preuss , expressing the consistent holdings of this Court, should stand. The majority lists several statutes fro m other jurisdictions as examples of habitual-offender statutes with language clearly requiring that predicate felonies arise from separate criminal episodes. 10 Ante at 19-20 and nn 20-21. Among these is the ACCA, a federal habitual-offender statute, as mentioned. The majority notes that the federal statute contains express la nguage stating that predicate felonies must be “committed on occasions different from one another . . . .” 18 USC 924(e)(1). What the majo rity fails to observe is that at the time the United States Supreme C ourt implied, and the United States Court of Appeals for the Eighth Circuit held , that predicate felonies used under federal habitualoffender statutes must be committed on occasions different from one another, the statute did not expressly say that . Rather, the courts reviewed legislative history

10 The majority asserts that these statut es from other states indicate that the Michigan Legislature “is fully capable of amending its language if it sees fit to do so.” Ante at 19. The majority would read positive meaning into Michigan legislative silence regarding, for instance, a Missouri statut e, but refuses to do so in light of decades of se ttled Michigan law. The Mich igan Legislature may well have remained silent because no Michigan court until today has ever held that multiple convictions arising from the same act count as multiple offenses for purposes of habitual-o ffender enhancement.

9to conclude that this must be the mean ing of the statute. Congress amended the

statute after the courts so held, and, in fact , Congress relied on the court rulings to so amend the statute. 11 The majority repeatedly im plies that changes in the statutory language have altered the habitual-offender statutes to the extent that they now apply to crimes committed during the same criminal t ransaction, but the majority fails to identify the changes in the language that would have had this effect. That is because there are no such changes or langu age. The 1978 statutory revisions relate to the time of conviction; they do not relate to the timing of the commission of the underlying crimes.
In Preuss , we reviewed the 1927 and the 1978 statutory language. We concluded that the language, both before and after amendment, required only that the defendant have been convicted of a felony before commissi on of the crime for which the enhanced sentence wa s being imposed. We revised Stoudemire ’s holding that the sentence fo r a previous crime must ha ve been completed before that crime could be used in counting predicate felony convictions. Thus, analyzing MCL 769.12, we stated that th e statute applies “to defendants who had previously been convicted three times before they committe d their fourth offense,

11 See Petty v United States , 481 US 1034 (1987), United States v Petty , 828 F2d 2 (CA 8, 1987), United States v Petty , 798 F2d 1157 (CA 8, 1986), and 134 Cong Rec S17360, 1 7370 (daily ed Novemb er 10, 1988). For a history of this development, see also United States v McElyea , 158 F3d 1016, 1018-1020 (CA 9, 1998); Stoudemire , 429 Mich at 275-276.

10even if they had not yet been sentenced on any or all of those prior convictions.” Preuss, 436 Mich at 724. Yet we found nothing in the am ended language to compel a change in the longstanding requirement that “multiple convictions arising out of a single incide nt may count as only a single prior conviction under the statute.” Id. at 720. The amended language does not relat e to the timing of the commission of the underlying crimes; it relat es only to the timing of the convictions for them. The majority does no t show precisely ho w the amended language relates to the timing of the commission of previous cri mes. The majority ’s overruling of a century and a half of Michig an jurisprudence is not ba sed on the 1978 revisions. 12 Again, in more than 150 y ears, no Michigan court has ev er held, until today, that

12 It appears that the majority is driven by a new view of statutory interpretation, not by any chan ge in the statute itself. Inasmuch as th e majority’s interpretation of the habitu al-offender statutes is plau sible, it would have been equally plausible under th e 1927 version because neither the former nor the current language expressly addresses th e timing of the u nderlying crime’s commission. Addressing the applica tion of arguably changing methods of interpretation, the United States Supreme Court recently stated: But even were we to posit for ar gument’s sake that changes in interpretive approach take place fro m time to time, we could not agree that the existence of su ch a change would justify reexamination of well-established prior law. Principles of s tare decisis, after all, demand respect for precedent whether judicial methods of interpretation change or stay the same. Were that not so, those principles would fail to achie ve the legal stab ility that they seek and upon which the ru le of law depends. [ CBOCS West, Inc v Humphries , ___ US ___, _ __; 128 S Ct 1951; 170 L Ed 2d 864 (2008).]

11convictions for multiple crime s committed in a single criminal transaction count as separate convictions for hab itual-offender purposes. See Palm , 245 Mich at 400. The majority asserts that its rulin g is “arguably simpler to apply in practice” than the longstanding same-incident rule.” Ante at 22. While it may be true that it is easier to count multiple felonies than to di scern whether prior convictions arose from a single criminal in cident, that does not mean that the Legislature intended the habitual-offender statutes to apply in that manner. Further, the longstanding rule that convictions arising from the same incident be counted as one conviction for habitual-offender purposes has not proved difficult to interpret or particularly sus ceptible to judicial discretion. 13 The rule has been workable since the statutes were enacted. The defendant in this cas e has been sentenced to imprisonment for five years as a second-offense felony-fi rearm offender. MCL 750.227b(1). 14 His

13 I find the majority’s concern reg arding judicial discretion somewhat puzzling because, as the majority observes, th e statutes themselves give courts and prosecutors broad discretion in when and how they apply. Giving notice of the intent to seek a sentence enhancement for a defendant who is an habitual offender is at the discretion of th e prosecutor. See MCL 769. 13(1). Imposing a sentence enhancement is discretionary for the se ntencing court. See MCL 769.10(1)(a) and (b); MCL 769.11(1)(a) and (b); MCL 769.12(1 )(a) and (b).

14 MCL 750.227b(1)states that a person who carries or has in his or her possession a firearm when he or she commits or attempts to co mmit a felony . . . is guilty of a felony, and shall be imprisone d for 2 years. Upon a second conviction under this s ection, the person sha ll be imprisoned for 5 (continued...)

12simultaneous crimes have been counted fo r purposes of extending his sentence. Defendant will spend years, if not a lifetime, in prison. But defendant should be subject to further sentence enhancement as a second-offense, not a third-offense, habitual offender. The habitual-offender statutes apply to subsequent, not simultaneous, felonies. The statutes are in tended to enhance the sentences of persistent criminals, not multiple o ffenders. Defendant’s 25-year minimum sentence is within the recommended mi nimum sentence range for a second

offense habitual offender, but, because the sentencing court incorrectly counted separate convictions arising from the same criminal incident, in fact arising from the same act, resentencing is required. People v Francisco , 474 Mich 82, 89-91; 711 NW2d 44 (2006). I would not overrule Preuss and the uniform holdings of this Court that Preuss represents. I would remand this case to the sentencing court for it to impose a sentence on defendant as a second-offense habitual offender.

Michael F. Cavanagh Marilyn Kelly

(...continued) years. Upon a third or subsequent conviction under this subsection, the person shall be imprisoned for 10 years.

13v S T A T E O F M I C H I G A N SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee,
No. 131942
CAPRESE D. GARDNER, Defendant-Appellant.

KELLY, J. ( dissenting ). This is another case in which the majo rity disregards the doctrine of stare decisis. I join Justice Cavanagh’s well -reasoned dissent. I write separately to strongly disapprove of the majority’s effort s to overturn all cas elaw with which it disagrees, however destabilizing the effect may be. This is not a new area of contention among us. I have previously argued that the majority’s willingness to overrule precedent weak ens our legal system at its foundation. 1 Because of the importance of the issue, it w arrants continuing attention. 2 I agree with Justi ce Cavanagh that People v Preuss and its antecedents correctly held that “multiple convictions arising out of a single incident may count

1 See, e.g., Rowland v Washte naw Co Rd Comm , 477 Mich 197, 253-257; 731 NW2d 41 (2007) (Kelly, J., concurring in part and dissenting in part). 2 See Welch v Texas Dep’t of Hwys & Pub Transportation , 483 US 468, 494; 107 S Ct 2941; 97 L Ed 2d 389 (1987) (opinion of Powell, J.) (“[T]he doctrine of stare decisis is of fundamental importance to the rule of law.”).as only a single prior conviction under the statute . . . .” 3 Obviously, I would not overrule that line of decisions. Yet, as ide from this basic disagreement, I am concerned that the majo rity’s approach to the doctrine of stare d ecicis tends to turn it on its ear. The majority correctly obs erves that stare deci sis should not be mechanically applied to prev ent the overruling of previous caselaw. Then it errs by moving in the opposite direction. In contravention of the purpose of the doctrine, it mechanically applies stare d ecisis to permit th e overruling of every case it believes was incorrectly decided. Stare decisis is short for stare decisis et non quieta movere , which means “stand by the thing decided and do not disturb the calm.” It has been a part of American jurisprudence sin ce the country was founded. 4 Alexander Hamilton wrote that to “avoid an arbitrary discretion in the courts, it is indispensable that they should be boun d down by strict rules and p recedents which serve to define and point out their duty in every partic ular case that comes before them . . . .” 5 Early in the twentieth centu ry, Justice (then-Judge) Car dozo wrote that the “labor of judges would be increased almost to the breaking po int if every past decision

3 People v Preuss , 436 Mich 714, 720; 461 NW2d 703 (1990). 4 The doctrine can be traced back to medieval England. Healy, Stare decisis as a constitu tional requirement , 104 W Va L R 43, 56-62 (2001). It assumed its modern form in the late eighteenth and earl y nineteenth centuries. Id. at 55. 5 The Federalist No. 78, p 471 (Alexa nder Hamilton) (Clinton Rossiter ed, 1961).

2could be reopened in every case, and one could not lay one’s ow n course of bricks on the secure foundation of the courses la id by others who had gone before him.” 6 The present majority on this Court has adopted what are commonly known as the “ Robinson factors” to discern whether precedent should be overruled. 7 “In determining whether to overrule a prior case, this Court first considers whether the earlier case was wrongly decided.” 8 But that is only the fi rst step that must be taken. The Court must then examine (1 ) whether the decisi on remains workable, (2) the degree of reliance on the decision, and (3) whet her changes in the law or facts have undermined the basis of the decision. 9 While this analysis appears straightforward, applying it can be difficult. First, as demonstrated by the instant case, the justices of this Court often disagree about whether a previous decision was incorrectly decide d. Yet, in this Court’s post- Robinson cases, if a majority conclude s that the previous decision was wrong, it will lik ely be overruled. 10 The remainder of the Robinson analysis

6 Benjamin N. Cardozo, The Nature of the Judicial Process (New Haven: Yale University Pre ss, 1921), p 149. 7 Robinson v Detroit , 462 Mich 439; 613 NW2d 307 (2000). 8 Rowland , 477 Mich at 214, citing Robinson , 462 Mich at 463-468. 9 Robinson , 462 Mich at 464. 10 See, e.g., Rowland , 477 Mich at 215 n 13 (stating that the Robinson factors did not counsel against overruling precedent); Paige v Sterling Hts , 476 Mich 495, 512 n 21; 720 NW2d 219 (2006) (stating that “the only instances in which we might decline to overrule [erroneous preced ent]” is when doing so would produce chaos) (emphasis added); People v Nutt , 469 Mich 565, 591; 677 NW2d 1 (2004) (concluding that the Court is compelled to overrule erroneous (continued...)

3appears to be gratuitous. For instance, in the area of criminal law, the majority has held that reliance interests simply are not implicated. 11 In addition, the majority often merges the reliance prong with th e initial determinati on of whether the precedent was correctly decided. This last poi nt effectively eviscerates the reliance prong of the Robinson analysis, because a “wro ng” decision supposedly can never generate reliance. 12 The predictable result of the majority’s current approach is that, once a party meets its in itial burden of demonstrating that a prior decision was wrong, the precedent is overturned. This result flies in the face of the doct rine of stare decisis. Key to the doctrine is the concept that some precedent should be upheld notwithstanding its

(...continued) precedent); People v Hickman , 470 Mich 602, 610 n 6; 684 NW2d 267 (2004) (noting that no special justification is necessary to overrule erroneous precedent); People v Petit , 466 Mich 624, 633-634; 648 NW2d 193 (2002) (stating that courts should overturn erroneous decisions). 11 Ante at 21; see also People v Kazmierczak , 461 Mich 411, 425; 605 NW2d 667 (2000) (implying that reliance is not worthy of “sympathy” in the criminal context). The majority fails to recognize that criminals are not the only people who rely on criminal statutes. Fo r instance, legislators appropriate funds for the Department of Corrections on the basis of predictions of how many individuals will be incarcerated. The majority’s new interp retation of the habitual offender statutes could render previous calculations inaccurate and appropriations insufficient because crimina ls will now be subject to lengthier prison terms. 12 See Pohutski v City of Allen Park , 465 Mich 675, 694; 641 NW2d 219 (2002), quoting Robinson , 462 Mich at 467 (‘“[S]hould a court confound . . . legitimate citizen expectations by misreading or misconstrui ng a statute, it is that court itself that has disrupted the relia nce interest. When that happens, a subsequent court, rather th an holding to the distor ted reading because of the doctrine of stare decisis, should overrule the earlier court’s misconstruction.”’).

4flaws. 13 As stated by Justice Brandeis: “ Stare decisis is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than that it be settled right.” 14 Relying on caselaw fro m the United States Supreme Court, many commentators suggest that there exists a hierarchy of precedents. Under this hierarchy, stare decisis applies differen tly to different areas of the law. 15 The

13 See Hubbard v United States , 514 US 695, 716; 11 5 S Ct 1754; 131 L Ed 2d 779 (1995) (Scalia, J., conc urring in part) (stating that the decision to overrule must be supported by “reasons that go beyond mere demonstration that the overruled opinion was wrong [otherwise the doctrine would be no doctrine at all]”); Allied-Bruce Terminix Cos, Inc v Dobson , 513 US 265, 283-284; 115 S Ct 834; 130 L Ed 2d 753 (1995 ) (O’Connor, J., concurring) (reiterating her view that the majority had been wrong in deciding the same issue in a previous case but joining the majority in this case because there was no special justification to overrule it); Mathews v United States , 485 US 58, 66-67; 10 8 S Ct 883; 99 L Ed 2d 54 (1988) (Brennan, J ., concurring) (“I write sep arately only because I have previously joined or writte n four opinions dissenting from this Court’s holdings that the defendant’s predispos ition is relevant to the ent rapment defense. . . . Were I judging on a clean slate, I would still be inclined to adopt the view that the entrapment defense should focus exclusivel y on the Government’s conduct. But I am not writing on a clean sl ate; the Court has spoken d efinitively on this point. Therefore, I bow to stare decisis . . . .”); Scott v Illinois , 440 US 367, 374-375; 99 S Ct 1158; 59 L Ed 2d 383 (1979) (P owell, J., concurring) (“Despite my continuing reservations about the Argersinger rule, it was approved by the Court in the 1972 opin ion and four justices have reaffirmed it today. It is important that this Court provide clear guida nce to the hundreds of cour ts across the co untry that confront this problem daily. Accordingly, and mindful of stare decisis , I join the opinion of the Court.”). 14 Burnet v Coronad o Oil & Gas Co , 285 US 393, 406; 52 S Ct 443; 76 L Ed 815 (1932) (Brandeis, J., dissenting). 15 See, e.g., Sinclair, Precedent, super-precedent , 14 Geo Mason L R 363, 368-370 (2007); Sellers, The doctrine of precedent in the United States of America , 54 Am J Comp L 67, 68-69, 84-85 (Supp, 2006); Eskridge, Overruling (continued...)

5hierarchy approach gives the greatest weight to statutory precedents. 16 It states that caselaw interpreting statutes should rarely be overturned because the Legislature is the appropriate branch of government to correct an erroneous interpretation. 17 Even if one rejects the hierarchy a pproach, the overruling of precedent requires some special justification. 18 The current majority of the Michigan Supreme Court, however, has ignored this broadly acknow ledged requirement. 19
While Robinson borrowed its analysis direc tly from federal law, it failed to incorporate the special-justification requi rement that permeates that body of law. 20

(...continued) statutory precedents , 76 Geo L J 1361, 1362 -1363 (1988); Barrett, Statutory stare decisis in the courts of appeals , 73 Geo Wash L R 317 (2005). 16 Neal v United States , 516 US 284, 295; 116 S Ct 763; 133 L Ed 2d 709 (1996); Patterson v McLean Credit Union , 491 US 164, 172-173; 109 S Ct 2363; 105 L Ed 2d 132 (1989); Illinois Brick Co v Illinois , 431 US 720, 736; 97 S Ct 2061; 52 L Ed 2d 707 (1977); see also Fisher, Statutory construc tion: Keeping a respectful eye on Congress , 53 SMU L R 49, 51-52 (200 0); Barret, 73 Geo Wash L R at 320-321 (2005). 17 As stated by the United States Supreme Court: “Considerations of stare decisis have special force in the area of statut ory interpretation, for here, unlike in the context of constitutional interpretation, the legislative power is implicated, and Congress remains free to alte r what we have done.” Patterson , 491 US at 172

- 173. 18 Id .; Arizona v Rumsey , 467 US 203, 212; 104 S Ct 2305; 81 L Ed 2d 164 (1984); People v Hickman , 470 Mich 602, 617 n 6; 684 NW2d 267 (2004) (Kelly, J., dissenting); see also Note, The unworkable unworkability test , 80 NYU L R 1665, 1669-1670 (2005). 19 See Hickman , 470 Mich at 617 n 6 (Kelly, J., dissenting). 20 Robinson , 462 Mich at 463-464.

6“The most significant aspect of this ‘sp ecial justification’ approach is that it requires more than a conviction that the challenged precedent was wrongly decided.” 21 Requiring a special justification also promotes pred ictability in the Court’s application of stare decisis by making it more difficult to apply the doctrine selectively. In the instant case, the majority overrules longstand ing caselaw interpreting a statute without any special justification. The majority simply concludes that the earlier caselaw was incorrectly decided, an d, because the caselaw interpreted a criminal statute, no reliance interests are implicated. According to the majority, the habitual offender statutes clearly apply to multiple offenses committed on one occasion. As Justice Cavana gh explains, this contradic ts more than 150 years of precedent. 22 The majority claims that it relies on the 1978 amendment of the habitual offender statutes. It refuses to comme nt on “the correctness of any court’s interpretations of the pre-197 8 versions of the statutes.” 23 Willful ignorance of prior caselaw does not make it disappear. Contrary to the majority’s assertion, the post-1978 language of the habitual offender statutes does not clearly apply to multiple offenses committed on one occasion. Rather, the language of the habitual offender statutes is at least equally suppor tive of the conclusion that the statutes

21 Note, 80 NYU L R at 1670 (2005). 22 Ante at 2 n 1, 11-12. 23 Ante at 24.

7are inapplicable to multiple convictions arising from the sa me act. This is because they set out a “system of graduated enhancements for subsequent felonies . . . .” 24 Accordingly, the 1978 amendments did not alter the command that “multiple convictions arising out of a si ngle incident may co unt as only a single prior conviction under the statute . . . .” 25 Because the amended statutory language does not compel the result reac hed by the majority, it is appropriate to consider this Court’s understanding of the preamen dment statutory language. This long history should not be ignor ed simply because it does not suit the majority’s analysis. Nor is it illogical or in consistent to stand by Preuss even though Preuss itself rejected, in part, People v Stoudemire

. 26 Preuss held, contrary to some of the reasoning articulated in Stoudemire , that the habitual o ffender statutes did not require that a prior conviction be sep arated by intervening convictions or

sentences. 27 However, Preuss specifically maintained Stoudemire ’s holding that a defendant’s prior offenses must arise from separate incidents. 28 Thus, Preuss and Stoudemire are controlling precedent on the point in issue. 29

24 Ante at 4. 25 Preuss , 436 Mich at 720. 26 People v Stoudemire , 429 Mich 262; 414 NW2d 693 (1987). 27 Pruess , 436 Mich at 738-739. 28 Id. at 436 Mich 737. 29 Whether Preuss correctly rejected Stoudemire ’s reasoning concerning the timing of the convictions is not at issue here.

8The majority asserts that binding courts to a strict -constructionist view of statutory interpretation ensures that cour ts are not arbitrary in their decision

making. The majority’s deci sion in this case belies th at claim. The statutory language at issue does not necessarily lead to the conclusi on reached by the majority. Nonetheless, the majority is willing to change a longst anding rule of law that conflicts with its interpretation. Frequently, fair-minded people will disagree about what the language of a statute re quires. Just because a majority of the justices on this Court procla ims a statute free from ambiguity does not make it so. This is precisely why it is so important that something more th an a notion that an earlier case was incorrectly decided should be required b efore precedent is overruled. Stare decisis is not an ironclad mandate . Because justices sometimes err, it is appropriate for us to reconsider earlier decisions. 30 When we do so, however, stare decisis requires that we give thos e decisions thoughtful and thorough consideration before tossing th em aside. Our decision about wheth er an earlier case must be overruled should be guided by more than a notion that the case was incorrectly decided. 31

30 See Sington v Chrysler Corp , 467 Mich 144, 184; 648 NW2d 624 (2002) (Kelly, J., dissenting). 31 The majority relies on Justice Markman’s concurring statement in Rowland to counter my argument that it t oo freely overturns precedent with which it disagrees. Justice Markman’s primary assertion in Rowland was that our disagreement is less about our esteem fo r precedent than about the merits of the (continued...)

9In the matter before us, I would uphold Preuss, because it was correctly decided. Moreover, the do ctrine of stare decisis dictates that it be upheld. Preuss remains workable, and no changes in th e law or facts have undermined it. No special circumstances exist indicating th at it should be ov erruled. Because Preuss interpreted statutory law, the Court should be especially hesitant to overrule it. If
(...continued) opinions being overruled. Rowland, 477 Mich at 224. He then cited opinions in which I agreed with the preced ent that the majo rity overruled. As I stated in Rowland , “[t]his amounts to little more than a circumstantial ad hominem logical fallacy.” Id . at 257 n 12 (Kelly, J., dissenting). Whether I will support p recedents with which I di sagree is a question not often brought to light but one I regularly confront. In recent years, I have frequently disagreed with th e majority on the merits and resolution of issues presented to us. Once I have been outv oted and dissent, I face whether to reiterate my dissent in future cases raising the same issues. Of ten, I accede to the opinion of the majority. For instance, I recen tly joined the majority opinion in State News v Michigan State Univ , __ Mich __; __ NW2d __ (Docket No. 133682, decided July 16, 2008), even though it cited Michigan Federation of Teachers v Univ of Michigan , __ Mich __; __ NW2d __ (Docket No. 133819, decided Ju ly 16, 2008), in which I dissented. Also, in the past 10 years, I have voted to deny leave in cases too numerous to list based on deci sions reached by the ma jority, despite my disagreement with those deci sions. This further indi cates my frequent willingness to abide by and mainta in precedents with wh ich I disagree. Contrary to Justice Markman’s belief, our respective records demonstrate that our disagreements stem frequently not sole ly from our view of the merits of issues but from our differing est eem for stare decisis. See Rowland , 477 Mich at 257 n 12 (Kelly, J., dissenti ng), citing Todd C. Berg, Esq., Overruling Precedent and the MSC, The Justices’ Scorecard , Michigan La wyers Weekly, <http://www.michiganlawyers weekly.com/subscriber/ archives_FTS.cfm?page=MI /06/B060691.htm&recID=3 89963&QueryText=overru ling%20and%20precedent %20and%20msc> (accessed December 22, 2006). The majority’s reference to Justice Markman’s accusations in Rowland concerning my record and views should be seen for what it is , a red herring, a distraction from the main poin t: the majority is choosing to overrule longstanding precedent in this case, as in so many before it, for wh olly inadequate reasons.

10Preuss misinterpreted legislative intent, th e Legislature can am end the habitual offender statutes to permit their application to multiple offenses committed on one occasion. 32 Preuss is free from absurdity, not mischievous in practice, and is consistent with other adju dications of this Court. 33 For these reasons, as well as those articulated by Justice Cavanagh, I dissent.

Marilyn Kelly

32 For the reasons stated by Justice Cava nagh, I disagree with the majority’s conclusion that the Legislature has amended the statutes to permit their application to multiple offenses committ ed on one occasion. Ante at 10-11. 33 Rowland , 477 Mich at 255 n 8 (Kelly , J., concurring in part and dissenting in part).

11