Michigan Supreme Court 

Lansing, Michigan 

Chief Justice: Justices: 

Clifford W. Taylor Michael F. Cavanagh 

Elizabeth A. Weaver Opinion Marilyn Kelly 

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 penalties 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. Therefore, multiple 

felonies that arise from the same criminal incident 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. Therefore, we overrule these cases. The 

unambiguous statutory language directs courts to count each separate felony 

conviction that preceded 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, Caprese D. Gardner, of second-degree 

murder, MCL 750.317, being a felon in possession of a firearm (felon in 

possession), MCL 750.224f, and possessing a firearm during the commission of a 

felony (felony-firearm), MCL 750.227b. The facts underlying his convictions do 

not bear on the current question before this Court. On August 30, 2001, the circuit 

court sentenced defendant as a third offense 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, defendant challenged several of 

the circuit court’s evidentiary rulings, but did not raise the present issue. The 

2
 
 

 

Court of Appeals affirmed his convictions and sentences.1 This Court denied 

defendant’s subsequent application for leave to appeal.2 

In 2004, defendant sought relief from judgment under MCR 6.501 et seq. 

He argued that his appointed trial and appellate attorneys had provided 

constitutionally ineffective representation because they failed to investigate and 

challenge the two prior convictions underlying 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 February 25, 1988, arose from the same 

criminal act. Accordingly, he asserted that the two convictions should have been 

counted as a single prior felony 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 would have been exposed to potentially shorter prison terms 

for his murder and felon in possession convictions. He also argued that he had 

good cause for belatedly raising this issue in a motion for relief from judgment 

under MCR 6.508(D)(3)(a) because his appellate attorney was constitutionally 

ineffective for failing to recognize and raise the issue in defendant’s prior appeal. 

1 People v Gardner, unpublished opinion per curiam of the Court of 

Appeals, issued April 13, 2003 (Docket No. 238186). 

2

 469 Mich 975 (2003). 

3
 
 

 

 

The circuit court denied defendant’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 defendant’s application for leave to appeal “for failure to 

meet the burden of establishing entitlement to relief under MCR 6.508(D).”3 

Defendant then applied for leave to appeal in this Court. We heard oral 

argument on whether to grant his application or take other peremptory action. We 

directed the parties to address whether Preuss and Stoudemire “correctly held that 

multiple convictions arising out of a single 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 Michigan’s habitual offender 

statutes. This Court reviews de novo questions of statutory interpretation. People 

v Buehler, 477 Mich 18, 23; 727 NW2d 127 (2007). We also review de novo the 

ultimate constitutional question whether an attorney’s ineffective assistance 

deprived a defendant of his Sixth Amendment5

 right to counsel. People v 

LeBlanc, 465 Mich 575, 579; 640 NW2d 246 (2002). 

3 People v Gardner, unpublished order of the Court of Appeals, entered 

July 10, 2006 (Docket No. 267317). 

4

 477 Mich 1096 (2007). 

5

 US Const, Am VI. 

4
 
 

 

 

III. ANALYSIS 

Defendant was sentenced as a third offense habitual offender under MCL 

769.11, which reads, in pertinent part: 

If a person has been convicted of any combination of 2 or 

more felonies or attempts to commit felonies, whether the 

convictions occurred in this 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 conviction 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 statute6

 since 

1978.7

 In 1987 and 1990, respectively, the Stoudemire and Preuss courts 

concluded that these statutes imply a same-incident or single-transaction method 

of counting prior felonies for purposes of sentencing enhancement. Accordingly, 

each predicate felony must “arise from separate criminal incidents.” Preuss, supra 

at 717. 

Habitual offender status may increase a defendant’s minimum and 

maximum sentences.8

 The sentencing judge generally 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 indeterminate sentencing scheme. For most 

crimes, courts impose both a minimum and a maximum sentence. The maximum 

sentence is set by statute on the basis of the sentencing offense. The 

recommended minimum sentence range is set by statutory guidelines that take into 

account the circumstances of the particular offense and offender. MCL 769.8; 

MCL 769.34; People v Harper, 479 Mich 599, 612-613; 739 NW2d 523 (2007). 

5
 
 

repeat offender’s maximum sentence.9

 The high end of the statutory 

recommended minimum sentence range under the sentencing guidelines (the 

maximum minimum) also increases on the basis of the number of prior 

convictions. Second offense, third offense and fourth offense10 habitual offenders 

face increases in their maximum minimums of 25 percent, 50 percent and 100 

percent, respectively. MCL 777.21(3)(a) through (c). 

Here, defendant would have been subject to a maximum penalty of life in 

prison for his second-degree murder conviction 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 enhanced 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 769.11(1); MCL 769.12(1). 

10 MCL 769.12(1) establishes enhanced maximum sentences for offenders 

with three or more prior felony convictions. For ease of reference, we call these 

offenders “fourth offense habitual offenders.” 

6
 
 

 

range would have been 180 to 375 months (a maximum minimum of 300 months 

increased by 25 percent). Although his 300-month (25-year) minimum sentence 

falls within the minimum sentence ranges for both second and third offense 

habitual offenders, as well as the enhanced range, defendant correctly argues that, 

if the circuit court relied on an inaccurate 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 defendant’s claim that his two prior 

felony convictions of felonious assault and felony-firearm arose from the same 

criminal incident. The prosecution 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 constitutionally ineffective assistance of his appointed trial and 

appellate attorneys.11 The prosecution argues, however, that Stoudemire and 

11 Defendant’s appointed attorneys did not 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 his argument in connection with a claim 

that he was denied his Sixth Amendment right to effective assistance of counsel. 

Francisco, supra at 90 n 8. An attorney is ineffective for Sixth Amendment 

purposes if his performance fell below an objective standard 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 deficient performance has Sixth Amendment significance. 

Glover v United States, 531 US 198, 203; 121 S Ct 696; 148 L Ed 2d 604 (2001). 

Although we accord substantial deference to an attorney’s strategic judgments, we 

can identify no strategic reason for the failure of defendants’ attorneys here to 

(continued...) 

7
 
 

 

Preuss were incorrectly decided and that defendant was properly sentenced as a 

third offense habitual offender 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 legislative intent is the statute’s language. “If the statute's 

language is clear and unambiguous, we assume that the Legislature 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 construction is not required or permitted.12 Id. 

(...continued) 

raise such an obvious point of error that increased the 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 also properly alleged good cause and 

actual prejudice, as is necessary to seek relief in a motion for relief from judgment. 

MCR 6.508(D)(3). A defendant may establish good cause for not raising an 

argument for relief sooner by showing that his appellate 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 counsel’s failure to “assert all arguable claims” 

or decision to “winnow out weaker arguments and focus on those more likely to 

prevail is not evidence 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 guaranteed resentencing under Francisco. Because the nature and 

strength of the argument are obvious, the omission is not evidence of a reasonable 

professional decision to winnow out weaker arguments. 

12“[O]nly a few provisions are truly ambiguous and . . . a diligent 

application of the rules of interpretation will normally yield a ‘better,’ albeit 

perhaps imperfect, interpretation 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 regarding” the meaning of the provision. 

(continued...) 

8
 
 

 

Here, the relevant language states 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 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 separate 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 the 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 regarding 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 susceptible 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 vigorously 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 recognized 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 part and dissenting in part). 

9
 
In 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 175, was borrowed almost 

wholesale from New York’s habitual offender statutes. Stoudemire, supra at 267. 

Accordingly, the Court referred to the remarks of the New York statutes’ author, 

New York State Senator Caleb Baumes, who opined that the statutes were aimed 

at protecting the public from 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 (1927) (emphasis added 

in Stoudemire). The Court concluded that New York courts had interpreted the 

New York statutes in keeping with Baumes’s intent by establishing “that multiple 

convictions on the same day constitute only one ‘conviction’ for 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 superseded when the New York Legislature amended the 

statutes. Stoudemire, supra at 269 n 14. 

10
 
The Stoudemire Court concluded: 

By borrowing New York’s statute in its entirety, the 

Legislature indicated that it was motivated by the same 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 subsequently committed another felony for 

which he was also convicted and sentenced, 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 jurisdictions—that had adopted methods for 

counting felonies based on whether the offenses grew out of the same occurrence, 

were committed on the same day, or were charged in the same indictment. Id. at 

272-276. In accord, the Court held, consistently “with the legislative purpose 

underlying the habitual offender statute, that multiple convictions arising out of a 

single incident may count as only a single 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 should focus on legislative intent 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 Legislature’s 1978 revisions of the text in 1978 PA 77. Before 

1978, the relevant portion of MCL 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 state, 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 after having been 3 times convicted . . . .’” Stoudemire, 

supra at 278. But the Court dismissed this significant change, concluding that 

“when considered in the context 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 “be separated by intervening 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 those convictions, or the offenses upon 

which those convictions and sentences are based, occur in any 

14 The change was consistent throughout the habitual offender laws. For 

instance, before 1978, MCL 769.12 similarly 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 assertions that “[t]here has been no 

change in the statutory language between 1940 and today that affects its 

inapplicability to ‘different 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. 

12
 
particular 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 arise 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 York decision that held that a 

fourth offender’s second and third offenses must each follow conviction and 

sentence on the earlier offense.” Id. at 727. Further, the Preuss Court opined that 

Senator Baumes’s comments did not establish his intent “on the issue of the 

sequentiality of prior convictions.” Id. at 729. Perhaps most significantly, the 

Preuss Court observed that, to the 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 the unambiguous statutory 

language—“If a person has been convicted of any combination of 3 or more 

felonies or attempts to commit felonies . . . and that person commits a subsequent 

felony”—refers only to the number of prior felony convictions and “implies that 

no particular sequence for the first three offenses or convictions was intended.” 

13
 
 

 

Id. at 720-721, 730. Nonetheless, the Court 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 apparent purpose of the act, or if necessary 

to correct an absurd and 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 sequentiality requirement for predicate 

offenses would contradict 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 longstanding requirement that 

‘multiple convictions arising out of a single 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 offenses or convictions was intended.” 

Preuss, supra at 721. But in each case, the Court avoided the 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 such a rule of interpretation, the result 

reached here is by no means absurd. A reasonable lawmaker could easily have 

intended the result reached here. That is, such a lawmaker could easily have 

intended that courts count each separate felony conviction in determining 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. 

14
 
 

 

but its opinion highlights the problems inherent in such attempts by offering a 

different judicial construction of the inconclusive “history” of the very same 

enactments.17 Further, Preuss failed to grapple at all with the import of the 1978 

revisions, relying instead—just as the Court had in Stoudemire—on its 

impressions of the Legislature’s intent when adopting the original 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 conclusion, 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 Michigan, Report of the Commission of 

Inquiry Into Criminal Procedure (February 8, 1927). The Court noted the 

commission’s desire to improve former repeat-offender statutes that imposed 

escalating punishments on the basis of preceding punishments. Preuss, supra at 

722-723. The Court concluded that the commission’s goals were to “make it 

tougher for criminals to avoid apprehension, conviction, and adequate 

punishment,” to “apply [habitual offender enhancements] to a broader class of 

criminals than they would have applied to had the prior language about prior 

sentence been retained,” and to “punish[] repeat offenders harshly.” Id. at 724. 

Significantly, the Court acknowledged that the report “does not contain any 

express statement concerning the commission’s intent regarding whether a 

defendant’s prior convictions, offenses, or sentences must occur in any particular 

sequence in order for him to be subject 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 convicted 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 Court cited the report, among other 

authorities, as evidence that the Legislature intended a same-incident test. Id. at 

738. 

15
 
 

A common-sense interpretation of these phrases is that the 

Legislature did not have in mind the person who had only one 

criminal episode in which he managed to commit several different 

crimes. Instead, “repeat” suggests 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 interpretation of the statute which would 

allow a court to impose fourth-offender penalties on a defendant 

whose three prior convictions arose out of the same criminal 

incident. [Id.] 

We reject the approaches of both Stoudemire and Preuss, which run counter 

to principles of statutory construction. Indeed, in criticizing Stoudemire, the 

Preuss Court reinterpreted the very history on which Stoudemire relied and 

reached a different result. Thus, these two opinions exemplify the problems 

inherent in preferring judicial interpretation of legislative history to a plain reading 

of the unambiguous text. As we have stated, construing an unambiguous statute 

by relying on legislative history “‘[a]t the very most . . . allows the 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 States Supreme Court Justice Antonin 

Scalia, 

[c]ommittee reports, floor speeches, and even colloquies between 

Congressmen . . . are frail substitutes for bicameral vote upon the 

text of a law and its presentment to the President . . . . It is at best 

dangerous to assume that all the necessary participants in the law-

(continued...) 

16
 
 

Certified Question, 468 Mich 109, 115 n 5; 659 NW2d 597 (2003). Some 

historical facts may allow courts to draw reasonable inferences about the 

Legislature’s intent because the facts shed light on the 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 helpful to compare multiple 

drafts debated by the Legislature before settling on the language actually enacted. 

Other facts, however, such as staff analyses of legislation, are significantly less 

useful because they do not necessarily 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 essentially 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 suggests that the Legislature has acquiesced to the 

interpretations of the statutes 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 policies 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).] 

17
 
 

 

acquiescence is an exceedingly poor indicator 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 failure 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 Legislature even agrees 

it has a duty to correct interpretations by the courts that it considers erroneous.’” 

Donajkowski, supra at 260, quoting Rogers, supra at 164-165 (Taylor, J., 

dissenting). Indeed, as Justice 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 pernicious 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 have us engage in a guessing game regarding the 

meaning of legislative silence. For instance, Justice Cavanagh notes that, before 

Congress amended 18 USC 924(e)(1) to explicitly include a same-incident test, 

(continued...) 

18
 
 

When the Legislature’s language is clear, 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 throughout the country have enacted habitual 

offender statutes that explicitly include same-incident methods for counting prior 

felonies. Arizona’s habitual offender laws, for instance, 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 serious felony who previously has been convicted of a 

serious felony . . . shall receive . . . a five-year enhancement for each such prior 

conviction on charges brought and 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 such a test onto the statute. Post at 9-10. But 

we rarely know whether a legislature’s intent in amending a statute reflects the 

intent it originally had when it enacted the statute. Indeed, when a conforming 

amendment occurs in the wake of a judicial decision, for all we know, the judicial 

decision may have sparked debate because some legislators perceived the decision 

as error, but the legislature may ultimately have concluded that the incorrect 

interpretation nonetheless reflected the better current policy. For these reasons, 

we decline to second-guess the Legislature when it has spoken unambiguously. It 

is not this Court’s role to correct judicially 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 Stat Ann 13-604(S) (“A person who . . . stands 

convicted of a serious offense . . . , whether a completed or preparatory offense, 

and who has previously been convicted of two or more serious offenses not 

committed on the same occasion shall be sentenced to life imprisonment . . . .”) 

(emphasis added). 

19
 
 

comparison because the definition 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 contains the same elements as an 

offense now classified in Illinois as a Class X felony, criminal sexual 

assault, aggravated kidnapping or first degree 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 purposes 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 Okla 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 closely related in time and location.” (emphasis 

added)); 18 USC 924(e)(1) (providing that under what 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 previous convictions by any court referred to in [18 

USC 922(g)(1)] for a violent 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 legislatures’ 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 into Michigan legislative silence 

regarding, for instance, a Missouri statute,” as Justice Cavanagh suggests. Ante at 

9 n 10. Justice Cavanagh has it backwards. The Legislature has spoken through 

its plain language, which we seek to uphold. It is defendant and our dissenting 

colleagues who wish to import a same-incident test where there is none, assuming 

(continued...) 

20
 
 

For these reasons, we overrule Stoudemire and Preuss. “[S]tare decisis is 

not to be applied mechanically to forever prevent the Court 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 should remain controlling law. 

Id. at 464. In doing so, we “review whether the decision at issue defies ‘practical 

workability,’ whether reliance interests would work an undue hardship, and 

whether changes in the law or facts no longer justify the questioned decision.” Id. 

These criteria weigh in favor of overruling Stoudemire and Preuss. 

Most significantly, the same-incident test has not created reliance interests 

that will be thwarted by overruling Stoudemire and Preuss; overruling these cases 

will not cause “significant dislocations” or frustrate citizens’ 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 attempt 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 conform their crimes—which by 

definition violate societal and statutory norms—to a legal test established by 

Stoudemire and Preuss. Moreover, to the extent that these cases implicate reliance 

interests, such interests weigh in favor of overruling them. Michigan citizens and 

(...continued) 

that the Legislature’s silence in the wake of Stoudemire and Preuss signifies 

approval of the test those cases added. 

21
 
 

 

 

prosecutors should be able to read the clear words of the statutes and “expect . . . 

that they will be carried out by all in society, including the courts.” Id. 

In fact, should a court confound those legitimate citizen 

expectations by misreading or misconstruing 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 practical workability bears little on our 

decision to overrule our previous 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 current, judicially 

imposed same-incident rule. 

IV. RESPONSE TO THE DISSENTS 

Justice Cavanagh concedes that our interpretation “may, arguably, be 

supported by the language of the habitual-offender statutes . . . .” Post at 5. But 

his arguments are rooted in his assertion that there are “competing, arguably 

plausible interpretations . . . .”22 Post at 8-9. He then concludes 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 defendant essentially concedes, there is nothing textually 

ambiguous about the Legislature’s directive to apply habitual offender sentencing 

22 Justice Kelly similarly opines that “the language of the habitual offender 

statutes is at least equally supportive of the conclusion that the statues are 

inapplicable to multiple convictions arising from the same act.” Post at 7-8. 

22
 
 

laws when “a person has been convicted of any combination of 2 or more felonies 

or attempts to commit felonies . . . .” MCL 769.11(1). 

In his only argument based on the text of the statute, Justice Cavanagh 

asserts that the statute’s use of the phrase “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 for two simultaneous felonies, 

neither simultaneous conviction may be used to enhance the sentence for the other 

under the habitual offender statutes. But Justice Cavanagh’s extension of this 

point to imply a same-incident test misinterprets the statute’s use of the word 

“subsequent.” “Subsequent” describes the sequential relationship between the 

sentencing felony and the prior convictions (“If a person 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-offender statutes.” Post at 6. 

He cites cases from 1929, the 1940s, and, most recently, 1970 and 1976. Post at 2, 

5 n 6, and 6. Yet, as Justice Cavanagh 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. 

23
 
 

no Michigan court has ever held, until today, that convictions for multiple crimes 

committed in a single criminal transaction 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 explaining 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 enactments, but from precedent of this Court that 

preexisted those enactments. Indeed, this 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 would produce a marked change in 

Michigan law, and that the Legislature, in its “legislative history,” 

gave no indication that it understood 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 statute’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 hurdle of constitutionality, we are to treat its enactment 

24
 
as law. When, as here, the text enacted by the Legislature and signed by the 

Governor is unambiguous, our duty is to uphold its plain meaning. 

Both dissents’ analyses would essentially 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, because its text is clear, it is irrelevant 

whether the legislators concluded that this Court misinterpreted the pre-1978 

statutes in its previous decisions or, instead, that a new policy for counting prior 

felonies was preferable. Significantly, various legislators’ reasons for enacting the 

text may have differed and may have been rooted in either of these conclusions. 

But their agreed-on choice of language is controlling. If that language is perfectly 

forthright, our task is simply to implement 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 Supreme Court’s previous interpretations of 

Y.” 

We express no opinion regarding the correctness of any court’s 

interpretations of the pre-1978 versions of the statutes. Questions concerning 

earlier versions of the text are not before us. Moreover, to whatever extent courts 

correctly divined past legislatures’ intents 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 legislatures do not bind the 

power of successive legislatures to enact, amend, or repeal legislation. Studier v 

25
 
Michigan Pub School Employees’ 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 could possibly have written the statute to more clearly 

indicate that all prior convictions 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 felony within this state, the person shall 

be punished [as provided in this section].” MCL 769.11(1) (emphasis added). 

Significantly, Justice Cavanagh’s central contention is that the habitual 

offender statutes “are plainly intended to apply to habitual offenders, individuals 

who persist in criminal activity regardless of their prior convictions.” Post at 1. 

But the goal of punishing persistent offenders by no means requires a sameincident test. Rather, the Legislature apparently and reasonably saw fit to punish 

an offender who has committed multiple prior felonies in a harsher manner than an 

offender who has committed only a single prior 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 occasion. In sum, Justice Cavanagh’s 

26
 
analysis is fundamentally flawed because it offers a judicial construction to 

deconstruct an unambiguous statute. Nothing about the statute’s text renders it 

susceptible to multiple interpretations and, therefore, judicial “construction” is not 

even permissible. Further, Justice Cavanagh repeats the mistakes of the Court in 

Stoudemire and Preuss by dismissing the 1978 revisions of the habitual offender 

laws and, instead, relying on debatable legislative history and court cases 

addressing the previous versions of the statutes. 

Finally, Justice Kelly’s exegesis of the doctrine of stare decisis misses the 

mark. As we have already discussed, the recent Stoudemire and Preuss decisions 

are not part of a long line of cases interpreting 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 things can be said of Stoudemire. 

Accordingly, the heart of Justice Kelly’s analysis contradicts 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 precedent’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, 

27
 
 

 

and committee reports addressing the original 1927 Michigan act and the prior 

New York act. For these 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 Hamilton) (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 because 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 punishment than the plain language of the 

habitual offender statutes prescribes, Justice Kelly correctly assumes that such 

reliance garners little sympathy in our eyes. Post at 4 n 11. 

V. CONCLUSION 

Michigan’s habitual offender laws clearly contemplate counting each prior 

felony conviction separately. The text of those laws does not include a sameincident test. This Court erred by judicially engrafting such a test onto the 

24 Concerning Justice Kelly’s criticisms of the majority for its supposed 

“disregard” for the doctrine of stare decisis, we reference the concurring statement 

of Justice Markman in Rowland v Washtenaw Co Rd Comm, 477 Mich 197, 223 

(2007). 

28
 
unambiguous statutory language. Accordingly, we overrule Preuss and 

Stoudemire. 

Defendant was properly sentenced as a third offense 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 basis of his claim that he 

received ineffective assistance of counsel. When an attorney fails to raise “an 

objection that would have been supported by a decision which subsequently was 

overruled,” a defendant cannot show that he was prejudiced within the meaning of 

Strickland. Lockhart v Fretwell, 506 US 364, 366; 113 S Ct 838; 122 L Ed 2d 180 

(1993). Under these circumstances, a focus on “mere outcome determination” is 

insufficient because the result of the proceeding is not fundamentally unfair or 

unreliable. Id. at 369. “To set aside a conviction or sentence solely because the 

outcome would have been different but for counsel’s error 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 2039; 80 L Ed 2d 657 (1984). 

Accordingly, we affirm defendant’s sentences. 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 

29
 
v 

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. Weaver 
v 

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 Michigan’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 intent and properly applied the habitualoffender statutes to persons who persist in crime after having been convicted, I 

respectfully dissent. 

The habitual-offender statutes, enhancing punishment for subsequent 

convictions, are plainly intended to apply to habitual offenders, individuals who 

persist in criminal activity regardless of their prior convictions. Defendant was 

sentenced under MCL 769.11(1) as a third-offense habitual offender. Defendant 

argues, and the prosecution does not contest, 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 felonies arising from the same criminal 

incident; the two prior convictions of possession of a firearm during the 
 

 

 

commission of a felony and felonious assault arose from the 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 habitual-offender statutes in 1927.1 Preuss held that, for purposes of 

the habitual-offender statutes, each of the 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) (stating 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 NW2d 794 (1944) (holding that 

multiple convictions from the 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), this Court observed that habitual-offender 

sentence enhancement was not “new” in this state; such statutes have been in force 

since 1857. This Court has never, until today, held that such statutes apply to 

multiple offenses committed on one occasion. 

2 Preuss specifically addressed MCL 769.12, the habitual-offender statute 

addressing three or more prior convictions, but that decision applies to all three 

statutes specifying sentence enhancements in the common scheme of the habitualoffender statutes. 

2
 
the present defendant’s two previous felony convictions, arising from the same 

act, do not arise from separate criminal incidents. Under Preuss, defendant would 

be subject to sentence enhancement as a second-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-offender statutes since 

such statutes were enacted and, thus, incorrectly failed to count multiple offenses 

toward habitual-offender 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 intended to require that predicate felonies for 

habitual-offender sentencing arise from separate criminal incidents. “It is 

elementary that statutes in pari materia are to be taken together in ascertaining the 

intention of the legislature, and that courts will regard all statutes 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 Procedure that together allow enhanced penalties 

3
 
 

on an increasing scale for an offender’s second,3 third,4 and fourth5 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 person is subject to a secondoffense enhancement. (Emphasis added.) MCL 769.11 states that “[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 convicted 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 enhancement. (Emphasis 

added.) 

This system of graduated 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 Procedure applies to a 

second offense and allows a sentence enhancement 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 imprisonment. MCL 769.10(1)(a). See also MCL 

777.21(3)(a). 

4

 Section 11 of chapter IX of the Code of Criminal Procedure applies to a 

third or higher offense and allows a sentence enhancement of up to twice the 

longest term otherwise allowed for an offense punishable by less than life 

imprisonment. MCL 769.11(1)(a). See also MCL 777.21(3)(b). 

5

 Section 12 of chapter IX of the Code of Criminal Procedure applies to a 

fourth or higher offense and allows a sentence enhancement of up to life 

imprisonment for offenses otherwise punishable by imprisonment for five years or 

more. MCL 769.12(1)(a). See also MCL 777.21(3)(c). 

4
 
 

 

enhancement to apply to simultaneous criminal acts. As this Court long ago 

recognized, “[i]t is obvious that the [provisions of the habitual-offender statutes] 

relate to convictions for subsequent felonies. They apply only to persons who, 

after having been convicted 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 been sentenced as a second-offense 

habitual offender when he was first convicted of the two underlying crimes 

committed at the same time. But now, without intervening convictions, defendant 

has been sentenced as a third-offense habitual offender because 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 habitual-offender statutes, this 

Court’s longstanding, uniform interpretation is at least equally supported by the 

language of the statutes. I find the latter more convincing in light of the plain 

language of the habitual-offender statutes, the overall sentencing system 

prescribed by the Legislature, and legislative history. 

6

 The majority disagrees that the graduated enhancement scheme of the 

habitual-offender statutes implies that they are “inapplicable to convictions on 

different counts growing out 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 its inapplicability to “different counts 

growing out of the same act.” 

5
 
 

 

The requirement that predicate felonies arise from separate criminal 

incidents is supported by this Court’s consistent statements concerning the purpose 

of the habitual-offender statutes. The statutes increase punishment because of a 

person’s “‘apparent persistence in the 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 repeated 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 legislative intent behind the habitualoffender 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 legislative 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 could 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 Legislature 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 habitual criminal act”), and People v Hatt, 384 Mich 302, 

306-307; 181 NW2d 912 (1970) (stating that the “only purpose of [the habitualoffender statutes] is to impose a longer sentence because of the apparent 

persistence by the defendant in the commission of acts of a criminal nature”). 

6
 
 

 

its interpretation of MCL 769.11. The majority cannot. Such evidence does not 

exist. The uniform evidence from legislative history supports the rule of Preuss, 

that crimes committed in a single criminal incident are counted 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 there 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 interpreting the scope of what was 

formerly called the Armed Career Criminals Act (ACCA), specifically 18 USC 

924(e), a federal analog of MCL 769.11 involving firearms offenses. In Taylor, 

the Supreme Court identified plausible alternative interpretations of the scope of 

certain statutory language in a particular provision of the ACCA. The Court then 

stated: “Before examining these [plausible, alternative interpretations], we think it 

helpful to review the background 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 reviewing legislative history of the Fair 

Credit Reporting Act); Ledbetter v Goodyear Tire & Rubber Co, Inc, ___ US ___; 

127 S Ct 2162; 167 L Ed 2d 982 (2007) (referring to legislative 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 law: ‘the Penal Code of 

New York and the Field Code, a 19th-century 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 habitual-offender laws adapted from the New York penal 

code). 

7
 
 

conducted 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 history should not 

be ignored when it may illuminate a court considering reasonable, alternative 

interpretations of a statute. Where, as here, legislative history singularly supports 

one arguably reasonable interpretation 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 this Court from the enactment of the law in 1927 to 

today, is reasonable. It is supported by the language of the statute. It is also 

uniformly supported by legislative history. 

Further, when there are plausible, competing 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 choose the harsher only 

when Congress has spoken in clear and definite language.’” Scheidler v Nat’l Org 

for Women, Inc, 537 US 393, 409; 123 S Ct 1057; 154 L Ed 2d 991 (2003), 

quoting McNally v United States, 483 US 350, 359-360; 107 S Ct 2875; 97 L Ed 

2d 292 (1987). In other words, when there are two plausible meanings, the more 

9

 While legislative history may support several legislative intentions 

directed toward those individuals targeted by the habitual-offender statutes— 

punishment, removal from society, or rehabilitation—there is no such diversity 

regarding the identity of the individuals to whom the statutes are meant to apply. 

Uniformly, the evident intent is to target habitual offenders, those who persist in 

criminal activity despite prior convictions. 

8
 
 

 

lenient should apply when years of a person’s life are at stake. The majority 

isolates a statute outside its clear statutory 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 from 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 language stating that 

predicate felonies must be “committed on occasions different from one another 

. . . .” 18 USC 924(e)(1). What the majority fails to observe is that at the time 

the United States Supreme Court 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 statutes 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 statute, but refuses to do so 

in light of decades of settled Michigan law. The Michigan 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-offender enhancement. 

9
 
 

 

to conclude that this must be the meaning 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 implies 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 transaction, 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 language. 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 commission of the crime for 

which the enhanced sentence was being imposed. We revised Stoudemire’s 

holding that the sentence for a previous crime must have been completed before 

that crime could be used in counting predicate felony convictions. Thus, 

analyzing MCL 769.12, we stated that the statute applies “to defendants who had 

previously been convicted three times before they committed 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, 17370 (daily ed November 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. 

10
 
 

 

even 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 amended language to 

compel a change in the longstanding requirement that “multiple convictions 

arising out of a single incident may count as only a single prior conviction under 

the statute.” Id. at 720. 

The amended language does not relate to the timing of the commission of 

the underlying crimes; it relates only to the timing of the convictions for them. 

The majority does not show precisely how the amended language relates to the 

timing of the commission of previous crimes. The majority’s overruling of a 

century and a half of Michigan jurisprudence is not based on the 1978 revisions.12 

Again, in more than 150 years, no Michigan court has ever held, until today, that 

12 It appears that the majority is driven by a new view of statutory 

interpretation, not by any change in the statute itself. Inasmuch as the majority’s 

interpretation of the habitual-offender statutes is plausible, it would have been 

equally plausible under the 1927 version because neither the former nor the 

current language expressly addresses the timing of the underlying crime’s 

commission. Addressing the application of arguably changing methods of 

interpretation, the United States Supreme Court recently stated: 

But even were we to posit for argument’s sake that changes in 

interpretive approach take place from time to time, we could not 

agree that the existence of such a change would justify 

reexamination of well-established prior law. Principles of stare 

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 achieve the legal stability that they 

seek and upon which the rule of law depends. [CBOCS West, Inc v 

Humphries, ___ US ___, ___; 128 S Ct 1951; 170 L Ed 2d 864 

(2008).] 

11
 
 

convictions for multiple crimes committed in a single criminal transaction count as 

separate convictions for habitual-offender purposes. See Palm, 245 Mich at 400. 

The majority asserts that its ruling 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 discern whether prior 

convictions arose from a single criminal incident, 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 susceptible to judicial discretion.13 The rule has been 

workable since the statutes were enacted. 

The defendant in this case has been sentenced to imprisonment for five 

years as a second-offense felony-firearm offender. MCL 750.227b(1).14 His 

13 I find the majority’s concern regarding judicial discretion somewhat 

puzzling because, as the majority observes, the 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 the prosecutor. See MCL 769.13(1). Imposing a sentence 

enhancement is discretionary for the sentencing 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 commit a felony . . . is guilty of a 

felony, and shall be imprisoned for 2 years. Upon a second 

conviction under this section, the person shall be imprisoned for 5 

(continued...) 

12
 
 

simultaneous crimes have been counted for 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 intended to enhance the sentences of 

persistent criminals, not multiple offenders. Defendant’s 25-year minimum 

sentence is within the recommended minimum sentence range for a secondoffense 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. 

13
 
 

v 

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 majority disregards the doctrine of stare 

decisis. I join Justice Cavanagh’s well-reasoned dissent. I write separately to 

strongly disapprove of the majority’s efforts to overturn all caselaw 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 weakens our legal system at its foundation.1 Because of the 

importance of the issue, it warrants continuing attention.2 

I agree with Justice 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 Washtenaw 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, aside from this basic disagreement, I am 

concerned that the majority’s approach to the doctrine of stare decicis tends to turn 

it on its ear. The majority correctly observes that stare decisis should not be 

mechanically applied to prevent 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 decisis to permit the 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 since the country was founded.4 Alexander Hamilton 

wrote that to “avoid an arbitrary discretion in the courts, it is indispensable that 

they should be bound down by strict rules and precedents which serve to define 

and point out their duty in every particular case that comes before them . . . .”5 

Early in the twentieth century, Justice (then-Judge) Cardozo wrote that the “labor 

of judges would be increased almost to the breaking point 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 constitutional requirement, 104 W Va L R 43, 56-62 (2001). It 

assumed its modern form in the late eighteenth and early nineteenth centuries. Id. 

at 55. 

5

 The Federalist No. 78, p 471 (Alexander Hamilton) (Clinton Rossiter ed, 

1961). 

2
 
 

could be reopened in every case, and one could not lay one’s own course of bricks 

on the secure foundation of the courses laid 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 first step that must be 

taken. The Court must then examine (1) whether the decision remains workable, 

(2) the degree of reliance on the decision, and (3) whether 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 decided. Yet, in this 

Court’s post-Robinson cases, if a majority concludes that the previous decision 

was wrong, it will likely be overruled.10 The remainder of the Robinson analysis 

6

 Benjamin N. Cardozo, The Nature of the Judicial Process (New Haven: 

Yale University Press, 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 precedent]” 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...) 

3
 
 

appears 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 the initial determination of whether the 

precedent was correctly decided. This last point effectively eviscerates the 

reliance prong of the Robinson analysis, because a “wrong” decision supposedly 

can never generate reliance.12 The predictable result of the majority’s current 

approach is that, once a party meets its initial burden of demonstrating that a prior 

decision was wrong, the precedent is overturned. 

This result flies in the face of the doctrine 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. For 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 interpretation of the habitual 

offender statutes could render previous calculations inaccurate and appropriations 

insufficient because criminals 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 misconstruing 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.”’). 

4
 
 

flaws.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 from the United States Supreme Court, many 

commentators suggest that there exists a hierarchy of precedents. Under this 

hierarchy, stare decisis applies differently to different areas of the law.15 The 

13 See Hubbard v United States, 514 US 695, 716; 115 S Ct 1754; 131 L Ed 

2d 779 (1995) (Scalia, J., concurring 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; 108 S Ct 883; 99 L Ed 

2d 54 (1988) (Brennan, J., concurring) (“I write separately only because I have 

previously joined or written four opinions dissenting from this Court’s holdings 

that the defendant’s predisposition is relevant to the entrapment defense. . . . Were 

I judging on a clean slate, I would still be inclined to adopt the view that the 

entrapment defense should focus exclusively on the Government’s conduct. But I 

am not writing on a clean slate; the Court has spoken definitively 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) (Powell, J., concurring) (“Despite my 

continuing reservations about the Argersinger rule, it was approved by the Court 

in the 1972 opinion and four justices have reaffirmed it today. It is important that 

this Court provide clear guidance to the hundreds of courts across the country that 

confront this problem daily. Accordingly, and mindful of stare decisis, I join the 

opinion of the Court.”). 

14 Burnet v Coronado 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...) 

5
 
 

 

 

 

 

hierarchy 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 approach, the overruling of precedent 

requires some special justification.18 The current majority of the Michigan 

Supreme Court, however, has ignored this broadly acknowledged requirement.19 

While Robinson borrowed its analysis directly from federal law, it failed to 

incorporate the special-justification requirement 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 construction: Keeping a 

respectful eye on Congress, 53 SMU L R 49, 51-52 (2000); 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 statutory interpretation, for here, unlike in 

the context of constitutional interpretation, the legislative power is implicated, and 

Congress remains free to alter 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 ‘special justification’ approach is that it 

requires more than a conviction that the challenged precedent was wrongly 

decided.”21 Requiring a special justification also promotes predictability 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 longstanding caselaw interpreting 

a statute without any special justification. The majority simply concludes that the 

earlier caselaw was incorrectly decided, and, 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 Cavanagh explains, this contradicts 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 comment on “the correctness of any court’s 

interpretations of the pre-1978 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 supportive 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. 

7
 
 

 

are inapplicable to multiple convictions arising from the same 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 single incident may count as only a single 

prior conviction under the statute . . . .”25 Because the amended statutory language 

does not compel the result reached by the majority, it is appropriate to consider 

this Court’s understanding of the preamendment statutory language. This long 

history should not be ignored simply because it does not suit the majority’s 

analysis. 

Nor is it illogical or inconsistent 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 offender statutes did not 

require that a prior conviction be separated 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. 

8
 
 

The majority asserts that binding courts to a strict-constructionist view of 

statutory interpretation ensures that courts are not arbitrary in their decisionmaking. The majority’s decision in this case belies that claim. The statutory 

language at issue does not necessarily lead to the conclusion reached by the 

majority. Nonetheless, the majority is willing to change a longstanding rule of law 

that conflicts with its interpretation. Frequently, fair-minded people will disagree 

about what the language of a statute requires. Just because a majority of the 

justices on this Court proclaims a statute free from ambiguity does not make it so. 

This is precisely why it is so important that something more than a notion that an 

earlier case was incorrectly decided should be required before 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 those decisions thoughtful and thorough 

consideration before tossing them aside. Our decision about whether 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 too freely overturns precedent with which 

it disagrees. Justice Markman’s primary assertion in Rowland was that our 

disagreement is less about our esteem for precedent than about the merits of the 

(continued...) 

9
 
 

In the matter before us, I would uphold Preuss, because it was correctly 

decided. Moreover, the doctrine of stare decisis dictates that it be upheld. Preuss 

remains workable, and no changes in the law or facts have undermined it. No 

special circumstances exist indicating that it should be overruled. 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 precedent that the majority 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 precedents with which I disagree is a question not 

often brought to light but one I regularly confront. In recent years, I have 

frequently disagreed with the majority on the merits and resolution of issues 

presented to us. Once I have been outvoted and dissent, I face whether to reiterate 

my dissent in future cases raising the same issues. Often, I accede to the opinion 

of the majority. For instance, I recently 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 July 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 decisions reached by the majority, despite my 

disagreement with those decisions. This further indicates my frequent willingness 

to abide by and maintain precedents with which I disagree. 

Contrary to Justice Markman’s belief, our respective records demonstrate 

that our disagreements stem frequently not solely from our view of the merits of 

issues but from our differing esteem for stare decisis. See Rowland, 477 Mich at 

257 n 12 (Kelly, J., dissenting), citing Todd C. Berg, Esq., Overruling Precedent 

and the MSC, The Justices’ Scorecard, Michigan Lawyers Weekly, 

<http://www.michiganlawyersweekly.com/subscriber/archives_FTS.cfm?page=MI 

/06/B060691.htm&recID=389963&QueryText=overruling%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 point: the majority is choosing to overrule longstanding 

precedent in this case, as in so many before it, for wholly inadequate reasons. 

10
 
 

 

Preuss misinterpreted legislative intent, the Legislature can amend 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 adjudications 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 Cavanagh, I disagree with the majority’s 

conclusion that the Legislature has amended the statutes to permit their application 

to multiple offenses committed 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