                          STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     December 22, 2016
               Plaintiff-Appellee,

v                                                                    No. 329240
                                                                     Oakland Circuit Court
DONVELLE TYRONE NICHOLS,                                             LC No. 2014-250463-FH

               Defendant-Appellant.


Before: GADOLA, P.J., and FORT HOOD and RIORDAN, JJ.

PER CURIAM.

       Defendant appeals by leave granted his guilty plea conviction of possession with intent to
deliver less than 50 grams of cocaine, MCL 333.7401(2)(a)(iv). The trial court sentenced
defendant as a fourth habitual offender, MCL 769.12, to a term of 2 to 20 years’ imprisonment.
His appeal challenges only his sentence. We affirm.

        The trial court sentenced defendant for his current controlled substances conviction as a
fourth habitual felony offender, MCL 769.12, which provides for enhanced sentencing for a
recidivist offender “[i]f a person has been convicted of any combination of 3 or more felonies[.]”
MCL 769.12(1); People v Allen, 499 Mich 307, 315-316; 884 NW2d 548 (2016). To support the
habitual offender charge, the trial court relied on defendant’s prior conviction of carrying a
concealed weapon, MCL 750.227(3), and his two prior convictions of his second or subsequent
offenses of possession of marijuana, MCL 333.7403(2)(d); MCL 333.7413(2). Defendant claims
that his prior marijuana possession convictions, which are statutorily designated as misdemeanor
offenses, do not constitute felony convictions to support the habitual offender charge. We
disagree.

        We review the imposition of a sentence for an abuse of discretion. People v Underwood,
278 Mich App 334, 337; 750 NW2d 612 (2008). This issue also involves questions of statutory
interpretation, which we review de novo. People v Watkins, 491 Mich 450, 466-467; 818 NW2d
296 (2012). Defendant also raises ineffective assistance of counsel, which presents a mixed
question of law and fact. People v Trakhtenberg, 493 Mich 38, 47; 826 NW2d 136 (2012). With
respect to ineffective assistance of counsel, we review the court’s factual findings for clear error
and questions of constitutional law de novo. Id. Because defendant did not move for an
evidentiary hearing on his claim of ineffective assistance, our review of that issue is limited to
mistakes apparent on the record. People v Cox, 268 Mich App 440, 453; 709 NW2d 152 (2005).

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       Defendant’s prior convictions of his second or subsequent offenses of marijuana
possession fall under the Public Health Code, MCL 333.7403(2)(d); MCL 333.7413(2). The
Public Health Code expressly designates the offense of possession of marijuana as a
misdemeanor punishable by not more than one year imprisonment. MCL 333.7403(2)(d);
People v Wyrick, 474 Mich 947; 707 NW2d 188 (2005). Section 7413 of the Public Health
Code, however, “articulates particular enhanced punishments for the second or subsequent
commission of certain controlled substance offenses.” People v Morris, 450 Mich 316, 332; 537
NW2d 842 (1995). Pertinently, MCL 333.7413(2) “allows sentencing courts to punish repeat
drug offenders by doubling the . . . sentence otherwise authorized.”1 People v Davenport, 205
Mich App 399, 401; 522 NW2d 339 (1994). Thus, an offender’s second or subsequent offense
of possession of marijuana is punishable by up to two years’ imprisonment. MCL
333.7403(2)(d); MCL 333.7413(2).

       The habitual offender statutes, MCL 769.10 to 769.13, are part of the Code of Criminal
Procedure, MCL 760.1 et seq. The definitions contained in the Code of Criminal Procedure
apply only to that Code. People v Smith, 423 Mich 427, 444; 378 NW2d 384 (1985) (opinion by
Williams, C.J.). Accordingly, we must look to the definition of “felony” in the Code of Criminal
Procedure to determine whether defendant’s prior convictions of his second or subsequent
offenses of marijuana possession, punishable for up to two years’ imprisonment under the double
penalty provision of MCL 333.7413(2), constitute felony convictions under that Code for
purposes of applying the habitual offender statutes. See Smith, 423 Mich at 445.

        Under MCL 761.1(g), the Code of Criminal Procedure expressly defines “felony” as “a
violation of a penal law of this state for which the offender, upon conviction, may be punished
by death or by imprisonment for more than 1 year or an offense expressly designated by law to
be a felony.” In Smith, our Court construed the definition of felony in MCL 761.1(g) as a clear
expression of the Legislature’s intent that “offenses punishable by more than one year of
imprisonment be treated as ‘felonies’ throughout the Code of Criminal Procedure,” including for
purposes of the habitual offender statutes. Smith, 423 Mich at 445. As such, Smith held that
statutorily designated misdemeanors under the Penal Code, punishable by two years’


1
    MCL 333.7413 provides, in pertinent part:
                 (2) Except as otherwise provided in subsections (1) and (3), an individual
         convicted of a second or subsequent offense under this article may be imprisoned
         for a term not more than twice the term otherwise authorized or fined an amount
         not more than twice that otherwise authorized, or both.

                                                * * *

                 (5) For purposes of subsection (2), an offense is considered a second or
         subsequent offense, if, before conviction of the offense, the offender has at any
         time been convicted under this article or under any statute of the United States or
         of any state relating to a narcotic drug, marihuana, depressant, stimulant, or
         hallucinogenic drug.


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imprisonment, fall under the Code of Criminal Procedure’s definition of felony and qualify as
felonies for purposes of the habitual offender statutes. Id.

       We therefore conclude that defendant’s second or subsequent offenses of possession of
marijuana qualify as felonies within the meaning of MCL 761.1(g). That is, defendant’s second
or subsequent offenses of possession of marijuana violated MCL 333.7403(2)(d), a penal law,2
for which defendant, “the offender,” upon conviction, could be punished by imprisonment for up
to two years because of his status as a repeat drug offender, MCL 333.7413(2). Thus, his second
or subsequent offenses of marijuana possession constitute felonies within the meaning of the
Code of Criminal Procedure, MCL 761.1(g), including the habitual offender statutes, Smith, 423
Mich at 445, and the trial court did not err in relying on those prior convictions to enhance
defendant’s sentence as a fourth habitual offender under MCL 769.12. The clear definition of
“felony” under the Code of Criminal Procedure, MCL 761.1(g), rather than the statutory
designation of the offense as a misdemeanor in the Public Health Code, is controlling for
purposes of applying the habitual offender statutes.

        We disagree with defendant’s attempt to distinguish Smith from the instant case.
Defendant correctly asserts that MCL 333.7413(2) does not create a separate substantive offense
under the Public Health Code and merely authorizes the trial court to increase the punishment of
a repeat drug offender. Wyrick, 474 Mich at 947. But this has no bearing on the classification of
a conviction as a “felony” for purposes of the habitual offender statutes at issue here. As Smith
makes clear, the statutory designation of an offense as a “misdemeanor” for purposes of the
Public Health Code is irrelevant in determining whether the offense is considered a “felony” for
purposes of the habitual offender statutes. Smith, 423 Mich at 445. Instead, we look to the Code
of Criminal Procedure’s clear definition of “felony,” MCL 761.1(g), to determine whether an
offender’s prior conviction constitutes a felony for purposes of the habitual offender statutes that
fall under that Code. Id. at 445. That definition clearly evidences a legislative intent to include
as felonies, for purposes of the Code, those “violations of penal law” for which the “offender,”
upon conviction, may be punished by imprisonment for more than one year. Id. at 443-445.
Thus, for purposes of the habitual offender statutes, the characterization of an offense that is not
expressly designated by law to be a felony is dependent on the punishment the offender may
receive for the penal violation, and not on the designation of the substantive offense.3 MCL
761.1(g). Defendant’s reliance on Wyrick, 474 Mich at 947, which concerned the definition of
“felony” for purposes of the Public Health Code, is misplaced.4



2
 A “penal law” is “a statute imposing a penalty for doing that which the statute prohibits or for
omitting to do that which the statute requires.” People v Crucible Steel Co, 151 Mich 618, 619-
620; 115 NW 705 (1908).
3
  We further note that under MCL 777.18 of the sentencing guidelines in the Code of Criminal
Procedure, a violation of MCL 333.7413(2) (described as “[s]ubsequent controlled substance
violations”) is specifically listed as a “felony” to which the sentencing guidelines apply.
4
  At issue in Wyrick was the definition of “felony” for purposes of MCL 333.7401(3), the
consecutive sentencing provision of the Public Health Code, authorizing the court to impose

                                                -3-
       We also disagree with defendant’s argument that, “if sentence enhancement under MCL
333.7413(2) changed the nature of the underlying crime, there would be a right to jury trial and
notice as to the additional element of the crime.” Our courts have held that sentence
enhancement under the repeat drug offender provision of the Public Health Code, MCL
333.7413, which merely authorizes an increased penalty, does not create a new offense, and thus,
does not entitle a defendant to a trial by jury. Nor is the prosecutor required to charge the prior
drug conviction in the information because the prior offense is not an element of a new charge,
separate from the offense for which the defendant is charged. People v Eason, 435 Mich 228,
233-234; 458 NW2d 17 (1990).

        We further disagree with defendant’s argument that his sentence was impermissibly
doubly enhanced. While double enhancement of a defendant’s current sentence under both
statutes is not permissible, People v Fetterley, 229 Mich App 511, 540; 583 NW2d 199 (1998),
the prosecutor in this case did not proceed, nor did the trial court sentence defendant, under both
the Public Health Code, as a repeat drug offender, and again under the general habitual offender
statutes. Ultimately, the court sentenced defendant only as a fourth habitual offender and his
sentenced was enhanced accordingly. Thus, defendant’s reliance on Fetterley is misplaced.

        Finally, because we find that the trial court properly relied on defendant’s prior
convictions of his second or subsequent offenses of marijuana possession to enhance his
sentence as a fourth habitual offender, MCL 769.12, defense counsel was not ineffective in
advising defendant that those convictions are considered felonies under the habitual offender
statutes and in failing to object to defendant’s sentence.5 Because counsel was not required to
make a meritless objection or advocate a meritless position, People v Wilson, 252 Mich App 390,
393-394; 652 NW2d 488 (2002), counsel did not render ineffective assistance in this regard.

       Affirmed.



                                                             /s/ Michael F. Gadola
                                                             /s/ Karen M. Fort Hood
                                                             /s/ Michael J. Riordan



consecutive, rather than concurrent, sentences when a defendant is convicted of “another
felony.” Wyrick did not involve the definition of “felony” under the Code of Criminal Procedure
at issue here.
5
  Defendant has a right to the effective assistance of counsel at a plea hearing and sentencing.
People v Pubrat, 451 Mich 589, 594; 548 NW2d 595 (1996). “Generally to establish ineffective
assistance of counsel, a defendant must show that (1) counsel’s performance fell below an
objective standard of reasonableness under professional norms and (2) there is a reasonable
probability that, but for counsel’s errors, the result would have been different and the result that
did occur was fundamentally unfair or unreliable.” People v Seals, 285 Mich App 1, 17; 776
NW2d 314 (2009).


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