Opinion
Docket No. 156178.
Submitted February 1, 1994, at Grand Rapids.
Decided February 22, 1994, at 9:05 A.M.
Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Dennis P. Grenkowicz, Prosecuting Attorney, and William E. Molner, Assistant Attorney General, for the people.
Steven R. Sonenberg, for the defendant on appeal.
Defendant pleaded guilty to three counts of criminal sexual conduct in the second degree, MCL 750.520c; MSA 28.788(3), and to two counts of delivery of less than fifty grams of cocaine as a second or subsequent offender, MCL 333.7401(2)(a)(iv); MSA 14.15(7401)(2)(a)(iv), MCL 333.7413(2); MSA 14.15(7413)(2). He was sentenced for the criminal sexual conduct convictions to three concurrent terms of six to fifteen years in prison, and to consecutive terms of two to twenty years in prison for each of the drug convictions. Thus, each of the drug sentences was to run consecutively as were the criminal sexual conduct sentences as a group with respect to the drug sentences. Defendant now appeals and we affirm.
Defendant's only argument on appeal is that his sentences were not to be served consecutively inasmuch as he was sentenced under the sentence enhancement provisions of MCL 333.7413(2); MSA 14.15(7413)(2). We disagree. MCL 333.7401(3); MSA 14.15(7401)(3) provides that sentences for certain controlled substance offenses are to be imposed to run consecutively with any term of imprisonment imposed for the commission of any other felony. Defendant argues that because he was sentenced under the sentence enhancement provisions of MCL 333.7413(2); MSA 14.15(7413)(2), which authorize the imposition of a sentence of not more than twice the term otherwise authorized with respect to the current controlled substance convictions, and which have no corresponding consecutive sentencing feature, the court should not have imposed consecutive sentences. We disagree.
Defendant relies upon our opinion in People v Chambers, 191 Mich. App. 430; 478 N.W.2d 709 (1991), wherein we held that the consecutive sentencing provision of MCL 333.7401(3); MSA 14.15(7401)(3) is inapplicable to a sentence of attempted possession with intent to deliver inasmuch as the sentence is imposed under the attempt statute rather than the controlled substance statute. Id. at 431.
The flaw in defendant's reasoning, however, is that while attempt represents a separate substantive offense, the enhancement provisions of MCL 333.7413; MSA 14.15(7413) do not represent a separate substantive offense. That is, where an attempt is involved, the defendant is not guilty of violating the underlying criminal offense, but is guilty of the substantive offense of attempt, which is separate from the underlying crime. People v Johnson, 195 Mich. App. 571, 575; 491 N.W.2d 622 (1992); Chambers, supra at 431-432. On the other hand, the sentence enhancement provisions of MCL 333.7413; MSA 14.15(7413) do not create a separate substantive offense, but merely authorize the enhancement of a sentence otherwise authorized for the violation of a substantive offense, in the case at bar that substantive offense being MCL 333.7401(2)(a)(iv); MSA 14.15(7401)(2)(a)(iv), for which the consecutive sentencing provisions of MCL 333.7401(3); MSA 14.15(7401)(3) apply. Simply put, habitual offender status is not a substantive offense. People v Gren, 152 Mich. App. 20, 26; 391 N.W.2d 508 (1986). That is, a person is not sentenced under the habitual offender statute, but is sentenced for the underlying offense for which a habitual offender statute may authorize an increased prison term. See Gren, supra.
Thus, in the case at bar, defendant was not, as he states in his brief, sentenced pursuant to the sentence enhancement provision contained in MCL 333.7413(2); MSA 14.15(7413)(2). Rather, defendant was sentenced pursuant to the provisions of MCL 333.7401(2)(a)(iv); MSA 14.15(7401)(2)(a)(iv), the substantive offense of which he is guilty, with the provisions of MCL 333.7413(2); MSA 14.15(7413)(2) merely authorizing a maximum sentence of twice that which would normally be imposed under MCL 333.7401(2)(a); MSA 14.15(7401)(2)(a). Accordingly, defendant was still sentenced pursuant to MCL 333.7401(2)(a); MSA 14.15(7401)(2)(a) and, therefore, was subject to a consecutive sentence under the provisions of MCL 333.7401(3); MSA 14.15(7401)(3).
Affirmed.