
    PEOPLE v DOYLE
    Docket No. 148686.
    Submitted August 4, 1993, at Lansing.
    Decided January 18, 1994, at 9:35 A.M.
    Leave to appeal sought.
    Michael R. Doyle was charged in the Oakland Circuit Court with operating a motor vehicle while under the influence of intoxicating liquor, third offense, and was charged supplementally with being an habitual offender, second offense. The court, Hilda R. Gage, J., dismissed the habitual offender charge, ruling that although the Supreme Court in People v Bewersdorf, 438 Mich 55 (1991), held that the habitual offender act is fully applicable to third and subsequent ouil convictions, that decision came after the offense in this case and application of that holding to this case would violate the federal and state constitutions. The court determined instead that this case is controlled by People v Tucker, 177 Mich App 174 (1989), in which the Court of Appeals decided that a conviction of ouil, third offense, could not serve as the underlying felony for an habitual offender charge. The defendant subsequently pleaded guilty of ouil, third offense. The prosecution appealed the dismissal of the habitual offender charge.
    The Court of Appeals held:
    
    The due process and ex post facto provisions of the United States and Michigan Constitutions bar the retroactive application of judicial decisions that have the effect of enhancing the possible penalty for a crime after the commission of the crime. The application of Bewersdorf to this case would violate that prohibition.
    AfBrmed.
    Reilly, J., dissenting, stated that the Court of Appeals decisions in Tucker and Bewersdorf predated Administrative Order No. 1990-6, effective November 1, 1990, and therefore were controlling precedent only until a contrary result was reached by another panel of the Court of Appeals or the Supreme Court. Because those decisions could have been overturned in such fashion, the defendant could not rely on them and was not faced with an ex post facto application of a sentence he could not have anticipated when he committed the ouil offense.
    
      References
    Am Jur 2d, Constitutional Law §§ 634, 641-644.
    See ALR Index under Ex Post Facto Laws; Retrospective Operation and Laws.
    
      Automobiles — Driving Under the Influence of Intoxicating
    Liquor — Sentence Enhancement — Motor Vehicle Code — Habitual Offenders.
    
      People v Bewersdorf, 438 Mich 55 (1991), in which it was decided that the habitual offender act is fully applicable to third and subsequent convictions of operating a motor vehicle while under the influence of intoxicating liquor, applies only to cases where the offense was committed after the August 22, 1991, decision date of Bewersdorf (MCL 257.625[6], 769.10; MSA 9.2325[6], 28.1082).
    
      Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Richard Thompson, Prosecuting Attorney, Michael J. Modelski, Chief, Appellate Division, and Richard H. Browne, Assistant Prosecuting Attorney, for the people.
    
      Zawideh & Green (by Robert S. Zawideh), for the defendant on appeal.
    Before: Marilyn Kelly, P.J., and Reilly and D. C. Kolenda, JJ.
    
      
       Circuit judge, sitting on the Court of Appeals by assignment.
    
   D. C. Kolenda, J.

On June 26, 1991, defendant was arrested and charged with having, on that date, operated a motor vehicle while under the influence of intoxicating liquor, third offense. MCL 257.625(6); MSA 9.2325(6). He was also charged with being a second-felony offender. MCL 769.10; MSA 28.1082. The effect of that latter charge was to increase the maximum possible penalty for the ouil, third offense, from 5 years’ imprisonment to 7 Vi years’ imprisonment.

On October 8, 1991, defendant filed a motion to quash the supplemental information, contending that continued pursuit of it would constitute an inappropriate retroactive application of a sentence-enhancing change in the law. On August 22, 1991, the Supreme Court had announced in People v Bewersdorf, 438 Mich 55; 475 NW2d 231 (1991), that the habitual offender act was fully applicable to third and subsequent ouil convictions. Defendant argued that Bewersdorf could not properly be applied to his case because, on the date of his offense, the law had been to the contrary. On May 15, 1989, in People v Tucker, 177 Mich App 174; 441 NW2d 59 (1989), this Court had held that a conviction of ouiL-third could not serve as the underlying felony for an habitual offender charge. The trial court agreed with defendant and dismissed the supplemental information. He then pleaded guilty and was given a prison term of two to five years. The prosecution appealed.

We affirm because the due process provisions of the United States Constitution and the Michigan Constitution bar the retroactive application of judicial decisions that have the effect of enhancing the possible penalty for a criminal conviction. While the Ex Post Facto Clauses of those constitutions do not apply directly to the judiciary, they are applicable by analogy through the Due Process Clauses. People v Potts, 436 Mich 295, 300; 461 NW2d 647 (1990). In other words, the courts cannot do by their decisions what the Congress and the state legislatures cannot do by statute. Among other things, a court cannot by judicial construction increase the authorized penalty for a crime after the fact. People v Stevenson, 416 Mich 383, 396-397; 331 NW2d 143 (1982). Because that is precisely what the application of Bewersdorf to this case would do, that case cannot be applied to this one.

We fully appreciate that the Supreme Court did itself apply Bewersdorf retroactively. That Court applied its decision to both defendants in that case, even though their alleged drunken driving obviously predated the decision. Nonetheless, we are not only free, but obligated, to decide this case as we do. There is nothing in the Bewersdorf opinions that says that the Supreme Court considered the constitutional issue before this Court. Accordingly, that Court’s retroactive application of its decision does not constitute precedent for the proposition that such an application does not violate due process. Given the incremental nature of judicial decision making, it has long been recognized that an opinion is not precedent for issues neither raised nor considered. Moinet v Burnham, Stoepel & Co, 143 Mich 489, 491; 106 NW 1126 (1906). Accordingly, being free to do so, and having determined that both the federal and this state’s constitutions bar the application of Bewersdorf to this case, our obligation to obey those constitutions dictates our decision.

We are not persuaded by the prosecution’s argument that due process considerations are not implicated in this case because Bewersdorf does not constitute a change in the law. The prosecution argues that the Supreme Court merely discarded a clearly erroneous interpretation by this Court of the habitual offender act, meaning that that act as implemented in Bewersdorf has been the law since before the initiation of this case. Because we reject that premise, we reject the prosecution’s argument. Because "[a] new decision that explicitly overrules an earlier holding obviously 'breaks new ground’ or 'imposes a new obligation,’ ” Butler v McKellar, 494 US 407, 412; 110 S Ct 1212; 108 L Ed 2d 347 (1990), quoting Penry v Lynaugh, 492 US 302, 314; 109 S Ct 2934; 106 L Ed 2d 256 (1989), it is unrealistic to say that Bewersdorf did not change the law. We also reject the prosecution’s argument because its acceptance would undermine the rule of law in this state. A decision by any panel of this Court is controlling precedent statewide until changed. Richardson v General Motors Corp, 139 Mich App 727; 363 NW2d 22 (1984); Administrative Order No. 1990-6. To accept the prosecution’s argument as a basis for retroactive application of Bewersdorf would ignore that fundamental principle. Because Tucker was not modified or changed until it was reversed by the Supreme Court in Bewersdorf, the Tucker decision was the law when defendant committed the drunken driving offense on June 26, 1991. Therefore, applying Bewersdorf to this case would improperly increase after the fact the penalty for defendant’s offense.

Affirmed.

Marilyn Kelly, P.J., concurred.

Reilly, J.

(dissenting). I respectfully dissent. In People v Tucker, 177 Mich App 174; 441 NW2d 59 (1989), another panel of this Court held that a conviction of operating a vehicle while under the influence of intoxicating liquor, third offense, could not serve as the underlying felony for sentence enhancement pursuant to the habitual offender statute, MCL 769.10; MSA 28.1082, because that provision was in conflict with the more specific sentence enhancement provisions of the Vehicle Code, MCL 257.625(5) and (6); MSA 9.2325(5) and (6). That decision was followed by another panel of this Court in People v Bewersdorf, 181 Mich App 430; 450 NW2d 271 (1989). Although leave to appeal was denied in the Tucker case, leave to appeal the Bewersdorf decision was granted by the Supreme Court in July 1990. The Court of Appeals ruling in Bewersdorf, rejecting the application of the habitual offender sentence enhancement statute, was reversed by the Supreme Court on August 22, 1991. People v Bewersdorf, 438 Mich 55; 475 NW2d 231 (1991). The Supreme Court determined that the provisions were not in conflict and that the terms of the habitual offender sentence enhancement statute were clear and unambiguous.

When defendant was arrested and charged on June 26, 1991, the Tucker/Bewersdorf interpretation of the conflict between the statutes was controlling precedent for the trial court. Before November 1, 1990, that precedential ruling was controlling only until a contrary result was reached by another panel of this Court or the Supreme Court. Richardson v General Motors Corp, 139 Mich App 727; 363 NW2d 22 (1984). After November 1, 1990, however, any published decision issued by a panel of this Court became controlling until reversed or modified by the Supreme Court or a special panel of this Court comprised of the Chief Judge and twelve other members of this Court. Administrative Order No. 1990-6.

At the time the defendant was arrested in 1991, he could expect that should his case reach the Court of Appeals, the panel that would consider his case might disagree with the Tucker/Bewersdorf ruling, and he would be bound by any contrary ruling until it was reversed or modified by a thirteen-member panel of this Court or by the Supreme Court. Richardson, supra; Administrative Order No. 1990-6. Defendant was not entitled to rely on a ruling by the Court of Appeals that foreseeably could be determined to be erroneous. Bouie v Columbia, 378 US 347, 353-354; 84 S Ct 1697; 12 L Ed 2d 894 (1964). State v Elliott, 114 Wash 2d 6, 18-19; 785 P2d 440 (1990), cert den 498 US 838 (1990). Therefore, the defendant in this case, like the defendant in Bewersdorf, was not faced with an ex post facto application of a sentence he could not anticipate at the time of his arrest.

I would reverse the trial court’s order granting the motion to quash the supplemental information and remand for further proceedings.  