Alfonzo Antwon Johnson was convicted by a jury of delivery of less than 50 grams of cocaine. The trial court sentenced Johnson as a fourth habitual offender to three to 30 years in prison for his conviction.
On appeal, Johnson raised several challenges to his conviction and sentence. Among other things, he argued that the trial court improperly enhanced his sentence based on his fourth offender status. MCL 769.13 allows a prosecuting attorney to seek an enhanced sentence by filing a written notice within 21 days after a defendant’s arraignment or, if the arraignment is waived, within 21 days after the filing of the information. The notice of intent “shall” list the prior convictions that will be relied upon. MCL 769.13(2). Johnson admitted that the prosecutor filed a timely supplemental information that stated the prosecutor’s intent to seek a sentence enhancement based on Johnson’s status as a fourth habitual offender. But, Johnson pointed out, the four prior convictions listed in the supplemental information were incorrect – Johnson had not been convicted of any of those crimes. The prosecutor filed a motion to amend the notice, but did not obtain an order from the court granting the motion. The prosecutor simply filed the amended supplemental notice months after the deadline set forth in MCL 769.13; this amended notice did correctly list Johnson’s prior convictions. Johnson argued that the requirements of MCL 769.13 had not been satisfied, and that his enhanced sentence was invalid.
The Court of Appeals affirmed the sentence in an unpublished opinion. It held that Johnson was given sufficient notice of the prosecutor’s intent to seek an enhanced sentence, which satisfied the primary purpose of MCL 769.13(2). Johnson was aware from the initial supplemental information that the prosecutor intended to seek a sentence enhancement. The only difference between that document and the amended supplemental information, observed the Court of Appeals, was “the correction of Johnson’s prior arrest dates [dates of judgment of conviction] and offenses.” The Court of Appeals emphasized that the amended supplemental information did not increase Johnson’s potential sentencing consequences. The Court of Appeals was not persuaded that the lack of an order granting the prosecutor’s motion to amend was significant. Johnson was “placing form over substance,” the panel said. “[A] prosecutor’s failure to strictly follow the statute does not necessarily offend due process, if in fact a defendant has received actual notice.” Moreover, the trial court confirmed the existence of Johnson’s prior convictions at the sentencing hearing. “Because the trial court had sufficient evidence to sentence Johnson as a fourth habitual offender, there was no error in sentencing or prejudice to Johnson,” the Court of Appeals held.
Johnson appealed. The Supreme Court granted leave to appeal on May 1, 2013. The parties “shall address: (1) whether the amendment of the supplemental notice of intent to seek to enhance the defendant’s sentence was contrary to MCL 769.13, and, if so, to what remedy, if any, the defendant is entitled; and (2) whether, if the original notice was defective and no order was entered allowing the notice to be amended, the trial court had the authority to sentence the defendant as a fourth habitual offender.”