People v. Antolovich

525 N.W.2d 513, 207 Mich. App. 714
CourtMichigan Court of Appeals
DecidedDecember 5, 1994
DocketDocket 153335
StatusPublished
Cited by15 cases

This text of 525 N.W.2d 513 (People v. Antolovich) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Antolovich, 525 N.W.2d 513, 207 Mich. App. 714 (Mich. Ct. App. 1994).

Opinions

Holbrook, Jr., P.J.

Defendant pleaded guilty of delivery of less than fifty grams of cocaine, MCL 333.7401(2)(a)(iv); MSA 14.15(7401)(2)(a)(iv), in exchange for the dismissal of an additional count of conspiracy to deliver less than fifty grams of cocaine and the prosecutor’s agreement to recommend that defendant be sentenced within the guidelines range. The trial court sentenced defendant to four to twenty years in prison, ordered him to pay $1,500 in costs, and imposed a $25,000 [716]*716fine. We vacate in part and remand for resentencing.

We agree with defendant’s first contention, that the trial court erred in imposing costs in the absence of statutory authority. People v Jones, 182 Mich App 125, 126; 451 NW2d 525 (1989). Section 7401(2)(a)(iv) does not authorize the imposition of costs. Accordingly, we vacate the trial court’s assessment of costs. Jones, supra at 128.

Defendant next argues that the trial court’s imposition of a $25,000 fine violates the constitutional prohibition against excessive fines. US Const, Am VIII; Const 1963, art 1, § 16. The United States Supreme Court has not decided whether the excessive fines clause is applicable to the states through the Fourteenth Amendment. See, e.g., Browning-Ferris Industries of Vermont, Inc v Kelco Disposal, Inc, 492 US 257, 276, n 22; 109 S Ct 2909; 106 L Ed 2d 219 (1989). We decline to determine whether the $25,000 fine imposed violates the Eighth Amendment of the United States Constitution.

In reviewing the issue presented, we note that defendant does not challenge the constitutionality of § 7401(2)(a)(iv) itself. We have no doubt that the $25,000 fine authorized by § 7401(2)(a)(iv), in an appropriate case, will pass constitutional muster. Our analysis of the issue would be different if the statute imposed a mandatory $25,000 fine. See, e.g., State v Wise, 164 Ariz App 574; 795 P2d 217 (1990), where a mandatory fine of $205,600 was not deemed unconstitutionally excessive for the defendant, who was merely acting as a delivery person delivering eight kilograms of cocaine.

Under § 7401(2)(a)(iv), any person who unlawfully manufactures, delivers, or possesses with the intent to manufacture or deliver less than fifty grams of a mixture containing a controlled sub[717]*717stance such as cocaine shall be imprisoned for not less than one year but for not more than twenty years and may be fined not more than $25,000, or placed on probation for life. We are aware of only one Supreme Court case involving the constitutionality of fines under the excessive fines clause. In People v Wolfe, 338 Mich 525, 540; 61 NW2d 767 (1953), the Supreme Court analyzed whether certain provisions of the Vehicle Code violated the excessive fines clause contained in former Const 1908, art 2, § 15:

This question necessarily involves a consideration of the purpose sought to be accomplished by the legislature and of the seriousness of the problem with which it undertook to deal.

Unlike the defendant in Wolfe, who claimed that the pertinent statute unconstitutionally permitted excessive fines, defendant in this case contends that the fine imposed against him was excessive. Nevertheless, we find that the factors mentioned in Wolfe are relevant to our analysis.

In determining whether a fine authorized by statute is excessive in the constitutional sense, due regard must be had to the object designed to be accomplished, to the importance and magnitude of the public interest sought to be protected, to the circumstances and nature of the act for which it is imposed, to the preventive effect upon the commission of the particular kind of crime, and in some instances to the ability of accused to pay, although the mere fact that in a particular case accused is unable to pay the fine required to be assessed does not render the statute unconstitutional. [24 CJS, Criminal Law, § 1604, p 203.]

Beyond punishment for trafficking in the illegal drug trade, it seems to us that the object designed [718]*718to be accomplished by authorizing a maximum fine of $25,000, in addition to a mandatory prison sentence for manufacturing, delivering, or possessing less than fifty grams of a mixture containing a controlled substance, is deterrence. See Wolfe, supra at 540-541. The possibility of a $25,000 fine for possessing less than fifty grams of a mixture containing a controlled substance attempts to stifle the allure of potentially enormous profits from illegal drug trafficking. Moreover, public sentiment places great importance on confronting illegal drug trafficking, to the point where our government has declared unofficial "war” against illegal drugs. Nevertheless, the circumstances and the nature of the act in this case lead us to conclude that the $25,000 fine imposed was unconstitutionally excessive.

The record in this case indicates that a police informant, wearing a body transmitter and supplied with marked bills, entered the home of defendant’s friend and asked her about buying some cocaine. Defendant’s friend then contacted defendant, who came to his friend’s home, but soon left to purchase the cocaine with the $90 given to him by the police informant and his friend’s husband. Defendant purchased one gram of cocaine from an unknown person with the $90, then delivered it to his friend, her husband, and the police informant. Defendant received no profit from the sale. There is nothing in the record to suggest that this transaction evidenced an ongoing pattern of behavior by this defendant.

We do not intend to diminish the severity of the crime committed by defendant. However, we find that, in this case, the trial court’s fine of $25,000 for this defendant’s illegal sale of one gram of cocaine was constitutionally excessive. We also believe that the trial court erred in failing to [719]*719consider defendant’s ability to pay the fine, in light of the fact that the fine is not mandatory but only discretionary. Cf. Traylor v Delaware, 458 A2d 1170, 1179 (Del, 1983); see also Wise, supra at 577 (the fact that the trial court had discretion to set the schedule for payment considerably ameliorated the statute’s failure to account for the defendant’s ability to pay). We conclude that the trial court’s order fining defendant $25,000 as part of the sentence imposed under § 7401(2)(a)(iv) violates the constitutional prohibition against excessive fines. Const 1963, art 1, § 16.

Next, defendant argues that both his prison term and the $25,000 fine violate the principle of proportionality set forth in People v Milbourn, 435 Mich 630; 461 NW2d 1 (1990). Milbourn does not directly address the issue of appellate review of fines imposed for violation of a statute, but we believe that analyzing the proportionality of a fine imposed under § 7401(2)(a)(iv) is appropriate and consistent with the rationale of Milbourn. We find some guidance in the following statement in Milbourn, supra at 654:

Where a given case does not present a combination of circumstances placing the offender in either the most serious or least threatening class with respect to the particular crime, then the trial court is not justified in imposing the maximum or minimum penalty, respectively.

With this in mind, we find that the trial court in this case was not justified, under the circumstances, in imposing the maximum fine allowed by the statute.

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People v. Antolovich
525 N.W.2d 513 (Michigan Court of Appeals, 1994)

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525 N.W.2d 513, 207 Mich. App. 714, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-antolovich-michctapp-1994.