People v. Poole

555 N.W.2d 485, 218 Mich. App. 702

Opinions

Taylor, J.

Defendant was convicted following separate jury trials of delivery of 50 grams or more, but less than 225 grams, of cocaine, MCL 333.7401(2) (a)(iii); MSA 14.15(7401)(2)(a)(iii), and possession with intent to deliver 50 grams or more, but less than 225 grams, of cocaine, MCL 333.7401(2)(a)(iii); MSA 14.15(740l)(2)(a)(iii).

* He was sentenced to serve consecutive prison terms of thirteen to twenty years and nonparolable Ufe imprisonment, respectively. He appeals as of right, and we affirm.

1

i

Defendant first argues that the lower court erred in denying his motion to declare void the search warrant for 602 Holden Street and to suppress the fruits of that search because substantial evidence did not exist for the magistrate to conclude that probable cause existed to search the residence. In reviewing a magistrate’s decision to issue a search warrant, this Court must evaluate the search warrant and underlying affidavit in a common-sense and realistic manner. This Court must then determine whether a reasonably cautious person could have concluded, under the totahty of the circumstances, that there was a substantial basis for the magistrate’s finding of probable cause. People v Sloan, 450 Mich 160, 168; 538 NW2d 380 (1995); People v Russo, 439 Mich 584, 603; 487 NW2d 698 (1992).

Defendant specifically argues that the search warrant affidavit did not establish probable cause to believe that a nexus existed between him and 602 Holden Street. We disagree.

A search warrant affidavit must provide sufficient facts from which a magistrate could find that the information supplied was based on personal knowledge and that either the unnamed person was credible or the information was reliable. MCL 780.653; MSA 28.1259(3). Here, the affiant averred that informant Norman Wilson had been told by Kevin Jackson that defendant had moved to the Holden Street address. Such multiple hearsay statements may be used to establish probable cause where the ordinary requirements of personal knowledge and reliability or credibility are met. People v Harris, 191 Mich App 422, 425-426; 479 NW2d 6 (1991); People v Brooks, 101 Mich App 416, 419; 300 NW2d 582 (1980). Jackson’s statement that defendant had moved to the Holden Street address was made with personal knowledge and could be viewed as credible given that defendant had just moved out of Jackson’s home. Moreover, defendant’s connection with the Holden Street address was independently verified by the affiant, who checked defendant’s jail records and found that they listed Holden Street as the address where a relative could be contacted. The affiant further averred that a person named “Whinnie” had stated he was at “Terry’s place” on Holden Street. Although this information did not confirm defendant’s current residence, it did bolster the information provided by Kevin Jackson that defendant was then residing at the Holden Street address. Harris, supra. Finally, “Whinnie’s” credibility as an informant was shown by the state-merits he made against his penal interest. See People v Head, 211 Mich App 205, 209; 535 NW2d 563 (1995). Accordingly, under the totality of the circumstances, we conclude that a substantial basis existed for the district judge’s finding of probable cause to search 602 Holden Street. Defendant’s motion to suppress was properly denied.

n

On September 9, 1992, defendant delivered cocaine to á police officer. On September 17, 1992, the police found cocaine in defendant’s jacket while executing a search warrant. Defendant subsequently was convicted by separate juries at separate trials of delivery of more than 50 grams but less than 225 grams of cocaine on August 27, 1993, and possession with intent to deliver more than 50 grams but less than 225 grams of cocaine on September 3, 1993. Defendant was sentenced to serve consecutive prison terms of thirteen to twenty years and life without parole, respectively.

Defendant argues that the trial court erred in sentencing him as a second offender under MCL 333.7413(1); MSA 14.15(7413)(1) because the offense resulting in his second conviction occurred before he was convicted for the first offense. We disagree.

MCL 333.7413; MSA 14.15(7413) prescribes the penalties for repeat controlled substance offenders. The first three subsections of § 7413 describe different groups of offenses and provide different enhanced penalties for each group. Section 7413(1) requires nonparolable life sentences for individuals who commit a second or subsequent offense involving more than fifty grams of a schedule 1 or 2 narcotic drug or cocaine, or conspiring to commit such offenses. Section 7413(3) subjects individuals who are second or subsequent offenders under MCL 333.7410(2) and (3); MSA 14.15(7410)(2) and (3) (delivery or possession with intent to deliver schedule 1 or 2 narcotics or cocaine to a minor within 1,000 feet of a school property) to mandatory enhanced prison terms (although the court may depart from the mandatory minimum sentence upon a finding of substantial and compelling reasons). Section 7413(2) provides discretionary enhanced sentences for individuals who are convicted of any other second or subsequent offenses under the controlled substances act (delivery offenses involving less than fifty grams, possession offenses involving twenty-five to fifty grams, and conspiracies to commit these offenses).

MCL 333.7413; MSA 14.15(7413) provides, in pertinent part:

(1) An individual who was convicted previously for a violation of any of the following offenses and is thereafter convicted of a second or subsequent violation of any of the following offenses shall be imprisoned for life and shall not be eligible for probation, suspension of sentence, or parole during that mandatory term:

(a) A violation of section 7401(2)(a)(ii) or (iii).

(b) A violation of section 7403(2)(a)(ii) or (iii).

(c) Conspiracy to commit an offense proscribed by section 7401(2)(a)(ii) or (iii) or section 7403(2)(a)(ii) or (iii).

More plainly stated, these sections prohibit the manufacture, creation, delivery, or possession with intent to manufacture, create, or deliver, at least 50 grams but less than 225 grams, or at least 225 grams but less than 650 grams of a schedule 1 or 2 narcotic or cocaine; or possession of at least 50 grams but less than 225 grams, or at least 225 grams but less than 650 grams, of a schedule 1 or 2 narcotic drug or cocaine; or conspiracy to commit one of the foregoing offenses. See Managing a Trial Under the Controlled Substances Act (Michigan Judicial Institute, 1995), pp 332-333.

As applicable to defendant, MCL 333.7413(1); MSA 14.15(7413)(1) provides that an individual who was convicted previously of delivery of more than 50 grams but less than 225 grams of cocaine and is thereafter convicted of possession with intent to deliver more than 50 but less than 225 grams of cocaine shall be imprisoned for life without eligibility for parole. Thus, the trial court imposed a nonparolable life sentence for defendant’s conviction of possession with intent to deliver 50 grams or more but less than 225 grams of cocaine because defendant had previously been convicted of delivering more than 50 but less than 225 grams of cocaine.

The issue is whether the trial court properly construed MCL 333.7413(1); MSA 14.15(7413)(1) as requiring that defendant receive a nonparolable sentence for his second conviction. The goal of statutory construction is to ascertain and give effect to the intent of the Legislature. People v Stanaway, 446 Mich 643, 658; 521 NW2d 557 (1994). If a statute is clear, the courts must enforce its directive. People v Morris, 450 Mich 316, 325; 537 NW2d 842 (1995). It is only where a statute is unclear and susceptible to more than one interpretation that judicial construction is allowed. Id. The Legislature is presumed to have intended the meaning it plainly expressed. People v Cannon, 206 Mich App 653, 655; 522 NW2d 716 (1994). Although penal in nature, § 7413(1) is part of the Public Health Code, which is to be “liberally construed for the protection of the health, safety, and welfare of the people.” MCL 333.1111(2); MSA 14.15(1111)(2). Thus, it is a court’s duty to construe § 7413(1) in a manner that most effectively protects the health, safety, and welfare of the public and effects the object sought to be advanced by the statute. Morris, supra at 327.

Section 7413(1) is not ambiguous, and it clearly requires a nonparolable life sentence where a defendant was “convicted previously” of an enumerated offense and thereafter is “convicted” of an enumerated offense. At the time defendant was convicted of possession with intent to deliver 50 grams or more but less than 225 grams of cocaine, he had been “convicted previously” of an enumerated offense. Thus, defendant’s situation fits within the terms of § 7413(1), and the trial court properly sentenced him to a nonparolable term in prison.

Defendant argues that § 7413(1) should not have been applied to him because he committed his second offense before he had been convicted of the first offense. This argument is simply not supported by the unambiguous statutory language used by the Legislature, which we must enforce. For defendant’s argument to prevail, we would have to rewrite § 7413(1). This statute, as written, provides for a nonparolable life sentence for a defendant “convicted previously” who “is thereafter convicted.” Defendant, however, would require this Court to change “is thereafter convicted” to read “[who] thereafter commits” an offense. This we cannot do.

The trial court’s construction of the statute is consistent with People v Roseburgh, 215 Mich App 237, ; 545 NW2d 14 (1996), which found that sentence enhancement under § 7413(2) only requires convictions to follow one another with no temporal requirement regarding the sequence of the crimes. Although Roseburgh is not controlling because it dealt with a different subsection of the statute, it is persuasive and a similar result is appropriate in this case.

We are aware that other repeat offender statutes have been construed by our courts to require that a prior conviction precede the commission of the second offense. However, the statutory language under examination in those cases was sufficiently different to render those cases inapplicable. Roseburgh, supra at 239, n 1. In People v Pruess, 436 Mich 714; 461 NW2d 703 (1990), the Court held that a defendant could not be punished as a fourth-offense habitual offender unless the fourth offense was preceded by three felony convictions. Yet, an examination of the language in the habitual offender statutes makes this result appropriate and lends support to our interpretation of § 7413(1). The habitual offender statutes, MCL 769.10-769.12; MSA 28.1082-28.1084, provide that a person who “commits” a subsequent felony after being convicted of one, two, or three prior felonies, may be punished as a repeat felony offender. The important distinction is the fact that the Legislature used the word “commits” and not “convicted” in describing what must occur after a person has a prior felony conviction.

Similarly, People v Erwin, 212 Mich App 55, 60; 536 NW2d 818 (1995), stated that a drunk-driving conviction may not be used for enhancement purposes unless the date of conviction precedes the date of the second offense. This statement was entirely appropriate because the repeat offender provisions of the drunken-driving statute, MCL 257.625(7)(b) and (d); MSA 9.2325(7)(b) and (d), provide that if “the violation occurs within seven years of a prior conviction” or if “the violation occurs within ten years of two or more prior convictions,” a defendant may be treated as a repeat offender. Once again, the Legislature did not use the word “conviction” but used the word “violation” in describing what must occur after a first conviction. The wording used in these three repeat offender statutes shows clearly that the Legislature has demonstrated that it knows how to use language requiring that a defendant must commit an offense after a conviction before the defendant may be considered a repeat offender when it so chooses, i.e., it uses words like “commit” and “violation” to describe what must occur after the first conviction. Morris, supra at 329-330 (if the Legislature means to limit the reach of a statute, it has demonstrated the ability to do so); People v Bewersdorf, 438 Mich 55, 72; 475 NW2d 231 (1991) (the Legislature has demonstrated when it intends to do so, that it is capable of excluding a particular category of felonies from the sentence enhancement of the habitual offender act). We must respect this legislative distinction. The dissent, however, fails to do so.

The case that is most supportive of the defendant’s position, and facially problematic to our approach, is People v Stewart, 441 Mich 89, 95; 490 NW2d 327 (1992), which limited People v Sawyer, 410 Mich 531; 302 NW2d 534 (1981). Yet, properly understood, Stewart and Sawyer stand in harmony with our analysis. Sawyer was a case in which the Court construed the repeat offender portion of the felony-firearm statute that requires a lengthier sentence “upon a second” or “third” conviction. Sawyer held that a defendant should not be sentenced as a second felony-firearm offender unless the second offense is committed after the first conviction. In reasoning to this conclusion, the Court stated that a number of purposes are served when the Legislature increases punishment for repeat offenders, including providing more severe punishment for people who decline to change their ways following an opportunity to reform. The clinching rationale for the Court’s holding was the rule of lenity, which holds that ambiguities in penal statutes must be resolved against the imposition of harsher punishments. People v Smith, 423 Mich 427, 446; 378 NW2d 384 (1985).² Thus, the construction that held that the second offense must occur after the first conviction was doctrinally sound.³ This rule was limited in Stewart, where the Court stated that a defendant may be convicted of felony-firearm, third offense, if the third offense is preceded by two felony-firearm convictions that arose out of separate criminal incidents.

The holdings of Sawyer and Stewart are inapplicable to the case at bar because the rule of lenity is inapplicable. The felony-firearm statute is part of the Penal Code, which is subject to the rule of lenity,⁴ whereas § 7413(1) is part of the Public Health Code, which must be liberally construed for the protection of the health, safety, and welfare of the public. The Stewart Court believed the Legislature wanted to provide an opportunity to reform oneself after having been first convicted before the additional prison time required for repeat felony-firearm offenders was applicable. Here, however, there is no good reason to make the same assumption. Indeed, the Legislature in passing drug laws has focused more on protecting the public than providing drug dealers with an opportunity for reform. The Legislature has provided for nonparolable life sentences for first-time offenders who possess,⁵ deliver, or possess with an intent to deliver more than 650 grams of a schedule 1 or 2 narcotic or cocaine.

For all the foregoing reasons, the trial court properly interpreted § 7413(1) as requiring that defendant be sentenced to a nonparolable life term. We recognize that many would consider this penalty to be harsh. Nevertheless, judicial misgivings regarding the wisdom of a legislative sentencing policy do not provide, absent a violation of the constitution, a legal foundation for overriding legislative intent. Morris, supra at 335. The wisdom of this policy is a political question to be resolved in the political forum. Id.

m

Defendant next argues that a mandatory life sentence constitutes “cruel and/or unusual” punishment because he was not given a chance to reform before facing a mandatory life sentence.⁶ In determining whether a sentence is cruel or unusual, we look to the gravity of the offense and the harshness of the penalty, comparing the penalty to those imposed for other crimes in this state as well as the penalty imposed for the same offense by other states and considering the goal of rehabilitation. People v Launsburry, 217 Mich App 358, 363; 551 NW2d 460 (1996). Past decisions of the Michigan Supreme Court have found mandatory drug sentences in violation of Const 1963, art 1, § 16 as cruel or unusual punishment. People v Lorentzen, 387 Mich 167, 176; 194 NW2d 827 (1972), held that a statute mandating a minimum term of twenty years’ imprisonment for the sale of any amount of marijuana was unconstitutionally excessive. In People v Bullock, 440 Mich 15, 30; 485 NW2d 866 (1992), the Supreme Court held that a mandatory life sentence for possession of 650 grams or more of cocaine violated the constitutional ban against “cruel or unusual” punishments.⁷ The Supreme Court, however, refused to extend the Bullock holding to cases involving delivery or possession with intent to deliver more than 650 grams of cocaine, or conspiracy to do the same. People v Fluker, 442 Mich 891 (1993); People v Stewart, 442 Mich 890 (1993); People v Lopez, 442 Mich 889 (1993); People v Loy-Rafuls, 442 Mich 915 (1993). See also People v DiVietri, 206 Mich App 61, 63-65; 520 NW2d 643 (1994).

At the outset, we reject defendant’s claim that a mandatory life sentence is cruel or unusual per se unless he was given an opportunity to reform before imposition of such a sentence. This claim is of no avail to this defendant in any case because he did have a chance to reform himself. He could have realized he had made a gross mistake and have reformed himself after committing his first offense. People v Bettistea (After Remand), 181 Mich App 194, 202; 448 NW2d 781 (1989). The opportunity to reform began immediately after he committed his first offense, not after he was first arrested or convicted.

We further reject defendant’s claim that his mandatory life sentence constitutes cruel or unusual punishment given the gravity of the offense and our Supreme Court’s refusal to extend Bullock to delivery-related drug offenses. As previously stated, mandatory life sentences have been found to be constitutional for first-time offenders who (1) possess with intent to deliver more than 650 grams of cocaine, (2) deliver more than 650 grams of cocaine, or (3) conspire to deliver or to possess with the intent to deliver more than 650 grams. Here, defendant was a repeat drug offender who was convicted of delivering more than 50 but less than 225 grams of cocaine and of possession with intent to deliver the same amount. We find, under the rationale of Fluker, Stewart, Lopez, and Loy-Rafuls, that the Legislature may impose a mandatory life sentence upon repeat cocaine dealers who deliver or possess with intent to deliver more than fifty grams of cocaine without violating the constitutional prohibition against cruel or unusual punishment.

IV

Defendant next argues that he was deprived of his right to effective assistance of counsel because his counsel’s failure to request consolidation of his two cases for trial subjected him to a nonparolable life sentence. Defendant claims that if his counsel had had his two charges consolidated, and if he had been convicted of both charges, then he could not have been subject to a nonparolable life sentence because there would not have been a prior conviction.

In People v Pickens, 446 Mich 298, 302; 521 NW2d 797 (1994), the Supreme Court adopted the federal test for reviewing claims of ineffective assistance of counsel under the Michigan Constitution. The Pickens Court stated that to find prejudice a court must conclude that there is a reasonable probability that, absent counsel’s errors, the factfinder would have had a reasonable doubt respecting guilt. Id. at 312. The Pickens Court id., n 12, then stated as follows:

Furthermore,

“an analysis focusing solely on mere outcome determination, without attention to whether the result of the proceeding was fundamentally unfair or unreliable, is defective. To set aside a conviction or sentence solely because the outcome would have been different but for counsel’s errors may grant the defendant a windfall to which the law does not entitle him.” [Lockhart v Fretwell, 506 US (364), (369); 113 S Ct 838; 122 L Ed 2d 180, 189 (1993).]

Also, the lead opinion in People v Reed, 449 Mich 375, 401, n 21; 535 NW2d 496 (1995), states:

The proper inquiry is not whether “there is a reasonable probability that, but for counsel’s errors, the result of the proceeding would have been different.” Strickland [v Washington, 466 US 668, 694; 104 S Ct 2052; 80 L Ed 2d 674 (1984)]. An analysis that focuses “solely on outcome determination, without attention to whether the result of the proceeding was fundamentally unfair or unreliable, is defective.” Lockhart v Fretwell, supra at 369.

Thus, in order to establish that counsel was ineffective, defendant must show that but for counsel’s error there is a reasonable probability that the result of the proceeding would have been different and that the result of the proceeding was fundamentally unfair or unreliable. Pickens, supra; Reed, supra.

We are satisfied that defendant is not entitled to any relief regarding this claim. Because defendant did not move to create an evidentiary record to support this claim, our review is limited to the existing record. People v Armendarez, 188 Mich App 61, 73-74; 468 NW2d 893 (1991). Defendant has failed to demonstrate that a motion to consolidate necessarily would have been granted. Further, defendant has not overcome the strong presumption that counsel’s assistance constituted sound trial strategy. Stanaway, supra at 687. Counsel may not have wanted to consolidate the two cases because the chances for an acquittal in either case would have been reduced if the jury heard both cases against defendant. This is especially the case here because the proofs relating to the possession with intent to deliver charge were not as strong as the proofs relating to the delivery charge. Further, if the motion to consolidate had been granted and defendant was convicted of both charges, he still would have been subject to a very lengthy prison term once the sentences were made consecutive pursuant to MCL 333.7401(3); MSA 14.15(7401)(3) and doubled under MCL 333.7413(2); MSA 14.15(7413) (2). It can be anticipated that this would have precipitated a claim that moving for consolidation of the two cases was ineffective assistance of counsel. The limning of the dilemma with which counsel was faced bespeaks the strategic nature of the decision that was made.

Finally, defendant claims that he is entitled to resentencing with respect to his delivery conviction, for which he received thirteen to twenty years. Even if defendant is correct, he is not entitled to any relief because we are upholding his mandatory life sentence. People v Turner, 213 Mich App 558, 585; 540 NW2d 728 (1995).

Affirmed.

W. J. Nykamp, J., concurred.

Circuit judge, sitting on the Court of Appeals by assignment.

1 We note that the judgment of sentence in No. 93-7218-FH lists an incorrect statutory citation for the conviction of the offense of possession with intent to deliver cocaine.

2 The rule of lenity applies only in the absence of a firm indication of legislative intent. People v Wakeford, 418 Mich 95, 113-114; 341 NW2d 68 (1983). In fact, MCL 750.2; MSA 28.192 provides that the rule that a penal statute is to be strictly construed shall not apply to the Michigan Penal Code and all its provisions shall be construed according to the fair import of their terms, to promote justice and to effect the objects of the law.

3 Sawyer was a four to three decision. Justice T. G. Kavanagh stated he was sympathetic to the efforts of the meu'ority to read sense into the statute by construing it as they did, but dissented because he felt constrained to enforce the statute as the Legislature wrote it.

4 See, however, n 2, ante at 713.

5 The Supreme Court found this penalty violated the Michigan constitutional prohibition against cruel or unusual punishment. People v Bullock, 440 Mich 15; 485 NW2d 866 (1992). Nevertheless, the Legislature’s desire not to give any opportunity for rehabilitation was made clear by the statute.

6 Defendant does not argue that his sentence is “disproportionate” as that term was used in People v Milbourn, 435 Mch 630, 650; 461 NW2d 1 (1990), because Milbourn has no applicability to legislatively mandated sentences. People v Bullock, supra at 34, n 17.

7 The Bullock Court erroneously stated that Michigan required mandatory life sentences only for first-degree murders and drug offenses involving more than 650 grams. Bullock, supra at 39-40. However, People v Fernandes, 427 Mich 321, 337; 398 NW2d 311 (1986), states that treason and placing explosives with an intent to destroy that causes injury to a person also carry mandatory life sentences. The Bullock Court also failed to note the statute we are considering in this case that also provides for life without parole for certain repeat drug offenders.