People v. Rodriguez

232 N.W.2d 293, 61 Mich. App. 42, 1975 Mich. App. LEXIS 1502
CourtMichigan Court of Appeals
DecidedMay 27, 1975
DocketDocket 17610
StatusPublished
Cited by10 cases

This text of 232 N.W.2d 293 (People v. Rodriguez) 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. Rodriguez, 232 N.W.2d 293, 61 Mich. App. 42, 1975 Mich. App. LEXIS 1502 (Mich. Ct. App. 1975).

Opinions

Allen, J.

Defendant was charged with possession of marijuana with intent to distribute contrary to MCLA 335.341; MSA 18.1070(41). February 13, 1973, he entered a plea of guilty and, on March 10, was sentenced to one-and-a-half to four years in prison. May 18, 1973, approximately six weeks after sentence, defendant moved to withdraw his plea and for a new trial. The motion was argued May 18, 1973, and on the same day was denied. Defendant’s grounds in support of the motion — the same being the errors alleged in this appeal — are recited and discussed below.

[45]*45First, defendant contends the Controlled Substances Act, MCLA 335.301 et seq.; MSA 18.1070(1) et seq., is in violation of Const 1963, art 4, § 24 because the full text of the Act proscribes "delivery”, whereas the title refers only to "sale”. We do not agree. The title is most inclusive, reading:

"AN ACT to regulate the control, manufacture, production, compounding, prescribing, disposition, dispensing, sale, possession, use and administering of controlled substances; to prescribe the functions of the state board of pharmacy and department of licensing and regulation in the administration of this act; to prescribe remedies and penalties for violations of this act; and to repeal certain acts and parts of acts.” (Emphasis supplied.)

People v Andrea, 48 Mich App 310, 323; 210 NW2d 474 (1973), held the title of an act need not index all the subsequent provisions, providing these provisions are consistent with the broad purpose expressed in the title. City of Gaylord v Gaylord City Clerk, 378 Mich 273, 288; 144 NW2d 460 (1966), holds that the title of an act is not to be given strained and narrow interpretation. Compatible with these holdings, we find that the title of the Controlled Substances Act indicates a legislative intent to control all trafficking in drugs, and accordingly a proscription on delivery is clearly within the act’s title. Further, we find that the word "disposition” as used in the title is so similar to the word "delivery” as found in the text that only an extraordinarily narrow and strained view would hold the two inconsistent.

Second, at the time of plea-taking, § 41(2) of the Controlled Substances Act provided that possession of more than two ounces, of marijuana was prima facie evidence of possession with intent to deliver. [46]*46September 17, 1974, § 41(2) was held unconstitutional in People v Serra, 55 Mich App 514; 223 NW2d 28 (1974). In an affidavit supporting his motion to withdraw the plea of guilty, defendant alleges he entered the plea because of the statutory presumption. When defendant was arrested he was in possession of over 600 pounds of marijuana. He signed a form in answer to question 20, in which he wrote he drove the marijuana to Pontiac for delivery to two co-defendants.

Settled case law and the record compel us to reject defendant’s claim. The only evidence that defendant’s plea was motivated by the two-ounce presumption is defendant’s affidavit. This Court has frequently held that a single affidavit is insufficient to remand or reverse a plea of guilty.1 Realistically, the decision in Serra did little to advance defendant’s claim. Had defendant been charged with possession of a few ounces of marijuana the removal of the presumption would be valuable. Not so where 600 pounds was involved. Serra, supra, stated:

"Denying the prosecutor the use of this evidentiary crutch should not impede appropriate prosecutions. The substantive crime remains available. Prosecutions involving large amounts of marijuana will not require a presumption to convince a jury that the possessor intended something other than personal use; the inference may follow of its own force.” 55 Mich App 514, 525.

Further, the day defendant pleaded guilty defendant first became aware that one co-defendant, [47]*47William Gould, had been endorsed as a prosecution witness. The record at the plea-taking February 13 itself indicates that defendant’s plea of guilty was highly motivated by the endorsement of the res gestae witness.2 Accordingly, we conclude that reasons far stronger than the two-ounce presumption motivated defendant’s plea and that defendant’s affidavit alone is insufficient to overcome this conclusion.

Third, defendant argues that, entirely separate and apart from issue two discussed above, promises of leniency made by law enforcement officials led him to believe he would receive probation. Since that promise was unfulfilled defendant claims that under Santobello v New York, 404 US 257; 92 S Ct 495; 30 L Ed 2d 427 (1971), he may choose between vacating his plea and specific performance of the promise. Plaintiff argues that this post-conviction claim is totally inconsistent with defendant’s statement at the plea-taking. Additionally, the trial prosecutor submitted an affidavit that no promises of leniency were made by any of the police officers involved in the case and that in any trial prosecutor’s conversations with defense counsel affiant:

"merely stated that the instant case was one which his experience in Recorder’s Court indicated might result in probation and that his experience indicated that judges at the trial level tend to sentence more favorably after a guilty plea than after conviction by trial.”_

[48]*48Cases involving post-conviction claims of promises of leniency have resulted in different but not necessarily conflicting conclusions. Where the sole or primary basis of the claim is defendant’s affidavit, this Court has rejected the claim.

"It is difficult to know how a trial judge can protect himself and his record on plea acceptance other than by asking a defendant whether any inducements or promises have been made to him. If the affidavit of defendant and his brother, standing alone, mandates an 'evidentiary hearing’, then no plea negotiated or otherwise is inviolate in our state.” People v Chester Davis, 41 Mich App 224, 225-226; 200 NW2d 109 (1972).

See also People v Smith, supra. On the other hand, this Court has, in selected cases, occasionally remanded to the trial court to ascertain the full facts of the allegation. People v Rogers, 55 Mich App 491, 493; 223 NW2d 20 (1974), People v Zuniga, 56 Mich App 231, 233; 223 NW2d 652 (1974).3

Which chain of cases do we follow in the case now before us? Preparatory to his plea of guilty, defendant was given a printed form to fill out. His response to question 13 suggests some kind of promise may have been made.

"13. Have you been promised that if you plead guilty to this charge, that the original charge or N/A any other charge pending against you will be dropped? YES

"If so, what charges?

"(Note: Respondent, together with counsel, must outline any Plea agreement in writing below.)” [49]*49We note defendant’s written reply was ambiguous, N/A apparently meaning not applicable, and yes meaning there was a promise. Question 15, was left blank.4 Question 17 asked whether defendant knew the maximum and minimum sentences. He correctly filled in 4 as the maximum sentence but left the minimum blank. Immediately after accepting defendant’s plea, an order of nolle prosequi against co-defendant William Gould was ordered entered.

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People v. Rodriguez
232 N.W.2d 293 (Michigan Court of Appeals, 1975)

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Bluebook (online)
232 N.W.2d 293, 61 Mich. App. 42, 1975 Mich. App. LEXIS 1502, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-rodriguez-michctapp-1975.