People v. Poole
People v. Poole
Opinion of the Court
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).
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).
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-
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
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
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
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,
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 appropri
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
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
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.
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.
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
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*718 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
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.
Circuit judge, sitting on the Court of Appeals by assignment.
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.
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.
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.
See, however, n 2, ante at 713.
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.
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.
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.
Concurring in Part
(concurring in part and dissenting in part). I agree with the majority that defendant’s conviction should be affirmed. However, because the second-offender provision of MCL 333.7413(1); MSA 14.15(7413)(1) does not apply in this case, I would remand for resentencing.
In this case, defendant committed the delivery offense
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).
To determine whether subsection 7413(1) requires that an offense resulting in a second conviction occur after a defendant’s previous conviction, we must look first at the express terms of the statute. The statute clearly includes a temporal component, inasmuch as it includes phrases such as “convicted previously” and “thereafter convicted of a second or subsequent violation.” These temporal phrases, however, are sus
In People v Roseburgh, 215 Mich App 237; 545 NW2d 14 (1996), the defendant committed offense I and then offense n and was thereafter convicted of offense n, then offense I. The Roseburgh panel considered whether subsections 7413(2) and (5), MCL 333.7413(2) and (5); MSA 14.15(7413)(2) and (5),* 2
The factual situation in this case presents a different possible interpretation of the phrase “second or subsequent violation.” Here, defendant committed offense I, then offense n, and was thereafter convicted of offense I, then offense n. Unlike the sequence of events in Roseburgh, the offense (offense n) for which defendant received a life sentence did occur “second or subsequent” to an earlier offense (offense i), but not “second or subsequent” to the previous conviction. To the extent that the language of subsection 7413(1) is susceptible of more than one interpretation, judicial construction in accordance with established rules of statutory construction is necessary to resolve the ambiguity.
In enacting statutes, the Legislature recognizes that courts will apply common-law rules to resolve matters that are not specifically addressed in the statutory provision. 2B Singer, Sutherland Statutory Construction (5th ed), § 50.01, p 90. “[W]ords and phrases that have acquired a unique meaning at common law are interpreted as having the same meaning when used in statutes dealing with the same subject” matter as that with which they were associated at the common law. Pulver v Dundee Cement Co, 445 Mich 68, 75; 515 NW2d 728 (1994); People v Young, 418 Mich 1, 13; 340 NW2d 805 (1983).
Where the Legislature “has shown no disposition to depart from the common-law definition, therefore it remains.” People v Schmitt, 275 Mich 575, 577; 267 NW 741 (1936).
Michigan appellate courts have long followed the majority common-law rule that, for proposes of penalty enhancement under repeat offender statutes, it is a prerequisite that the prior conviction precede the commission of the principal offense. People v Stoudemire, 429 Mich 262, 283; 414 NW2d 693 (1987) (Archer, J., dissenting), cited with approval in People v Preuss, 436 Mich 714, 732; 461 NW2d 703 (1990). See also People v Podsiad, 295 Mich 541, 546-547; 295 NW 257 (1940); People v Sawyer, 410 Mich 531, 536; 302 NW2d 534 (1981); People v Alexander, 422 Mich 932 (1985); People v Johnson, 86 Mich App 77, 79-80; 272 NW2d 200 (1978); People v Smith, 90 Mich App 572, 574; 282 NW2d 399 (1979), vacated on other grounds 407 Mich 906 (1979); People v Jones, 171 Mich App 720, 726, n 5; 431 NW2d 204 (1988); People v Erwin, 212 Mich App 55, 60; 536 NW2d 818 (1995).
There axe a number of purposes served when the Legislature provides increased punishment for repeat offenders. These include deterrence and the proper desire of society to provide more severe punishment for a person who declines to change his or her ways following an opportunity to reform. These purposes are not served by imposing a more severe punishment on the day when a defendant first pleads guilty, and we accordingly believe that the Legislature intended a five-year term of imprisonment for a second conviction should only be imposed where the second offense is subsequent to the first conviction. [410 Mich 535-536.]
Our statement in Sawyer that “a five-year term of imprisonment for a second conviction should only be imposed where the second offense is subsequent to the first conviction,” 410 Mich 536, should be understood to mean that a defendant may not be convicted as a repeat offender unless the prior conviction(s) precede the offense for which the defendant faces enhanced punishment. There is no requirement that all prior offenses be neatly separated by intervening convictions.
Given that the statutory phrase “second or subsequent violation” is susceptible of more than one interpretation, we are obligated to apply the established common-law rule. In a footnote, the panel in Roseburgh, supra at 239, n 1, refused to apply this rule by analogy beyond the habitual offender statutes because the “statutory language is sufficiently different to render those cases inapplicable to the issue presented here.” While it is true that no previous Michigan case has applied this common-law rule to the second-offender provisions of the controlled substances act, the rule has been applied not only to the habitual offender statutes (Stoudemire, supra; Preuss, supra; Johnson, supra; Jones, supra), but also to the repeat-offender provisions of the felony-firearm statute (Sawyer, supra; Stewart, supra), and to the second-offender provisions of the drunk-driving statute (Erwin, supra). Certainly, the legislative intent in enacting such penalty-enhancing statutes is the same whether the conduct involved is general recidivism or recidivism of specific offenses, such as possession of a firearm during the commission of a
Here, defendant Poole committed two offenses one week apart and was convicted of those offenses in separate court proceedings approximately one year later. At the time defendant committed his second offense, however, he had not been convicted of his first offense. Thus, application of the common-law rule to the facts of this case furthers both the Legislature’s intent in enacting the second-offender provisions of the controlled substances act and the underlying principle of the common-law rule. Accordingly, I would remand this matter to the trial court for resentencing.
MCL 733.7401(2)(a)(üi); MSA 14.15(7401)(2)(a)(üi).
MCL 733.7401(2)(a)(iii); MSA 14.15(7401)(2)(a)(üi).
Subsections 2 and 5 provide in pertinent part:
(2) Except as otherwise provided in subsections [7413] (1) and (3), an individual convicted of a second or subsequent offense under this article may be imprisoned for a term not more than twice the term otherwise authorized or fined an amount not more than twice that otherwise authorized, or both.
(5) For purposes of subsection (2), an offense is considered a second or subsequent offense, if, before conviction of the offense, the offender has at any time, been convicted under this article ....
The majority’s wholehearted capitulation to the legislative branch is, if nothing else, interesting. The majority exalts legislative form over substance, yet fails to address the effect of the statutory phrase “second or subsequent violation,” thereby implicitly conceding the error of their position. See Gross v General Motors Corp, 448 Mich 147, 159; 528 NW2d 707 (1995) (as far as possible, a court must give effect to every phrase, clause, and word of a statute).
See MCL 750.227b; MSA 28.424(2).
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