People v. William Heiler , 97 Mich. App. 636 ( 1980 )

97 Mich. App. 636 (1980) 296 N.W.2d 10

PEOPLE
v.
WILLIAM HEILER
PEOPLE
v.
THEODORE HEILER

Docket Nos. 43039, 43040.

Michigan Court of Appeals.

Decided April 29, 1980.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Robert L. Kaczmarek, Prosecuting Attorney, Linda Berns Wright, Appellate Prosecuting Attorney, and Kay F. Pearson, Assistant Appellate Prosecuting Attorney, for the people.

Irwin F. Hauffe, II, for defendant on appeal.

Before: J.H. GILLIS, P.J., and ALLEN and M.J. KELLY, JJ.

PER CURIAM.

Defendant William Heiler was convicted of three counts of possession of a controlled substance contrary to MCL 335.341(4); MSA 18.1070(41)(4), and was sentenced to one year probation and appeals. Defendant Theodore Heiler was convicted on three counts of possession with intent to deliver a controlled substance contrary to MCL 335.341(1); MSA 18.1070(41)(1) and appeals.

Prior to trial, defendants moved to suppress evidence found during the search by warrant of defendant William Heiler's home. The basis of the motion was that the affidavit in support of the warrant (1) did not establish probable cause; (2) was impermissibly based on hearsay; (3) failed to describe the residence to be searched with particularity; (4) did not sufficiently establish the informant's reliability. We disagree.

Careful examination of the file and the affidavit discloses that the warrant was based on sufficient information. We find no abuse of discretion. People v Thomas, 86 Mich. App. 752, 758-759; 273 NW2d 548 (1978), lv den 406 Mich. 971 (1979). An affidavit may be based on hearsay if it meets the two requirements set forth in Aquilar v Texas, 378 U.S. 108, 114-115; 84 S. Ct. 1509; 12 L. Ed. 2d 723 (1964). The affidavit in question meets these requirements. People v Johnson, 68 Mich. App. 697, 703; 243 NW2d 715 (1976).

Reviewing the affidavit in a common sense manner as prescribed by United States v Ventresca, 380 U.S. 102; 85 S. Ct. 741; 13 L. Ed. 2d 684 (1965), persuades us that the facts recited in the affidavit supported the conclusion that the house at 703 South Webster Street was the residence of both defendants.

The statements made to the affiant officer proved to be true, thus giving some indicia that the informant was specifically identified by name. Therefore, we conclude that the affidavit contained sufficient indicia of the informant's credibility.

On a motion granted by this Court, defendant Theodore Heiler filed a supplemental brief claiming that the prosecutor violated the rule set forth in People v Fountain, 407 Mich. 96; 282 NW2d 168 (1979), by filing a supplemental information charging defendant as an habitual offender after conviction on the latest charges. It is undisputed that the prosecution had actual or presumed knowledge of defendant's prior felony record because its office prosecuted the prior felonies. Fountain, supra. Further, it is uncontested that the filing of the supplemental information followed defendant's conviction on the current charges but preceded sentencing thereon, similar to the circumstances presented in Fountain, supra. However, since all of the critical facts occurred prior to the Supreme Court's decision in Fountain, the rule announced therein should not be applied to vacate defendant's current sentence on the habitual offender conviction unless Fountain is to be given retroactive effect.

In an order issued less than two months after Fountain was decided, the Supreme Court vacated a defendant's habitual offender sentence and reinstated his sentence on the underlying offense. People v Morris, 407 Mich. 885 (1979). By relying on Fountain as authority for its action, the Supreme Court seemed to be giving retroactive effect to that decision. Similar action was taken by the Supreme Court in People v Devine, 407 Mich. 904 (1979). However, there the Court specifically observed: "In resolving this case we intimate no opinion on the retroactivity of People v Fountain * * *." Still later, on May 11, 1979, the Supreme Court vacated this Court's order to affirm a defendant's sentence and conviction and remanded to the Court of Appeals to determine "whether Fountain should be given retroactive effect". People v Ronald Brown, 407 Mich. 913 (1979). From this series of orders, we conclude that the issue of the retroactivity of Fountain is, as yet, undecided.

In deciding whether a new Supreme Court ruling should be applied retroactively or prospectively, the various factors set forth in People v Hampton, 384 Mich. 669, 674; 187 NW2d 404 (1971), and People v Kamin, 405 Mich. 482, 494; 275 NW2d 777 (1979), must be balanced and considered. Upon weighing these factors, we conclude that the Fountain rule has prospective application to those cases in which the substantive offense on which the supplemental information is based is filed on or after the date of the Fountain decision. In considering (1) the purpose of the new rule, (2) the general reliance on the old rule, (3) the effect on the administration of justice, and (4) whether the decision affects the guilt or innocence of the defendant, Hampton, supra, 676, it is clear that the relevant precedent mandates that Fountain not be given retroactive application.

Affirmed.