People v. Farris , 61 Mich. App. 417 ( 1975 )

M. J. Kelly, J.

Defendant was charged with and pled guilty to possessing a controlled substance, marijuana, with intent to deliver; MCLA 335.341(l)(c); MSA 18.1070(41)(l)(c). He was sentenced to a prison term of 18 months to 4 years and appeals.

At the outset it is well to mention that defendant Farris pleaded guilty on February 1, 1974, at which time MCLA 335.341(2); MSA 18.1070(41X2), had not as yet been challenged as far as constitutionality of the act was concerned. After this guilty plea People v Serra, 55 Mich App 514; 223 NW2d 28 (1974), was decided and found the act unconstitutional. This statement is made in fairness to the trial judge who did not have the benefit of Serra at the time the plea was taken.

The issue squarely before us entails deciding the applicability of People v Serra, supra, to a guilty plea proceeding. Serra held, and we agree, that the two-ounce presumption¹ embodied in MCLA 335.341(2); MSA 18.1070(41)(2) is unconstitutional. It impermissibly compromises the privilege against self-incrimination.²

"MCLA 335.341(2); MSA 18.1070(41X2) is infirm in that there is no rational connection between the proven fact (possession of two ounces of marijuana) and the presumed fact (intent to deliver) in light of today’s 'common experience’ ” People v Serra, 55 Mich App 514, 528; 223 NW2d 28, 35-36 (1974).

Proof of the crime of "possession with intent to deliver” does not require the crutch of a presumption.

"Statutory presumptions are merely aids to expedite prosecution. Possession of large amounts of a controlled substance will give rise, without the artificial boost of a presumption, to an inference that the person possessing it intended to deliver it.” People v Serra, supra, 55 Mich App 514, 520.

We are unable to say, from this record, that the trial judge inferred the intent to deliver from the large quantity ("it was pounds”) possessed. We believe that, instead, the statutory presumption was on the trial judge’s mind at the plea taking and at sentencing.

The following dialogue occurred while the plea was taken:

"MR. FARRIS [defendant]: I believe October 5th or 6th, yes, October 6th, I was arrested for possession with intent to deliver marihuana.

"THE COURT: That is the charge against you, that you did possess it unlawfully with intent to deliver it.

"MR. FARRIS: And I’m pleading guilty.

"THE COURT: Well, did you possess marihuana on that date?

"MR. FARRIS: Yes.

* * *

"THE COURT: And how much — what was the answer, yes?

"MR. FARRIS: It was over two ounces.

"THE COURT: Over two ounces?

"MR. FARRIS: Yes.

"THE COURT: About how many ounces was it?

"MR. FARRIS: Oh, I really couldn’t tell you exactly. It was pounds.

"THE COURT: Pounds, plural?

"MR. FARRIS: Yes, sir.

"THE COURT: And there are what, sixteen ounces in a pound?

"MR. FARRIS: Yes, sir.”

There is no doubt an equation was created. It appears to us, however, that the determinitive quantum was not "pounds” but the fact that it was over two ounces. It is clear from the appellant’s response that he thought the crucial measure was two ounces. We believe both the appellant and the court were guided by the presumption.

Our conclusion is reinforced by the court’s reference to the burden cast upon the accused to rebut the offending presumption (at sentencing):

"The Defendant, by his own admission, had in his possession a substantial quantity of marihuana with the intent to deliver it. That is, he pled guilty to that offense, and no attempt [sic] to rebut the portion of the statute which gives rise to the presumption.”

Defendant claims that the trial judge erroneously failed to determine the factual basis for the plea since there was nothing other than the two ounce presumption to indicate that he intended to deliver the marijuana. The people claim that, because of the amount involved, the intent to deliver is readily inferable.

Relevant portions of GCR 1963, 785.7(3) read:

"(b) The court shall not accept a plea of guilty until it is satisfied that a crime was committed and, through personal interrogation of the defendant, that defendant participated therein.

"(c) If defendant’s description of his actions and any otherwise admissible evidence presented to the court on the record during the plea taking proceedings would not substantially support a finding that defendant is in fact guilty of the charged offense or the offense to which he is pleading, the plea shall be rejected by the court.”

As we perceive the court rule, this subsection provides a double protection to an accused. That is, a trial judge is required both to assure himself that facts supportive of guilt are adduced and to satisfy himself that the crime was in fact committed by the defendant.

In the instant case, the record reveals that the attention of the trial judge focused on the amount involved and not on defendant’s intent. Although the people argue that the trial judge considered the quantity as circumstantial evidence of intent, the record reveals that the judge impermissibly considered the quantity as a substitute for the element of intent. If, as we held in Serra, it is irrational for a jury to presume intent solely from the fact that more than two ounces were possessed, it is equally improper for the plea taking judge to reach the same conclusion.

We reluctantly conclude that the record does not reveal the factual basis for a finding of specific intent to deliver. As was said in People v Schneff, 392 Mich 15, 25-26; 219 NW2d 47, 53 (1974):

"It is our opinion that MCLA 768.35; MSA 28.1058 [to the same effect as GCR 1963, 785.7(3)(b)] requires the trial court to derive the factual basis for a guilty plea directly from defendant or through testimony developed at a full adversarial trial. This procedure also provides the best method for assurance that a defendant understands the nature of the charge to which he is pleading. A complete recitation of facts from the defendant also provides for increased appellate certainty when reviewing challenged guilty pleas.” (Footnote omitted.)

Reversed and remanded.

D. E. Holbrook, J., concurred.

1 "Possession of more than two ounces of marijuana is prima facie evidence of possession with intent to deliver.”

2 US Const, Am V; Const 1963, art 1, § 17.