People v. Gorgon , 121 Mich. App. 203 ( 1982 )

121 Mich. App. 203 (1982) 328 N.W.2d 619

PEOPLE
v.
GORGON

Docket No. 59478.

Michigan Court of Appeals.

Decided November 4, 1982.

Frank J. Kelley, Attorney Geneeral, Louis J. Caruso, Solicitor General, William F. Delhey, Prosecuting Attorney, and Lynwood E. Noah, Deputy Chief Assistant Prosecuting Attorney, for the people.

James H. Warner, for defendant on appeal.

Before: R.B. BURNS, P.J., and ALLEN and M.J. KELLY, JJ.

PER CURIAM.

In July 1980, defendant met with Gregory Anderson, whom he hired to kill defendant's brother and blow up a church. Defendant also arranged to sell Anderson some cocaine. Defendant thought Anderson was a hit man. In fact, Anderson was an undercover detective. According to the plea transcript, on September 15, 1980, in Wayne County, Gorgon delivered to Anderson by sale approximately 100 grams of cocaine.^[1]

Defendant pled guilty to inciting, inducing or exhorting another to murder, MCL 750.157b; MSA 28.354(2), MCL 750.316; MSA 28.548, inciting, inducing or exhorting another to destroy by explosives, MCL 750.157b; MSA 28.354(2), MCL 750.206; MSA 28.403, and delivery of more than 50 grams but less than 225 grams of cocaine, MCL 333.7401; MSA 14.15(7401). August 6, 1981, defendant was sentenced to 8 to 25 years on the inciting to murder and inciting to destroy by explosives counts, and to 10 to 20 years on the cocaine count. Defendant appeals as of right only from his conviction for delivery of cocaine.

Defendant argues that the penalty provisions of the controlled substances provisions of the Public Health Code violate the equal protection and due process clauses of the United States and Michigan Constitutions^[2] in that (1) cocaine is not an addictive or harmful drug, yet the code classifies cocaine with narcotic drugs and provides punishment to the same degree as for delivery of dangerous narcotic drugs such as heroin, (2) the punishment is based on the weight of the mixture containing a controlled substance, regardless of the concentration of the illegal substance, and (3) it imposes a mandatory minimum of ten years imprisonment for delivery of 50 to 225 grams of cocaine, whereas a person convicted of second-degree murder can be sentenced to any term of years.^[3]

Defendant's first argument was addressed and rejected in People v Kaigler, 116 Mich. App. 567; 323 NW2d 486 (1982).

Defendant's second argument was rejected by this Court in People v Campbell, 115 Mich. App. 369; 320 NW2d 381 (1982). Although questioning the classification scheme set forth in the statute, the Campbell panel concluded the statute was constitutional:

"Although we question the policy implications of this legislative decision, we do not consider it irrational. Street dealers need a source of supply to engage in the illegal sales, but it is equally true that major traffickers need a network of distributors to sell the controlled substance. Thus, it is rational to impose the stiff penalties for possession by mixture because it would tend to deter the ability of traffickers to find street peddlers willing to risk the possession of large, but cut, amounts of an illegal substance. Additionally, the small street vendor of illegal substances tends to attract unsavory elements to a neighborhood or area the way that a major dealer does not. Due to the prohibition on controlled substances, and we do not imply that controlled substances should be legalized, the cost of these drugs is high. Consequently, where small street vendors dealing drugs go, increased problems with crime against area residents generally follow. While, obviously, the major trafficker is ultimately the cause of this crime, his presence in an area does not have the same sort of direct adverse consequences on the local citizenry. Thus, an argument can be made that street pushers are at least as harmful as dealers. No fundamental right is involved here and we conclude that the classification scheme is reasonably related to the object of the legislation." 115 Mich App 373-374.

A similar conclusion was reached in People v Raymond, 119 Mich. App. 413; 326 NW2d 526 (1982). We agree with the decisions in those cases.

Trafficking in sizeable quantities of cocaine is so closely connected with organized crime, and the effects of such trafficking so patently harmful to society, that we do not find the Legislature's attempt to control such crime through the imposition of mandatory minimum sentences for delivery of large quantities of cocaine mixtures, while permitting the sentencing court to exercise discretion in the sentencing of persons guilty of second-degree murder, a violation of due process.

Defendant also challenges the mandatory minimum penalty under the code, arguing that it constitutes cruel and unusual punishment.^[4] We disagree for the reasons stated in Campbell, supra.

Defendant's conviction for delivery of cocaine is affirmed.

NOTES

[1] According to the prosecutor's brief, Gorgon had 210.8 grams of 78% pure cocaine in his possession, and delivered approximately 70 grams to Anderson. However, we could locate no support for this statement of facts in the record.

[2] US Const, Am XIV, § 1; Const 1963, art 1, §§ 2, 17.

[3] MCL 750.317; MSA 28.549.

[4] US Const, Am VIII; Const 1963, art 1, § 16.