People v. Kidd , 121 Mich. App. 92 ( 1982 )

121 Mich. App. 92 (1982) 328 N.W.2d 394

PEOPLE
v.
KIDD

Docket No. 60432.

Michigan Court of Appeals.

Decided November 3, 1982.

Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Eugene Malanyn, Prosecuting Attorney, and Michael A. Nickerson, Assistant Attorney General, for the people.

State Appellate Defender (by Gail Rodwan), for defendant on appeal.

Before: R.B. BURNS, P.J., and MacKENZIE and L.C. ROOT,^[*] JJ.

R.B. BURNS, P.J.

Defendant was charged with possession of a controlled substance in an amount of 225 grams or more, MCL 333.7403(1)(2)(a)(ii); MSA 14.15(7403)(1)(2)(a)(ii), attempted safe breaking, MCL 750.531; MSA 28.799, and breaking and entering an unoccupied dwelling, MCL 750.110; MSA 28.305. During trial on these charges, defendant pled guilty pursuant to an agreement with the prosecution. He appeals and we affirm.

At trial, testimony indicated that the 287 grams of substance tested contained approximately 41 grams of Schedule 2 controlled substance, the remainder being filler material. Defense counsel moved for a directed verdict. Although the court denied this motion, the court ruled as a matter of law that because defendant possessed only 41.013 grams of a controlled substance, he could be charged only with possession of less than 50 grams, MCL 333.7403(1)(2)(a)(iv); MSA 14.15(7403)(1)(2)(a)(iv). The prosecutor then moved to amend the information to conform with the court's ruling. After the court granted the prosecutor's motion defendant pled guilty to possession of less than 50 grams of a controlled substance and to breaking and entering. In return for his plea, the prosecutor agreed not to reinstate the safe-breaking charge, which had previously been dismissed, and to forgo charging defendant as an habitual offender. At the time of defendant's plea, the prosecutor had not filed a supplemental information.

Defendant first claims that the trial court was precluded from accepting his plea to possession of less than 50 grams of a controlled substance by MCL 333.7415; MSA 14.15(7415). We disagree. Section 7415 was enacted to foreclose the use of a reduction in charges in negotiating guilty pleas. This reflects the Legislature's goal of limiting the availability of guilty plea options in cases where serious drug offenses are charged. However, in the case at bar, the information was not amended pursuant to a plea agreement. Rather, the trial court reduced the charge as a matter of law before the plea conference was held.

Moreover, the trial court erred in ruling that defendant could be charged only with possession of less than 50 grams of a controlled substance. The statute on its face punishes defendants for possession of "any mixture containing" the controlled substance. MCL 333.7403; MSA 14.15(7403). The percentage of pure controlled substance in the mixture is irrelevant to the charge; the weight classifications refer to the aggregate weight of a mixture containing a controlled substance. People v Prediger, 110 Mich. App. 757, 760; 313 NW2d 103 (1981); People v Lemble, 103 Mich. App. 220, 222; 303 NW2d 191 (1981). Defendant clearly benefited from this erroneous ruling.

Defendant next claims that the substance-abuse provisions of the Public Health Code violate the title-object clause of the Michigan Constitution, Const 1963, art 4, § 24. However, this Court determined this question against defendant's position in People v Trupiano, 97 Mich. App. 416; 296 NW2d 49 (1980), lv den 409 Mich. 895 (1980).

Finally, defendant claims that his plea was based upon the prosecution's promise not to file a supplemental information and that his plea was illusory because the prosecutor was barred from filing against defendant as an habitual offender in light of People v Fountain, 407 Mich. 96; 282 NW2d 168 (1979).

However, at the time of defendant's plea, there was a split in this Court regarding the stage at which the prosecutor was required to file the supplemental information. Because the prosecutor arguably could have filed the supplemental information at the time of defendant's plea, People v Alford, 101 Mich. App. 446; 300 NW2d 593 (1980), defendant's plea was not illusory. People v Robinson, 117 Mich. App. 63; 323 NW2d 594 (1982).

The Supreme Court recently clarified the Fountain requirements in People v Shelton, 412 Mich. 565, 568; 315 NW2d 537 (1982), holding that the prosecutor must file the supplemental information not more than 14 days after the defendant is arraigned on the underlying felony or before trial if defendant is tried within the 14-day period. Id., 569.

The Shelton decision is inappropriate here, as it was issued approximately one week after defendant submitted his initial brief on appeal to this Court. Thus, under Fountain, defendant's plea was not illusory.

Furthermore, defendant's plea was based upon other factors as well. The prosecution could have appealed the trial court's erroneous reduction of the possession charge and, if successful, tried defendant for possession of over 225 grams of a Schedule 2 controlled substance. Also, defendant benefited from the prosecution's agreement not to reinstate the safecracking charge. In our opinion, defendant benefited from his bargain. See People v Eric Thompson, 101 Mich. App. 428; 300 NW2d 585 (1980).

Affirmed.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.