People v. Kirchoff , 120 Mich. App. 617 ( 1982 )

120 Mich. App. 617 (1982) 327 N.W.2d 535

PEOPLE
v.
KIRCHOFF

Docket No. 58014.

Michigan Court of Appeals.

Decided October 19, 1982.

Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Patrick M. Shannon, Prosecuting Attorney, and Leonard J. Malinowski, Assistant Attorney General, for the people.

State Appellate Defender (by Herb Jordan), for defendant on appeal.

Before: M.F. CAVANAGH, P.J., and ALLEN and E.C. PENZIEN,^[*] JJ.

PER CURIAM.

In exchange for dismissal of similar charges in two other files, the defendant pled guilty to delivery of cocaine, MCL 333.7401(2)(a)(iv); MSA 14.15(7401)(2)(a)(iv). He was subsequently sentenced to a minimum prison term of 1-1/2 years.

On this appeal, the defendant does not challenge the validity of his guilty plea and in the trial court he did not challenge the constitutionality of the controlled substances provisions of the Public Health Code or the punishment scheme provided in that act. On this appeal, the defendant challenges the punishment scheme provided in the controlled substances act as it relates to cocaine, asserting that it violates principles of due process and equal protection and constitutes cruel and unusual punishment. None of the defendant's arguments have merit.

Defendant's brief does not truly address his due process argument but merely asserts a due process violation and further asserts that any equal protection violation constitutes a due process violation. Essentially, then, defendant's argument is that the penalty provision of the controlled substances act as it relates to cocaine denies him equal protection of the law.

We note first that the statute does not, as defendant infers, classify cocaine as a narcotic drug. The statute clearly classifies cocaine as a non-narcotic drug, but imposes identical penalties. If the Legislature had classified cocaine as a narcotic drug, the defendant could at least argue that the Legislature operated under a clear mistake of fact. See Justice SWAINSON'S opinion in People v Sinclair, 387 Mich 91; 194 NW2d 878 (1972). We need not and do not express any opinion as to the validity of such an argument. The mere fact that similar or identical penalties are imposed does not lead to any rational conclusion that the Legislature operated under clearly erroneous factual assumptions.

Secondly, there is no record in this case which justifies the argument made by the defendant that the Legislature's decision, to allow the identical maximum penalties for trafficking in cocaine as it allows for trafficking in narcotic drugs, is arbitrary or capricious and unsupported by scientific fact. The defendant urges this Court to find that the Legislature acted irrationally, using as a vehicle for that determination judicial notice of an ex parte submission to this Court of a number of presumably published articles. We decline the invitation. Such a presentation should have been made in the trial court, not in this Court. People v Stout, 116 Mich App 726; 323 NW2d 532 (1982). Secondly, the issue appears to be one upon which there can be rational debate and it is, therefore, an argument that should be presented to the legislative branch and not to the judicial branch. The judicial branch should not interfere with legislative determinations unless those determinations are so devoid of reason as to amount to arbitrariness or capriciousness. The Legislature is better equipped, because of the process of adopting legislation, than are the courts to examine the various positions of persons interested in a particular subject. A courtroom involves the views of only two lawyers in this process, together with those witnesses whom they happen to bring before the court. People v McCarty, 113 Mich App 464; 317 NW2d 659 (1982).

We have noted that the position taken by the defendant in this appeal appears to be open to a reasonable contrary argument. In People v McCarty, 86 Ill 2d 247; 427 NW2d 147 (1981), the Illinois Supreme Court was met with a similar argument, except that the Illinois statute did classify cocaine as a narcotic drug. In finding the Illinois statute to be constitutional in the face of an argument that the drug cocaine had been irrationally classified, that court noted:

"Moreover, our research has revealed that all courts which have dealt with the identical issue, with the exception of one trial court in the State of Michigan, have upheld the classification of cocaine as a ``narcotic' for penalty purposes." 86 Ill 2d 258.

The Illinois court then cited opinions from six state courts and nine federal circuits,^[1] all upholding the constitutionality of similar statutes. In addition, with this opinion, ten judges of this Court have authored or joined opinions upholding the controlled substances act as it relates to cocaine. None of the opinions have found the statute to be constitutionally infirm in that regard.^[2]

The defendant makes the statement in his brief that the penalty provision imposes "cruel and unusual punishment". His brief makes no argument on that issue, and, accordingly, it need not be considered by this Court. In any event, we fail to see how the sentence imposed in this case constituted either cruel or unusual punishment.

Finally, the defendant states that the penalty provision of the controlled substances act, as it relates to cocaine, infringes on his right to privacy. The brief does not argue this position. We assume that the argument is that the Legislature lacks power to regulate by criminal sanctions the unlicensed trafficking in an admittedly dangerous drug because to do so interferes with defendant's "right to privacy". That argument has not met with majority favor in any published opinion of this state of which we are aware, and since the issue has not been briefed or argued by the defendant, we consider it abandoned, and properly so.

The defendant's conviction is affirmed.

NOTES

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

[1] State v Bonanno, 384 So 2d 355 (La, 1980); People v Davis, 92 Cal App 3d 250; 154 Cal Rptr, 817 (1979); State v Stitt, 24 Wash App 260; 600 P2d 671 (1979); State v Vernon, 283 NW2d 516 (Minn, 1979); State v Erickson, 574 P2d 1 (Alas, 1978); People v Billi, 90 Misc 2d 568; 395 NYS2d 353 (Sup Ct, 1977); Canal Zone v Davis, 592 F2d 887 (CA 5, 1979); United States v Stieren, 608 F2d 1135 (CA 8, 1979); United States v Vila, 599 F2d 21 (CA 2, 1979), cert den 444 US 837; 100 S Ct 73; 61 L Ed 2d 48 (1979); United States v Solow, 574 F2d 1318 (CA 5, 1978); United States v Lane, 574 F2d 1019 (CA 10, 1978); United States v Wheaton, 557 F2d 275 (CA 1, 1977); United States v McCormick, 565 F2d 286 (CA 4, 1977); United States v Lustig, 555 F2d 737 (CA 9, 1977), cert den 434 US 1045; 98 S Ct 889; 54 L Ed 2d 795 (1978); United States v Marshall, 532 F2d 1279, 1287-1288 (CA 9, 1976); United States v Harper, 530 F2d 828 (CA 9, 1976), cert den 429 US 820; 97 S Ct 66; 50 L Ed 2d 80 (1976); United States v Foss, 501 F2d 522, 530 (CA 1, 1974); United States v Smaldone, 484 F2d 311, 319-320 (CA 1, 1973); cert den 415 US 915; 94 S Ct 1411; 39 L Ed 2d 469 (1974); United States v Umentum, 401 F Supp 746, 748 (ED Wis, 1975), aff'd 547 F2d 987 (CA 7, 1976), cert den 430 US 983; 97 S Ct 1677; 52 L Ed 2d 376 (1977); United States v Brookins, 383 F Supp 1212 (D NJ, 1974), aff'd 524 F2d 1404 (CA 3, 1975). Contra People v Harman, Livingston Circuit Court, Docket No. 79-2584-FY, decided April 20, 1981).

[2] People v McCarty, 113 Mich App 464; 317 NW2d 659 (1982); People v Stout, 116 Mich App 726; 323 NW2d 532 (1982); People v Kaigler, 116 Mich App 567; 323 NW2d 486 (1982); People v Campbell, 115 Mich App 369; 320 NW2d 381 (1982).