People v. Waxman

41 Mich. App. 277 (1972) 199 N.W.2d 884

PEOPLE
v.
WAXMAN.

Docket No. 11947.

Michigan Court of Appeals.

Decided May 30, 1972.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William F. Delhey, Prosecuting Attorney, and John R. Craig and John J. Hensel, Assistant Prosecuting Attorneys, for the people.

Arthur J. Tarnow, State Appellate Defender, and David A. Goldstein, Assistant Defender, for defendant.

Before: QUINN, P.J., and V.J. BRENNAN and TARGONSKI,^[*] JJ.

Reversed by Supreme Court and remanded to circuit court, 388 Mich. 774.

QUINN, P.J.

Prior to People v Sinclair, 387 Mich. 91 (1972), and People v Lorentzen, 387 Mich. 167 (1972), we would have affirmed defendant's conviction of possession of marijuana by a memorandum opinion. The original information was filed February 11, 1970 and charged defendant with sale of marijuana, MCLA 335.152; MSA 18.1122. The trial date was set for March 15, 1971. On the latter date an amended information was filed, adding count II which charged defendant with unlawful possession of marijuana, MCLA 335.153; MSA 18.1123. The same day, defendant pleaded guilty to count II, and the transcript of the plea taking is practically a model of propriety. It is apparent that the plea resulted from negotiations, a procedure approved by Santobello v New York, 404 U.S. 257; 92 S. Ct. 495; 30 L. Ed. 2d 427 (1971), and by the ABA standards of criminal justice (see standards relating to pleas of guilty part III).

Defendant's only attack on the plea arises from his argument that the plea to possession was not a free choice when the only alternative was to stand trial for sale and risk a minimum sentence of 20 years. North Carolina v Alford, 400 U.S. 25; 91 S. Ct. 160; 27 L. Ed. 2d 162 (1970), and People v Sumlin, 32 Mich. App. 1 (1971), dispose of this contention contrary to defendant's position.

In determining defendant's contention that the statute under which he was convicted is unconstitutional as violative of his right of equal protection, due process of law and right of privacy, we face squarely the question of the effect of Sinclair, supra, on the law as it existed prior to that decision.

Of the four opinions in Sinclair, supra, two were signed by two justices and two were signed by the writer only; one justice did not participate. In order to be controlling precedent, an opinion must be concurred in by a majority of the court, Groening v McCambridge, 282 Mich. 135, 140 (1937), People v Gonzales, 356 Mich. 247, 262, 263 (1959), Corporation & Securities Commission v American Motors Corporation, 4 Mich. App. 65, 67 (1966), People v Lorentzen, 387 Mich. 167 (1972). Concurrence requires the signature of those justices concurring, MCLA 600.229; MSA 27A.229. Only one conclusion is possible, Sinclair, supra, decides Sinclair.

This conclusion was reached by the Supreme Court in Lorentzen, supra, at p 171:

"In People v Sinclair, 387 Mich. 91 (1972), decided this same day, the equal protection, due process and right to privacy issues raised by defendant are considered. None of these issues are decided by a majority of this Court favorably to defendant."

This language was approved by the signatures of five of the six justices participating in Sinclair. Having determined that Sinclair, supra, is not controlling, we adopt as controlling the opinion of Chief Judge LESINSKI in People v Sinclair, 30 Mich. App. 473 (1971), as to the foregoing constitutional issues raised by defendant. This well-reasoned opinion is supported by equally well-reasoned, legally recognized authority. Judge LESINSKI'S opinion adequately disposes of all the constitutional attacks raised by defendant contrary to his contentions, except as to sentence.

We recognize that this opinion is contrary to a prior opinion by another panel of this Court, see People v Griffin, 39 Mich. App. 464 (1972). Although one panel of this Court is not bound to follow the opinion of another panel of this Court on any question of law, the normal practice has been to do so, unless cogent reason appears for not doing so. Griffin, supra, adopts Sinclair, supra, as controlling precedent without any analysis of what constitutes controlling precedent, and in spite of the fact that the Supreme Court in Lorentzen, supra, acknowledged that Sinclair is not controlling on the constitutional issues of equal protection, due process and right to privacy. We find this to be cogent reason for not following Griffin, supra.

While we do not question the right of an appellate court to review sentences alleged to be excessive and to constitute cruel and unusual punishment, the sentence in this case does not fit that category. At sentencing, defendant volunteered the information concerning his bad record. The trial court deliberately set a lower minimum sentence than the judge felt defendant should receive because defendant's wife was pregnant. On the facts and defendant's record, the five-year minimum sentence was reasonable.

Affirmed.

V.J. BRENNAN, J., concurred.

TARGONSKI, J. (dissenting).

The statement of the facts in the case as set forth in the majority opinion is adopted. We have no argument with the position set forth in that opinion with reference to the propriety of the plea taking, the voluntariness of the plea or the reasonableness of the sentence imposed by the trial court.

We come to a parting of the ways, however, with the majority as to the applicability of People v Sinclair, 387 Mich. 91 (1972), No 53,550. Nor do we dispute the quotation by the majority from the opinion in People v Lorentzen, 387 Mich. 167 (1972), No 53,200 (released March 9, 1972, as was the Sinclair case). It is true that in Lorentzen, supra, the Supreme Court stated, at p 171:

"In People v Sinclair, 387 Mich. 91 (1972), decided this same day, the equal protection, due process and right to privacy issues raised by defendant are considered. None of these issues are decided by a majority of this Court favorably to defendant." There was no majority on any one of the three issues. However, the Supreme Court in Sinclair did rule the statute unconstitutional as evidenced by their subsequent order entered April 7, 1972 "in the matter of an application for habeas corpus in behalf of the People" No 54,041:

"* * * The restraint of these 128 persons pursuant to convictions for possession or attempted possession of marijuana is unlawful in light of this Court's decision in People v Sinclair, 387 Mich. 91, by which a majority of this Court held unconstitutional the possession provisions of MCLA 335.153, MSA 18.1123." (Emphasis applied.)

This order was entered pursuant to a determination by five justices, four of whom participated in the prevailing ruling in Sinclair, supra. One of the dissenters also concurred in that order indicating that in his opinion, together with that of the four signers, the Per Curiam order in Sinclair, supra, did, in fact, rule the statute unconstitutional on the questions of possession or attempted possession of marijuana. It is the inclination of the writer that those who made the ruling and authored the several opinions and orders can more properly interpret the purport and intent of their rulings than third parties.

In People v Griffin, 39 Mich. App. 464 (1972), the panel reached this same conclusion on the question of law as we reached in this dissent on the authority of Sinclair, supra. This effectively disposes, in our opinion, of the question of the propriety of the plea on what is now by directive of the Supreme Court, an unconstitutional statute. However, this leaves open the question of Count I charged against the defendant in the information. Examination of the record below discloses that the motion to dismiss Count I was taken under advisement and never disposed of.

Under the circumstances, the defendant should be discharged from the conviction under Count II and the matter should be remanded to the trial court for disposition under Count I.

Reversed and remanded.

The per curiam opinion which appeared at pp 284-286 in the advance sheets was not directed to be printed pursuant to GCR 1963, 821.1.

REPORTER

NOTES

[*] Former circuit judge, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.