DocketNumber: Docket No. 305238
Citation Numbers: 298 Mich. App. 458
Judges: Conviction, Convictions, Delivering, Grams, Hood, Jansen, More, Offenses, Remanded, Resentencing, Shapiro, Than, Vacated
Filed Date: 11/15/2012
Status: Precedential
Modified Date: 9/9/2022
Defendant appeals as of right his jury trial convictions of delivery of 50 grams or more, but less than 450 grams, of heroin, MCL 333.7401(2)(a)(iii), possession with intent to deliver less than 50 grams of heroin, MCL 333.7401(2)(a)(iu), possession with intent to deliver less than 50 grams of cocaine, MCL 333.7401(2)(a)(ic), and conspiracy to deliver and/or possess with intent to deliver less than 50 grams of cocaine and/or heroin, MCL 333.7401(2)(a)(¿u). He was sentenced as a third-offense habitual offender, MCL 769.11, to concurrent terms of 10 to 40 years’ imprisonment for each of his convictions. We vacate defendant’s conviction of delivering 50 grams or more, but less than 450 grams, of heroin because the trial court improperly allowed the prosecution to aggregate numerous smaller deliveries into one charge. We affirm defendant’s other convictions, but remand for resentencing.
This Court reviews the record de novo when addressing a claim of insufficient evidence. People v Hawkins, 245 Mich App 439, 457; 628 NW2d 105 (2001).
MCL 333.7401 provides in relevant part:
(1) Except as authorized by this article, a person shall not manufacture, create, deliver, or possess with intent to manufacture, create, or deliver a controlled substance ....
(2) A person who violates this section as to:
(a) A controlled substance classified in schedule 1 or 2 that is a narcotic drug or a drug described in section 7214(a)(ii;) and:
*462 (Hi) Which is in an amount of 50 grams or more, but less than 450 grams, of any mixture containing that substance is guilty of a felony ....
Heroin is a schedule I controlled substance. MCL 333.7212(l)(b). The elements of delivering 50 grams or more, but less than 450 grams, of heroin are (1) defendant’s delivery; (2) of 50 grams or more, but less than 450 grams; (3) of heroin or a mixture containing heroin; (4) with knowledge that he was delivering heroin. See People v Williams, 294 Mich App 461, 470; 811 NW2d 88 (2011); see also People v Mass, 464 Mich 615, 626-627; 628 NW2d 540 (2001) (stating that the amount and nature of controlled substances are elements of a delivery offense). Although the amount of the controlled substance is an element of a delivery offense, the defendant’s knowledge of the amount is not an element. Mass, 464 Mich at 626-627. “ ‘Deliver’ or ‘delivery’ means the actual, constructive, or attempted transfer from 1 person to another of a controlled substance, whether or not there is an agency relationship.” MCL 333.7105(1). “ ‘[T]ransfer is the element which distinguishes delivery from possession.’ ” People v Schultz, 246 Mich App 695, 703; 635 NW2d 491 (2001), quoting People v Steele, 429 Mich 13, 25-26; 412 NW2d 206 (1987).
The primary prosecution witness, Jack Blocker, testified that the largest amount that defendant delivered to him on any one occasion was an ounce, or approximately 28 grams. There is no evidence in the record that would support a finding that defendant ever delivered more than 50 grams in a single transaction. Consequently, if the individual deliveries cannot be aggregated, there is no evidence supporting defendant’s conviction for delivery of 50 grams or more, but less than 450 grams, of heroin. For the reasons set forth
First, MCL 333.7401(2)(a) sets forth different charges for four distinct quantity groups
Second, delivery is defined as “the actual, constructive, or attempted transfer from 1 person to another of a controlled substance.” MCL 333.7105(1). This definition does not use a plural form of “transfer,” indicating that delivery is a single transfer, not multiple transfers over a period of time.
Finally, caselaw does not support an interpretation of MCL 333.7401 that would allow the prosecution to aggregate separate deliveries. The question of what constitutes a single criminal transaction with respect to delivering a controlled substance has arisen in double jeopardy cases. In such cases, the defendants argued
In resolving defendant’s double jeopardy challenge, we look to whether the deliveries were separately bargained for and separately paid for and to whether the second delivery was at the same time as the first. See People v Miller, 182 Mich App 482, 484; 453 NW2d 269 (1990). In this case, the evidence demonstrated that although the deliveries were close in time, defendant sold two separate amounts of crack cocaine to the two officers separately and that the cocaine rocks were separately bargained for and paid for. We conclude that, under the circumstances of this case, the Legislature intended that defendant be subject to prosecution for each delivery as a separate offense.
The prosecution relies primarily on conspiracy cases to argue that defendant’s individual deliveries can be aggregated under a continuing-course-of-conduct theory. In People v Rodriguez, 251 Mich App 10, 23; 650 NW2d 96 (2002), this Court concluded that the jury instructions were proper when the trial court instructed the jury that “ ‘[i]f you believe the evidence so
One can conspire with another to deliver more than 50 grams of heroin and then follow through with that plan by delivering 10 grams of heroin on five different occasions. For this reason, conspiring to deliver 50 grams or more, but less than 450 grams, of heroin is fundamentally different from actually delivering that amount of heroin. In a conspiracy case, the amount the defendant and his coconspirators agree to deliver is significant, while the amount actually delivered is what matters in a non-conspiracy case. See Rodriguez, 251 Mich App at 23; Porterfield, 128 Mich App at 38-41. Because there was insufficient evidence to convict defendant of delivering 50 grams or more, but less than 450 grams, of heroin, we vacate that conviction.
We reject defendant’s multiple challenges to his other convictions, however. Defendant argues that the trial court abused its discretion by denying his motion to suppress evidence that resulted from the police officers’ search of his car. This Court reviews de novo a trial court’s decision on a motion to suppress evidence. People v Chowdhury, 285 Mich App 509, 514; 775 NW2d 845 (2009). The trial court’s factual findings are reviewed for clear error. Id.
Defendant initially argues that the evidence recovered should be suppressed because the officers were
Defendant also asserts that the police lacked reasonable suspicion of criminal activity to justify their investigative stop. We disagree. An investigative stop, or Terry
In his Standard 4 supplemental brief,
Defendant also claims that his trial counsel was ineffective because he did not move to sever count I, delivery of 50 grams or more, but less than 450 grams, of heroin, from the other three counts against defendant. First, defendant fails to explain why the failure to sever this charge may have resulted in jury confusion. Second, MCR 6.120(C) requires the court to “sever for separate trials offenses that are not related as defined in subrule (B)(1).” MCR 6.120(B)(1)(b) provides that offenses are related if they are based on “a series of connected acts.” In this case, the multiple deliveries
Defendant also argues a Sixth Amendment violation
Lastly, defendant claims that his right to be present at all proceedings was violated because he was not
In sum, we affirm defendant’s convictions for possession with intent to deliver less than 50 grams of heroin, MCL 333.7401(2)(a)(ic), possession with intent to deliver less than 50 grams of cocaine, MCL 333.7401(2)(a)(ic), and conspiracy to deliver and/or possess with intent to deliver less than 50 grams of cocaine and/or heroin, MCL 333.7401(2)(a)(ic). However, we conclude that defendant’s conviction of delivering 50 grams or more, but less than 450 grams, of heroin, MCL 333.7401(2)(a)(¿¿¿), is invalid. Accordingly, we remand the case to the trial court for it to vacate that conviction. Finally, because we are vacating the conviction on the most serious charge and his other sentences were based in part on this inaccurate information, we also remand for resentencing on the remaining convictions. People v Jackson, 487 Mich 783, 792-793; 790 NW2d 340 (2010). We do not retain jurisdiction.
Defendant characterizes this issue as one of unpreserved constitutional error. However, the underlying issues that defendant raises involve statutory interpretation and sufficiency of the evidence questions, so we have addressed them as such.
Less than 50 grams, MCL 333.7401(2)(a)(¿u); 50 grams or more, but less than 450 grams, MCL 333.7401(2)(a)(¿¿¿); 450 grams or more, hut less than 1000 grams, MCL 333.7401(2)(a)(i¿); and 1000 grams or more, MCL 333.7401(2)(a)(i).
Terry v Ohio, 392 US 1, 30-31; 88 S Ct 1868; 20 L Ed 2d 889 (1968).
Administrative Order, No. 2004-6, Standard 4, allows a defendant to file a brief in propria persona, raising issues that his or her attorney believes are without merit.
When this Court reviews an unpreserved claim of ineffective of assistance of counsel, it is limited to the facts on the record. People v Jordan, 275 Mich App 659, 667; 739 NW2d 706 (2007). The circuit court’s factual findings are reviewed under a clearly erroneous standard. MCR 2.613(C).
Both the United States Constitution and the Michigan Constitution guarantee criminal defendants the right to effective assistance of counsel. US Const, Am VI; Const 1963, art 1, § 20. In order to establish ineffective assistance of counsel, a defendant must demonstrate that “ ‘counsel’s representation fell below an objective standard of reasonableness,’ ” and
This Court reviews de novo constitutional questions. People v Brown, 294 Mich App 377, 389; 811 NW2d 531 (2011). When an alleged error involves a constitutional right, that error is either structural or nonstructural. People v Willing, 267 Mich App 208, 223; 704 NW2d 472 (2005). However, the deprivation of the right to counsel at a noncritical stage of a criminal proceeding is a nonstractural constitutional error. Id. at 224. Unpreserved, nonstractural constitutional errors are reviewed for plain error affecting the defendant’s substantial rights. Brown, 294 Mich App at 389.