Opinion
Docket No. 3,955.
Decided June 23, 1969. Leave to appeal denied December 10, 1969. See 383 Mich. 751.
Appeal from Wayne, George E. Bowles, J. Submitted Division 1 April 22, 1969, at Detroit. (Docket No. 3,955.) Decided June 23, 1969. Leave to appeal denied December 10, 1969. See 383 Mich. 751.
Walter Randle was convicted, on his plea of guilty, of unlawful possession of narcotics. Defendant appeals. Affirmed.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Samuel J. Torina, Chief Appellate Lawyer, and Terrance K. Boyle, Assistant Prosecuting Attorney, for the people.
Norman J. Grubbs and William C. Hague, for defendant on appeal.
BEFORE: J.H. GILLIS, P.J., and LEVIN and V.J. BRENNAN, JJ.
Defendant Walter Randle was tried without a jury and convicted of sale of narcotics contrary to MCLA § 335.152 (Stat Ann 1957 Rev § 18.1122), and sentenced under the statute, which provides for a 20-year minimum sentence, to 20 to 21 years in prison. Subsequently, his motion for a new trial was granted. Randle then pled guilty to the charge of unlawful possession of narcotics contrary to MCLA § 335.153 (Stat Ann 1957 Rev § 18.1123) and he was sentenced to a term of three to ten years in prison. On appeal defendant contends that the "first offense" penalty provision of MCLA § 335.153 (Stat Ann 1957 Rev § 18.1123) is constitutionally infirm, and that the grant of a new trial constituted an inducement to plead guilty. The appellee has filed a motion to affirm the conviction.
"Any person not having a license as required under the provisions of PA 1937, No 343, as amended, being §§ 335.51-335.78, inclusive, of the Compiled Laws of 1948, who shall possess or have under his or her control any narcotic drug shall be deemed guilty of a felony, and upon conviction thereof, for the first offense shall be punished by imprisonment for not more than ten years, and a fine of not more than $5,000. In the discretion of the court the sentence for any such imprisonment or fine may be suspended, or the person convicted may be placed on probation for a term of years within the limits for which a sentence of imprisonment may be given."
There is no substance in the defendant's arguments that the "first offense" penalty provision is a denial of equal protection of the laws and due process of law. Our examination of the record convinces us that the defendant's plea of guilty was accepted in accordance with GCR 1963, 785.3.
Defendant's conviction of unlawful sale of narcotics and his 20-21 year sentence became final upon denial of his application for leave to appeal by the Michigan Supreme Court ( People v. Randle, 378 Mich. 744). The grant of a new trial on condition that the defendant plead guilty to a lesser offense where his conviction for the originally charged offense had become final and, as was the case here, no meritorious ground appeared for granting a new trial other than the defendant's and the court's desire to avoid the mandatory minimum 20-year sentence for the offense of which the defendant had been convicted is no more objectionable than the acceptance of a plea of guilty to a lesser included or added offense in exchange for a plea of guilty. Cf. People v. Byrd (1968), 12 Mich. App. 186.
The questions presented are unsubstantial and require no formal argument or submission. The motion to affirm the defendant's conviction is granted.
GCR 1963, 817.5(3).