Opinion
Docket No. 102587.
Decided November 6, 1989. Leave to appeal applied for.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Donald E. Martin, Prosecuting Attorney, and Susan L. LeDuc, Assistant Prosecuting Attorney, for the people.
State Appellate Defender (by Ronald J. Bretz), for defendant on appeal.
Before: GRIBBS, P.J., and MICHAEL J. KELLY and MARILYN KELLY, JJ.
Following a jury trial, defendant was convicted of possession with intent to deliver of more than 225 grams but less than 650 grams of a mixture containing cocaine, MCL 333.7401(1) and (2)(a)(ii); MSA 14.15(7401)(1) and (2)(a)(ii). At the time of defendant's conviction, MCL 333.7401(2)(a)(ii); MSA 14.15(7401)(2)(a)(ii) provided for a minimum term of twenty years in prison for this crime. Defendant was sentenced to a term of twenty to thirty years. The statute was subsequently amended to lower the mandatory minimum prison term for this offense to ten years, and to give the sentencing court discretion to depart from the minimum sentence requirement where there are substantial and compelling reasons to do so. MCL 333.7401(2)(a)(ii) and (4); MSA 14.15(7401)(2)(a)(ii) and (4), as amended by 1987 PA 275.
On appeal as of right, defendant argues that his twenty- to thirty-year sentence constitutes cruel and unusual punishment. We do not agree.
Several panels of this Court have concluded that the mandatory sentencing scheme of MCL 333.7401; MSA 14.15(7401), prior to its amendment, was constitutional. See People v Regelin, 178 Mich. App. 128; 443 N.W.2d 436 (1989); People v Leighty, 161 Mich. App. 565, 583; 411 N.W.2d 778 (1987), lv den 430 Mich. 895 (1988); People v Matthews, 143 Mich. App. 45, 64; 371 N.W.2d 887 (1985); People v Ward, 133 Mich. App. 344, 357; 351 N.W.2d 208 (1984); People v Harman, 124 Mich. App. 93, 98; 333 N.W.2d 591 (1983), lv den 417 Mich. 1100.45 (1983); People v Puertas, 122 Mich. App. 626, 630; 332 N.W.2d 399 (1983), lv den 417 Mich. 1056 (1983); People v Kaigler, 116 Mich. App. 567, 572-573; 323 N.W.2d 486 (1982). We remain convinced that the statutory provisions are constitutionally permissible.
We are, of course, aware that one panel of this Court has held that resentencing under the amended statute was required where a defendant was sentenced to the twenty-year mandatory minimum sentence for possession of 225 to 650 grams of a mixture containing cocaine prior to the amendment. People v Schultz, 172 Mich. App. 674; 432 N.W.2d 742 (1988), lv gtd 432 Mich. 891 (1989). We note that our Supreme Court has granted leave to determine whether this Court erred by ordering resentencing.
Moreover, in this case, unlike in Schultz, the sentencing judge clearly stated her belief that the mandatory sentence was "an appropriate sentence in this individual case." The dissent suggests that the lower court felt constrained by the mandatory twenty-year sentence and would have reduced defendant's sentence but for the statute. The sentencing judge anticipated such reasoning and said considerably more than is quoted by the dissent:
Thank you. It's the Court's belief that the sentence is mandatory and that I have no discretion, despite the law cited to the Court. In light of that, it would seem to me that findings on factors determinative of sentencing were really not necessary.
However, in the event that either Mr. Finn or the appellate counsel is successful in persuading the appellate courts that the statute does not mean what it says or else that it's unconstitutional, I will go ahead and make findings on factors determinative of sentencing and indicate why I believe a mandatory sentence is an appropriate sentence in this individual case.
Looking first at the protection of society. . . .
The sentencing judge then spoke at length concerning the need in this case for protection of society, defendant's potential for reformation and defendant's need for discipline. She noted that defendant had a background as a state trooper and police officer, and that he should have "not only respect for the law and appreciation for why we have laws, but also an appreciation of what happens to people when they get caught."
We conclude that defendant's sentence was not cruel and unusual and our appellate conscience is not shocked. People v Coles, 417 Mich. 523; 339 N.W.2d 440 (1983).
Affirmed.
MARILYN KELLY, J., concurred.
I find this case indistinguishable from People v Schultz, 172 Mich. App. 674; 432 N.W.2d 742 (1988), lv gtd 432 Mich. 891 (1989). The majority says that the sentencing judge stated her belief that the mandatory sentence was "an appropriate sentence in this individual case." I don't see it that way. She said:
[ The Court]: Thank you. It's the Court's belief that the sentence is mandatory and that I have no discretion, despite the law cited to the Court. In light of that, it would seem to me that findings on factors determinative of sentencing were really not necessary.
This defendant had never been convicted of anything and was described by the presentence reporter as "before the court for his first known criminal involvement." The use of long mandatory minimum sentences to discourage drug trafficking has been about as effective as King Canute's order to the tides.
I would affirm the conviction and remand for resentencing as in People v Schultz, supra.