Opinion
ORDER
On order of the Court, the delayed application for leave to appeal is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.
LEVIN, J., would grant leave to appeal and states as follows:
Ronald Ray McClusky has been sentenced to three consecutive terms of imprisonment of ten to twenty years for delivery of cocaine, ten to twenty years for conspiracy to deliver, and one to five years for carrying a concealed weapon.
I
In People v. Sammons, 191 Mich.App. 351, 375, 478 N.W.2d 901 (1991), the Court of Appeals rejected the defendant's double jeopardy argument, and in a very brief statement held that "pursuant to the plain language of the statute, defendant's sentence for the separate and distinct felony offense of conspiracy was required to be consecutive."
The Court of Appeals in Sammons remanded for resentencing on other grounds, and the defendant did not apply for leave to appeal to this Court. It was the prosecutor who sought leave to appeal, and whose application was denied at 439 Mich. 938, 480 N.W.2d 103 (1992).
This Court should address the question whether the Legislature intended or the Double Jeopardy Clause permits imposition of consecutive sentences for delivery of a quantity of cocaine and conspiracy to deliver the same quantity of cocaine.
II
The defendant, who is not represented by counsel, did not raise this issue. But, if it appears that he is serving a sentence beyond that mandated or permitted by the Legislature or a sentence violative of the Double Jeopardy Clause, this Court has a duty, based in part on the Due Process Clause, to raise the issue sua sponte, especially where the defendant is not represented by counsel, just as it is obliged to do so where it appears that a defendant has been convicted without sufficient evidence.
III
This Court should confront whether to cut back on Morris' expansive definition of "another felony" in M.C.L. § 333.7401(3); M.S.A. § 14.15(7401)(3) with respect to convictions for a substantive offense and conspiracy to commit the same.
We now hold that the term "another felony" as used in § 7401(3) includes any felony for which the defendant has been sentenced either before or simultaneously with the controlled substance felony enumerated in § 7401(3) for which a defendant is currently being sentenced. [People v. Morris, 450 Mich. 316, 320, 537 N.W.2d 842 (1995).]
The expansive definition was obiter dicta insofar as the factual situation in those cases did not present the factual situation in these cases. In those cases, there were separate drug transactions. Here there was only one transaction that was charged as both the substantive offense and a conspiracy to commit that very same offense.
IV
It is troubling that a defendant can be consecutively sentenced for a substantive drug offense and conspiracy to commit the same offense. The double jeopardy implications of this scenario are also troubling, as are the practical consequences that will follow from it with respect to increased charging discretion in prosecutors. Post- Morris, prosecutors may regularly charge conspiracy, in addition to a substantive drug count, in the garden variety situation in which an individual with any help delivers drugs to an informant or other person receiving them. The conspiracy count will then be a powerfully coercive tool for extracting a plea on either the substantive or the conspiracy count in exchange for the dropping of the other count.
The United States Supreme Court has granted certiorari in U.S. v. Rutledge, 40 F.3d 879 (C.A.7, 1994). That case involves a double jeopardy challenge by a defendant who was convicted and sentenced for conspiracy to distribute a controlled substance and continuing criminal enterprise where the same conduct formed the basis for both charges.
See n. 1 supra.
MICHAEL F. CAVANAGH, J., concurs in the statement of LEVIN, J.