Opinion
No. 103375.
May 24, 1996.
Leave to Appeal Denied May 24, 1996:
Court of Appeals No. 159629.
I would grant leave to appeal.
The defendant was convicted of one count of conspiracy to deliver less than 50 grams of cocaine and four counts of delivery of less than 50 grams of cocaine on evidence that he sold cocaine to a street criminal who agreed to make purchases from police-identified dealers for $50 per purchase and prosecutorial plea concessions.
The deliveries were 13.53 grams on March 26, 1991, 6.74 grams on May 24, 13.35 grams on June 18, and 27.57 on August 1, for a total of 61.19 grams. He was sentenced to five consecutive eight- to twenty-year terms or a cumulative minimum of forty years and a cumulative maximum of one hundred years — a sentence greater than the mandatory sentence for selling, in one transaction, ten times that amount of cocaine.
Leave to appeal should be granted to consider whether the proportionality principle set forth in People v Milbourn, 435 Mich. 630 (1990), was violated. See my dissenting statement in People v Diaz, 450 Mich. 978, 978-979 (1996), attached infra.
See also my references to that dissenting statement in People v Fields, ante, 886; People v Armstrong, ante, 888, People v Colar, ante, 886, and People v Rincher, ante, 894.
Alternatively, justice requires that this case be held in abeyance for People v Justice, No. 105352, in which this Court has decided to grant leave to appeal to consider whether many small drug sales reflect an ongoing conspiracy to sell, over time, a large amount of drugs, and People v Banks, No. 101601, and People v Tucker, No. 103191, in which this Court has decided to grant leave to appeal to consider whether the Legislature intended to require the imposition of consecutive sentences for conspiracy to deliver and delivery of the same quantity of cocaine.
PEOPLE v. DIAZ STATEMENT
LEVIN, J. I would grant leave to appeal.
I
Defendant was convicted of two counts of delivery of less than 50 grams of a controlled substance. The judge sentenced him to consecutive prison terms of 5 to 20 years.
Defendant argues that the effective minimum sentence of 10 years is disproportionate to his conduct, in violation of People v Milbourn, 435 Mich. 630 (1990). Although the Court of Appeals affirmed, two judges noted they did so only because they were constrained to do so by another panel's first-out decision in People v Warner, 190 Mich. App. 734 (1991).
II
Milbourn was not only about legislative intent. The sentence imposed and struck down in that case was authorized by law; it was beyond the suggested minimum, but not beyond the judge's authority. Milbourn, and its proportionality principle, should therefore be properly understood as an external proportionality limit on the trial court's discretion to sentence, even when the trial court is operating within the limits authorized by statute. Milbourn itself represents one situation in which this external check is important — a defendant who is less culpable in ways not reflected in the sentencing scheme. Consecutive sentences could be another.
This Court, in Milbourn, based its proportionality principle on the Legislature's manifested intent to punish more serious crimes and more serious criminals more severely. The sentences in this case run counter to that: although it is certainly possible in some cases, it is not categorically true that a defendant who is caught twice delivering 49 grams of cocaine is twice as dangerous a criminal as one who is caught only once. Experience informs that almost every defendant in a drug case has committed more than one single crime, even if he is only caught and convicted of one transaction. A man who passes a police officer while speeding is no greater a threat to society than if the officer follows him for several miles while he exceeds the speed limit.
The defendant makes a persuasive argument on the basis of this practical observation. The rule considered here would give prosecutors nearly unbridled control over sentencing. A prosecutor could generally establish any minimum sentence desired by continuing a series of very low-level controlled purchases. Sentencing is traditionally the province of the Legislature and judiciary. The proliferation of plea bargaining has already shifted a much greater amount of control to prosecutors, and the Court of Appeals decision in this case would follow that dangerous trend.
III
The prosecutor's argument is clear and has obvious logical appeal. I believe, however, that there are sufficient concerns raised by this case that the effect of Morris should not be casually magnified. People v Morris, 450 Mich. 316 (1995). The Court of Appeals decisions illustrate the tension between Morris and Milbourn that should be resolved by this Court. Other panels of the Court of Appeals have suggested that the rule followed by the Court of Appeals in the instant case is wrong, and the prosecutor joins in encouraging a grant of leave to appeal.
I concur with Justice LEVIN'S statement in this case. I also concur with Justice LEVIN'S statement in People v Diaz, 450 Mich. 978-979 (1996).
MALLETT, J.
I would grant leave to appeal.