People v. Hadley

• Decision Date: 05 April 1993
• Docket Number: Docket No. 139375
• Citation: 501 N.W.2d 219,199 Mich.App. 96
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert Bruce HADLEY, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 219

501 N.W.2d 219

199 Mich.App. 96

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert Bruce HADLEY, Defendant-Appellant.

Docket No. 139375.

Court of Appeals of Michigan.

Submitted Sept. 24, 1992, at Lansing.

Decided April 5, 1993, at 9:30 a.m.

Released for Publication June 24, 1993.

Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., Jeffrey L. Sauter, Pros. Atty., and William M. Worden, Asst. Pros. Atty., for People.

Wilson, Lawler & Lett by Steven T. Lett, Lansing, for defendant on appeal.

Before MICHAEL J. KELLY, P.J., and SHEPHERD and FITZGERALD, JJ.

SHEPHERD, Judge.

Defendant pleaded guilty of one count of possession with intent to deliver more than 50 but less than 225 grams of the controlled substance pethidine, M.C.L. § 333.7401(2)(a)(iii); M.S.A. § 14.15(7401)(2)(a)(iii), and one count of possession with intent to deliver less than 50 grams of morphine, M.C.L. § 333.7401(2)(a)(iv); M.S.A. § 14.15(7401)(2)(a)(iv). Pursuant to a plea agreement, the prosecutor dismissed six counts involving controlled substances, an habitual offender information, and an absconding charge. Initially, defendant was sentenced to concurrent terms of ten to twenty years for the pethidine offense and one to twenty years for the morphine offense. After defendant was returned to the courtroom to correct the number of days of credit due, the trial court changed the sentences to run consecutively on the basis of People v. Grover, unpublished opinion per curiam of the Court of Appeals, decided November 7, 1990 (Docket No. 125071), where the panel held that consecutive sentencing was properly imposed pursuant to M.C.L. § 333.7401(3); M.S.A. § 14.15(7401)(3) in a case where the defendant pleaded guilty of two controlled substance offenses arising from the same transaction. Defendant now appeals as of right.

Defendant first claims that he was denied effective assistance of counsel because his defense counsel failed to advise him at the time of the guilty plea that his plea must be conditional to permit an appeal of a search and seizure question.

When reviewing a claim of ineffective assistance of counsel arising out of a guilty plea, courts apply the test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), in light of McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970), and Tollett v. Henderson, 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973). In re Oakland Co. Prosecutor, 191 Mich.App. 113, 120-122, 477 N.W.2d 455 (1991). To establish ineffective assistance in the context of a guilty plea, courts must determine whether the defendant tendered a plea voluntarily and understandingly. Id., p. 120, 477 N.W.2d 455. The question is not whether a court would, in retrospect, consider counsel's advice to be right or wrong, but whether the advice was within the range of competence demanded of attorneys in criminal cases. Id., p. 122, 477 N.W.2d 455.

In the instant case, we cannot say whether defense counsel's failure to advise defendant that his guilty plea must be conditional to allow for appellate review of a search and seizure matter constitutes an error that was so serious that counsel was not functioning as an attorney as guaranteed under the Sixth Amendment. Defense counsel's decision to forego a conditional plea may have constituted sound plea negotiation strategy, and appears to be advice that is within the range of competence required of criminal defense attorneys. But even if defense counsel committed an error in not advising defendant of the possibility of a conditional plea, we do not believe that the deficiency constituted ineffective assistance of counsel, because the mistake was not prejudicial to defendant. Id.

Defense counsel's alleged error was not prejudicial to defendant because exigent circumstances existed to justify the search without a warrant and subsequent seizure of evidence in this case. U.S. Const., Am. IV; Const. 1963, art. 1, § 11; People v. Blasius, 435 Mich. 573, 582, 459 N.W.2d 906 (1990). The exigent circumstances exception applies where the police have probable cause to believe that an immediate search will produce specific evidence of a crime, and that an immediate search without a warrant is necessary in order to protect the officers or others, or to prevent the escape of the accused. Id., pp. 593-594, 459 N.W.2d 906; People v. Davis, 189 Mich.App. 468, 474, 473 N.W.2d 748 (1991). Probable cause to search is present where the facts and circumstances warrant a reasonably prudent person to believe that a crime has been committed and that the evidence sought to be found is in a stated place. Id., p. 475, 459 N.W.2d 906. Whether probable cause exists depends upon the information known to the police officers at the time of the search. Id.

In this case, police officers entered defendant's house without a warrant at approximately 8:30 p.m. on August 5, 1986, because immediate action was necessary to prevent the loss or destruction of contraband drugs. As the trial court determined at two suppression hearings, the police did not have time to get a search warrant because of the degree of urgency involved and the amount of time it took to obtain a warrant. The record reveals that it took from 9:00 p.m. on August 5, 1986, to 3:00 a.m. on August 6, 1986, until a magistrate signed a search warrant. Upon entry, the police searched the house to determine if anyone was present who could present a danger to the police officers. The police did not seize any evidence until they obtained the search warrant. Given the facts of this case, we believe that exigent circumstances justified the entry of defendant's residence without a warrant. Because there is no merit to defendant's claim that the evidence obtained pursuant to the subsequent search warrant should be suppressed, we conclude that even if defense counsel failed to advise defendant of the possibility of a conditional plea, this error did not constitute ineffective assistance of counsel.

Defendant also claims that the consecutive sentencing provision of M.C.L. § 333.7401(3); M.S.A. § 14.15(7401)(3) does not apply in this case, where defendant's offenses violated different subsections of the same statute, M.C.L. § 333.7401(2)(a)(iii) and (iv); M.S.A. § 14.15(7401)(2)(a)(iii) and (iv), because the offenses were committed during only one transaction and occurrence. We disagree.

A consecutive sentence may be imposed if specifically authorized by statute. People v. Waterman, 140 Mich.App. 652, 653, 364 N.W.2d 780 (1985). M.C.L. § 333.7401(3); M.S.A. § 14.15(7401)(3) provides:

A term of imprisonment imposed pursuant to subsection (2)(a) or section 7403(2)(a)(i), (ii), (iii), or (iv) shall be imposed to run consecutively with any term of imprisonment imposed for the commission of another felony.

As other panels of this Court have recognized, the statute clearly mandates that the prison term for any controlled substance offenses indicated therein shall run consecutively with any prison term imposed for "another felony." People v. Cline, 190 Mich.App. 1, 2, 475 N.W.2d 362 (1991); People v. Mamon, 190 Mich.App. 124, 475 N.W.2d 378 (1991).

Furthermore, this Court has previously found the consecutive sentencing provision of this statute to be proper where "another felony" was another controlled substance offense. In Cline, supra, this Court found that the defendant was properly sentenced to consecutive terms for convictions of two counts of delivery of less than fifty grams of cocaine under M.C.L. § 333.7401(2)(a)(iv); M.S.A. § 14.15(7401)(2)(a)(iv) because the deliveries were committed on consecutive days.

Similarly, in People v. Kent, 194 Mich.App. 206, 208-209, 486 N.W.2d 110 (1992), this Court found that consecutive sentencing was properly imposed because the defendant was charged in two separate informations with supplying cocaine on three different occasions. There, this Court directly addressed the question whether the phrase "another felony" should be interpreted to refer to a different and distinct felony, not an additional felony under the same provision of the controlled substances act. After noting that "[t]he plain meaning of the term 'another' includes both 'additional' and 'different or distinct,' " the panel of this Court concluded that

"another felony" would include the commission of an additional felony violation of the same controlled substances provision, the commission of a different felony violation of the controlled substances act, or the violation of any other felony provision. [Id., p. 209, 486 N.W.2d 110.]

Although these cases did not address the precise question whether "another felony" should be interpreted to refer to a controlled substance violation that is punishable by a different subsection of the same statute and that arises out of the same criminal transaction, we believe that the Legislature intended the statute to apply to this kind of case.

Although defendant does not raise the issue, we first note that the application of the consecutive sentencing provision of this statute does not violate the constitutional double jeopardy guarantee. U.S. Const., Am. V; Const. 1963, art. 1, § 15. Recently, this Court decided that multiple punishment for two separate controlled substance offenses arising from the same transaction did not place the defendant twice in jeopardy for the same offense. People v. Green, 196 Mich.App. 593, 493 N.W.2d 478 (1992). In Green, the defendant was convicted of separate counts of possession of less than twenty-five grams of cocaine and possession of less than twenty-five grams of heroin, M.C.L. § 333.7403(2)(a)(v); M.S.A. § 14.15(7403)(2)(a)(v). The panel held that even though the controlled substance offenses arose out of a single transaction, double jeopardy was not violated because the defendant committed two separate criminal offenses under M.C.L. § 333.7403; M.S.A. § 14.15(7403). The panel stated:

We...