People v. Campbell

• Decision Date: 11 June 1982
• Docket Number: Docket No. 52861
• Citation: 320 N.W.2d 381,115 Mich.App. 369
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jon CAMPBELL, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 381

320 N.W.2d 381

115 Mich.App. 369

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jon CAMPBELL, Defendant-Appellant.

Docket No. 52861.

Court of Appeals of Michigan.

Submitted June 4, 1981.

Decided April 21, 1982.

Released for Publication June 11, 1982.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., William F. Delhey, Pros. Atty., and David A. King, Asst. Pros. Atty., for the People.

James C. Thomas, Ann Arbor, for defendant-appellant.

Before BRONSON, P. J., and MAHER and O'BRIEN, ^* JJ.

BRONSON, Presiding Judge.

Defendant was convicted on his plea of guilty of possession of 50 to 225 grams of a mixture containing cocaine. M.C.L. Sec. 333.7403(2)(a)(iii); M.S.A. Sec. 14.15(7403)(2)(a)(iii). He was sentenced to lifetime probation and now appeals as of right, raising various constitutional challenges to the statutory provisions under which he was found guilty and sentenced.

Defendant first contends that the controlled substances prohibitions embodied in the Public Health Code are violative of Michigan's constitutional provision mandating that "[n]o law shall embrace more than one object, which shall be expressed in its title". Mich.Const.1963, art. 4, Sec. 24. We disagree. People v. Trupiano, 97 Mich.App. 416, 420, 296 N.W.2d 49 (1980), lv. den. 409 Mich. 895 (1980); People v. Franklin, 102 Mich.App. 591, 593, 302 N.W.2d 246 (1980); People v. Lemble, 103 Mich.App. 220, 222, 303 N.W.2d 191 (1981).

Defendant arguably lacks standing to raise his remaining challenges to the statutory scheme. However, since the lower court record received by this Court did not include the transcript of the plea-taking proceeding, we are unable to ascertain under what conditions the plea was entered. For this reason, and because the prosecution does not argue that defendant lacks standing, we will address these issues on their merit.

Defendant asserts that the criminal classification scheme of the act, which determines the severity of the crime solely by the weight of the mixture which includes the substance and not the substance's purity, offends constitutional guarantees of equal protection of the law. Defendant correctly notes that a person convicted of possessing 51 grams of a mixture containing 15% cocaine will be treated far more severely than a person convicted of possessing 49.9 grams of pure cocaine. While we believe the Legislature has adopted bad policy by basing punishment on the weight of the mixture instead of the weight of the pure illegal substance, we ultimately do not believe the classification denies equal protection of the law. We believe, however, that the rationale used in upholding the classification scheme in People v. Lemble, 103 Mich.App. 220, 222-223, 303 N.W.2d 191 (1981), is incomplete. There, this Court reasoned that the greater the quantity of the mixture, regardless of purity, the greater was the potential harm to society since illegal substances are generally sold by weight and not purity. We believe, however, that the possessor of a large quantity of a pure controlled substance is far more likely to be a major trafficker in drugs than one in possession of an illegal substance whose purity has been substantially "cut" with some other agent. Most likely a person in possession of 49.9 grams of a pure controlled substance is going to sell it to street dealers who will "cut" it prior to resale (or, alternatively, the possessor of the pure substance intends to cut it himself prior to resale). ¹ Essentially, we believe the statute has the effect of treating street dealers in controlled substances, who are possibly supporting their own addiction in the case of heroin sellers, the same as (or occasionally more harshly than) real drug traffickers. Although we question the policy implications of this legislative decision, we do not consider it irrational. Street dealers need a source of supply to engage in the illegal sales, but it is equally true that major traffickers need a network of distributors to sell the controlled substance. Thus, it is rational to impose the stiff penalties for possession by mixture because it would tend to deter the ability of traffickers to find street peddlers willing to risk the possession of large, but cut, amounts of an illegal substance. Additionally, the small street vendor of illegal substances tends to attract unsavory elements to a neighborhood or area the way that a major dealer does not. Due to the prohibition on controlled substances, and we do not imply that controlled substances should be legalized, the costs of these drugs is high. Consequently, where small street vendors dealing drugs go, increased problems with crime against area residents generally follow. While, obviously, the major trafficker is ultimately the cause of this crime, his presence in an area does not have the same sort of direct adverse consequences on the local citizenry. Thus, an argument can be made that street pushers are at least as harmful as dealers. No fundamental right is involved here and we conclude that the classification scheme is reasonably related to the object of the legislation. See People v. Schmidt, 86 Mich.App. 574, 578, fn. 3, 272 N.W.2d 732 (1978), lv. den. 406 Mich. 881 (1979).

Defendant also asserts that M.C.L. Sec. 333.7403; M.S.A. Sec. 14.15 (7403) unconstitutionally deprives him of equal protection and due process of law by conclusively presuming that a person who possesses 50 or more grams of a mixture containing a schedule 1 or 2 controlled substance intends to deliver it. M.C.L. Sec. 333.7401(2); M.S.A. Sec. 14.15(7401)(2), which pertains to unlawful manufacture, delivery, or possession with intent to deliver, provides for penalties identical to those provided for simple possession where 50 or more grams of a mixture containing the controlled substance are involved. Moreover, under M.C.L. Sec. 333.7401(3); M.S.A. Sec. 14.15(7401)(3), a person who possesses, possesses with intent to deliver, delivers, or manufactures 50 or more grams of a mixture containing a controlled substance must serve his sentence consecutively with any term imposed for the commission of another felony. Furthermore, this provision removes parole or probation eligibility during the mandatory term except to the extent that lifetime probation is an option.

Defendant relies on People v. Serra, 55 Mich.App. 514, 223 N.W.2d 28 (1974), for the proposition that the statutory scheme under consideration here improperly imposes a conclusive presumption that possession of 50 grams of a mixture containing a controlled substance equates to an intent to deliver. Serra involved the constitutionality of a provision in the Controlled Substances Act of 1971 mandating that possession of two or more ounces of marijuana was prima facie evidence of an intent to deliver. In Serra, we agreed with the lower court that the presumption was unconstitutional. Our holding rested on two independent grounds: (1) that the presumption impermissibly compelled a defendant to testify to rebut the presumption and (2) that the presumption was not rationally related to common experience. The first basis of our holding in Serra was specifically overruled by the Supreme Court in People v. Gallagher, 404 Mich. 429, 437, 273 N.W.2d 440 (1979). Consequently, the validity of the presumption in this case will only be considered under the second rationale set forth in Serra.

In People v. Dorris, 95 Mich.App. 760, 765, 291 N.W.2d 196 (1980), lv. den. 409 Mich. 910 (1980), this Court stated:

"Legislative presumptions are valid so long as there is a rational connection between the proven facts and the fact to be presumed. People v. Gallagher, 404 Mich. 429; 273 N.W.2d 440 (1979), People v. John E. Moore, 78 Mich.App. 565; 261 N.W.2d 3 (1977), aff'd 402 Mich. 538; 266 N.W.2d 145 (1978). If the presumed fact is more likely than not to flow from the proven fact, the presumption is constitutionally valid. People v. Gallagher, supra."

In the instant case the presumed fact (intent to deliver) is more likely than not to flow from the proven fact (possession of a mixture of 50 or more grams containing a controlled substance). Thus, if any presumption is operative here it is valid.

In fact, it is perhaps more accurate to state that a legislative presumption is not operative in the statute. Instead, the Legislature has simply determined that where one is convicted of possession of 50 or more grams of a mixture containing a schedule 1 or 2 controlled substance, the punishment should be identical to that imposed where manufacture, delivery, or intent to deliver is also proven. This is not a case, then, where one offense with a lesser punishment is elevated to a different offense with a more severe punishment by operation of some legislative presumption. The Legislature probably provided for the same penalties in M.C.L. Sec. 333.7403; M.S.A. Sec. 14.15(7403), and M.C.L. Sec. 333.7401; M.S.A. Sec. 14.15(7401), where more than 50 grams of a mixture is involved, because it believed one in possession of this amount of a mixture most likely possesses an intent to deliver. However, we do not believe that this fact poses any constitutional impediment to the enforcement of the legislation. In our opinion, the Legislature could rationally conclude that the same penalties should be imposed for possession, possession with intent to deliver, delivery, and manufacture where the amount of the weighed substance exceeds 50 grams. While we may believe better policy would be to differentiate penalties, there is no fundamental right to possess controlled substances and the classification of penalties is reasonably related to the object of the legislation (the eradication of illegal drug use in our society).

Defendant lastly contends that the penalty provisions for possession of cocaine are disproportionate to the crime and constitute cruel or unusual punishment. Const.1963, art. 1, Sec. 16. We fully agree with defendant that the...