People v. Cardenas, Docket No. 242977.

• Decision Date: 28 October 2004
• Docket Number: Docket No. 242977.
• Citation: 263 Mich. App. 511,688 N.W.2d 544
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jose Carlos CARDENAS, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

688 N.W.2d 544

263 Mich. App. 511

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jose Carlos CARDENAS, Defendant-Appellant.

Docket No. 242977.

Court of Appeals of Michigan.

Submitted June 28, 2004, at Lansing.

Decided September 7, 2004, at 9:05 a.m.

Released for Publication October 28, 2004.

Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, and David G. Gorcyca, Prosecuting Attorney, and Anica Letica, Assistant Prosecuting Attorney, for the people.

Jose Carlos Cardenas in propria persona.

Before: ZAHRA, P.J., and SAWYER, NEFF, WHITE, MARKEY, O'CONNELL, and KELLY, JJ.

ZAHRA, P.J.

Pursuant to MCR 7.215(J), this Court convened a special panel to resolve the conflict between the prior opinion in this case, People v. Cardenas, 260 Mich.App. 801, 684 N.W.2d 882 (2004), and People v. Matelic, 249 Mich.App. 1, 641 N.W.2d 252 (2001). These cases involve the interpretation and application of MCL 791.234(10), which expedites parole eligibility by 2-1/2 years for an offender convicted and sentenced to life imprisonment under MCL 333.7401(2)(a)(i) when the sentencing court determines on the record that the offender "has cooperated with law enforcement." In Matelic, supra at 7-8, 641 N.W.2d 252, the defendant sought early parole eligibility under MCL 791.234(10) by sending a letter to the prosecutor's office indicating that he was willing to cooperate with law enforcement. The Matelic panel held that the defendant was entitled to a hearing "to determine whether defendant could provide law enforcement any specific information potentially germane to the execution of law enforcement duties." Matelic, supra at 18, 641 N.W.2d 252. The original Cardenas panel followed the Matelic panel's holding and reversed the trial court, but only because it was required to do so pursuant to MCR 7.215(J).

Contrary to the Matelic panel's opinion, we conclude that a trial court is not required to conduct an evidentiary hearing to determine compliance with MCL 791.234(10) on a defendant's mere representation that he is willing to cooperate with law enforcement. MCL 791.234(10) requires a defendant to establish cooperation with law enforcement before filing a motion for judicial determination of cooperation. A defendant's mere representation that he is willing to cooperate with law enforcement officials does not entitle a defendant to an evidentiary hearing to determine whether he could provide law enforcement with relevant and useful information sufficient to expedite parole proceedings pursuant to MCL 791.234(10). We conclude that remand for an evidentiary hearing is not warranted in this case and defendant is not entitled to early parole under MCL 791.234(10) because his motion for judicial determination of cooperation failed to establish that he had in fact cooperated with law enforcement. We affirm.

I. Facts and Procedure

In 1990, defendant was convicted of delivery of 650 grams or more of cocaine, MCL 333.7401(2)(a)(i), conspiracy to deliver 650 or more grams of cocaine, MCL 750.157a(a); MCL 333.7401(2)(a)(i), and delivery of 225 grams or more but less than 650 grams of cocaine, MCL 333.7401(2)(a)(ii). At the time of defendant's conviction, MCL 333.7401(2)(a)(i) provided for a mandatory sentence of life imprisonment if a person was convicted of delivering 650 or more grams of cocaine. Further, the former parole eligibility statute, MCL 791.234(4), precluded the possibility of parole for a person convicted and sentenced for such a major controlled substance offense. Thus, the trial court sentenced defendant to mandatory life in prison without parole for the convictions involving 650 or more grams of cocaine and twenty to thirty years' imprisonment for the delivery of 225 grams or more but less than 650 grams of cocaine conviction.

The Legislature subsequently amended the controlled substance laws so that persons serving mandatory life sentences without the possibility of parole would be eligible for parole. The Legislature also provided circumstances under which parole could be expedited. Pertinent to this case is that parole can be expedited by 2-1/2 years if the trial court concludes that defendant "has cooperated with law enforcement." MCL 791.234(10).¹ In 2002, defendant, in order avail himself of the early parole provisions of MCL 791.234(10), sent a letter to the Oakland County Prosecutor expressing his willingness to cooperate with law enforcement. In this letter, defendant wrote, "I propose that you designate a representative from the Prosecutors Office to meet me at the Boyer Road Correctional Facility for a debriefing. I will fully and accurately share the information known to me about my underlying case." The prosecutor decided not to meet with defendant. Defendant then filed a motion for a judicial determination that he had cooperated with law enforcement. The trial court denied defendant's motion for the following reasons:

Whether the defendant has cooperated with law enforcement is an issue of fact. This court cannot make a determination of cooperation without first holding an evidentiary hearing. Nothing in [MCL 791.234(10)] gives any prisoner a right to a hearing as to whether he has cooperated.

* * *

The sentencing judge made no determination that the defendant cooperated with law enforcement. The defendant does not claim that he actually cooperated with law enforcement. Rather, he merely seeks to demonstrate that he now has no useful information. However, the standard set forth in the statute is not whether the defendant "has" useful information but whether the defendant "had" useful information. It would make a mockery of the intent of the Legislature to allow a prisoner who did not cooperate to demand early parole based on his refusal to cooperate when he may have had useful information at the time of his conviction. Accordingly, this Court declines to exercise its discretion to grant the defendant a hearing.

The trial court also denied defendant's motion for reconsideration.

II. Analysis

Defendant argues that the trial court erred in denying his motion for a hearing to determine whether he had cooperated with law enforcement and was thus entitled under MCL 791.234(10) to a 2-1/2 year reduction in the time he must serve before becoming eligible for parole.² This issue involves the interpretation of MCL 791.234(10). We review de novo questions of statutory interpretation. People v. Weeder, 469 Mich. 493, 497, 674 N.W.2d 372 (2004). The goal in construing a statute is "`to ascertain and give effect to the intent of the Legislature.'" Id., quoting People v. Pasha, 466 Mich. 378, 382, 645 N.W.2d 275 (2002). We begin by examining the plain language of the statute. People v. Morey, 461 Mich. 325, 330, 603 N.W.2d 250 (1999). Where the statute's language is unambiguous, we assume the Legislature intended its plain meaning, and we enforce the statute as written without further judicial construction. Weeder, supra at 497, 674 N.W.2d 372. If reasonable minds can differ concerning the meaning of a statute, the statute is ambiguous and judicial construction is appropriate. People v. Warren, 462 Mich. 415, 427, 615 N.W.2d 691 (2000). If a statute is ambiguous, "[t]he court must access [sic, assess] the object of the statute and the harm it was designed to remedy and apply a reasonable construction that best accomplishes the purpose of the statute." People v. Lawrence, 246 Mich.App. 260, 265, 632 N.W.2d 156 (2001).

MCL 791.234(10) provides as follows:

If the sentencing judge, or his or her successor in office, determines on the record that a prisoner described in subsection (6) sentenced to imprisonment for life for violating or conspiring to violate section 7401(2)(a)(i) of the public health code, 1978 PA 368, MCL 333.7401, has cooperated with law enforcement, the prisoner is subject to the jurisdiction of the parole board and may be released on parole as provided in subsection (6), 2-1/2 years earlier than the time otherwise indicated in subsection (6). The prisoner is considered to have cooperated with law enforcement if the court determines on the record that the prisoner had no relevant or useful information to provide. The court shall not make a determination that the prisoner failed or refused to cooperate with law enforcement on grounds that the defendant exercised his or her constitutional right to trial by jury. If the court determines at sentencing that the defendant cooperated with law enforcement, the court shall include its determination in the judgment of sentence. [Emphasis added.]

The Legislature's use of "have" and "has" as present perfect tense verbs and its use of past tense verbs demonstrate the Legislature's intent. We agree with the following reasoning by Judge Wilder in his partial dissent in Matelic:

Giving the phrases "has cooperated" and "have cooperated" their plain meaning, then, it is clear that the Legislature intended that the prisoner's cooperation must have occurred at some time before the prisoner's application for parole release under MCL 791.234(10). Similarly, the phrase "had no relevant or useful information to provide", when given its plain meaning and considered in relation to the present perfect tense clause "have cooperated," expresses the Legislature's intent that the prisoner must have lacked information before the prisoner's application for treatment under MCL 791.234(10), in order to be found as a matter of law to have cooperated.

Under the statute, then, the offer of "stale" information in an attempt to qualify for treatment under MCL 791.234(10) would fail if the evidence established that the prisoner possessed the information and could have offered it to law enforcement when it was not stale, i.e., relevant and useful, but did not do so. Such a determination must be made in the first instance by the lower court and is a factual determination that we should not disturb unless there is clear error. People v. Fields, 448 Mich. 58, 76, 528

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