People v. Ealy

• Decision Date: 01 April 1997
• Docket Number: Docket No. 186095
• Citation: 222 Mich.App. 508,564 N.W.2d 168
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Tony Michael EALY, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 168

564 N.W.2d 168

222 Mich.App. 508

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Tony Michael EALY, Defendant-Appellant.

Docket No. 186095.

Court of Appeals of Michigan.

Submitted Jan. 14, 1997, at Lansing.

Decided April 1, 1997, at 9:20 a.m.

Released for Publication June 16, 1997.

Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., Richard Thompson, Pros. Atty., Joyce F. Todd, Chief, Appellate Div., and Anica Letica, Asst. Pros. Atty., for People.

Hatchett, DeWalt & Hatchett by Elbert L. Hatchett, Pontiac, for defendant-appellant.

Before FITZGERALD, P.J., and MacKENZIE and A.P. HATHAWAY ^*, JJ.

PER CURIAM.

Defendant pleaded guilty to one count of delivery of more than 225 grams but less than 650 grams of cocaine, M.C.L. § 333.7401(2)(a)(ii); M.S.A. § 14.15(7401)-(2)(a)(ii), one count of delivery of more than 50 but less than 225 grams of cocaine, M.C.L. § 333.7401(2)(a)(iii); M.S.A. § 14.15(7401)-(2)(a)(iii), and three counts of delivery of less than 50 grams of cocaine, M.C.L. § 333.7401(2)(a)(iv); M.S.A. § 14.15-(7401)(2)(a)(iv). He was sentenced to consecutive prison terms of 20 to 30 years, 10 to 20 years, and 1 to 20 years for the respective convictions. Defendant appeals as of right. We affirm.

Defendant's convictions arose out of a series of five cocaine sales made to an undercover police officer. In each sale, the officer offered to purchase an amount of cocaine and defendant set the price. The first two sales involved one-half of one gram, the third sale involved an eighth of an ounce, the fourth involved two ounces, and the final sale involved 250 grams of cocaine. The officer testified that he purchased greater amounts of cocaine from defendant to determine how much defendant could deliver and to assist in locating defendant's source.

Defendant contends that the police committed "sentencing entrapment" by wrongfully inducing him to participate in offenses involving escalating amounts of cocaine and exposing him to greater penalties. The trial court found no sentencing entrapment, instead concluding that the increase in the amount of drugs involved was "good and proper police work." We agree with the trial court.

In Michigan, entrapment is analyzed according to a two-pronged test, with entrapment existing if either prong is met. The court must consider whether (1) the police engaged in impermissible conduct that would induce a law-abiding person to commit a crime in similar circumstances, or (2) the police engaged in conduct so reprehensible that it cannot be tolerated. People v. Fabiano, 192 Mich.App. 523, 525, 482 N.W.2d 467 (1992); People v. Juillet, 439 Mich. 34, 475 N.W.2d 786 (1991). Entrapment will not be found where the police do nothing more than present the defendant with the opportunity to commit the crime of which he was convicted. People v. Butler, 444 Mich. 965, 966, 512 N.W.2d 583 (1994).

Although the issue of sentencing entrapment has not been addressed in Michigan, federal courts have considered the issue. In United States v. Staufer, 38 F.3d 1103, 1106 (C.A.9, 1994), quoting United States v. Stuart, 923 F.2d 607, 614 (C.A.8, 1991), the court indicated that sentencing entrapment occurs "when a defendant, although predisposed to commit a minor or lesser offense, is entrapped in committing a greater offense subject to greater punishment." See also United States v. Stavig, 80 F.3d 1241, 1245 (C.A.8, 1996) ("[S]entencing entrapment may occur where outrageous government conduct overcomes the will of a defendant predisposed to deal only in small quantities of drugs, for the purpose of increasing the amount of drugs and the resulting sentencing imposed against that defendant.") and United States v. Garcia, 79 F.3d 74, 75 (C.A.7, 1996).

In this case, the police did nothing more than present defendant with the opportunity to commit the crimes of which he was convicted. Although an informant told the police that defendant was capable of supplying a couple of grams of cocaine and defendant initially sold small amounts of cocaine to the undercover officer, defendant did not hesitate in selling the officer increasing amounts and eventually sold him 250 grams of cocaine. See United States v. Walls, 315 U.S.App.D.C. 111, 70 F.3d 1323, 1329 (1995) (the fact that the defendants showed no hesitation in committing the crime for which they were convicted was sufficient to defeat their sentencing entrapment argument).

There is no evidence that the police continued the purchases merely to enhance defendant's eventual sentence. The undercover officer testified that he purchased greater amounts of cocaine from defendant in order to determine defendant's selling capabilities and to discover the identity of defendant's supplier. Although defendant asserts that he could have been arrested after any of the earlier transactions, the delay in his arrest was justified on the ground that an earlier arrest would have impaired the...