People v. Ensign
| Decision Date | 22 February 1982 |
| Docket Number | Docket No. 50608 |
| Citation | 112 Mich.App. 286,315 N.W.2d 570 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Terry Lee ENSIGN, Defendant-Appellant. |
| Court | Court of Appeal of Michigan — District of US |
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Michael R. Smith, Pros. Atty., and Thomas C. Nelson, Asst. Atty. Gen., for the People.
Norman Fell, Ann Arbor, for defendant-appellant.
Before MAHER, P. J., and ALLEN and CYNAR, JJ.
On Rehearing
Defendant was charged with conspiracy to deliver under 50 grams of cocaine, M.C.L. § 333.7401; M.S.A. § 14.15(7401), M.C.L. § 750.157a; M.S.A. § 28.354(1), and delivery of under 50 grams of cocaine, M.C.L. § 333.7401; M.S.A. § 14.15(7401), arising out of a transaction which occurred on September 25, 1979.
Defendant was also charged with similar crimes arising out of another transaction which occurred on September 28, 1979. Both transactions involved the alleged sale of cocaine to an undercover police officer. In addition, defendant was charged in another case with possession of marijuana, which substance was allegedly in his possession at the time of his arrest on September 28, 1979. On January 16, 1980, defendant pled nolo contendere to the charge of delivery of cocaine arising out of the transaction of September 25, 1979. This plea was entered pursuant to a plea agreement whereby the remaining charges would be dismissed at the time of sentencing. On March 24, 1980, defendant was sentenced to serve ten to twenty years in prison, and the other charges were dismissed.
Defendant first claims that certain errors occurred in the sentencing process. His contention that the trial court failed to adequately consider defendant's potential for rehabilitation and that the trial court disregarded the information contained in the presentence report are not supported by the record, and constitute the statement of a conclusion rather than an argument. The record shows affirmatively that the trial court was familiar with the presentence report and defendant acknowledged the accuracy of the information contained therein.
Defendant contends that the trial court improperly considered the other pending charges in passing sentence. We find, however, that the trial court stated on the record that it would consider the pending charges and that defendant made no objection to that fact. The trial court may consider pending charges, and defendant may challenge or explain such charges if he chooses to do so. People v. Lee, 391 Mich. 618, 218 N.W.2d 655 (1974). We note that those charges arose out of the sale of narcotics to an undercover police officer and the fact that defendant allegedly had marijuana in his possession when he was arrested. It is not likely that a denial of the facts surrounding those charges would have been credible even if defendant chose to make such a denial. The trial court was not accepting defendant's guilt of misconduct based on mere accusations denied by defendant, which practice is not permissible, People v. Zachery Davis, 41 Mich.App. 683, 686-692, 200 N.W.2d 779 (1972). Rather, the trial court said only that it would consider the charges. This was not error. Lee, supra.
Defendant claims that the trial court placed undue emphasis on the local attitude towards drug offenses. The record does not reflect an abrogation of the trial court's sentencing discretion such as was ground for reversal in People v. Chapa, 407 Mich. 309, 284 N.W.2d 340 (1979), nor does it show the undue emphasis on vengeance or reassurance of the community that criminals would be dealt with firmly as was true in People v. Gonzales, 86 Mich.App. 166, 272 N.W.2d 227 (1978). It appears only that the trial court considered the community attitude as one factor in passing sentence.
Defendant also claims that the sentence imposed is the result of personal bias on the part of the judge. This allegation arises from the fact that the judge was the defense attorney in a previous civil action in which defendant was the plaintiff. That civil case was a suit by defendant for damages in compensation for an accident in which defendant became a paraplegic. Defendant claims that since the trial judge, as the defense attorney in the civil case, lost a substantial judgment in that case, he is now using his sentencing discretion as a tool of revenge.
Defense counsel in the instant case admits being aware of this potential for bias, and has submitted an affidavit with his brief on appeal claiming that he was induced not to move for disqualification of the trial judge by the judge's representations that he would not be biased and by his statements to the effect that the other judge who would then hear defendant's case was unduly harsh on drug offenders. Once more, defendant has stated a conclusion rather than demonstrated factual support for reversal. Where a defendant knows of a basis for disqualification prior to trial and fails to move for disqualification, the issue is not preserved for appeal. People v. Alexander, 76 Mich.App. 71, 78, 255 N.W.2d 774 (1977).
We also note that, by affidavit, defendant alleges that the trial court had previously sentenced 14 other drug offenders to incarceration, the highest minimum sentence imposed being 41/2 years. This information, if true, is inadequate from which to draw any conclusion, since nothing is presented as to the nature of the offenses other than that they are drug related. This lack of information precludes meaningful comparison.
At the sentencing proceeding, the trial court referred to the instant case by the lower court number 8-4173, which is, according to the record, the case arising out of the transaction of September 28, 1979. From the proceeding on January 16, 1980, it is clear that defendant's plea was addressed to the delivery alleged to have taken place on September 25, 1979. The September 25 delivery involved a single gram of cocaine, while the delivery of September 28 involved a larger quantity. No reference was made at the sentencing proceeding other...
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