People v. Kent

• Decision Date: 05 May 1992
• Docket Number: Docket No. 139029
• Citation: 486 N.W.2d 110,194 Mich.App. 206
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jessie Allen KENT, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 110

486 N.W.2d 110

194 Mich.App. 206

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jessie Allen KENT, Defendant-Appellant.

Docket No. 139029.

Court of Appeals of Michigan.

Submitted April 21, 1992, at Grand Rapids.

Decided May 5, 1992, at 9:15 a.m.

Released for Publication Aug. 3, 1992.

Frank J. Kelley, Atty. Gen., Gay Secor Hardy, Sol. Gen., Jon R. Sahli, Pros. Atty., and David J. Wallace, Asst. Pros. Atty., for the People.

Patrick K. Ehlmann, Lansing, for defendant on appeal.

Before HOOD, P.J., and SHEPHERD and SANBORN, ^* JJ.

PER CURIAM.

Defendant pleaded guilty of two counts of delivery of less than fifty grams of cocaine, M.C.L. Sec. 333.7401(2)(a)(iv); M.S.A. Sec. 14.15(7401)(2)(a)(iv), which were charged in two separate informations. In exchange, a third information charging the same offense was dismissed. For one conviction, defendant was sentenced to two to twenty years' imprisonment. For the other conviction, defendant was sentenced to three to twenty years' imprisonment, to be served consecutively to the other sentence. Defendant appeals these convictions and sentences as of right. We affirm.

On appeal, defendant contends that his sentences are disproportionate to the circumstances of the crimes and his personal history. He asserts that his actions were those of a "purchaser" rather than a "dealer" and that the offenses should have been at the extreme low end of the scale of seriousness, particularly in view of the relatively small amounts of cocaine.

We note, as did defendant, that his sentences were within the guidelines recommendation of one to five years. These sentences are therefore presumptively valid. People v. Broden, 428 Mich. 343, 354-355, 408 N.W.2d 789 (1987). Nevertheless, defendant contends that the sentences are disproportionate, particularly in light of the consecutive nature of his three-to-twenty-year sentence. We disagree.

In People v. Milbourn, 435 Mich. 630, 461 N.W.2d 1 (1990), our Supreme Court reaffirmed that proportionate sentences must take into account not only the seriousness of the offense but the individual characteristics of the defendant. In this case, while defendant may have provided only small amounts of cocaine to the undercover police officer, he did so on three occasions. The record indicates, however, that defendant's efforts were on occasion aimed at acquiring larger amounts. Turning to defendant's personal history, we note that he has four prior felony convictions, including one drug offense and two weapons offenses. Although there may have been mitigating circumstances, there is nothing in the record to suggest that the sentences violate the principle of proportionality. Furthermore, the cumulative nature of defendant's sentences is irrelevant to the determination whether his sentences are excessive. People v. Marshall Warner, 190 Mich.App. 734, 736, 476 N.W.2d 660 (1991). Under the circumstances, we are convinced that the trial court did not abuse its discretion in sentencing defendant within the guidelines.

Next, defendant contends that the trial court erred in ordering his three-to twenty-year sentence to be served consecutively to his two-to twenty-year sentence.

M.C.L. Sec. 333.7401(3); M.S.A. Sec. 14.15(7401)(3) provides in relevant part:

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. [Emphasis added.]

On appeal, defendant argues that the phrase "another felony" should be interpreted to mean a different and distinct felony, not an additional felony under the same provision of the controlled substances act. Upon careful consideration we cannot agree with defendant's interpretation of this provision. The plain meaning of the term "another" includes both "additional" and "different or distinct." See, e.g., Black's Law Dictionary, Special Deluxe Fifth Edition (1979). Therefore, "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. Furthermore, this interpretation does not render M.C.L. Sec. 768.7b; M.S.A. Sec. 28.1030(2) meaningless. The two statutes address separate and distinct situations. Although imposition of consecutive sentences is mandated under M.C.L. Sec. 768.7b; M.S.A. Sec. 28.1030(2) when a defendant commits a felony while other felony proceedings are pending, M.C.L. Sec. 333.7401(3); M.S.A. Sec. 14.15(7401)(3) governs when a defendant commits certain controlled substance offenses and another felony, irrespective of pending felony charges. People v. Mamon, 190 Mich.App. 124, 126, 475 N.W.2d 378 (1991).

In his appellate briefs, defendant states that the trial court erred in denying his motion to dismiss the charges because of the delay in his arrest. Contrary to his assertions, the trial court's ruling with regard to this issue is in the record. Nevertheless, defendant fails to argue the merits of this allegation of error in any of the three briefs filed by him in this appeal. Consequently, we deem the issue abandoned. City of Midland v. Helger Construction Co, Inc., 157 Mich.App. 736, 745, 403 N.W.2d 218 (1987).

As his last issue, defendant contends that the trial court erred in failing to find entrapment following an evidentiary hearing. In a lengthy opinion in which the then newly released People v. Jamieson, 436 Mich. 61, 461 N.W.2d 884 (1990), and its predecessors were analyzed, the trial court denied defendant's motion to dismiss, finding that defendant had not been entrapped:

The Court: ... [W]hen you juxtapose those facts against what I have in this record--and the only indication by Officer Joyner is that on September 9 of 1989, she asked Mr. Kent if he knew where she could find some coke. He said to look in his pants pocket, but then said if she had the money, he could get it. She did have the money. She drove them there, and he entered Hugo's bar and returned with one-and-a-quarter grams and gave her back the difference in cash of the $300 that she gave to him.

She further testified that there was no date. There was no purchasing of drinks, no special kind of pressure or request or anything at all placed upon the Defendant by her. Sh...