People v. Kidd

• Decision Date: 24 January 1983
• Docket Number: Docket No. 60432
• Citation: 121 Mich.App. 92,328 N.W.2d 394
• Parties: The PEOPLE of the State of Michigan, Plaintiff-Appellee, v. William M. KIDD, Defendant-Appellant. 121 Mich.App. 92, 328 N.W.2d 394
• Court: Court of Appeal of Michigan — District of US

Page 394

328 N.W.2d 394

The PEOPLE of the State of Michigan, Plaintiff-Appellee, v. William M. KIDD, Defendant-Appellant.

Docket No. 60432.

121 Mich.App. 92, 328 N.W.2d 394

Court of Appeals of Michigan.

Submitted June 3, 1982.

Decided Nov. 3, 1982.

Released for Publication Jan. 24, 1983.

[121 MICHAPP 93] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Eugene Malanyn, Pros. [121 MICHAPP 94] Atty., and Michael A. Nickerson, Asst. Atty. Gen., for the People.

James R. Neuhard, State Appellate Defender by Gail Rodwan, Asst. Appellate Defender, for defendant-appellant on appeal.

Before R.B. BURNS, P.J., and MacKENZIE and ROOT, ^* JJ.

R.B. BURNS, Presiding Judge.

Defendant was charged with possession of a controlled substance in an amount of 225 grams or more, M.C.L. Sec. 333.7403(1), (2)(a)(ii); M.S.A. Sec. 14.15(7403)(1), (2)(a)(ii), attempted safe breaking, M.C.L. Sec. 750.531; M.S.A. Sec. 28.799, and breaking and entering an unoccupied dwelling, M.C.L. Sec. 750.110; M.S.A. Sec. 28.305. During trial on these charges, defendant pled guilty pursuant to an agreement with the prosecution. He appeals and we affirm.

At trial, testimony indicated that the 287 grams of substance tested contained approximately 41 grams of Schedule 2 controlled substance, the remainder being filler material. Defense counsel moved for a directed verdict. Although the court denied this motion, the court ruled as a matter of law that because defendant possessed only 41.013 grams of a controlled substance, he could only be charged with possession of less than 50 grams, M.C.L. Sec. 333.7403(1), (2)(a)(iv); M.S.A. Sec. 14.15(7403)(1), (2)(a)(iv). The prosecutor then moved to amend the information to conform with the court's ruling. After the court granted the prosecutor's motion defendant pled guilty to possession of less than 50 grams of a controlled substance and to breaking and entering. In return for his plea, the prosecutor agreed not to reinstate the safe-breaking charge, which had previously been dismissed, and to forgo charging defendant as an [121 MICHAPP 95] habitual offender. At the time of defendant's plea, the prosecutor had not filed a supplemental information.

Defendant first claims that the trial court was precluded from accepting his plea to possession of less than 50 grams of a controlled substance by M.C.L. Sec. 333.7415; M.S.A. Sec. 14.15(7415). We disagree. Section 7415 was enacted to foreclose the use of a reduction in charges in negotiating guilty pleas. This reflects the Legislature's goal of limiting the availability of guilty plea options in cases where serious drug offenses are charged. However, in the case at bar, the information was not amended pursuant to a plea agreement. Rather, the trial court reduced the charge as a matter of law before the plea conference was held.

Moreover, the trial court erred in ruling that defendant could be charged only with possession of less than 50 grams of a controlled substance. The statute on its face punishes defendants for possession of "any mixture containing" the controlled substance. M.C.L. Sec. 333.7403; M.S.A. Sec. 14.15(7403). The percentage of pure controlled substance in the mixture is irrelevant to the charge; the weight classifications refer to the aggregate weight of a mixture containing a controlled substance. People v. Prediger, 110 Mich.App. 757, 760, 313 N.W.2d 103 (1981); People v. Lemble, 103 Mich.App. 220, 222, 303 N.W.2d 191 (1981). Defendant clearly benefited from this erroneous ruling.

Defendant next claims that the substance-abuse provisions of the Public Health Code violate the title-object clause of the Michigan Constitution, Const.1963, art. 4, Sec. 24. However, this Court determined this question against defendant's position in People v. Trupiano, 97 Mich.App. 416, 296 N.W.2d 49 (1980), lv. den. 409 Mich. 895 (1980).

[121 MICHAPP 96] Finally, defendant claims that his plea was based upon the prosecution's promise not to file a supplemental information and that his plea was illusory because the prosecutor was barred from filing against defendant as an habitual offender in light of People v. Fountain, 407 Mich. 96, 282 N.W.2d 168 (1979).

However, at the time of defendant's plea, there was a split in this Court regarding the stage at which the prosecutor was required to file the supplemental information. Because the prosecutor arguably could have filed the supplemental information at the time of defendant's plea, People v. Alford, 101 Mich.App. 446, 300 N.W.2d 593 (1980), defendant's plea was not illusory. People v. Robinson, 117 Mich.App. 63, 323 N.W.2d 594 (1982).

The Supreme Court recently clarified the Fountain requirements in People v. Shelton, 412 Mich. 565, 568, 315 N.W.2d 537 (1982), holding that the...