People v. McCarty

• Decision Date: 06 April 1982
• Docket Number: Docket No. 56170
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Vernon R. McCARTY, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 659

317 N.W.2d 659

113 Mich.App. 464

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Vernon R. McCARTY, Defendant-Appellee.

Docket No. 56170.

Court of Appeals of Michigan.

Submitted Oct. 13, 1981.

Decided Feb. 18, 1982.

Released for Publication April 6, 1982.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., L. Brooks Patterson, Pros. Atty., Robert C. Williams, Chief Appellate Counsel, Pontiac, and James L. McCarthy, Asst. Pros. Atty., for the People.

Bernard P. Paige, P. C. by Daniel J. Cramer, Birmingham, for defendant-appellee on appeal.

Before BASHARA, P. J., and R. B. BURNS and V. J. BRENNAN, JJ.

V. J. BRENNAN, Judge.

Defendant was charged in a two-count information with possession of cocaine in an amount of 650 or more grams, M.C.L. Sec. 333.7403(2)(a)(i); M.S.A. Sec. 14.15(7403)(2)(a)(i), and possession with intent to deliver methaqualone, M.C.L. Sec. 333.7401(2)(b); M.S.A. Sec. 14.15(7401)(2)(b). The first count carries a mandatory life imprisonment penalty while the second count carries a penalty of up to seven years and/or a fine of up to $5,000.

Defendant moved to quash the information alleging (1) that the statutes charged in the information violated U.S.Const., Am. VIII and Const.1963, art. 1, Sec. 16, by establishing penalties which constitute cruel and/or unusual punishment; (2) that the statutes violated the title-object limitation clause, Const.1963, art. 4, Sec. 24; and (3) that the statutes violated the equal protection and due process clauses of the United States and Michigan Constitutions. Addressing only Count I, the charge for possession of cocaine, ¹ the trial court granted the defendant's motion and dismissed the case finding that, although the statute did not violate the title-object limitation clause or the equal protection or due process clauses, the mandatory penalty of life imprisonment for possession of cocaine constituted cruel and/or unusual punishment. The people appeal as of right.

The sole issue on appeal is whether mandatory life imprisonment for a conviction under M.C.L. Sec. 333.7403(2)(a)(i); M.S.A. Sec. 14.15(7403)(2)(a)(i), constitutes cruel and/or unusual punishment.

The statute provides:

"Sec. 7403. (1) A person shall not knowingly or intentionally possess a controlled substance unless the substance was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of the practitioner's professional practice, or except as otherwise authorized by this article.

"(2) A person who violates this section as to:

"(a) A controlled substance classified in schedule 1 or 2 which is either a narcotic drug or described in section 7214(a)(iv), and:

"(i) Which is an amount of 650 grams or more of any mixture containing that substance is guilty of a felony and shall be imprisoned for life." M.C.L. Sec. 333.7403(1), (2)(a)(i); M.S.A. Sec. 14.15(7403)(1), (2)(a)(i).

The United States Constitution prohibits cruel and unusual punishment. ² The Michigan Constitution prohibits cruel or unusual punishment. ³ The trial court found that the penalty prescribed by the statute constituted cruel and/or unusual punishment.

The dominant test for determining if a given punishment constitutes cruel and/or unusual punishment was stated in People v. Lorentzen, 387 Mich. 167, 176, 194 N.W.2d 827 (1972), as whether "the punishment is in excess of any that would be suitable to fit the crime".

At first blush, we are inclined to agree with the trial court, but after closely examining the nature of the act, gleaning the overall legislative scheme from recent decisions and legislative comments, and after reviewing the penalties prescribed by other jurisdictions, we reach the following conclusions.

The questioned statute is an integral part of an overall legislative scheme designed to stamp out illicit sale, possession, and use of certain dangerous and/or addictive substances by providing graduated punishment for offenses involving greater amounts of mixtures containing controlled substances. ⁴ In finding that the graduated penalty provisions of the statute are not violative of the title-object clause and the equal protection and due process clauses, the Court, in People v. Lemble, 103 Mich.App. 220, 222, 303 N.W.2d 191 (1981), stated:

"The statutory scheme of the controlled substances portion of the health code punishes those found to be in possession of greater amounts of mixtures containing controlled substances with more severe penalties. We find that the legislative policies underlying criminal penalties--rehabilitation of the offender, society's need to deter the behavior in others, the prevention of the offender from causing injury to others--are achieved by this statute's graduated punishment. People v. Lorentzen, 387 Mich. 167, 194 N.W.2d 827 (1972). The penalties that may be imposed under this statute do not shock the judicial conscience in light of the gravity of the offenses."

Further, this Court has found that the lifetime probation provision for possession of 50 grams or more, but less than 225 grams, of heroin, was not cruel or unusual punishment.

"In our judgment the possession of between 50 and 225 grams of heroin is a most serious crime considering the large quantity and the nature of the drug involved. Although made with reference to a sale of heroin, we note the Supreme Court's statements in People v. Stewart (On Rehearing), 400 Mich. 540, 554, 256 N.W.2d 31 (1977):

" 'The social loss and attendant crime which is occasioned by heroin addiction in our society has reached tragic proportions. We are unwilling to strike down as cruel and unusual this former statutory punishment, imposed upon those who sold heroin and thus traded in such human ignorance, weakness and degradation.'

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"The legislature has the exclusive power to fix the maximum and minimum punishment for all crimes. People v. Hall, 396 Mich. 650, 658, 242 N.W.2d 377 (1976). In light of the seriousness of the crime under consideration here we are not persuaded that the Legislature violated the constitutional prohibition against cruel or unusual punishment in providing for a sentence of lifetime probation." People v. Tanksley, 103 Mich.App. 268, 270-272, 303 N.W.2d 200 (1981).

Also, in People v. DeLeon, 110 Mich.App. 320, 313 N.W.2d 110 (1981), the Court found that the Legislature in fixing the maximum and minimum punishment for controlled substance offenses, did not violate the constitutional prohibition against cruel or unusual punishment. The defendant in that case was convicted of possession of 50 or more but less than 225 grams of heroin, and sentenced to 15 to 40 years imprisonment.

While the recent cases, cited above, did not address the present issue, they are noteworthy. By upholding the constitutionality of the lifetime probation provision and the minimum penalty for possession of 50 or more grams, up to 225 grams, this Court has expressed its belief that the gravity of the offense of possessing a large amount of a controlled substance justifies a severe punishment.

We point out that before legislation is enacted various committees seek community input. The information obtained is examined closely to determine what laws need to be enacted to assist the community in its continuing battle against the illegal sale, possession and use of narcotics. The Legislature, because of the information it obtains and the studies it conducts, is better equipped than we, the courts, to draft laws to combat the serious problems of society.

It is our opinion that the mandatory life sentence provision for possession of 650 or more grams of a controlled substance was well-thought out by the Legislature, and premised upon two of the legislative policies underlying criminal penalties mentioned in Lemble which were: (1) the prevention of the offender from causing injury to others; and (2) society's need to deter the behavior in others.

The amount specified in the statute, 650 or more grams, is a large quantity that suggests an amount involving major drug dealers. Considering that the street value of 650 or more grams of cocaine is close to one million dollars, ⁵ the number of lives affected by the possession, sale or use of this drug would be substantial. Certainly, in establishing the lifetime penalty provision for this offense, the Legislature sought to prevent an offender from causing further injury to others...