People v. Poole, Docket Nos. 169867

• Decision Date: 17 September 1996
• Docket Number: 169987,Docket Nos. 169867
• Citation: 218 Mich.App. 702,555 N.W.2d 485
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Terry Lamont POOLE, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 485

555 N.W.2d 485

218 Mich.App. 702

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Terry Lamont POOLE, Defendant-Appellant.

Docket Nos. 169867, 169987.

Court of Appeals of Michigan.

Submitted March 16, 1996, at Lansing.

Decided Sept. 17, 1996, at 9:00 a.m.

Released for Publication Nov. 8, 1996.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Michael D. Thomas, Prosecuting Attorney, and Catherine Langevin Semel, Assistant Prosecuting Attorney, for People.

State Appellate Defender by Richard B. Ginsberg, for defendant on appeal.

Before HOLBROOK, P.J., and TAYLOR and W.J. NYKAMP, ^* JJ.

TAYLOR, Judge.

Defendant was convicted following separate jury trials of delivery of 50 grams or more, 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 possession with intent to deliver 50 grams or more, but less than 225 grams, of cocaine, M.C.L. § 333.7401(2)(a)(iii); M.S.A. § 14.15(7401)(2)(a)(iii). ¹ He was sentenced to serve consecutive prison terms of thirteen to twenty years and nonparolable life imprisonment respectively. He appeals as of right, and we affirm.

I

Defendant first argues that the lower court erred in denying his motion to declare void the search warrant for 602 Holden Street and to suppress the fruits of that search because substantial evidence did not exist for the magistrate to conclude that probable cause existed to search the residence. In reviewing a magistrate's decision to issue a search warrant, this Court must evaluate the search warrant and underlying affidavit in a common-sense and realistic manner. This Court must then determine whether a reasonably cautious person could have concluded, under the totality of the circumstances, that there was a substantial basis for the magistrate's finding of probable cause. People v. Sloan, 450 Mich. 160, 168, 538 N.W.2d 380 (1995); People v. Russo, 439 Mich. 584, 603, 487 N.W.2d 698 (1992).

Defendant specifically argues that the search warrant affidavit did not establish probable cause to believe that a nexus existed between him and 602 Holden Street. We disagree.

A search warrant affidavit must provide sufficient facts from which a magistrate could find that the information supplied was based on personal knowledge and that either the unnamed person was credible or the information was reliable. M.C.L. § 780.653; M.S.A. § 28.1259(3). Here, the affiant averred that informant Norman Wilson had been told by Kevin Jackson that defendant had moved to the Holden Street address. Such multiple hearsay statements may be used to establish probable cause where the ordinary requirements of personal knowledge and reliability or credibility are met. People v. Harris, 191 Mich.App. 422, 425-426, 479 N.W.2d 6 (1991); People v. Brooks, 101 Mich.App. 416, 419, 300 N.W.2d 582 (1980). Jackson's statement that defendant had moved to the Holden Street address was made with personal knowledge and could be viewed as credible given that defendant had just moved out of Jackson's home. Moreover, defendant's connection with the Holden Street address was independently verified by the affiant, who checked defendant's jail records and found that they listed Holden Street as the address where a relative could be contacted. The affiant further averred that a person named "Whinnie" had stated he was at "Terry's place" on Holden Street. Although this information did not confirm defendant's current residence, it did bolster the information provided by Kevin Jackson that defendant was then residing at the Holden Street address. Harris, supra. Finally, "Whinnie's" credibility as an informant was shown by the statements he made against his penal interest. See People v. Head, 211 Mich.App. 205, 209, 535 N.W.2d 563 (1995). Accordingly, under the totality of the circumstances, we conclude that a substantial basis existed for the district judge's finding of probable cause to search 602 Holden Street. Defendant's motion to suppress was properly denied.

II

On September 9, 1992, defendant delivered cocaine to a police officer. On September 17, 1992, the police found cocaine in defendant's jacket while executing a search warrant. Defendant subsequently was convicted by separate juries at separate trials of delivery of more than 50 grams but less than 225 grams of cocaine on August 27, 1993, and possession with intent to deliver more than 50 grams but less than 225 grams of cocaine on September 3, 1993. Defendant was sentenced to serve consecutive prison terms of thirteen to twenty years and life without parole, respectively.

Defendant argues that the trial court erred in sentencing him as a second-offender under M.C.L. § 333.7413(1); M.S.A. § 14.15(7413)(1) because the offense resulting in his second conviction occurred before he was convicted for the first offense. We disagree.

M.C.L. § 333.7413; M.S.A. § 14.15(7413) prescribes the penalties for repeat controlled substance offenders. The first three subsections of § 7413 describe different groups of offenses and provide different enhanced penalties for each group. Section 7413(1) requires nonparolable life sentences for individuals who commit a second or subsequent offense involving more than fifty grams of a schedule 1 or 2 narcotic drug or cocaine, or conspiring to commit such offenses. Section 7413(3) subjects individuals who are second or subsequent offenders under M.C.L. § 333.7410(2) and (3); M.S.A. § 14.15(7410)(2) and (3) (delivery or possession with intent to deliver schedule 1 or 2 narcotics or cocaine to a minor within 1,000 feet of a school property) to mandatory enhanced prison terms (although the court may depart from the mandatory minimum sentence upon a finding of substantial and compelling reasons). Section 7413(2) provides discretionary enhanced sentences for individuals who are convicted of any other second or subsequent offenses under the controlled substances act (delivery offenses involving less than fifty grams, possession offenses involving twenty-five to fifty grams, and conspiracies to commit these offenses).

M.C.L. § 333.7413; M.S.A. § 14.15(7413) provides, in pertinent part:

(1) An individual who was convicted previously for a violation of any of the following offenses and is thereafter convicted of a second or subsequent violation of any of the following offenses shall be imprisoned for life and shall not be eligible for probation, suspension of sentence, or parole during that mandatory term:

(a) A violation of section 7401(2)(a)(ii) or (iii).

(b) A violation of section 7403(2)(a)(ii) or (iii).

(c) Conspiracy to commit an offense proscribed by section 7401(2)(a)(ii) or (iii) or section 7403(2)(a)(ii) or (iii).

More plainly stated, these sections prohibit the manufacture, creation, delivery, or possession with intent to manufacture, create, or deliver, at least 50 grams but less than 225 grams, or at least 225 grams but less than 650 grams of a schedule 1 or 2 narcotic or cocaine; or possession of at least 50 grams but less than 225 grams, or at least 225 grams but less than 650 grams, of a schedule 1 or 2 narcotic drug or cocaine; or conspiracy to commit one of the foregoing offenses. See Managing a Trial Under the Controlled Substances Act (Michigan Judicial Institute, 1995), pp 332-333.

As applicable to defendant, M.C.L. § 333.7413(1); M.S.A. § 14.15(7413)(1) provides that an individual who was convicted previously of delivery of more than 50 grams but less than 225 grams of cocaine and is thereafter convicted of possession with intent to deliver more than 50 but less than 225 grams of cocaine shall be imprisoned for life without eligibility for parole. Thus, the trial court imposed a nonparolable life sentence for defendant's conviction of possession with intent to deliver 50 grams or more but less than 225 grams of cocaine because defendant had previously been convicted of delivering more than 50 but less than 225 grams of cocaine.

The issue is whether the trial court properly construed M.C.L. § 333.7413(1); M.S.A. § 14.15(7413)(1) as requiring that defendant receive a nonparolable sentence for his second conviction. The goal of statutory construction is to ascertain and give effect to the intent of the Legislature. People v. Stanaway, 446 Mich. 643, 658, 521 N.W.2d 557 (1994). If a statute is clear, the courts must enforce its directive. People v. Morris, 450 Mich. 316, 325, 537 N.W.2d 842 (1995). It is only where a statute is unclear and susceptible to more than one interpretation that judicial construction is allowed. Id. The Legislature is presumed to have intended the meaning it plainly expressed. People v. Cannon, 206 Mich.App. 653, 655, 522 N.W.2d 716 (1994). Although penal in nature, § 7413(1) is part of the Public Health Code, which is to be "liberally construed for the protection of the health, safety, and welfare of the people." M.C.L. § 333.1111(2); M.S.A. § 14.15(1111)(2). Thus, it is a court's duty to construe § 7413(1) in a manner that most effectively protects the health, safety, and welfare of the public and effects the object sought to be advanced by the statute. Morris, supra at 327, 537 N.W.2d 842.

Section 7413(1) is not ambiguous, and it clearly requires a nonparolable life sentence where a defendant was "convicted previously" of an enumerated offense and thereafter is "convicted" of an enumerated offense. At the time defendant was convicted of possession with intent to deliver 50 grams or more but less than 225 grams of cocaine, he had been "convicted previously" of an enumerated offense. Thus, defendant's situation fits within the terms of § 7413(1), and the trial court properly sentenced him to a nonparolable term in prison.

Defendant argues that § 7413(1) should not have been applied to him because he committed his second offense before he had been convicted of the first offense. This argument is simply not supported by the unambiguous statutory language used by the...