People v. Scarborough

• Citation: 471 N.W.2d 567,189 Mich.App. 341
• Decision Date: 20 May 1991
• Docket Number: Docket No. 129337
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jack Ray SCARBOROUGH, Defendant-Appellant. 189 Mich.App. 341, 471 N.W.2d 567
• Court: Court of Appeal of Michigan (US)

Page 567

471 N.W.2d 567

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jack Ray SCARBOROUGH, Defendant-Appellant.

Docket No. 129337.

189 Mich.App. 341, 471 N.W.2d 567

Court of Appeals of Michigan.

Submitted Feb. 21, 1991, at Detroit.

Decided May 20, 1991, at 9:10 a.m.

Released for Publication July 29, 1991.

[189 MICHAPP 342] Frank J. Kelley, Atty. Gen., Gay Secor Hardy, Sol. Gen., John D. O'Hair, Pros. Atty., Timothy A. Baughman, Chief of Research, Training, and Appeals, and Kathleen T. Donahue, Asst. Pros. Atty. for the People.

David Cripps, Detroit, for defendant-appellant on appeal.

Before REILLY, P.J., and SHEPHERD and MARILYN J. KELLY, JJ.

MARILYN J. KELLY, Judge.

On February 23, 1990, defendant pled guilty to possession with intent to deliver between 50 and 225 grams of cocaine and possession of a firearm during the commission of a felony. M.C.L. 333.7401(2)(a)(iii); M.S.A. 14.15(7401)(2)(a)(iii); M.C.L. 750.227b; M.S.A. 28.424(2). The trial court sentenced him to a mandatory two-year prison term for the firearm offense, to be followed by a ten- to twenty-year term for the drug offense. The court noted that, with respect to the sentence [189 MICHAPP 343] for the drug offense, it was applying the penalty provisions that were in effect in 1987 when defendant committed the crime.

Defendant appeals his sentence as of right. He argues that the trial court should have made retroactive application of the amended penalty provisions of the controlled substances act which were in effect on the date of sentencing. M.C.L. 333.7101 et seq.; M.S.A. 14.15(7101) et seq. We agree.

When defendant was arrested, the act mandated that those convicted of possession with intent to deliver between 50 and 225 grams of cocaine be sentenced to ten to twenty years. M.C.L. 333.7401(2)(a)(iii); M.S.A. 14.15(7401)(2)(a)(iii). It did not authorize the court to depart either from the ten year minimum term or from the twenty year maximum.

Effective March 30, 1988, the Legislature amended the act, reducing the minimum sentence from ten years to five years. 1987 P.A. 275. It also authorized the sentencing court to depart from the minimum sentence if it found on the record substantial and compelling reasons to do so. M.C.L. 333.7401(4); M.S.A. 14.15(7401)(4).

Effective September 28, 1989, the Legislature again amended the penalty provisions for the crime of possession with intent to deliver between 50 and 225 grams of cocaine. 1989 P.A. 143. It restored the former minimum sentence of ten years. However, it maintained the provision which permitted the trial court to depart from the minimum sentence upon a finding of substantial and compelling reasons. M.C.L. 333.7401(4); M.S.A. 14.15(7401)(4).

Our Supreme Court recently ruled on the issue before us. It held that the amended penalty provisions of the controlled substances act should be applied in cases which were pending in the trial [189 MICHAPP 344] court when the amendments took effect. The amended provisions should be applied also in cases where the issue was raised on direct appeal. People v. Schultz, 435 Mich. 517, 526-531, 533-534, 460 N.W.2d 505 (1990).

The holding in Schultz is based on a lead opinion signed by three justices plus a concurrence by Justice Boyle. Justice Boyle's concurrence contains very similar reasoning to that of the lead opinion. Id., 435 Mich. at 533-534, 460 N.W.2d 505.

Technically, the Schultz holding is not binding on this Court. It is a plurality opinion in which a majority of the justices failed to concur on the exact reasoning for the holding. Negri v. Slotkin, 397 Mich. 105, 109, 244 N.W.2d 98 (1976); People v. Anderson, 389 Mich. 155, 170, 205 N.W.2d 461 (1973).

Nonetheless, we apply the holding in Schultz to the instant case. Four justices of the Supreme Court there addressed the issue now under consideration and concluded that the amendments to the act should be applied retroactively. Their reasonings were, if not the same, at least very similar. It would be wasteful of judicial resources to disregard Schultz. Defendant and those similarly situated to him would surely receive the benefit of sentencing under the amendments to the act upon appeal to the Supreme Court. Moreover, we are persuaded that the holding of the Schultz decision was correct. See also People v. Thomas Miller, 182 Mich.App. 482, 485-486, 453 N.W.2d 269 (1990).

On remand, the trial court should consider whether substantial and compelling reasons exist to set defendant's sentence below the minimum ten year term. M.C.L. 333.7401(4); M.S.A. 14.15(7401)(4). Among the factors to be considered are: rehabilitation, deterrence, the protection of society and punishment. Schultz, supra, 435 Mich. at 531-532, 460 N.W.2d 505. See alsoPeople[189 MICHAPP 345] v. Troncoso, 187 Mich.App. 567, 468 N.W.2d 287 (1991).

Defendant's sentence is vacated, and the case is remanded for resentencing. We do not retain jurisdiction.

SHEPHERD, J., concurs.

REILLY, Presiding Judge. (concurring in part and dissenting in part).

I respectfully dissent with regard to the majority's application of People v. Schultz, 435 Mich. 517, 460 N.W.2d 505 (1990). Schultz is not controlling because only three members of the Court agreed on the basis for the ruling. An opinion is not binding precedent unless a majority agree on the rationale. Van Dyke v. League General Ins. Co., 184 Mich.App. 271, 457 N.W.2d 141 (1990); DeMaria v. Auto Club Ins. Ass'n. (On Remand), 165 Mich.App. 251, 418 N.W.2d...