People v. Ware

• Decision Date: 04 April 2000
• Docket Number: Docket No. 202373,Docket No. 207741.
• Citation: 608 N.W.2d 94,239 Mich. App. 437
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Steven WARE, Defendant-Appellant. People of the State of Michigan, Plaintiff-Appellee. v. Matthew M. Thomas, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

608 N.W.2d 94

239 Mich. App. 437

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Steven WARE, Defendant-Appellant.

People of the State of Michigan, Plaintiff-Appellee. v. Matthew M. Thomas, Defendant-Appellant.

Docket Nos. 202373, 207741.

Court of Appeals of Michigan.

Submitted October 7, 1999, at Grand Rapids.

Decided January 14, 2000, at 9:10 a.m.

Released for Publication April 4, 2000.

Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, Mary Beth Kur, Prosecuting Attorney, and Michael E. Moody, Assistant Attorney General, for the people. Hayes, Schwarze & Hayes (by Roy C. Hayes, III), Charlevoix, for Steven Ware.

Miller, Canfield, Paddock and Stone, P.L.C. (by Michael J. Hodge and Louis B. Reinwasser), Lansing, for Matthew M. Thomas.

Before: HOOD, P.J., and HOLBROOK, Jr., and FITZGERALD, JJ.

FITZGERALD, J.

In these consolidated appeals, defendants Steven Ware and Matthew M. Thomas each appeal by delayed leave granted their convictions following guilty pleas for possession of less than twenty-five grams of cocaine, M.C.L. § 333.7403(2)(a)(v); MSA 14.15(7403)(2)(a)(v), and conspiracy to deliver marijuana, M.C.L. § 750.157a, 333.7401(2)(d)(iii); MSA 28.354(1), 14.15(7401)(2)(d)(iii). We vacate defendants' sentences and remand for resentencing.

On October 18, 1996, and October 25, 1996, defendant Ware and defendant Thomas, respectively, pleaded guilty to the present offenses. In exchange for defendants' guilty pleas, the prosecutor agreed to dismiss two additional counts. During the plea proceedings, defendants admitted that on August 30, 1996, they and a friend, Daniel Leone, agreed to and did deliver marijuana to someone in Charlevoix. Additionally, with regard to the possession of cocaine charge, defendants admitted that they had less than twenty-five grams of cocaine in their possession on August 30, 1996, and that they "had been using it that day." Because defendants had filed a petition for deferred sentencing under M.C.L. § 333.7411(1); MSA 14.15(7411)(1)¹ with regard to the possession of cocaine conviction, the trial court took the guilty pleas under advisement.

Before sentencing on November 22, 1996, the trial court considered defendants' motions for deferred sentencing under § 7411 with regard to their possession of cocaine convictions. After noting that both defendants were seventeen years old at the time of the offense and that neither had any prior criminal convictions, the trial court granted both defendants "7411 status" with regard to the possession of cocaine convictions. With regard to the conspiracy to deliver marijuana convictions, each defendant was sentenced to two years' probation with the first six months to be served in the county jail, "serving 90 days forthwith with the balance to be held in abeyance."

After pronouncing sentence from the bench, but before entering the judgments of sentence, the trial court determined that defendants' simultaneous convictions rendered them ineligible for deferred sentencing under § 7411. The trial court entered a judgment of sentence in each case that, in addition to the two-year probationary sentence imposed for the conspiracy to deliver marijuana conviction, imposed a concurrent two-year probationary term for the possession of cocaine conviction.

Defendants moved for resentencing, arguing that the initial sentence pronounced from the bench was valid and, therefore, the trial court did not have discretion to set aside the sentence. The trial court granted defendants' motion for resentencing, but imposed the same sentences as imposed in the original judgments of sentence.

On appeal, defendants argue that § 7411 is applicable to simultaneous convictions. This Court reviews de novo questions of law regarding statutory interpretation. People v. Harns, 227 Mich.App. 573, 576, 576 N.W.2d 700 (1998), vacated on other grounds 459 Mich. 892, 587 N.W.2d 504 (1998).

Section 7411(1) provides in pertinent part:

When an individual who has not previously been convicted of an offense under this article or under any statute of the United States or of any state relating to narcotic drugs, coca leaves, marihuana, or stimulant, depressant, or hallucinogenic drugs, pleads guilty of or is found guilty of possession of a controlled substance under 7401(2)(a)(v), 7403(2)(b), (c), or (d), or of use of a controlled substance under section 7404, or possession or use of an imitation controlled substance under section 7341 for a second time, the court, without entering a judgment of guilt with the consent of the accused, may defer further proceedings and place the individual on probation upon terms and conditions that shall include, but are not limited to, payment of a probation supervision fee.... Upon violation of a term or condition, the court may enter an adjudication of guilt and proceed as otherwise provided. Upon fulfillment of the terms and conditions, the court shall discharge the individual and dismiss the proceedings. Discharge and dismissal under this section shall be without adjudication of guilt and is not a conviction for purposes of this section or for purposes of disqualifications or disabilities imposed by law upon conviction of a crime, including the additional penalties imposed for second or subsequent convictions under 7413. There may be only 1 discharge and dismissal under this section as to an individual. [Emphasis supplied.]

Pursuant to § 7411(1), after trial or upon entry of a guilty plea, the trial court may defer entering a...