People v. Waxman

• Decision Date: 30 May 1972
• Docket Number: Docket No. 11947,No. 2,2
• Citation: 41 Mich.App. 277,199 N.W.2d 884
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Eugene A. WAXMAN, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 884

199 N.W.2d 884

41 Mich.App. 277

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Eugene A. WAXMAN, Defendant-Appellant.

Docket No. 11947.

Court of Appeals of Michigan, Division No. 2.

May 30, 1972.

Released for Publication Aug. 23, 1972.

Arthur J. Tarnow, State Appellate Defender, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William F. Delhey, Pros. Atty., for plaintiff-appellee.

Before QUINN, P.J., and V. J. BRENNAN and TARGONSKI, ^* JJ.

QUINN, Presiding Judge.

Prior to People v. Sinclair, 387 Mich. 91, 194 N.W.2d 878 (1972), and People v. Lorentzen, 387 Mich. 167, 194 N.W.2d 827 (1972), we would have affirmed defendant's conviction of possession of marijuana by a memorandum opinion. The original information was filed February 11, 1970 and charged defendant with sale of marijuana, M.C.L.A. § 335.152; M.S.A. § 18.1122. The trial date was set for March 15, 1971. On the latter date an amended information was filed, adding count II which charged defendant with unlawful possession of marijuana, M.C.L.A. § 335.153; M.S.A. § 18.1123. The same day, defendant pleaded guilty to count II, and the transcript of the plea taking is practically a model of propriety. It is apparent that the plea resulted from negotiations, a procedure approved by Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971) and by the ABA standards of criminal justice (see standards relating to pleas of guilty part III).

Defendant's only attack on the plea arises from his argument that the plea to possession was not a free choice when the only alternative was to stand trial for sale and risk a minimum sentence of 20 years. North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970) and People v. Sumlin, 32 Mich.App. 1, 188 N.W.2d 144 (1971) dispose of this contention contrary to defendant's position.

In determining defendant's contention that the statute under which he was convicted is unconstitutional as violative of his right of equal protection, due process of law and right of privacy, we face squarely the question of the effect of Sinclair, supra, on the law as it existed prior to that decision.

Of the four opinions in Sinclair, supra, two were signed by two justices and two were signed by the writer only; one justice did not participate. In order to be controlling precedent, an opinion must be concurred in by a majority of the court, Groening v. McCambridge, 282 Mich. 135, 140, 275 N.W. 795 (1937); People v. Gonzales, 356 Mich. 247, 262, 263, 97 N.W.2d 16 (1959); Corporation and Securities Commission v. American Motors Corporation, 4 Mich.App. 65, 67, 143 N.W.2d 767 (1966); People v. Lorentzen, 387 Mich. 167, 194 N.W.2d 827 (1972). Concurrence requires the signature of those justices concurring, M.C.L.A. § 600.229; M.S.A. § 27A.229. Only one conclusion is possible, Sinclair, supra, decides Sinclair.

This conclusion was reached by the Supreme Court in Lorentzen, supra, at p. 171, 194 N.W.2d at p. 828:

'In People v. Sinclair, Mich., 194 N.W.2d 878 (1972), decided this same day, the equal protection, due process and right to privacy issues raised by defendant are considered. None of these issues are decided by a majority of this Court favorably to defendant.'

This language was approved by the signatures of five of the six justices participating in Sinclair. Having determined that Sinclair, supra, is not controlling, we adopt as controlling the opinion of Chief Judge Lesinski in People v. Sinclair, 30 Mich.App. 473, 186 N.W.2d 767 (1971), as to the foregoing constitutional issues raised by defendant. This well reasoned opinion is supported by equally well reasoned, legally recognized authority. Judge Lesinski's opinion adequately disposes of all the constitutional attacks raised by defendant contrary to his contentions, except as to sentence.

We recognize that this opinion is contrary to a prior opinion by another panel of this Court, see People v. Griffin, 39 Mich.App. 464, 198 N.W.2d 21 (1972). Although one panel of this Court is not bound to follow the opinion of another panel of this Court on any question of law, the normal practice has been to do so, unless cogent reason appears for not doing so. Griffin, supra, adopts Sinclair, supra, as controlling precedent without any analysis of what constitutes controlling precedent, and in spite of the fact that the Supreme Court in Lorentzen, supra, acknowledged that Sinclair is not controlling on the constitutional issues of equal protection, due process and right to privacy. We find this to be cogent reason for not following Griffin, supra.

While we do not question the right of an appellate court to review sentences alleged to be excessive and to constitute cruel and unusual punishment, the sentence in this case does not fit that category. At sentencing, defendant volunteered the information concerning his bad record. The trial court deliberately set a lower minimum sentence than the judge felt defendant should receive because defendant's wife was pregnant. On the facts and defendant's record, the five year minimum sentence was reasonable.

Affirmed.

TARGONSKI Judge (dissenting).

The statement of the facts in the case as set forth in the majority opinion is adopted. We have no argument with the position set forth in that opinion with reference to the propriety of the plea taking, the voluntariness of the plea or the reasonableness of the sentence imposed by the trial court.

We come to a parting of the ways, however, with the majority as to the applicability of People v. Sinclair, 387 Mich. 91, 194 N.W.2d 878 (1972), No. 53,550. Nor do we dispute the quotation by the majority from the opinion in People v. Lorentzen, 387 Mich. 167, 194 N.W.2d 827 (1972), No. 53,200 (released March 9, 1972, as was the Sinclair case). It is true that in Lorentzen, supra, the Supreme Court stated, at p. 171, 194 N.W.2d at p. 828:

'In People v. Sinclair, Mich., 194 N.W.2d 878 (1972), decided this same day, the equal protection, due process and right to privacy issues raised by defendant are considered. None of these issues are decided by a majority of this court favorably to defendant.'

There was no majority on any one of the three issues. However, the Supreme Court in Sinclair did rule the statute unconstitutional as evidenced by their subsequent order entered April 7, 1972 'in the matter of an application for habeas corpus in behalf of the People' No. 54041:

'* * * The restraint...