People v. Williams

• Decision Date: 25 October 2011
• Docket Number: Docket No. 299809.
• Parties: PEOPLE v. WILLIAMS.
• Court: Court of Appeal of Michigan — District of US

294 Mich.App. 461

811 N.W.2d 88

PEOPLE

v.WILLIAMS.

Docket No. 299809.

Court of Appeals of Michigan.

Submitted Sept. 8, 2011, at Grand Rapids.Decided Sept. 15, 2011.Approved for publication Oct. 25, 2011, at 9:05 a.m.

Bill Schuette, Attorney General, John J. Bursch, Solicitor General, Arthur J. Cotter, Prosecuting Attorney, and Elizabeth A. Wild, Assistant Prosecuting Attorney, for the people.

Michael A. Faraone, PC (by Michael A. Faraone), Lansing, for Robert J. Williams, Jr.

Robert J. Williams, Jr., in propria persona.

Before: GLEICHER, P.J., and HOEKSTRA and STEPHENS, JJ.

PER CURIAM.

While serving a 330–day jail sentence for domestic violence, defendant decided to trade marijuana for a candy bar. Unfortunately for defendant, the other inmate involved in the trade acted as an informant for jail officials. As a result, defendant was charged with and convicted of being a prisoner in possession of a controlled substance, MCL 801.263(2), and delivery of marijuana, MCL 333.7401(1) and (2)(d)( iii ). Defendant was sentenced as a fourth-offense habitual offender, MCL 769.12, to 34 months to 30 years' imprisonment for the prisoner-in-possession conviction and 34 months to 15 years' imprisonment for the delivery conviction, to be served consecutively to each other and to the domestic-violence sentence he was serving when he committed the new offenses.

Both through appointed appellate counsel and in a Standard 4 appellate brief, ¹ defendant challenges the sufficiency of the evidence supporting his convictions, the propriety of making the prisoner-in-possession and delivery sentences consecutive to each other, and the constitutionality of convicting and sentencing him for both possession and delivery pertaining to a single underlying event. Because the prosecution presented sufficient evidence to support defendant's convictions and defendant was not twice placed in jeopardy for the same offense, we affirm defendant's convictions.

However, the trial court improperly ordered defendant's sentences for his prisoner-in-possession and delivery convictions to run consecutively to each other. As a result of that error, the court also erroneously applied defendant's 27 days of jail credit only to the prisoner-in-possession sentence. Accordingly, we vacate the judgment of sentence and remand to allow the circuit court to impose concurrent sentences for these two offenses and to apply the jail credit to which defendant is entitled to both sentences.

I. UNDERLYING FACTS AND PROCEEDINGS

On March 17, 2010, defendant was housed in dormitory 2–L at the Berrien County Jail. Defendant was serving a 330–day sentence for domestic violence. Fellow inmate Jimmie Ray Bradley was assigned to work duty and was sweeping and mopping the floors near 2–L when he was summoned by defendant. Bradley testified that defendant stated that he had marijuana to sell and asked Bradley if he would advertise this information to other inmates.

Bradley subsequently approached the jail guard and asked to speak to Berrien County Sheriff's Deputy Juan Mata. Bradley informed Mata about defendant's request. Mata directed Bradley to return to 2–L and ask defendant if he still possessed the marijuana. Bradley did so, and when he returned, he informed Mata that defendant still possessed the marijuana and wanted to trade it for a pack of Reese's Peanut Butter Cups from the jail commissary.

Bradley agreed to cooperate with the deputies and engage in a controlled buy of marijuana from defendant. The deputies conducted a strip search of Bradley to ensure that he did not have any evidence on his person. Mata gave Bradley an unopened Reese's Peanut Butter Cups package and instructed Bradley on where to walk and stand to ensure that the trade was captured by security cameras. Mata walked Bradley as close to 2–L as he could without being seen by defendant. Other deputies remained in the jail's control booth to observe the security footage while the sale was conducted.

Bradley approached dormitory 2–L and handed defendant the Reese's Peanut Butter Cups package through the cell bars. Defendant, in turn, handed Bradley marijuana folded inside a makeshift toilet-paper packet. Bradley turned and walked back toward Mata. Bradley showed Mata the toilet-paper packet, and Mata walked Bradley to the control room. Once inside, the deputies took the toilet-paper packet into evidence and strip searched Bradley again. Later forensic testing revealed that the toilet-paper packet contained 0.102 grams of marijuana.

Approximately 20 minutes after the transaction, a team of deputies searched the entire dormitory and searched defendant's person. In defendant's breast pocket, the deputies found scraps of toilet paper and one remaining Reese's Peanut Butter Cup inside its package. The deputies found no marijuana on defendant or in the dormitory. A canine unit was brought to the scene and the dog alerted on a book found on the ground next to defendant's bunk. However, the deputies found nothing inside the book.

Fellow inmate Vel Gene Sampson testified that defendant was “digging around in his [defendant's] stuff” on the morning of March 17, 2010. About 10 or 15 minutes later, Sampson witnessed Bradley approach the cell bars of the dormitory. Sampson saw Bradley hand a candy bar to defendant and saw defendant hand an unidentified object to Bradley. At some point, defendant bragged to the other inmates in the dormitory that “he could get them whatever they wanted” in the jail. Sampson specifically heard defendant say that he could get marijuana for other inmates.

Defendant testified on his own behalf. He denied exchanging marijuana for candy. Instead, defendant indicated that he offered to trade Bradley two commissary items in the future if Bradley would get him a candy bar that day. Defendant asserted that when Bradley gave him the candy bar, he merely shook Bradley's hand and did not give him marijuana. Moreover, defendant stated that he did not know Bradley and, therefore, would not have trusted Bradley to conduct such an exchange. Rather, if defendant had wanted to trade marijuana, he would have contacted another inmate assigned to work duty, one he had known for almost 40 years.

Ultimately, a jury disbelieved defendant's version of events and convicted defendant as charged. The court subsequently sentenced defendant to two separate terms of imprisonment for the delivery and prisoner-in-possession convictions. The court ordered that those sentences be served consecutively to each other and to the domestic-violence sentence that defendant was serving at the time of the new offenses. The Michigan Department of Corrections terminated defendant's jail sentence for the domestic-violence conviction on June 15, 2010, four days after the jury trial convictions for prisoner in possession and delivery. At the July 12, 2010 sentencing, the court awarded defendant 27 days of jail credit for time served since the June 15 termination of his domestic-violence sentence. However, the court applied that credit only to the prisoner-in-possession sentence. Defendant now appeals his convictions and sentences.

II. DOUBLE JEOPARDY

Through his appellate attorney, defendant contends that his convictions for both possession and delivery, arising from the single sale of marijuana, violate his constitutional right to be free from double jeopardy. A criminal defendant is protected from being “twice put in jeopardy” for the same offense under both U.S. Const. Am. V and Const. 1963, art. 1, § 15. As a constitutional issue, we review de novo a defendant's double-jeopardy challenge. People v. Ream, 481 Mich. 223, 226, 750 N.W.2d 536 (2008).

Under the Michigan Constitution's Double Jeopardy Clause, a defendant is given “ ‘three related protections: (1) it protects against a second prosecution for the same offense after acquittal; (2) it protects against a second prosecution for the same offense after conviction; and (3) it protects against multiple punishments for the same offense.’ ” Id. at 227, 750 N.W.2d 536, quoting People v. Nutt, 469 Mich. 565, 574, 677 N.W.2d 1 (2004). This case involves a “multiple punishments” issue because defendant challenges the court's duplicative sentencing for what he believes was one act.

The state is generally barred from imposing multiple sentences for the same offense. However, “[w]here the Legislature does clearly intend to impose such multiple punishments, imposition of such sentences does not violate the Constitution, regardless of whether the offenses share the same elements.” People v. Smith, 478 Mich. 292, 316, 733 N.W.2d 351 (2007) (quotation marks and citation omitted). Absent such clear legislative intent to impose multiple punishments, this Court must determine whether the sentences were imposed for the “same offense” as defined by the test in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932). Smith, 478 Mich. at 315–316, 733 N.W.2d 351. The Blockburger test “focuses on the statutory elements of the offense. If each requires proof of a fact that the other does not, the Blockburger test is satisfied, notwithstanding a substantial overlap in the proof offered to establish the crimes.” Nutt, 469 Mich. at 576, 677 N.W.2d 1 (quotation marks and citation omitted).

Defendant confuses the double-jeopardy issue by structuring his appellate argument as if he was convicted of simple possession of marijuana. Defendant was actually convicted of being a prisoner in possession of a controlled substance in violation of MCL 801.263(2), which provides, “a prisoner shall not possess or have under his or her control any ... controlled substance.” To establish a defendant's guilt under MCL 801.263(2), the prosecution must prove (1) that the defendant was a prisoner who (2) possessed or controlled (3) a controlled substance.

Defendant was also convicted of delivery of less than five kilograms of marijuana in violation of MCL 333.7401(1) and (2)(d)( ...