302 N.W.2d 246 | Mich. Ct. App. | 1980
PEOPLE
v.
FRANKLIN
Michigan Court of Appeals.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Peter D. Houk, Prosecuting Attorney, and Charles M. Sibert, Chief Appellate Attorney, for the people.
P.E. Bennett, Assistant State Appellate Defender, for defendant on appeal.
Before: BEASLEY, P.J., and R.M. MAHER and S. HOFFIUS,[*] JJ.
PER CURIAM.
Defendant was convicted, on her pleas of guilty, of delivery of less than 50 grams of heroin, MCL 333.7401(2)(a)(iv); MSA 14.15(7401)(2)(a)(iv), and of being a seventh offender under the habitual offender statute, MCL 769.12; MSA 28.1084.[1] Pursuant to a sentence *593 agreement reached with the trial court, defendant was sentenced to a prison term of from 4 to 20 years. She now appeals by right.
Defendant first argues that the controlled substances provisions of the Public Health Code violate the title-object clause of the Michigan Constitution. Const 1963, art 4, § 24. The parties have filed excellent briefs on this issue. While admitting that it is a close question, we elect to follow People v Trupiano, 97 Mich App 416; 296 NW2d 49 (1980), lv den 409 Mich 895 (1980), and find no constitutional infirmity.
Defendant also contends that her guilty plea was the result of an illusory sentence agreement. She argues that because her conviction in the instant case was for an offense contained in article 7 of the Public Health Code she could only be supplemented under the provisions of that article, MCL 333.7413; MSA 14.15(7413), and not under the general habitual offender statutes, MCL 769.10 et seq.; MSA 28.1082 et seq. She then argues that since none of her prior convictions were for drug-related offenses no supplementation was possible and she faced only a 20 year maximum sentence rather than a possible life sentence.
The sentence supplementation provisions of article 7 which are claimed to be applicable to the instant case provide:
"(2) Except as otherwise provided in subsection (1), an individual convicted of a second or subsequent offense under this article may be imprisoned for a term not more than twice the term otherwise authorized or fined an amount not more than twice that otherwise authorized, or both.
"(3) For purposes of subsection (2), an offense is considered a second or subsequent offense, if, before conviction of the offense, the offender has at any time *594 been convicted under this article or under any statute of the United States or of any state relating to a narcotic drug, marihuana, depressant, stimulant, or hallucinogenic drug."
MCL 333.7413(2)-333.7413(3); MSA 14.15(7413)(2)-14.15(7413)(3). Clearly, these provisions are applicable only to an individual who has at least one prior conviction on a drug-related offense. Because the defendant has no such convictions, the statute is inapplicable by its own terms. For this reason, defendant's reliance on People v Edmonds, 93 Mich App 129, 135; 285 NW2d 802 (1979), lv den 408 Mich 918 (1980), is misplaced. See, also, People v Elmore, 94 Mich App 304; 288 NW2d 416 (1979).[2] This is not a case where the sentence enhancement provisions of article 7 and those of the general habitual offender statutes are both seemingly applicable. Use of the general habitual offender statutes was permissible.
Affirmed.
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment.
[1] Defendant does not deny the existence of the six prior convictions, but points out that the first three convictions arose out of a single plea-taking proceeding and that the offense which became the fifth conviction took place before the date of the fourth conviction. Accordingly, she argues that for purposes of the habitual offender statute she had only three prior convictions. See People v Phillip Smith, 90 Mich App 572; 282 NW2d 399 (1979), rev'd on other grounds, 407 Mich 906 (1979), People v Roderick Johnson, 86 Mich App 77; 272 NW2d 200 (1978). We disagree. The rationale of the above-cited cases is that the habitual offender statutes do not apply unless the prior felony convictions exist at the time of the commission of the subsequent felony for which the defendant is to be supplemented. At the time of the commission of the offense in the instant case, defendant had six prior felony convictions. Accordingly, defendant was properly charged as a seventh offender.
[2] Edmonds and Elmore involved application of § 48 of the Controlled Substances Act, MCL 335.348; MSA 18.1070(48), which has since been repealed. The provisions of MCL 333.7413(2)-333.7413(3); MSA 14.15(7413)(2)-14.15(7413)(3), are almost identical to § 48 of the Controlled Substances Act.
