PROPLE OF MI V MICHAEL TODD SUPPES
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
May 12, 1998
Plaintiff-Appellee,
v
No. 190640
Saginaw Circuit Court
LC Nos. 93-008367-FH;
93-008371-FH;
93-008372-FH;
93-008373-FH
MICHAEL TODD SUPPES,
Defendant-Appellant.
Before: Hood, P.J., and Markman and Talbot JJ.
PER CURIAM.
Defendant pleaded guilty in four separate files to five counts of delivery of less than fifty grams
of cocaine, MCL 333.7401(2)(a)(iv); MSA 14.15(7401)(2)(a)(iv), one count of conspiracy to deliver
less than fifty grams of cocaine, MCL 750.157a; MSA 28.354(1), one count of possession of less than
twenty-five grams of cocaine, MCL 333.7403(2)(a)(v); MSA 14.15(7403)(2)(a)(v), and one count of
possession of a firearm in the commission of a felony, MCL 750.227b; MSA 28.242(c). The trial court
sentenced defendant to two to twenty years’ imprisonment for each of the convictions for delivery and
conspiracy to deliver less that fifty grams of cocaine, two to four years’ imprisonment for the conviction
of possessing less than twenty-five grams of cocaine, and two years’ imprisonment for the felony
firearm conviction. All sentences are to be served consecutive to each other and consecutive to a
sentence defendant was serving for a previous conviction of assault with intent to do great bodily harm.
Defendant appeals as of right. We affirm.
Defendant first argues that he was entrapped by the police. We disagree. A trial court’s finding
that the defendant was not entrapped is reviewed under the clearly erroneous standard. People v
Fabiano, 192 Mich App 523, 525; 482 NW2d 467 (1992). Entrapment will be found only if (1) the
police engaged in impermissible conduct that would have induced a person similarly situated as the
defendant, though otherwise law-abiding, to commit the crime, or (2) the police engaged in conduct so
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reprehensible that it cannot be tolerated by the Court. Id. at 526, citing People v Juillet, 439 Mich 34;
475 NW2d 786 (1991).
In this case, over the course of a two-day evidentiary hearing, the trial court heard testimony
from defendant, the informant who acted as intermediary to the first three cocaine sales, and several
police witnesses. The court then meticulously examined the record in terms of the twelve entrapment
“factors” set out in People v Williams, 196 Mich App 656, 661-662; 493 NW2d 507 (1992).
Having reviewed the record, we hold that the trial court’s factual findings, both as to the Williams
factors and the court’s special findings, to be fully supported. Defendant’s argument fails on both the
“government instigation” and “reprehensible conduct” prongs of the entrapment standard. The record
does not demonstrate that the informant made any undue or overly aggressive appeals to defendant’s
friendship or sympathy for him. Cf. People v Soper, 57 Mich App 677, 679; 226 NW2d 691 (1975).
Nor does the record demonstrate that the informant badgered defendant into making the sale. Cf.
People v Duis, 81 Mich App 698, 703; 265 NW2d 794 (1978). Finally, defendant’s argument that he
sold the cocaine only because he was afraid of Steve Watson (a third party who was not an agent of the
government, but rather the target of the government’s investigation), would weigh against a finding of
entrapment. Accordingly, defendant is not entitled to relief on this issue.
Defendant next argues that his sentence on the conspiracy conviction should run concurrently
rather than consecutively to his prior sentence on the assault with intent to do great bodily harm
conviction. We disagree. Pursuant to MCL 333.7401(3); MSA 14.15(7401)(3), a term of
imprisonment imposed for delivery of cocaine “shall be imposed to run consecutively with any term of
imprisonment imposed for the commission of another felony.” Questions of statutory interpretation are
reviewed de novo on appeal. People v Sheets, 223 Mich App 651, 655; 567 NW2d 478 (1997).
Defendant contends that because his conspiracy conviction arose under the general penal
statute, MCL 750.157a; MSA 28.354(1), the consecutive sentencing provisions of the Public Health
Code do not apply. The Michigan Supreme Court rejected this argument in People v Denio, 454 Mich
691; 564 NW2d 13 (1997). The conspiracy statute unambiguously mandates that a person convicted
of conspiracy must be punished by the same “penalty” as if he were convicted of the substantive crime
he conspired to commit. Id. at 701. The consecutive sentencing provision of MCL 333.7401(3);
MSA 14.15(7401)(3) constitutes a “penalty” as that term is used in the conspiracy statute. Id. at 703.
Therefore, consecutive sentencing was required.
Finally, defendant contends that the trial court was without authority to make defendant’s
sentence for possession of cocaine consecutive to his prior sentence for assault with intent to do great
bodily harm. We disagree. MCL 768.7b; MSA 26.1030(2) provides in pertinent part:
(2) Beginning January 1, 1992, if a person who has been charged with a felony,
pending the disposition of the charge, commits a subsequent offense that is a felony,
upon conviction of the subsequent offense or acceptance of a plea of guilty, guilty but
mentally ill, or nolo contendere to the subsequent offense, the following shall apply:
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(a) Unless the subsequent offense is a major controlled substance offense,1 the
sentences imposed for the prior charged offense and the subsequent offense may
run consecutively. [MCL 768.7b(2)(a); MSA 26.1030(2) (2)(a) (footnote added;
emphasis added).
In this case, defendant committed the assault with intent to do great bodily harm offense while the
possession of cocaine charge was pending. Both offenses were felonies. Therefore, the trial court had
statutory authority to order that defendant’s sentence on the prior charged offense (possession of
cocaine) run consecutive to his sentence on the subsequent offense (assault with intent to do great bodily
harm).
Affirmed.
/s/Harold Hood
/s/ Stephen J. Markman
/s/ Michael J. Talbot
1
Possession of less than twenty-five grams of cocaine is not a major controlled substance offense. See
MCL 761.2; MSA 28.843(12).
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