PEOPLE OF MI V THEODIS MINNIFIELD JR
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
August 10, 2004
Plaintiff-Appellant,
v
No. 247769
Muskegon Circuit Court
LC No. 02-047659-FH
THEODIS MINNIFIELD, JR.,
Defendant-Appellee.
Before: Fort Hood, P.J., and Donofrio and Borrello, JJ.
PER CURIAM.
Plaintiff appeals by leave granted the trial court’s order denying its motion for
resentencing. The instant case arises out of defendant’s sentence in file no. 02-47659-FH-A
(hereinafter 47659), and its relation to defendant’s sentences in file nos. 01-46214-FH-A
(hereinafter 46214) and 02-46889-FH-A (hereinafter 46889).
File No. 46214:
On June 27, 2001, defendant was charged with first-degree home invasion (MCL
750.110a(2)); assault with intent to do great bodily harm less than murder (MCL 750.84); assault
with intent to rob while armed (MCL 750.89); felon in possession of a firearm (MCL 750.224f);
and possession of a firearm during the commission of a felony (MCL 750.227b). On June 29,
2001, defendant was released on bond.
File No. 46889:
On December 8, 2001, while defendant was on bond in file no. 46214, he was charged
with possession of less than 25 grams of cocaine (MCL 333.7403(2)(a)(v)); possession of
marijuana (MCL 333.7403(2)(d)); possession of marijuana, second offense (MCL 333.7413(2);
carrying a concealed weapon (MCL 750.227); and being a fourth-offense habitual offender
(MCL 769.12). On December 10, 2001, defendant was released on bond.
On June 6, 2002, defendant pleaded guilty to possession of less than 25 grams of cocaine
(MCL 333.7403(2)(a)(v)); possession of marijuana (MCL 333.7403(2)(d)); possession of
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marijuana, second offense (MCL 333.7413(2)); attempted carrying a concealed weapon (MCL
750.227); and to being a fourth-offense habitual offender (MCL 769.12)).
File No. 47659:
On June 12, 2002, while defendant was on bond in file no. 46889, defendant committed
the offenses in the instant case, and on June 13, 2002, was charged with possession with intent to
deliver 50 grams or more, but less than 225 grams of cocaine (MCL 333.7401(2)(a)(iii));
possession with intent to deliver marijuana (MCL 333.7401(2)(d)(iii)); possession of Vicodin
(MCL 333.7403(2)(b)); resisting and obstructing a police officer (MCL 750.479); and being a
fourth-offense habitual offender (MCL 769.12). On June 13, 2002, defendant was released on
bond in the instant case. On July 9, 2002, defendant’s bond was revoked in file no. 46889.
On July 12, 2002, defendant was sentenced in file no. 46889 to 36 months to 14 years’
imprisonment for possession of less than 25 grams of cocaine (MCL 333.7403(2)(a)(v)); 1 to 2
years’ imprisonment for possession of marijuana (MCL 333.7403(2)(d)) and possession of
marijuana, second offense (MCL 333.7413(2)); and 3 to 14 years’ imprisonment for attempted
carrying a concealed weapon (MCL 750.227).
On October 29, 2002, defendant pleaded guilty in file no. 46214 to first-degree home
invasion (MCL 750.110a(2)), and to being a fourth-offense habitual offender (MCL 769.12), and
on December 9, 2002, was sentenced to 10 to 40 years’ imprisonment. On the same date,
defendant pleaded guilty in the instant case (file no. 47659) to possession with intent to deliver
50 grams or more, but less than 225 grams of cocaine (MCL 333.7401(2)(a)(iii)); possession
with intent to deliver marijuana (MCL 333.7401(2)(d)(iii)); possession of Vicodin (MCL
333.7403(2)(b)); resisting and obstructing a police officer (MCL 750.479); and to being a fourthoffense habitual offender (MCL 769.12).
At the plea hearing, the trial court indicated that defendant’s sentence for the major
controlled substance offense in the instant case (file no. 47659) would run consecutively to the
other offenses in the instant case, consecutively to the sentence in file no. 46214, and
consecutively to the sentence defendant was already serving in file no. 46889. However, at the
sentencing hearing on December 9, 2002, the trial court failed to make the sentence in the instant
case consecutive to the sentence he was already serving in file no. 46889. Additionally, the trial
court failed to impose the mandatory minimum ten-year sentence for MCL 333.7401(2)(a)(iii),
and instead imposed a nine-year minimum sentence.
On December 10, 2002, defendant was sentenced to 9 to 40 years’ imprisonment for
possession with intent to deliver 50 to 224 grams of cocaine (MCL 333.7401(2)(a)(iii)) (count I);
9 months to 15 years’ imprisonment for possession with intent to deliver marijuana (MCL
333.7401(2)(d)(iii)) (count II); 6 months to 15 years’ imprisonment for possession of Vicodin
(MCL 333.7403(2)(b)(a)) (count III); and 9 months to 15 years’ imprisonment for resisting and
obstructing a police officer (MCL 750.479b) (count IV). [The judgment of sentence mistakenly
placed the 9 year minimum for Count I in the ‘months’ column, and indicated a nine-month
minimum instead of a six-month minimum for Count III; therefore, an amended judgment of
sentence was entered on March 25, 2003 correcting the mistakes.] The sentences for counts II,
III, and IV were to run concurrently with each other, and consecutively to Count I, as well as
consecutively to the sentence in file no. 46214. The trial court did not make the sentences
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consecutive to the sentence defendant was already serving for file no. 46889, contrary to its
earlier statements at the plea hearing on October 29, 2002.
On January 21, 2003, plaintiff moved for resentencing, pursuant to MCR 6.429(B)(1),
and argued that the trial court erred when it failed to make defendant’s sentence in the instant
case run consecutive to his sentence in file no. 46889, and when it failed to impose the
mandatory minimum ten-year sentence required by MCL 333.7401(2)(a)(iii). At the February
24, 2003 hearing, the trial court denied plaintiff’s motion for resentencing. The trial court
acknowledged its mistake in failing to make defendant’s sentence in the instant case consecutive
to his sentence in file no. 46889, yet declined to correct the error, stating that “to correct the
mistake now would do more damage to everybody than it would be if I went back and tried to fix
it.” The trial court then articulated its reasoning in sentencing defendant to nine years instead of
the mandatory minimum of ten years required by statute:
Frankly, I think by the time we got done with the case, I believed that a
nine year sentence was – taken in conjunction with all these other ones – a pretty
big chunk. When they’re added all up, I think [defendant] has got approximately
20 years here on all these things. And the Court felt that the 9 year sentence – I
know I’m rambling, and I apologize for that. But I think the Court felt that the 9
year sentence on that provided some insurance for appellate issues. The Court felt
that that would close the door on some of those Schultz type issues. In other
words, it would close the door on a defense motion for resentencing which
essentially said, hey, Judge, People v Schultz [435 Mich 517, 526; 460 NW2d 505
(1990)] says that the 10 year mandatory minimum doesn’t apply because
[defendant’s] case is on direct appeal to the Court of Appeals, and Schultz gives
him the benefit of that scheme.
And perhaps I didn’t articulate it as well as I could have at the time of
sentence, but, frankly, by the time we got there, I believed then, in that case, that
it was better to say as little as possible because this was such an intricate piece of
work, that to say too much would really I think create all kinds of appellate issues
whether intended or unintended.
And so that remains my decision here today. I think the 9 year sentence
here which is albeit below the 10 year mandatory minimum which is technically
in effect now. I will say that clearly. I do believe the 10 year mandatory
minimum is in effect. I believe the Schultz dissenters are more correct than the
Schultz plurality/concurring/majority opinion. I’ll say that for the record.
But I think that under that under People v Scarborough [189 Mich App
341; 471 NW2d 567 (1991)] and other cases, Schultz is good law. And I think I
can strain to follow. If the Court of Appeals or the Supreme Court want to take it
on and reverse it, that’s something they have to do. And so that probably more
than anything was the driving force in the 9 year decision there.
On March 21, 2003, the trial court entered an order denying plaintiff’s motion for
resentencing, and we granted plaintiff’s application for leave to appeal.
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On appeal, plaintiff argues that the trial court erred in failing to make defendant’s
sentence in the instant case run consecutive to his sentence in file no. 46889, in violation of MCL
768.7b(2). We agree. We review a trial court’s sentencing decisions for an abuse of discretion.
People v Sexton, 250 Mich App 211, 227; 646 NW2d 875 (2002). “An abuse of discretion is
found only if an unprejudiced person, considering the facts on which the trial court acted, would
say there was no justification for the ruling made.” People v Williams, 240 Mich App 316, 320;
614 NW2d 647 (2000).
MCL 768.7b(2) provides in pertinent part:
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 convictions 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:
(a) Unless the subsequent offense is a major controlled substance
offense, the sentences imposed for the prior charged offense and the
subsequent offense may run consecutively.
(b) If the subsequent offense is a major controlled substance
offense, the sentences imposed for the prior charged offense and the
subsequent offense shall run consecutively. [Emphasis added.]
MCL 761.2(b) provides that a violation of MCL 333.7403(2)(a)(iii) is a “major controlled
substance offense.” In People v Morris, 450 Mich 316, 330-331; 537 NW2d 842 (1995), our
Supreme Court explained the application of MCL 768.7b:
In pertinent part, MCL 768.7b(1); MSA 28.1030(2)(1) provides that when
a person is charged with a felony and, “pending the disposition of the charge,”
commits a subsequent major controlled substance offense, the sentence for the
prior offense shall run consecutively. A charge remains “pending” for the
purposes of § 7b “until a defendant is sentenced on the conviction arising out of
the first offense and until the original charge arising out of the first offense is
dismissed.” People v Smith, 423 Mich 427, 452; 378 NW2d 384 (1985)
(Williams, C.J.). The purpose of this statute is “to deter those charged with one
felony from committing another prior to final disposition of the first. Absent such
a deterrent, a person could be assured of ‘one free crime’ because of the usual
policy of concurrent sentencing.” Id. at 450. Section 7b therefore requires
consecutive sentencing where a defendant commits a major controlled substance
offense after being charged, but before being sentenced for a prior felony.
In the instant case, the trial court abused its discretion in failing to impose a consecutive
sentence, as mandated by MCL 768.7b(2). Defendant was charged with felonies in file no.
46889 on December 8, 2001, and was released on bond on December 10, 2001. Defendant was
sentenced for file no. 46889 on July 12, 2002. However, on June 12, 2002, pending the
disposition of file no. 46889, defendant committed subsequent felonies, including a major
controlled substance offense (MCL 333.7401(2)(a)(iii)). Therefore, upon pleading guilty to the
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charges in the instant case, the sentence was required to be consecutive to the sentence in file no.
46889.
At the hearing on plaintiff’s motion for resentencing, the trial court acknowledged its
error in failing to impose consecutive sentencing; however, the trial court declined to amend the
sentence to accurately reflect the consecutive sentence mandated by MCL 768.7b(2). The trial
court’s decision not to amend defendant’s sentence to comply with the law constituted an abuse
of discretion, because “an unprejudiced person, considering the facts on which the trial court
acted, would say there was no justification for the ruling made.” Williams, supra at 320.
Plaintiff next argues that the trial court erred in failing to make defendant’s sentence in
the instant case run consecutive to his sentence in file no. 46889, in violation of MCL
333.7401(2)(a)(iii). We agree. The version of MCL 333.7401(3) that was in effect at the time
defendant was sentenced provided in pertinent part:
A term of imprisonment imposed pursuant to subsection (2)(a) or section
7403(2)(a)(i), (ii), (iii), or (iv) shall be imposed to run consecutively with any
term of imprisonment imposed for the commission of another felony. [Emphasis
added.]
The version of MCL 333.7401(3) that became effective on March 1, 2003 modified the
statute to allow for discretionary consecutive sentencing, as opposed to mandatory consecutive
sentencing. This Court has held that “the term ‘another felony,’ as used in subsection 7401(3),
includes ‘any felony for which the defendant has been sentenced either before or simultaneously
with the controlled substance felony enumerated in § 7401(3) for which a defendant is currently
being sentenced.” People v Lee, 233 Mich App 403, 406; 592 NW2d 779 (1999), quoting
Morris, supra at 320. Additionally, this Court stated that “by its clear terms, subsection 7401(3)
mandates consecutive sentencing for any sentence imposed for a major controlled substance
felony after a defendant has been sentenced for any other felony.” Lee, supra at 406. “The only
relevant inquiry under the statute is whether, at the time of sentencing for the enumerated
offense, the defendant has already been sentenced for another felony.” Id. at 407.
In the instant case, at the time defendant was sentenced for his major controlled substance
offense (MCL 333.7401(2)(a)(iii)) on December 10, 2002, he had already been sentenced for his
felonies in file no. 46889 on July 12, 2002. Therefore, the trial court was required to make
defendant’s sentence in the instant case run consecutively to his sentence in file no. 46889,
pursuant to MCL 333.7401(3). At the hearing on plaintiff’s motion for resentencing, the trial
court acknowledged its error, but declined to amend defendant’s sentence to make the sentence
in the instant case run consecutively to his sentence in file no. 46889, stating that “to correct the
mistake now would do more damage to everybody than it would be if I went back and tried to fix
it,” and that “also, frankly, gets into a Schultz issue. Because if the Court imposes a consecutive
sentence there as required to do so, again, the argument on appeal or on a defense motion for
resentencing is, hey, Judge, he gets the benefit of the Schultz ameliorative effect, and so the
consecutive sentence does not apply either.”
“The general rule is that the sentence or punishment imposed is that prescribed by the
statute in force at the time of the commission of the crimes,” and that “amendments to criminal
statutes concerning sentence or punishment are not retroactive.” People v Marji, 180 Mich App
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525, 543; 447 NW2d 835 (1989). However, the trial court apparently relied on our Supreme
Court’s holding in Schultz, supra, 526-531, 533-534, for the proposition that “the amended
penalty provisions of the controlled substances act should be applied in cases which were
pending in the trial court when the amendments took effect.” Scarborough, supra at 343-344.
However, in the instant case, the amendment to MCL 333.7401(3) took effect on March 1, 2003,
after defendant committed the crimes on June 12, 2002, and after defendant was sentenced on
December 10, 2002. Defendant’s sentence was only amended on March 25, 2003 to correct the
mistake made by placing nine years for count I in the ‘months’ column, and by indicating nine
months instead of six months for count III. Therefore, defendant’s case was not “pending” in the
trial court when the amendment took effect; rather, he had already been sentenced, and the
March 25, 2003 amended judgment of sentence merely corrected clerical mistakes.
Although the trial court was merely attempting to follow the legislation which it thought
was going to come into effect when defendant was sentenced in December 2002, and attempting
to follow the newly-enacted legislation which had come into effect at the time defendant’s
judgment of sentence was corrected to remedy clerical errors in March 2003, the fact remains
that the trial court abused its discretion by not following the law in effect at the time defendant
committed the crimes in the instant case, and at the time he was sentenced. The trial court’s
decision not to amend defendant’s sentence to comply with the law constituted an abuse of
discretion, because “an unprejudiced person, considering the facts on which the trial court acted,
would say there was no justification for the ruling made.” Williams, supra at 320.
Plaintiff next argues that the trial court erred in failing to impose a ten-year mandatory
minimum sentence as required by the version of MCL 333.7401(2)(a)(iii) that was in effect that
the time defendant committed the crime and was sentenced. We agree. “The issue whether a
statute should be applied retroactively is a legal issue that is reviewed de novo.” People v
Thomas, ___ Mich App ___; ___ NW2d ___ (Docket No. 243817, rel’d 2/3/04), slip op p 4.
The version of MCL 333.7401(2)(a)(iii) that was in effect at the time defendant was
sentenced provided in pertinent part:
A person who violates this section as to a controlled substance classified
in schedule 1 or 2 that is a narcotic drug or a drug described in section 7214(a)(iv)
and which is in an amount of 50 grams or more, but less than 225 grams, of any
mixture containing that substance is guilty of a felony and shall be imprisoned for
not less than 10 years nor more than 20 years. [Emphasis added.]
An exception to the imposition of a mandatory minimum sentence was set out in MCL
333.7401(4), which provided in pertinent part:
The court may depart from the minimum term of imprisonment authorized
under subsection (2)(a)(ii), (iii), or (iv) if the court finds on the record that there
are substantial and compelling reasons to do so.
This Court, discussing the exception, held that “departure from the range recommended
by the guidelines, however, is allowed only in rare and exceptional cases where the original
legislative purpose [to deter drug offenses] will not be defeated.” People v Shinholster, 196
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Mich App 531, 534-535; 493 NW2d 502 (1992), quoting People v Hill, 192 Mich App 102, 118119; 480 NW2d 913 (1991).
In the instant case, at the time of sentencing, the trial court failed to articulate any
substantial and compelling reasons to warrant a downward departure from the mandatory
minimum ten-year sentence set out in MCL 333.7401(2)(a)(iii). The trial court stated that it was
engaging in a downward departure because it was aware of pending legislation to change
mandatory minimums, and “want[ed] to send a clear message to any reviewing authority that the
Court is aware of that legislation,” despite the fact that “it’s not law yet.” The trial court’s sole
reason for engaging in a downward departure was that it believed that an amendment to the
mandatory minimum sentencing law was imminent, and wanted to follow law which it believed
would be enacted. The trial court’s rationale in engaging in a downward departure from the
statutorily mandated ten-year minimum sentence did not constitute a substantial and compelling
reason, as required by MCL 333.7401(4).
Further, this Court recently decided the precise question at issue in the instant case, i.e.,
whether the Legislature intended the amended drug sentence laws to have retroactive application
to crimes committed before the statute was enacted. This Court determined that our Supreme
Court’s decision in Schultz, supra, the defendant was entitled to be resentenced under the
amended sentencing provisions of MCL 333.7401(2)(a)(iii), was inapplicable to instant issue.
Thomas, supra, slip op p 4. This Court also noted that “because the Schultz decision was a
plurality in which a majority of the justices did not agree on the reasoning, we are not bound
under stare decisis by that decision.” Id. at n 1, citing People v Gahan, 456 Mich 264, 274; 571
NW2d 503 (1997), quoting Negri v Slotkin, 397 Mich 105, 109; 244 NW2d 98 (1976).
This Court stated that its “concern [wa]s to ascertain and give effect to the legislative
intent as expressed by the plain language of the statute.” Thomas, supra, slip op p 4. “Where the
language used is unambiguous, ‘[this Court] presume[s] that the Legislature intended the
meaning clearly expressed – no further judicial construction is required or permitted, and the
statute must be enforced as written.’” Id., quoting People v Morey, 461 Mich 325, 330; 603
NW2d 250 (1999). This Court analyzed the issue:
The trial court sentenced defendant under the version of MCL
333.7401(2)(a)(iii) in effect at the time of the sentencing, which provided a
punishment of “not less than 10 years nor more than 20 years.” Effective March
1, 2003, the punishment provision was amended to provide for “imprisonment for
not more than 20 years or a fine of not more that $250,000.00, or both.” The
legislature also amended MCL 791.234 by adding paragraph (12), which states:
An individual convicted of violating or conspiring to violate
section 7401(2)(a)(iii) or 7403(2)(a)(iii) of the public health code . . .
before the effective date of the amendatory act that added this subsection
is eligible for parole after serving the minimum of each sentence imposed
for that violation or 5 years of each sentenced imposed for that violation,
whichever is less.
“Amendments of statutes are generally presumed to operate prospectively
unless the Legislature clearly manifests a contrary intent.” Tobin v Providence
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Hosp, 244 Mich App 626, 661; 624 NW2d 548 (2001), citing Selk v Detroit
Plastic Products, 419 Mich 1, 9; 345 NW2d 184 (1984). We observe that there is
no language in either amended statute indicating that the elimination of the
mandatory minimum sentence in MCL 333.7401(2)(a)(iii) was intended to apply
to defendants who committed their offenses and were sentenced before March 1,
2003. Additionally, we note that the plain language of MCL 791.234 specifically
provides that individuals previously convicted under MCL 333.7401(2)(a)(iii)
may become eligible for parole “after serving the minimum sentence of each
sentence imposed for that violation, whichever is less.”
It appears plain that the Legislature has specifically provided relief – in the
form of early parole eligibility – for individuals, such as defendant, who were
convicted and sentenced before the amendatory act became effective. Because
the Legislature declined to specifically apply the amended sentencing provisions
MCL 333.7401(2)(a)(iii) retroactively and instead specifically provided early
parole eligibility to such defendants, we decline defendant’s invitation to ignore
the plain language of the statute. [Thomas, supra, slip op pp 4-5.]
This Court revisited this issue in People v Doxey, ___ Mich App ___ (Docket No.
247767, July 20, 2004), holding that 2002 PA 665 should not be applied retroactively.
Therefore, in the instant case, the trial court’s decision to apply the amended sentencing
provisions in MCL 333.7401(2)(a)(iii) eliminating the mandatory minimum, before the amended
provisions were enacted into law, constituted an abuse of discretion. The Legislature did not
intend for the amended sentencing provisions to apply retroactively to defendants who
committed their offenses and were sentenced before March 1, 2003; therefore, the trial court was
required to sentence defendant under the version of MCL 333.7401(2)(a)(iii) in effect at the time
defendant committed the crimes and was sentenced. Doxey, supra.
Remanded for resentencing consistent with this opinion. We do not retain jurisdiction.
/s/ Karen M. Fort Hood
/s/ Pat M. Donofrio
/s/ Stephen L. Borrello
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