PEOPLE OF MI V PATRICK JOSEPH GROULX
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
December 2, 2004
Plaintiff-Appellee,
v
No. 249503
Isabella Circuit Court
LC No. 03-000912-FH
PATRICK JOSEPH GROULX,
Defendant-Appellant.
Before: Meter, P.J., and Wilder and Schuette, JJ.
PER CURIAM.
Following a jury trial, defendant was convicted of possession of marijuana, a
misdemeanor. MCL 333.7403(2)(d). This was not his first drug-related offense, and he thus was
subject to a double penalty under MCL 333.7413(2). He received an enhanced sentence of
sixteen months to two years in prison. Defendant appeals as of right. We affirm but remand for
the ministerial task of correcting the judgment of sentence. This appeal is being decided without
oral argument pursuant to MCR 7.214(E).
Defendant first argues that MCL 333.7403(2), the statute making possession of marijuana
a misdemeanor, violates Mich Const 1963, art 4, § 24, the title-object clause. Defendant notes
that § 333.7403(2) is a provision of the public health code, and maintains that possession with
intent to personally use marijuana could not affect the “public health.” This Court has rejected
this argument in People v Kidd, 121 Mich App 92, 95; 328 NW2d 394(1982); People v Lemble,
103 Mich App 220, 222; 303 NW2d 191 (1981); People v Berry, 123 Mich App 237, 238; 333
NW2d 234 (1983); People v Campbell, 115 Mich App 369, 371; 320 NW2d 381 (1982); and
People v DeLeon, 110 Mich App 320, 328; 313 NW2d 310 (1981), rev’d on other grounds 414
Mich 851 (1982). Defendant acknowledges only Kidd, and asserts that the Court erroneously
relied on People v Trupiano, 97 Mich App 416, 417-420; 296 NW2d 49 (1980), a case involving
a delivery conviction, which defendant asserts would affect the “public health.” However, in
Trupiano, the Court focused on the public health code’s goal of “protect[ing] and promot[ing]
the public health.” 97 Mich App 420. The Court stated, “The act's reference to the protection
and promotion of the public health as its purpose necessarily includes proscriptions and penalties
on the use of controlled substances.” Id. (emphasis added). There is no title-object clause
violation.
Defendant next argues that his sentence should be vacated on grounds that the law
enforcement officers of the Saginaw Chippewa Tribal Police lacked the authority to act as peace
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officers under the laws of this state. Specifically, he maintains that the officers were not “[l]aw
enforcement officer[s] of a Michigan Indian tribal police force” under MCL 28.609(6) because
MCL 28.602(i) and MCL 28.6e(5)(a) define “[l]aw enforcement officer of a Michigan Indian
tribal police force” as one “appointed pursuant to 25 CFR 12.100 to 12.103”;1 defendant
maintains that these CFR provisions do not exist. However, these provisions appear in the Code
of Federal Regulations for revision year 1997. Moreover, defendant did not argue below that the
statutory reference to 25 CFR 12.100 to 12.103 nullified the officers’ authority on grounds that
these were non-existent CFR provisions. Since the CFR provisions in question are identifiable,
there is no basis for finding plain error affecting a substantial right. People v Carines, 460 Mich
750, 763; 597 NW2d 130 (1999).
Defendant next asserts that the prosecution did not establish the fourth prerequisite set
forth in § 28.609(6) for a tribal police officer to exercise the authority of a peace officer under
the laws of this state. The four prerequisites are that (1) the officer must be certified, (2) the
officer must be deputized or appointed, (3) the deputation or appointment must be pursuant to a
contract between the governing authority and the tribe, and (4) this contract must be
“incorporated into a self-determination contract, grant agreement, or cooperative agreement
between the United States secretary of the interior and the tribal government . . . pursuant to the
Indian self-determination and public education assistance act . . . .” MCL 28.609(6).
The prosecutor stipulated that the self-determination contract did not “specifically”
mention the contract between the tribe and Isabella County. However, a provision of the self
determination contract dealing with contract requirements dictates that contracts between the
tribe and third parties shall be in writing; identify the interested parties, their authority, and the
purposes of the contract; state the work to be performed; and state the terms and processes for
making any claims and payments. Referring to the self-determination contract, the chief of the
tribe testified that the contract between the tribe and Isabella County was incorporated. Thus, we
find no clear error in the trial court’s finding that the statutory prerequisite in question was met.
See People v LeBlanc, 465 Mich 575, 579; 640 NW2d 246 (2002) (the trial court’s findings of
fact are reviewed for clear error).
Defendant also argues that the self-determination contract was not signed by a proper
federal authority. Defendant cites 25 USC 450b(i), a provision of the Indian self-determination
and public education assistance act, which states that “‘[s]ecretary,’ unless otherwise designated,
means either the Secretary of Health and Human Services or the Secretary of the Interior or
both[.]” Defendant argues that the individual who signed the contract was not authorized to sign
it on behalf of the Secretary of Health and Human Services or the Secretary of the Interior. He
provides a spreadsheet purporting to list the heads of all the subdivisions within these two
agencies throughout several years and states that “no where [sic] when the contract was being
signed could a [sic] individual have the authority to sign contracts on behalf of the government
except those listed on the spread sheet.”
1
We note that MCL 28.602(i) has been amended and now refers to “former 25 CFR 12.100 to
12.103” (emphasis added).
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Defendant is not entitled to appellate relief with respect to this issue. Indeed, this Court
will not consider his unverified spreadsheet, which is not contained in the lower court record. As
noted in Sherman v Sea Ray Boats, Inc, 251 Mich App 41, 56; 649 NW2d 783 (2002), a party
may not expand the record on appeal. Furthermore, defendant has cited no convincing authority
for the proposition that only the heads of these various subdivisions had the authority to sign
contracts on behalf of the agencies in question. We deem his argument abandoned. See People
v Kelly, 231 Mich App 627, 640-641; 588 NW2d 480 (1998).
Finally, defendant argues that in imposing an enhanced sentence, the trial court relied on
both the habitual offender act, MCL 769.10, and the subsequent offender provision of the
controlled substances act, MCL 333.7413(2). Upon review of the sentencing transcript, we find
no basis for concluding that defendant was sentenced as an habitual offender. First, the habitual
offender statute only applies if a person has been convicted of a subsequent felony. MCL
769.10. Defendant was convicted of a misdemeanor. Second, defendant mistakenly asserts that
a non-drug-related retail fraud conviction was relied on in enhancing the sentence, but the only
conviction certified for purposes of sentencing was a November 3, 1997, conviction for
possession with intent to deliver marijuana. The trial court expressly stated that this certification
established that defendant was a “second or subsequent offender, drug offender.” Moreover, the
subsequent offender provision of the controlled substances act allows sentencing to “a term not
more than twice the term otherwise authorized.” MCL 333.7413(2). For marijuana possession,
the authorized punishment was imprisonment for not more than one year. MCL 333.7403(2)(d).
Thus, under this provision defendant could be sentenced to not more than two years. This was
the sentence imposed. In contrast, under the habitual offender act a second felony offense for a
crime punishable by less than a life term can be enhanced to 1½ times that term. MCL
769.10(1)(a). Defendant’s sentence was not enhanced by a term that would reflect use of this
multiplier. Accordingly, we conclude that defendant’s sentence was properly enhanced under
the subsequent offender provision of the controlled substances act.
We note that the judgment of sentence mistakenly suggests that there was an habitual
offender enhancement and refers to MCL 769.10. Therefore, although we affirm defendant’s
conviction and sentence, we remand for correction of the judgment of sentence and direct that
the references to habitual offender second and MCL 769.10 be deleted. We do not retain
jurisdiction.
/s/ Patrick M. Meter
/s/ Kurtis T. Wilder
/s/ Bill Schuette
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