PEOPLE OF MI V BERNARDINO TAMAYO
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
December 28, 1999
Plaintiff-Appellee,
v
No. 208669
Berrien Circuit Court
LC No. 97-406142 FC
BERNARDINO TAMAYO,
Defendant-Appellant.
Before: Fitzgerald, P.J., and Hoekstra and Markey, JJ.
PER CURIAM.
Defendant was convicted of five separate counts, after a two-day jury trial: (1) conspiracy to
possess with intent to deliver between 5 and 45 kilograms of marijuana, MCL 750.157a; MSA
28.354(1); (2) possession with intent to deliver between 5 and 45 kilograms of marijuana, MCL
333.7401(2)(d)(ii); MSA 14.15(7401)(2)(d)(ii); (3) conspiracy to possess with intent to deliver
between 50 and 225 grams of cocaine, MCL 750.157a; MSA 28.354(1); (4) possession with intent to
deliver between 50 and 225 grams of cocaine, MCL 333.7401(2)(a)(iii); MSA 14.15(7401)(2)(a)(iii);
and (5) carrying a concealed weapon, MCL 750.227(1); MSA 28.424(1). Defendant was sentenced
as a fourth habitual offender, MCL 769.12(1); MSA 28.1084(1). Defendant appeals by right from his
conviction on the two conspiracy counts and also appeals his sentences. We affirm defendant’s
convictions but remand to the circuit court for clarification and correction of the judgment of sentence.
I.
Defendant challenges the sufficiency of the evidence on two counts, conspiracy to possess with
intent to deliver between 5 and 45 kilograms of marijuana and conspiracy to possess with intent to
deliver between 50 and 225 grams of cocaine, MCL 750.157a; MSA 28.354(1). That statute
provides: “Any person who conspires together with 1 or more persons to commit an offense prohibited
by law, or to commit a legal act in an illegal manner is guilty of the crime of conspiracy.” The predicate
substantive offenses which defendant conspired to commit are prohibited by MCL 333.7401; MSA
14.15(7401).
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In People v Justice (After Remand), 454 Mich 334, 349; 562 NW2d 652 (1997), our
Supreme Court explained the elements necessary to prove a conspiracy involving the underlying offense
of possession with intent to deliver drugs:
To be convicted of conspiracy to possess with intent to deliver a controlled substance,
the people must prove that (1) the defendant possessed the specific intent to deliver the
statutory minimum as charged, (2) his coconspirators possessed the specific intent to
deliver the statutory minimum as charged, and (3) the defendant and his coconspirators
possessed the specific intent to combine to deliver the statutory minimum as charged to
a third person.
Circumstantial evidence and the reasonable inferences which arise from the evidence can
constitute satisfactory proof of the elements of the crime, including intent. People v Carines, 460 Mich
750, 757; 597 NW2d 130 (1999); People v Fetterley, 229 Mich App 511, 517-518; 583 NW2d
199 (1998). Moreover, direct proof of the conspiracy is not required; proof of the conspiracy may be
derived from the circumstances, acts, and conduct of the parties. Justice, supra at 347. After viewing
the evidence in the light most favorable to plaintiff, People v Johnson, 460 Mich 720, 723; 597 NW2d
73 (1999), we conclude that a rational jury could have been convinced, beyond a reasonable doubt,
that (1) defendant possessed the specific intent to deliver between 5 and 45 kilograms of marijuana and
between 50 and 225 grams of cocaine, (2) Quesada possessed the specific intent to deliver between 5
and 45 kilograms of marijuana and between 50 and 225 grams of cocaine, and (3) defendant and
Quesada possessed the intent to combine with each other to deliver between 5 and 45 kilograms of
marijuana and between 50 and 225 grams of cocaine to Port Huron for profit.
First, sufficient evidence was presented to convince a reasonable jury that defendant possessed
the requisite specific intent. The parties stipulated to the admission of a forensics report which indicated
that 55.9 pounds of marijuana and 130.199 grams of cocaine were seized from the car which defendant
was driving. Plaintiff then presented the testimony of Lieutenant McAndrew, a supervisor with the
Michigan State Police Narcotics Task Force, who was qualified to testify as an expert in the area of
sales and distribution of controlled substances in the southwest Michigan area. In his expert opinion, the
amount of marijuana in defendant’s possession indicated distribution of the drug, because the quantity
was excessive for mere personal use. He expressed the same opinion regarding the amount of cocaine
found in defendant’s possession. In addition, he testified that the presence of scales and packaging
materials in the car indicated an intent to sell the drugs. The keys to the safety-deposit box containing
about $16,000 cash were found in the trunk of the car defendant was driving. This was money which
Quesada placed in the safety-deposit box the day before he rented a car and loaned it to defendant.
Defendant’s specific intent to deliver the marijuana and cocaine found in the car he was driving could be
reasonably inferred from the facts of this case.
Next, sufficient evidence was presented to convince a reasonable jury that Quesada possessed
the requisite specific intent. First, as mentioned above, the amount of drugs found in the car indicated an
intent to sell the drugs. Second, it could be reasonably inferred that Quesada helped package the drugs
in the trash bags and place them in the car’s trunk, as his fingerprints were found on the plastic baggies
containing both marijuana and cocaine. Quesada’s actions before defendant’s arrest, including his
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placing the cash in the safety-deposit box, renting the car for defendant’s use, and placing the safety
deposit box keys in the car’s trunk, all indicate that Quesada planned for the drugs to be transported to
the Port Huron area for distribution.
Finally, sufficient evidence was presented to convince a reasonable jury that defendant and
Quesada possessed the specific intent to combine with each other to deliver the drugs to Port Huron for
profit. Defendant was found driving a car which Quesada had rented the previous day. He admitted
that Quesada was his friend, and that Quesada had loaned him the car for the purpose of driving to the
Port Huron area. The two keys to the safety-deposit box were found in the trunk of that car, and the
jury could have inferred that this was done to provide defendant with security that he would be paid for
delivery of the drugs. Although defendant denied any knowledge that drugs were present in the car, the
state police troopers testified that the smell of fresh marijuana was evident when they stopped defendant
on the highway. In addition to that smell, a beam-scale and rolling papers were contained in the car’s
passenger compartment, along with an opened plastic baggie filled with cocaine. Defendant’s statement
while in the back seat of the police car also supported the inference that he knew drugs were in the car.
Defendant’s 198 calls or attempted telephone calls to Quesada’s telephone number in Port Huron also
support the inference that the two had combined in an agreement regarding the drugs found in the car.
The timing of the first call which defendant made from the jail’s booking area, when combined with
Quesada’s return flight to Port Huron and attempt to reclaim the money in the safety-deposit box,
showed that the men were working in concert.
Sufficient evidence having been presented on the two conspiracy counts, defendant’s
convictions on these offenses are affirmed.
II.
Defendant next requests a remand to the circuit court for clarification and correction of his
sentences. We agree that a remand for clarification and correction of the sentences is warranted.
We begin with defendant’s convictions on the underlying drug offenses. Defendant was
convicted on count two, possession with intent to deliver between 5 and 45 kilograms of marijuana,
which carries a maximum penalty of seven years’ imprisonment. MCL 333.7401(2)(d)(ii); MSA
14.15(7401)(2)(d)(ii). Defendant was also convicted on count four, possession with intent to deliver
between 50 and 225 grams of cocaine, which carries a minimum penalty of ten years’ imprisonment and
a maximum penalty of twenty years’ imprisonment.
MCL 333.7401(2)(a)(iii); MSA
14.15(7401)(2)(a)(iii). However, the court found defendant to be a fourth habitual offender and, based
on that status, imposed an enhanced sentence of 6 to 20 years on the marijuana charge and an
enhanced sentence of 12 to 60 years on the cocaine charge.
The fourth habitual offender statute, MCL 769.12; MSA 28.1084, does not prevent a trial
court from imposing an enhanced sentence upon a defendant who has committed a controlled
substances offense and whose prior offenses involve only non-drug related crimes. People v Primer,
444 Mich 269, 274-275; 506 NW2d 839 (1993); Fetterley, supra at 511. The circuit court could
have enhanced defendant’s sentence up to “imprisonment for life or for a lesser term” on these two
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counts. MCL 769.12(a); MSA 28.1084(a). It permissibly enhanced defendant’s sentences on count
two to a term of 6 to 20 years, and on count four to a term of 12 to 60 years.
Next, we turn to defendant’s convictions on the conspiracy charges. Defendant was convicted
on count one, conspiracy to possess with intent to deliver marijuana, and sentenced to a term of 6 to 20
years. He was also convicted on count three, conspiracy to possess with intent to deliver cocaine, and
sentenced to a term of 12 to 60 years. The conspiracy statute, MCL 750.157a(a); MSA 28.354(1)(a),
provides that the defendant “shall be punished by a penalty equal to that which could be imposed if he
had been convicted of committing the crime he conspired to commit.” Because the circuit court
imposed the same sentences on the conspiracy charges which it imposed for the underlying drug
possession charges, those sentences were proper.
Next, we consider defendant’s conviction on the concealed weapon charge. Defendant was
convicted on count five, carrying a concealed weapon, which carries a maximum penalty of five years’
imprisonment. MCL 750.227(3); MSA 28.424(3). However, the trial court imposed a sentence of 3
to 15 years on this charge. Although not explicitly stated, this sentence was enhanced under the habitual
offender statute, as it exceeds the ordinary maximum penalty for the crime. The term of years imposed
by the circuit court on this offense was proper based on defendant’s fourth habitual offender status.
MCL 769.12(a); MSA 1084(a).
The court appropriately determined that defendant’s sentences for possession with intent to
deliver cocaine and conspiracy to commit that offense are to run consecutively to each other and
consecutively to the other offenses, MCL 333.7401(3); MSA 14.15(7401)(3); People v Denio, 454
Mich 691, 695, 712; 564 NW2d 13 (1997), and that the sentences for possession with intent to deliver
marijuana, conspiracy to commit that offense, and carrying a concealed weapon are to run concurrent
with each other. People v Chambers, 430 Mich 217, 222; 421 NW2d 903 (1988).
At the sentencing hearing, the trial court did not state a specific sentence to be imposed under
the habitual offender statute. Rather, as previously noted, it properly enhanced each of the sentences on
the individual underlying charges based on defendant’s status as a fourth habitual offender.
Subsequently, on both the original and amended judgments of sentence, the trial court correctly listed
defendant’s underlying convictions and sentences, as enhanced, for counts one through five and then
listed defendant’s fourth habitual offender conviction as count six, for which the court inexplicably
recorded a sentence of 12 to 60 years “concurrent.” The court did not state with which of the other
sentences the habitual offender sentence is to be concurrent.
The court cannot impose concurrent sentences for an underlying felony and the habitual offender
charge. People v Hambrick, 169 Mich App 554 556-557; 426 NW2d 702 (1988). Because at
sentencing the court took into consideration defendant’s habitual offender status when it imposed the
sentences on defendant’s underlying convictions, the court could not then also impose a separate
sentence on defendant as an habitual offender. Id. Moreover, because the court must impose
sentences for possession with intent to deliver cocaine and conspiracy to commit that offense which are
consecutive to each other and consecutive to the other, concurrent sentences, the court cannot sentence
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defendant solely under the habitual offender statute. MCL 333.7401(3); MSA 14.15(7401)(3); Denio,
supra. See also Primer, supra.
We remand this case to the trial court for clarification and correction of the judgment of
sentence. If it were the trial court’s intent that defendant be sentenced in accordance with the sentence
articulated by the court at the sentencing hearing, the trial court should issue a corrected judgment of
sentence to reflect that defendant is sentenced on counts one through five (to the terms as previously
specified on the judgments of sentence) as a fourth habitual offender, and the corrected judgment of
sentence should include defendant’s conviction as a fourth habitual offender, MCL 769.12; MSA
28.1084, under count six with no sentence being imposed on that count. The corrected judgment of
sentence should also reflect that counts three and four are consecutive to each other and consecutive to
counts one, two and five, which are concurrent with each other, and should reflect the appropriate jail
credit as of the date the judgment is corrected. If the court’s intent were otherwise, the court is to hold
a resentencing hearing at which the court will specify the sentences to be imposed with the judgment of
sentence being corrected to reflect same. The trial court must forward a copy of the corrected
judgment of sentence to the Department of Corrections.
We affirm defendant’s convictions and remand for clarification and correction of the judgment
as sentence as specified herein. We do not retain jurisdiction.
/s/ E. Thomas Fitzgerald
/s/ Joel P. Hoekstra
/s/ Jane E. Markey
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