PEOPLE v. COLLINS (2012)

Defendant appeals as of right his jury trial convictions of delivery of 50 to 450 grams of heroin, MCL 333.7401(2)(a)(iii ), possession with intent to deliver less than 50 grams of heroin, MCL 333.7401(2)(a)(iv ), possession with intent to deliver less than 50 grams of cocaine, MCL 333.7401(2)(a)(iv ), and conspiracy to deliver and/or possess with intent to deliver less than 50 grams of cocaine and/or heroin, MCL 333.7401(2)(a)(iv ). He was sentenced as a third habitual offender, MCL 769.11, to 10 to 40 years' imprisonment for each of his convictions, to be served concurrently. We vacate defendant's conviction for delivering 50 to 450 grams of heroin because the trial court improperly allowed the prosecution to aggregate numerous smaller deliveries into one charge. We affirm defendant's other convictions, but remand for resentencing.

This Court reviews the record de novo when addressing a claim of insufficient evidence. People v. Parker, 288 Mich.App. 500, 503, 795 N.W.2d 596 (2010).¹ We also review de novo questions of statutory interpretation. People v. Gardner, 482 Mich. 41, 46, 753 N.W.2d 78 (2008).

MCL 333.7401 provides:

(1) Except as authorized by this article, a person shall not manufacture, create, deliver, or possess with intent to manufacture, create, or deliver a controlled substance ․

(2) A person who violates this section as to:

(a) A controlled substance classified in schedule 1 or 2 that is a narcotic drug or a drug described in section 7214(a)(iv) and:

* * *

(iii) Which is in an amount of 50 grams or more, but less than 450 grams, of any mixture containing that substance is guilty of a felony ․

Heroin is a Schedule I controlled substance. MCL 333.7212(1)(b). The elements of delivering 50 to 450 grams of heroin are: (1) defendant's delivery; (2) of 50 to 450 grams; (3) of heroin or a mixture containing heroin; (4) with knowledge that he is delivering heroin. See People v. Williams, 294 Mich.App. 461, 470, 811 N.W.2d 88 (2011); see also People v. Mass, 464 Mich. 615, 626–627, 628 N.W.2d 540 (2001). Although the amount of the controlled substance is an element of a delivery offense, the defendant's knowledge of the amount is not an element. Mass, 464 Mich. at 626–627, 628 N.W.2d 540. “ ‘Deliver’ or ‘delivery’ means the actual, constructive, or attempted transfer from 1 person to another of a controlled substance, whether or not there is an agency relationship.” MCL 333.7105(1). “Transfer is the element which distinguishes delivery from possession.” People v. Schultz, 246 Mich.App. 695, 703, 635 N.W.2d 491 (2001), citing People v. Steele, 429 Mich. 13, 25–26, 412 N.W.2d 206 (1987).

The primary prosecution witness, Jack Blocker, testified that the largest amount that defendant delivered to him on any one occasion was an ounce, or approximately 28 grams. There is no evidence in the record that would support a finding that defendant ever delivered more than 50 grams in a single transaction. Consequently, if the individual deliveries cannot be aggregated, there is no evidence supporting defendant's conviction for delivery of 50 to 450 grams of heroin. For the reasons set forth below, we conclude that defendant's various deliveries of 0.5 to 28 grams of heroin on separate occasions may not be aggregated to support a conviction for delivering 50 to 450 grams of heroin under MCL 333.7401(2)(a)(iii ).

First, MCL 333.7401(2)(a) provides for different charges for four distinct quantity groups² when a defendant is charged with manufacturing, creating, delivering, or possessing with intent to manufacture, create, or deliver a Schedule 1 or 2 controlled substance. The statute sets forth different degrees of punishment dependent on the amount of controlled substance delivered. The law imposes a more severe punishment on those who manufacture, create, deliver, or possess greater amounts of a controlled substance. Mass, 464 Mich. at 625, 628 N.W.2d 540. This system created by the Legislature would be undercut by allowing the prosecution to aggregate multiple small deliveries.

Second, delivery is defined as “the actual, constructive or attempted transfer from 1 person to another of a controlled substance.” MCL 333.7105(1). This definition does not use a plural form of transfer, indicating that delivery is a single transfer, not multiple transfers over a period of time. See MCL 333.7105(1).

Finally, case law does not support an interpretation of MCL 333.7401 that allows the prosecution to aggregate separate deliveries. The question of what constitutes a single criminal transaction with respect to delivering a controlled substance has arisen in double jeopardy cases. In such cases, the defendants argue that their convictions for multiple counts of delivering a controlled substance violate the double jeopardy clause because the deliveries were part of one criminal transaction. See People v. Bartlett, 197 Mich.App. 15, 18, 494 N.W.2d 776 (1992); People v. Edmonds, 93 Mich.App. 129, 133–134, 285 N.W.2d 802 (1979); People v. Cuellar, 76 Mich.App. 20, 21–23, 255 N.W.2d 755 (1977); People v. Martinez, 58 Mich.App. 693, 694–695, 228 N.W.2d 523 (1975). In that context, we have consistently held that separate deliveries constitute separate criminal transactions, which properly give rise to separate charges. See Edmonds, 93 Mich.App. at 133–134, 285 N.W.2d 802 (holding that two separate sales of heroin on the same day were not part of the same criminal transaction where there was no evidence of an agreement to return for a second sale after the first); Cuellar, 76 Mich.App. at 21–23, 255 N.W.2d 755 (concluding that two separate sales of heroin to the same buyer, one month apart, did not constitute the same criminal transaction); Martinez, 58 Mich.App. at 694–695, 228 N.W.2d 523 (holding that two separate deliveries to the same buyer, nine days apart, constituted separate criminal transactions). For example, in Bartlett, we stated:

In resolving defendant's double jeopardy challenge, we look to whether the deliveries were separately bargained for and separately paid for, and whether the second delivery was at the same time as the first. See People v. Miller, 182 Mich.App. 482, 484, 453 N.W.2d 269 (1990). In this case, the evidence demonstrated that although the deliveries were close in time, defendant sold two separate amounts of crack cocaine to the two officers separately, and that the cocaine rocks were separately bargained for and paid for. We conclude that, under the circumstances of this case, the Legislature intended that defendant be subject to prosecution for each delivery as a separate offense. [197 Mich.App. at 18].

We have also considered when a series of acts constitute separate criminal transactions, giving rise to separate charges, in the context of false pretenses and Medicaid fraud cases. See People v. Harajli, 161 Mich.App. 399, 403–408, 411 N.W.2d 765 (1987); People v. Payne, 177 Mich.App. 464, 466–468, 442 N.W.2d 675 (1989). In Harajli, 161 Mich.App. at 401, 411 N.W.2d 765, the defendants were gasoline station owners who tampered with the pumps so that customers were receiving less gasoline than they paid for. The prosecution aggregated the amounts that numerous customers were defrauded over several months in order to charge defendants with the felony of obtaining more than $100 by false pretenses, rather than charging defendants with the misdemeanor of obtaining $100 or less by false pretenses. Harajli, 161 Mich.App. at 401, 411 N.W.2d 765. This Court concluded that “different misrepresentations to different victims, made at different times, constitute different offenses even if they occur at the same place and pursuant to one overall ‘scheme.’ “ Id. at 407, 411 N.W.2d 765. In Payne, 177 Mich.App. at 466, 442 N.W.2d 675, the prosecution charged the defendant with “using a common plan or scheme to defraud the State of Michigan, Medicaid program,” by making 505 false claims. We concluded that such a charge was inappropriate because the charging statute, MCL 400.607(1), made it illegal to submit a false claim. Consequently, the submission of each false claim constituted a separate offense, “and must be tried as such.” Payne, 177 Mich.App. at 468, 442 N.W.2d 675.

The prosecution relies primarily on conspiracy cases in arguing that defendant's individual deliveries can be aggregated under a theory of a continuing course of conduct. In People v. Rodriguez, 251 Mich.App. 10, 23, 650 N.W.2d 96 (2002), this Court concluded that the jury instructions were proper, where the trial court instructed the jury that “if you believe the evidence so shows, you may add up the separate amounts to show that there was an agreement to deliver over 650 grams or more of any mixture contained the controlled substance cocaine” (internal citations omitted, italics in original). In People v. Porterfield, 128 Mich.App. 35, 38–41, 339 N.W.2d 683 (1983), this Court held that there was sufficient evidence to convict defendant of conspiracy to deliver over 50 grams of heroin. However, one can conspire with another to deliver more than 50 grams of heroin and then follow through with that plan by delivering 10 grams of heroin on five different occasions. For this reason, conspiring to deliver 50 to 450 grams of heroin is fundamentally different from actually delivering 50 to 450 grams of heroin. In a conspiracy case, the amount the defendant and his coconspirators agree to deliver is significant, while the amount actually delivered is what matters in a non-conspiracy case. See Rodriguez, 251 Mich.App. at 23, 650 N.W.2d 96; Porterfield, 128 Mich.App. at 38–41, 339 N.W.2d 683. Because there was insufficient evidence to convict defendant of delivering 50 to 450 grams of heroin, we vacate this conviction.

We reject defendant's multiple challenges to his other convictions, however. Defendant argues that the trial court abused its discretion in denying his motion to suppress evidence that resulted from police officers' search of his car. This Court reviews de novo a trial court's decision on a motion to suppress evidence. People v. Chowdhury, 285 Mich.App. 509, 514, 775 N.W.2d 845 (2009). The trial court's factual findings are reviewed for clear error. Id.

Defendant initially argues that the evidence recovered should be suppressed because the officers were acting outside of their jurisdiction, in violation of MCL 764.2a(1). However, assuming this to be the case, it does not provide a basis for suppression as an arrest that is statutorily invalid, such as under MCL 764.2a(1), which limits the authority a peace officer may exercise outside of his jurisdiction, is not necessarily unconstitutional. People v. Hamilton, 465 Mich. 526, 532–533, 638 N.W.2d 92 (2002), abrogated on other grounds, Bright v. Ashie, 465 Mich. 770, 775 n. 5, 641 N.W.2d 587 (2002). A statutorily invalid arrest therefore does not automatically trigger the exclusionary rule. Our Supreme Court has determined that the legislature did not intend for the exclusionary rule to apply to an arrest that is invalid under MCL 764.2a(1) because the statute was intended to “protect the rights and autonomy of local governments,” not to protect criminal defendants. Id. at 534–535, 641 N.W.2d 587.

Defendant also asserts that the police lacked reasonable suspicion of criminal activity to justify their investigative stop. We disagree. An investigative stop, or Terry³ stop, is permissible under the Fourth Amendment “if the officer has a reasonable, articulable suspicion that criminal activity is afoot.” People v. Steele, 292 Mich.App. 308, 314, 806 N.W.2d 753 (2011). Reasonableness is determined on a case by case basis, based on a totality of the circumstances. Id. at 314–315, 806 N.W.2d 753. “Fewer foundational facts are necessary to support a finding of reasonableness when moving vehicles are involved than when a house or home is involved.” Id. at 315, 806 N.W.2d 753, citing People v. Oliver, 464 Mich. 184, 192, 627 N.W.2d 297 (2001). Here, the officers had a reasonable, articulable suspicion that criminal activity was afoot. See Steele, 292 Mich.App. at 314, 806 N.W.2d 753. The officers had just apprehended Teresa Mienk at the Bahama Motel, where they found packaged heroin and cocaine in her car, in amounts that matched the amounts Blocker had ordered from defendant. The officers saw Mienk at defendant's house right before she drove to the Bahama Motel with the drugs. After she left defendant's house, Mienk received multiple calls from the same telephone number that Blocker used to contact defendant. Blocker had proved to be a credible source—his descriptions of defendant and Mienk were accurate, including the cars they drove and where defendant lived. Finally, the officers had reason to believe that defendant was in the red Durango. They were on the street where defendant lived, they had seen a red Durango in defendant's driveway earlier that evening, and they had also seen defendant in that driveway.

In his Standard 4 supplemental brief, defendant argues that his trial counsel was ineffective for failing to properly investigate and impeach Blocker and for failing to move to sever his charge of delivering 50 to 450 grams of heroin from the other charges against him.⁴

Defendant claims his trial counsel was ineffective for failing to investigate Blocker's criminal background or request a pretrial credibility hearing to impeach Blocker. Defendant speculates that a background check may have revealed a prior conviction involving dishonesty. However, defendant does not provide any factual support for this assertion. Moreover, contrary to defendant's unsupported assertion, the existence of a prior conviction with which a witness may be impeached does not provide a basis to bar the witness from testifying, as it goes to the weight rather than admissibility of that testimony. Given the jury's purview over questions of witness credibility, it would have been improper for the trial court to make a determination on Blocker's credibility before trial and then prohibit Blocker from testifying. See Jackson, 292 Mich.App. at 590, 808 N.W.2d 541. Thus, trial counsel's failure to request the court to do so was not ineffective.

Defendant also claims his trial counsel was ineffective because he did not move to sever Count I, delivery of 50 to 450 grams of heroin, from the other three counts against defendant. First, defendant fails to explain why the failure to sever this charge may have resulted in jury confusion. Second, MCR 6.120(C) requires the court to “sever for separate trials offenses that are not related as defined in subrule (B)(1)” and MCR 6.120(B)(1) provides that offenses are related if they are based on “a series of connected acts.” Here the multiple deliveries from defendant to Blocker, while separate crimes, were connected acts. Counsel is not ineffective for failing to make a meritless argument or raise a futile objection. Ericksen, 288 Mich.App. at 201, 793 N.W.2d 120.

Defendant also argues a Sixth Amendment violation⁵ because the trial court held a bond revocation hearing when he was unrepresented by counsel. Under the Sixth Amendment, an accused has the right to counsel for his defense during all critical stages of a criminal prosecution. US Const, Am VI; see also People v. Russell, 471 Mich. 182, 187, 684 N.W.2d 745 (2004). When this right is violated it is a structural, constitutional error requiring automatic reversal. Willing, 267 Mich.App. at 224, 704 N.W.2d 472. However, the bond revocation hearing was not a “critical stage” in the proceeding because it did not have any effect on the determination of defendant's guilt or innocence. People v. Killebrew, 16 Mich.App. 624, 627, 168 N.W.2d 423 (1969). There was no jury present at the hearing, and the jury was never informed that defendant's bond had been revoked. Because the bond revocation hearing was not a critical stage in the proceeding, and was completely independent from defendant's jury trial, the presence of counsel was not constitutionally required. People v. Blue, 178 Mich.App. 537, 539, 444 N.W.2d 226 (1989).

Lastly, defendant claims that his right to be present at all proceedings was violated because he was not present when the court heard his motion to quash. However, defendant was represented by counsel at that hearing and his counsel waived defendant's presence at the hearing. Indeed, his counsel succeeded in that the prosecution agreed to dismiss one count and to amend another.

In sum, we affirm defendants convictions for possession with intent to deliver less than 50 grams of heroin, MCL 333.7401(2)(a)(iv ), possession with intent to deliver less than 50 grams of cocaine, MCL 333.7401(2)(a)(iv ), and conspiracy to deliver and/or possess with intent to deliver less than 50 grams of cocaine and/or heroin, MCL 333.7401(2)(a)(iv ). However, we conclude that Defendant's conviction of delivering 50 to 450 grams of heroin is invalid. Accordingly, we remand the case to the trial court for vacation of that conviction. Because we are vacating the conviction on the most serious charge, his other sentences were based in part on inaccurate information, so we also remand for resentencing on the remaining convictions. People v. Jackson, 487 Mich. 783, 792–793, 790 N.W.2d 340 (2010). We do not retain jurisdiction.

FOOTNOTES

1.  Defendant characterizes this issue as one of unpreserved constitutional error. However, the underlying issues that defendant raises involve statutory interpretation and sufficiency of the evidence questions, so we have addressed them as such.

2.  Less than 50 grams, MCL 333.7401(2)(a)(iv); 50 to 450 grams. MCL 333.7401(2)(a)(iii); 450 to 1000 grams, MCL 333.7401(2)(a)(ii); and more than 1000 grams MCL 333.7401(2)(a)(i).

3.  Terry v. Ohio, 392 U.S. 1, 30–31, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

4.  When this Court reviews an unpreserved claim of ineffective of assistance of counsel, it is limited to the facts on the record. People v. Jordan, 275 Mich.App. 659, 667, 739 N.W.2d 706 (2007). The circuit court's factual findings are reviewed under a clearly erroneous standard. MCR 2.613(C).Both the United States Constitution and the Michigan Constitution guarantee criminal defendants the right to effective assistance of counsel. US Const, AM VI; Const 1963, art 1, § 20. In order to establish ineffective assistance of counsel, a defendant must demonstrate that “ ‘counsel's representation fell below an objective standard of reasonableness,’ “ and that “there is a ‘reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.’ “ Smith v. Spisak, 558 U.S. 139, 130 S.Ct. 676, 685, 175 L.Ed.2d 595 (2010), citing Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Counsel is not ineffective for failing to make a meritless argument or raise a futile objection. People v. Ericksen, 288 Mich.App. 192, 201, 793 N.W.2d 120 (2010).

5.  This Court reviews constitutional questions de novo. People v. Brown, 294 Mich.App. 377, 389, 811 N.W.2d 531 (2011). When an alleged error involves a constitutional right, that error is either structural or nonstructural. People v. Willing, 267 Mich.App. 208, 223, 704 N.W.2d 472 (2005). However, the deprivation of the right to counsel at a noncritical stage of a criminal proceeding is a nonstructural constitutional error. Id. at 224, 704 N.W.2d 472. Unpreserved, nonstructural constitutional errors are reviewed for plain error affecting substantial rights. Brown, 294 Mich.App. at 389, 811 N.W.2d 531.

PER CURIAM.