People v. Feazel

Markman, P.J.

(concurring). I concur with the majority opinion in its entirety but write separately with regard to the issue of defendant’s consecutive sentences for drug delivery and drug conspiracy because I believe that existing case law in Michigan is wrongly decided.

Defendant’s sentence for conspiracy to deliver cocaine in this case was ordered to run consecutively to the sentences from Isabella County because the trial court believed it was a major controlled substance offense under MCL 761.2; MSA 28.843(12). For this reason, the trial court believed that the consecutive sentencing provision found in MCL 333.7401(3); MSA 14.15(7401)(3) applied. MCL 761.2; MSA 28.843(12) provides as follows:

As used in this act, “major controlled substance offense” means either or both of the following:
*628(a) A violation of section 7401(2) (a) of the public health code, Act No. 368 of the Public Acts of 1978, being section 333.7401 of the Michigan Compiled Laws.
(b) A violation of section 7403(2)(a)(i) to (iv) of Act No. 368 of the Public Acts of 1978, being section 333.7403 of the Michigan Compiled Laws.
(c) Conspiracy to commit an offense listed in subdivision (a) or (b).

Thus, the trial court was correct that, pursuant to MCL 761.2; MSA 28.843(12), conspiracy to deliver cocaine is a “major controlled substance offense.” However, it is MCL 333.7401(3); MSA 14.15(7401)(3) that controls the issue whether consecutive sentencing was available in this case.

MCL 333.7401(3); MSA 14.15(7401)(3) provides in relevant part as follows:

A term of imprisonment imposed pursuant to subsection (2)(a) [MCL 333.7401(2)(a); MSA 14.15(7401)(2)(a)] or section 7403(2)(a)(i), (ii), (in), or (iv) [MCL 333.7403(2)(a)(i), (ii), (iii), or (iv); MSA 14.15(7403)(2)(a)(i), (ii), (iii), or (iv)] shall be imposed to ran consecutively with any term of imprisonment imposed for the commission of another felony.

Although I believe the trial court was correct in imposing a consecutive sentence in this case, I am constrained to join the majority in reversing the trial court’s decision because of a recent decision of this Court.

In People v Denio, 214 Mich App 647, 650-651; 543 NW2d 66 (1995), lv gtd 451 Mich 897 (1996), a panel of this Court held that because a conviction of conspiracy to deliver a controlled substance is not imposed under the controlled substances act, consecutive sentencing under § 7401(3) was not available in *629that case when the defendant was convicted of conspiracy to deliver less than fifty grams of cocaine. The panel held that the consecutive sentencing provisions of § 7401(3) do not apply to conspiracy convictions, but only to the specific offenses included in that statute. Denio, supra at 650. I respectfully believe that Denio was wrongly decided.

I agree with the general principle that there is a difference between the crime of conspiracy and the commission of the underlying offense. However, when an individual is convicted of conspiracy, the punishment imposed is the same as if the underlying crime were completed. MCL 750.157a(a); MSA 28.354(l)(a). People v Jahner, 433 Mich 490, 494-495; 446 NW2d 151 (1989). The underlying criminal statute is referred to for the type of punishment and what term of imprisonment should be imposed. A sentence for a conspiracy conviction is therefore imposed pursuant to the statute for the underlying offense.

Section 7401(3) expressly provides for consecutive sentencing when a “term of imprisonment” is imposed under the controlled substances act. Section 7401(3) does not require that a defendant be “convicted” under the controlled substances act, but only that the term of imprisonment be “imposed pursuant” to one of the enumerated statutes. I believe this language is significant in expressing the Legislature’s intent. Because a sentence for conspiracy is essentially equivalent to a sentence for the underlying offense, it is significant that the Legislature did not limit the application of § 7401(3) to only convictions imposed for the named controlled substance offenses, but expressly made reference to the sentence imposed.

*630The panel in Denio, supra at 649, placed its reliance on People v Briseno, 211 Mich App 11, 18; 535 NW2d 559 (1995), as its primary authority for concluding that consecutive sentencing was not available. However, the panel in Denio failed to recognize that there are significant differences in the language of MCL 333.7413(2); MSA 14.15(7413)(2) (which was at issue in Briseno), and the language found in § 7401(3). Section 7413(2) expressly provides for enhanced sentencing when “an individual [is] convicted of a second or subsequent offense under this article” in reference to the controlled substances act. (Emphasis added.) Thus, the statute in Briseno clearly referenced the actual offense for the conviction and not the sentence. I believe that the differences between the language of these two statutes was not accorded sufficient weight by the panel in Denio.

The goal of statutory construction is to effect the intent of the Legislature. People v Morris, 450 Mich 316, 325; 537 NW2d 842 (1995). The meaning intended by the Legislature is to be found in the terms and arrangement of the particular statute. The terms used in the statute should be read in their natural and ordinary sense. People v Jones, 217 Mich App 106, 107; 550 NW2d 844 (1996). I am convinced that the panel in Denio failed to give full effect to the actual language of § 7401(3) in deciding if consecutive sentencing under that statute was applicable to convictions involving conspiracies to commit any of the enumerated drug offenses. The Legislature, by its plain terms, did not limit the application of that section to convictions for controlled substance offenses. Section 7401(3) is broadly worded to extend to conspiracy convictions where the underlying offense is one of *631the enumerated drug crimes.1 For this reason, Denio was wrongly decided, in my judgment, but must be followed because we are constrained to do so by Administrative Order No. 1996-4.

Therefore, I would remand for vacation of the consecutive drug delivery and drug conspiracy sentences but only because of our obligations under the administrative order.

While § 7401(3) is not part of the Code of Criminal Procedure, but rather a part of the Public Health Act, it is apparent, on the basis of MCL 761.2; MSA 28.843(12), that the Legislature, in general, intended conspiracy convictions to be treated as severely as substantive drug offenses. By including conspiracy convictions within the ambit of § 7401(3), MCL 761.2; MSA 28.843(12) can be harmonized with § 7401(3). People v Hughes, 217 Mich App 242, 246; 550 NW2d 871 (1996).