People v. Rodriguez

T. M. Burns, J.,

(dissenting). I concur with my brothers that this cause should be remanded to the trial court for an evidentiary hearing on the issue of promises of leniency. However, I cannot agree with their position, based upon People v Serra, 55 Mich App 514; 223 NW2d 28 (1974), that the removal of the two-ounce presumption rule is only valuable to a defendant that possesses a small amount of marijuana. It is my opinion that the amount of a controlled substance possessed should play no part in determining whether a defendant had a requisite intent to deliver.

The majority states that since a large amount of marijuana was involved in this case, the removal of the two-ounce presumption rule does not benefit this defendant. In doing so, they embrace the proposition that intent to deliver can be permissibly inferred from the quantity involved. In my dissenting opinion in People v Farris, 61 Mich App 417; 232 NW2d 723 (1975), I pointed out what I considered to be the "shortcomings” of the Serra opinion. There I expressed the view that a defendant cannot be convicted of the charge of possession with intent to deliver by merely showing that he possessed a large amount of a controlled substance. I also pointed out that intent to deliver is an element of this offense which should be proven by the prosecutor just like any other element of any other offense. I still adhere to those views. Since I believe that there is no correlation between the amount of a controlled substance possessed and the requisite intent to deliver, I would hold *52that defendant is entitled to withdraw his guilty plea and have the prosecutor attempt to prove him guilty of the charged crime. The mere fact that defendant possessed a large amount of marijuana does not deprive him of the beneficial effects of Serra’s holding that the two-ounce presumption rule is unconstitutional. Accordingly, I would hold that the trial court erred in denying defendant’s motion to withdraw his guilty plea.