People v. Fluker

Michael J. Kelly, J. Following a jury trial, defendant was convicted of three counts of delivering 50 or more, but less than 225, grams of cocaine, MCL 333.7401(2)(a)(iii); MSA 14.15(7401)(2) (a)(iii), and one count of delivering 650 or more grams of cocaine. MCL 333.7401(2)(a)(i); MSA 14.15(7401)(2)(a)(i). Defendant was sentenced to three concurrent terms of ten to twenty years’ imprisonment for his convictions of delivering 50 or more, but less than 225,' grams of cocaine. For his conviction of delivering 650 or more grams of cocaine, defendant was sentenced to mandatory life imprisonment without parole. Defendant appeals as of right, claiming that his mandatory life sentence constitutes cruel or unusual punishment, contrary to the Eighth Amendment of the United States Constitution, US Const, Am VIII, and article 1, § 16 of the Michigan Constitution (Const *227 1963, art 1, § 16). We hold that defendant’s mandatory life sentence without the possibility of parole constitutes cruel or unusual punishment under the Michigan Constitution. We acknowledge that this Court has previously held that the mandatory life term imposed for this offense does not constitute cruel or unusual punishment. See People v Harding, 163 Mich App 298, 330; 413 NW2d 777 (1987) (Holbrook, Jr., P.J., dissenting), vacated on other grounds 430 Mich 859 (1988); People v Harman, 124 Mich App 93, 101-106; 333 NW2d 591 (1983) (Michael J. Kelly, J., concurring in part and dissenting in part), and the cases cited therein. However, in light of our Supreme Court’s recent decision in People v Bullock, 440 Mich 15; 485 NW2d 866 (1992), we are convinced that those cases were wrongly decided. The penalty provision at issue in this case has been the subject of continuing controversy at the federal and state levels. The federal dispute culminated in Harmelin v Michigan, 501 US —; 111 S Ct 2680; 115 L Ed 2d 836 (1991), in which a majority of the Supreme Court, albeit grudgingly, approved the draconian punishment scheme. The Harmelin Court rejected the claim that the mandatory life-imprisonment provision of the possession statute, MCL 333.7403(2)(a)(i); MSA 14.15(7403)(2)(a)(i), violates the prohibition against cruel and unusual punishment under the Eighth Amendment of the federal constitution. The Michigan controversy culminated in Bullock, supra, in which the Court concluded that the penalty of mandatory life imprisonment without parole for possession, under MCL 333.7403(2)(a)(i); MSA 14.15(7403)(2)(a)(i), constitutes cruel or unusual punishment, in the disjunctive, under the Michigan Constitution. We think the same rationale applies to the mandatory punishment for delivery. *228 Even though the Bullock decision did not specifically address the constitutionality of the penalty scheme for manufacturing, delivering, or possessing with the intent to deliver 650 grams or more of a controlled substance under § 7401(2)(a)(i), we hold that the punishment under the statute for delivery of over 650 grams of cocaine, mandatory life imprisonment, is cruel or unusual punishment with regard to this defendant for the very reasons set forth by the Supreme Court in Bullock. We see no reason to repeat views that are exhaustively reported elsewhere. See, for example,' the dissenters’ opinions in Harmelin, supra. We affirm defendant’s convictions. However, following the Michigan Supreme Court’s lead, we strike down that portion of the statute denying parole consideration, and order that defendant, upon completion of ten calendar years of his sentence, become subject to the jurisdiction of the parole board and eligible for parole consideration in accordance with MCL 791.234(4)(a)-(d), (5); MSA 28.2304(4)(a)-(d), (5). Bullock, supra at 42-43. Defendant also argues that he was not allowed to testify regarding why he absconded after posting bond. The record reflects that defendant testified three times at trial that he fled because he feared spending the rest of his life in prison. Therefore, defendant’s argument that he was not permitted to explain his reason for absconding is meritless. Convictions affirmed. The sentence for the conviction of delivering 650 or more grams of cocaine is modified.