Opinion
Docket No. 121785.
Decided October 31, 1990; approved for publication April 29, 1991, at 9:05 A.M.
Frank J. Kelley, Attorney General, Gay Secor Hardy, Solicitor General, Gary M. Gabry, Prosecuting Attorney, and Charles D. Hackney, Assistant Attorney General, for the people.
O'Connor, McNamara O'Keeffe (by Robert S. Sykes, Jr.), for the defendant on appeal.
Before: MacKENZIE, P.J., and HOLBROOK, JR., and SHEPHERD, JJ.
Defendant, a prisoner at the Riverside Correctional Facility, pleaded guilty of being an inmate in possession of marijuana, MCL 800.281(4); MSA 28.1621(4), and was sentenced to 2 1/2 to 5 years' imprisonment. Defendant appeals as of right. We affirm defendant's conviction, but vacate his sentence and remand for resentencing.
Defendant first contends that MCL 800.281(4); MSA 28.1621(4) violates the Equal Protection Clause because it charges prisoners in possession of marijuana with a five-year felony while nonprisoners in possession of marijuana face only a misdemeanor charge under MCL 333.7403(2)(d); MSA 14.15(7403)(2)(d). We disagree.
Equal protection analysis requires an initial determination of the proper test to be applied. If the statute affects a fundamental interest or makes an inherently suspect classification, the court applies a strict scrutiny test, and the statute will not be upheld unless there is a compelling interest which justifies the classification. People v Jacqueline Walker, 135 Mich. App. 267, 275-276; 354 N.W.2d 312 (1984), lv den 421 Mich. 860 (1985), app dis 474 U.S. 801 (1985). Otherwise, the test to determine whether legislation enacted pursuant to the police power comports with equal protection is whether the legislative classification is rationally related to a legitimate governmental interest. Shavers v Attorney General, 402 Mich. 554; 267 N.W.2d 72 (1978), reh den 403 Mich. 958 (1978), remanded on other grounds 407 Mich. 1153 (1979), cert den 442 U.S. 934 (1979), aff'd 412 Mich. 1105 (1982).
No fundamental interest or suspect classification is involved in this case. Prisoners and nonprisoners are not suspect classifications and neither group has a fundamental right to possess marijuana. See People v Maxson, 181 Mich. App. 133, 135; 449 N.W.2d 422 (1989). Thus, defendant could be constitutionally charged as an inmate in possession of marijuana unless the prisoner/nonprisoner classification is arbitrary and not reasonably or rationally related to the object of the legislation. People v Perkins, 107 Mich. App. 440, 443; 309 N.W.2d 634 (1981).
Furthermore, the distinction between inmates and noninmates is not arbitrary. The statute's purpose is to enhance prisoner discipline, a recognized and legitimate governmental interest. Hudson v Palmer, 468 U.S. 517, 526-528; 104 S Ct 3194; 82 L Ed 2d 393 (1984). The distinction between prisoners and nonprisoners is rationally related to that purpose.
Defendant next contends that the statute violates the title-object clause of Const 1963, art 4, § 24, because it embraces more than one object. See People v Trupiano, 97 Mich. App. 416; 296 N.W.2d 49 (1980). The "one object" requirement is not to be so narrowly and technically interpreted as to unnecessarily embarrass legislation. Kuhn v Dep't of Treasury, 384 Mich. 378, 387; 183 N.W.2d 796 (1971). The intent of MCL 800.281; MSA 28.1621 is to keep contraband out of prison. People v Robert Lewis (On Remand), 97 Mich. App. 650, 652; 296 N.W.2d 62 (1980). The provision does not involve dissimilar and discordant objects, but rather the single object of maintaining order and discipline in a prison environment.
Finally, defendant contends that his sentence is so excessive that it should shock the conscience of this Court. People v Coles, 417 Mich. 523; 339 N.W.2d 440 (1983). In People v Milbourn, 435 Mich. 630; 461 N.W.2d 1 (1990), our Supreme Court abandoned the shock the conscience standard of Coles in favor of a principle of proportionality which requires consideration of both the seriousness of the crime involved and the criminal history of the offender. See Milbourn, supra, p 650.
In this case, defendant's sentence was imposed without an opportunity for the sentencing court to apply the principle of proportionality and without an opportunity for defense counsel to argue under this new standard. Accordingly, we vacate defendant's sentence and remand for resentencing consistent with the considerations set forth in Milbourn.
Affirmed, but remanded for resentencing. We retain no further jurisdiction.