Opinion
Docket No. 97242.
Decided February 1, 1988.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Joseph S. Filip, Prosecuting Attorney, and Jerrold Schrotenboer, Chief Appellate Attorney, for the people.
Richard D. Hitt, for defendant.
Before: M.J. KELLY, P.J., and CYNAR and DOCTOROFF, JJ.
Defendant pled guilty to delivery of cocaine, MCL 333.7401(2)(a)(iv); MSA 14.15(7401)(2)(a)(iv), and to being a subsequent controlled-substance offender, MCL 333.7413; MSA 14.15(7413), following which he was sentenced to a term of from eight to forty years imprisonment. He appeals as of right. The prosecutor has filed a motion to affirm, which was denied. We affirm defendant's convictions.
I
Defendant first argues that the trial court's denial of his motion to dismiss on entrapment grounds was clearly erroneous, because defendant's friend induced him into the drug transaction. We disagree.
Under Michigan law, entrapment is determined by an objective test. People v Turner, 390 Mich. 7, 22; 210 N.W.2d 336 (1973). The objective test focuses not on whether the defendant is predisposed to commit the crime, but on whether the actions of the police are so reprehensible that the court should refuse, as a matter of public policy, to allow a conviction to stand. People v Juarez, 158 Mich. App. 66, 74, 404 N.W.2d 222 (1987). This defense is not, however, available any time the police do something which can be characterized as "reprehensible." People v Crawford, 143 Mich. App. 348, 352-353; 372 N.W.2d 550 (1985).
A claim of entrapment is to be determined by the trial court and is subject to appellate review under the "clearly erroneous" standard. People v D'Angelo, 401 Mich. 167, 183; 257 N.W.2d 655 (1977). The defendant bears the burden of proving his claim of entrapment by a preponderance of the evidence. Id.
In this case, the trial court failed to find entrapment. It found that the purchaser of the cocaine, an undercover officer, made a simple request for it to which defendant acquiesced with alacrity.
Our review of the record indicates that defendant's friend, who made the initial request, was not aware that the purchaser was a police officer, nor was she an informant. The officer requested to purchase cocaine, and defendant made a sale. The trial court's determination that the police conduct was not so reprehensible that the conviction cannot stand was not clearly erroneous.
II
Defendant next argues that the trial court acted unfairly toward him because he committed the offense of delivery of cocaine at the wrong time, just after a popular sports figure had overdosed on the drug. He asserts that the trial court used inflammatory words at sentencing that revealed a personal prejudice against this drug and that therefore he must be resentenced. After reviewing the entire record, we find no error that requires resentencing in this matter. The trial court did not abuse its sentencing discretion. It considered permissible factors before imposing an eight to forty year term of imprisonment, which does not shock our conscience. See People v Coles, 417 Mich. 523; 339 N.W.2d 440 (1983); People v Snow, 386 Mich. 586; 194 N.W.2d 314 (1972).
Affirmed.
CYNAR, J., concurred.
It seems to me that People v New, 427 Mich. 482; 398 N.W.2d 358 (1986), raises a question whether defendant's claim of entrapment was waived by his guilty plea.
The holding of People v New is that a defendant may appeal from an unconditional guilty plea only where the claim of appeal implicates the authority of the state to bring him to trial. Where the claim sought to be appealed involves only the capacity of the state to prove a defendant's factual guilt it is waived by such a plea.
In People v Douglas, 122 Mich. App. 526; 332 N.W.2d 521 (1983), we held that entrapment is a jurisdictional defense not waived by a guilty plea:
Defendant correctly asserted that his claim of entrapment was not waived by his guilty plea, citing the Supreme Court's interpretation of People v Alvin Johnson, 396 Mich. 424; 240 N.W.2d 729 (1976), in People v White, 411 Mich. 366, 387; 308 N.W.2d 128 (1981). . . . [ Douglas, supra, p 528.]
Since that time in numerous unpublished opinions this Court has reiterated the holding that a defendant does not waive the right to assert an entrapment defense despite pleading guilty. So far as I'm able to determine there are no published cases dealing with this issue since People v New. It seems to me ripe for argument that under the holding in People v New the defense of entrapment is subject to the same "misreading" cited at page 489 of the New opinion. Since it is my belief that the defense of entrapment has been properly held waived in the application of federal criminal law in the federal courts, there is sound reason for a similar holding in Michigan.
This matter has not been briefed or argued in this case and, since it would benefit neither party to do so on a motion for rehearing, we have ordered publication of this opinion to signal the bench and bar of my perspective that this issue is ripe for decision in view of the evolving nature of this area of the law following the Supreme Court's decision in People v New, supra.