STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 6175

August 5, 1983

CORRECTIONS, DEPARTMENT OF:

Parole for persons convicted and sentenced for controlled or counterfeit substance offenses

PAROLE AND PROBATION:

Eligibility for parole of persons convicted and sentenced for controlled or counterfeit substance offenses

Persons convicted and sentenced for controlled or counterfeit substance offenses under either 1978 PA 368, Sec. 740(1), (2)(a) and (b) or Sec. 7402(1), (2)(a) and (b), are ineligible for parole until the minimum court imposed sentence has been served as required by 1953 PA 232, Sec. 33b, as added by 1978 PA Initiated Measure.

Persons convicted and sentenced for controlled substance offenses in violation of 1978 PA 368, Secs. 7403, 7404 or 7407, are not subject to the service of minimum sentence before eligibility for parole requirement of 1953 PA 232, Sec. 33b, as added by 1978 Initiated Measure.

Mr. Perry M. Johnson

Director

Michigan Department of Corrections

Stevens T. Mason Building

Lansing, Michigan

You have asked for my opinion with respect to the applicability 1953 PA 232, Sec. 33b, ⁽¹⁾ as added by 1978 PA Initiated Measure (also known as Proposal B); MCLA 791.233b; MSA 28.2303(3), to violations of 1978 PA 368, Secs. 7401(1), (2)(a) and (b) and 7402(1), (2)(a) and (b); MCLA 333.7401(1), (2)(a) and (2)(b); MSA 14.15(7401); MCLA 333.7402(1), (2)(a) and (2)(b); MSA 14.15(7402).

OAG, 1981-1982, No 5875, p 118 (April 16, 1981), held that Proposal B applied to particular types of crimes, rather than specific statutory prohibitions. Thus, legislative changes in the numerical designation, as opposed to the modifications in the substantive crimes covered, does not preclude applicability of Proposal B.

As enacted by the electors and effective December 10, 1978, Proposal B provided, in pertinent part, that a person convicted and sentenced for commission of certain prescribed crimes shall be ineligible for parole until service of the minimum court imposed sentence, including persons convicted of violations of '(cc) Section 41(1)(a), 41(1)(b), 41(3)(a) or 41(3)(b) of Act No. 196 of the Public Acts of 1971, as amended . . ..' ⁽²⁾ As noted in OAG, 1981-1982, No 5875, supra, the entirety of 1971 PA 196 was specifically repealed by the Public Health Code, 1978 PA 368, Sec. 25101(a); MCLA 333.25101(a); MSA 14.15(25101)(a), effective September 30, 1978. The provisions of the repealed statute were replaced by substantively identical provisions in the Public Health Code, supra, as noted in OAG, 1981-1982, No 5875, supra, that the four crimes set forth in Proposal B, subsections (cc), have been replaced by essentially the same provisions in the Public Health Code, Secs. 7401(1), (2)(a) and (b) and 7402(1), (2)(a) and (b), supra.

The Legislature, in 1982 PA 458, effective December 30, 1982, in amending Proposal B, has confirmed the conclusions reached in OAG, 1981-1982, No 5875, supra. As amended, Proposal B now pertinently provides:

Thus, 1982 PA 458 amends the language of Proposal B (cc) so as to statutorily conform with the applicable present provisions of the Public Health Code.

To address your specific concerns, language almost identical to the language you cite from the second sentence of section 7401(1), 'a practitioner licensed by the administrator . . .' appeared in prior law, 1971 PA 196, Sec. 41(1), as last amended by 1978 PA 147, second sentence thereof; MCLA 335.341(1); MSA 18.1070(41)(1). This merely reflected legislative codification of the definition of delivery. See, People v Alford, 405 Mich 570; 275 NW2d 484 (1979).

Secondly, as flexible schedules were contemplated under both statutory schemes, see, 1971 PA 196, Secs. 13, 15, 17, and the Public Health Code, Pt 72; MCLA 333.7201-333.7231; MSA 14.15(7201-7231), the addition or deletion of substances from various schedules does not represent a change in the elements of the substantive crime.

Lastly, changes in the range of particular penalties for the offenses in question of course, stand independent of the substantive elements of these crimes. Under the analysis in OAG, 1981-1982, No 5875, supra, such changes do not affect the substantial identity of the crimes.

It is my opinion, therefore, that persons convicted and sentenced for controlled or counterfeit substance offenses under either 1978 PA 368, Sec. 7401(1), (2)(a) and (b) or Sec. 7402(1), (2)(a) and (b), supra, are ineligible for parole until the minimum court imposed sentence has been served as required by 1953 PA 232, Sec. 33b, as added by 1978 PA Initiated Measure.

In addition, you have inquired as to whether Proposal B would apply to violations of 1978 PA 368, Sec. 7403; MCLA 333.7403; MSA 14.15(7403), possession of controlled substances; 1978 PA 368, Sec. 7404; MCLA 333.7404; MSA 14.15(7404), use of controlled substances; and 1978 PA 368, Sec. 7407; MCLA 333.7407; MSA 14.15(7407), fraudulent controlled substances practices. These three provisions of the Public Health Code are not within the ambit of Proposal B (cc) as enacted and interpreted in OAG, 1981-1982, No 5875, supra, and, without question, are not within section 33b(cc), as amended by 1982 PA 458. Accordingly, a sentence for conviction of a violation of 1978 PA 368, Secs. 7403, 7404 or 7407, supra, is not subject to Proposal B.

In answer to your second question, it is my opinion that persons convicted of controlled substance offenses in violation of 1978 PA 368, Secs. 7403, 7404 or 7407, are not subject to the service of minimum sentence before eligibility for parole requirement of 1953 PA 232, Sec. 33b, as added by 1978 Initiated Measure.

Frank J. Kelley