The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us)


STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 6702

October 14, 1991

CRIMINAL LAW:

Life sentence for conspiracy to possess cocaine

PAROLE:

Life sentence for conspiracy to possess cocaine

In the department of corrections act, the Legislature has provided that the Parole Board may not grant a parole to a person convicted prior to June 3, 1988, of the crime of conspiracy to possess cocaine and sentenced to life imprisonment.

Honorable William R. Bryant, Jr.

State Representative

The Capitol

Lansing, MI 48909

You have requested my opinion on a question which may be phrased as follows:

Does the department of corrections act prohibit the Parole Board from granting a parole to a person convicted prior to June 3, 1988, of the crime of conspiracy to possess cocaine and sentenced to life imprisonment?

Section 32 of 1953 PA 232, the department of corrections act, MCL 791.201 et seq; MSA 28.2271 et seq, established the Parole Board within the Department of Corrections. Section 34 of the same statute enabled the Parole Board, in its discretion, to grant paroles to prisoners under sentence for life or lengthy terms of years who had served ten calendar years of the sentence, except for prisoners sentenced "for life for murder in the first degree."

By 1978 PA 81, effective September 1, 1978, the Legislature amended section 34 of the department of corrections act to add another exception, banning paroles for "prisoners sentenced for life or for a minimum term of imprisonment for a major controlled substance offense." 1978 PA 81 also added section 33b[1] to the department of corrections act to define the term "major controlled substance offense" as used in section 34 to mean any of the following:

 

 

(b) A violation of section 41(4)(a)(i), (ii) or (iii) of Act No. 196 of the Public Acts of 1971, as amended.

(c) Conspiracy to commit an offense listed in subdivisions (a) or (b). [Emphasis added.]

1978 PA 147 amended section 41(4)(a)(i) of 1971 PA 196, the Controlled Substances Act of 1971, to provide:

(4) A person shall not knowingly or intentionally possess a controlled substance unless the substance was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of his professional practice, or except as otherwise authorized by this act. A person who violates this subsection with respect to:

(a) A controlled substance classified in schedules 1 or 2 which is either a narcotic drug or described in section 16(a)(iv), and:

(i) Which is in an amount of 650 grams or more of any mixture containing that substance is guilty of a felony and shall be imprisoned for life. [Emphasis added.]

Controlled substances enumerated in schedule 2 of 1971 PA 196, section 16(a)(iv), included:

Coca leaves and any salt, compound, derivative or preparation of coca leaves, and any salt, compound, derivative or preparation thereof which is chemically equivalent or identical with any of these substances, but not including decocainized coca leaves or extractions which do not contain cocaine or ecgonine.

This definition embraced the substance cocaine. See also 1978 AACS, No 94, R 338.3116(e), which included cocaine, and People v. Turmon, 417 Mich 638; 340 NW2d 620 (1983), which sustained the authority of the Board of Pharmacy to promulgate administrative rules scheduling controlled substances. Therefore, as of September 1, 1978, when 1978 PA 81 became effective, a prisoner sentenced for life or for a minimum term of imprisonment for conspiracy to possess cocaine was ineligible for parole.

Shortly thereafter, the Legislature repealed and replaced the Controlled Substances Act by enacting the Public Health Code, 1978 PA 368, MCL 333.1101 et seq; MSA 14.15(1101) et seq. Section 7403 of the Public Health Code defines certain controlled substance offenses. Section 25101 of the same statute expressly repealed 1971 PA 196, the Controlled Substances Act of 1971. The Public Health Code became effective September 30, 1978, pursuant to section 25211 thereof.

Although the Legislature repealed 1971 PA 196, section 41, effective September 30, 1978, the Legislature did not expressly amend section 33b[1] of the department of corrections act to reflect this change until 1988 when it enacted 1988 PA 143, effective June 3, 1988, to provide:

As used in section 34, "major controlled substance offense" means any of the following:

 

 

(b) A violation of section 7403(2)(a)(i) or (ii) of Act No. 368 of the Public Acts of 1978, being section 333.7403 of the Michigan Compiled Laws.

(c) Conspiracy to commit an offense listed in subdivision (a) or (b). [Emphasis added.]

The pertinent controlled substance offense identified in section 7403(1)(2)(a)(i) of the Public Health Code reads as follows:

(1) A person shall not knowingly or intentionally possess a controlled substance or an official prescription form or a prescription form unless the controlled substance, official prescription form, or prescription form was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of the practitioner's professional practice, or except as otherwise authorized by this article.

(2) A person who violates this section as to:

(a) A controlled substance classified in schedule 1 or 2 which is either a narcotic drug or described in section 7214(a)(iv), and:

(i) Which is in an amount of 650 grams or more of any mixture containing that controlled substance is guilty of a felony and shall be imprisoned for life. [Emphasis added.] [Footnote omitted.]

Among the controlled substances described in schedule 2 of section 7214(a)(iv) of 1978 PA 368 are:

Coca leaves and any salt, compound, derivative, or preparation thereof which is chemically equivalent to or identical with any of these substances, except that the substances do not include decocainized coca leaves or extraction of coca leaves which extractions do not contain cocaine or ecgonine. The substances include cocaine, its salts, stereoisomers, and salts of stereoisomers when the existence of the salts, stereoisomers, and salts of stereoisomers is possible within the specific chemical designation. [Emphasis added.]

A comparison of the provisions of 1971 PA 196, the Controlled Substances Act, section 41(4)(a)(i), quoted above, with the provisions of section 7403(1)(2)(a)(i) of the Public Health Code, quoted above, demonstrates that the same offense and the same penalty are listed therein in substantially the same language. Thus, it must be concluded that the Legislature re-enacted the same offense and the same penalty without change.

The Legislature, in MCL 8.3u; MSA 2.212(21), has provided the controlling rule of construction as follows:

The provisions of any law or statute which is re-enacted, amended or revised, so far as they are the same as those of prior laws, shall be construed as a continuation of such laws and not as new enactments. If any provision of a law is repealed and in substance re-enacted, a reference in any other law to the repealed provision shall be deemed a reference to the re-enacted provision. [Emphasis added.]

Applying this rule of construction, it is clear that from September 30, 1978, the reference in section 33b[1] of the department of corrections act to section 41(4)(a)(i) of the Controlled Substances Act of 1971 was deemed to be to section 7403(1)(2)(a)(i) of the Public Health Code. This was made explicit by the Legislature when it amended section 33b[1] of the department of corrections act by enacting 1988 PA 143, effective June 3, 1988.

As noted by the court in People v. Jahner, 433 Mich 490, 501; 446 NW2d 151 (1989), "[i]n 1978, in the course of a comprehensive revision of the controlled substances statute, persons convicted of a major controlled substance offense, as well as those convicted of conspiracy to commit such offenses, were expressly excepted from the 'lifer law' [persons convicted of certain substantive crimes are ineligible for parole] and thus were deprived of its benefits." [Emphasis added.]

It is my opinion, therefore, that in the department of corrections act, the Legislature has provided that the Parole Board may not grant a parole to a person convicted prior to June 3, 1988, of the crime of conspiracy to possess cocaine and sentenced to life imprisonment.

Frank J. Kelley

Attorney General