People v. Scarborough , 189 Mich. App. 341 ( 1991 )

Marilyn Kelly, J.

On February 23, 1990, defendant pled guilty to possession with intent to deliver between 50 and 225 grams of cocaine and possession of a firearm during the commission of a felony. MCL 333.7401(2)(a)(iii); MSA 14.15(7401X2) (a)(iii); MCL 750.227b; MSA 28.424(2). The trial court sentenced him to a mandatory two-year prison term for the firearm offense, to be followed by a ten- to twenty-year term for the drug offense. The court noted that, with respect to the sentence for the drug offense, it was applying the penalty provisions that were in effect in 1987 when defendant committed the crime.

Defendant appeals his sentence as of right. He argues that the trial court should have made retroactive application of the amended penalty provisions of the controlled substances act which were in effect on the date of sentencing. MCL 333.7101 etseq.; MSA 14.15(7101) et seq. We agree.

When defendant was arrested, the act mandated that those convicted of possession with intent to deliver between 50 and 225 grams of cocaine be sentenced to ten to twenty years. MCL 333.7401(2) (a)(iii); MSA 14.15(7401)(2)(a)(iii). It did not authorize the court to depart either from the ten year minimum term or from the twenty year maximum.

Effective March 30, 1988, the Legislature amended the act, reducing the minimum sentence from ten years to five years. 1987 PA 275. It also authorized the sentencing court to depart from the minimum sentence if it found on the record substantial and compelling reasons to do so. MCL 333.7401(4); MSA 14.15(7401)(4).

Effective September 28, 1989, the Legislature again amended the penalty provisions for the crime of possession with intent to deliver between 50 and 225 grams of cocaine. 1989 PA 143. It restored the former minimum sentence of ten years. However, it maintained the provision which permitted the trial court to depart from the minimum sentence upon a finding of substantial and compelling reasons. MCL 333.7401(4); MSA 14.15(7401)(4).

Our Supreme Court recently ruled on the issue before us. It held that the amended penalty provisions of the controlled substances act should be applied in cases which were pending in the trial court when the amendments took effect. The amended provisions should be applied also in cases where the issue was raised on direct appeal. People v Schultz, 435 Mich 517, 526-531, 533-534; 460 NW2d 505 (1990).

The holding in Schultz is based on a lead opinion signed by three justices plus a concurrence by Justice Boyle. Justice Boyle’s concurrence contains very similar reasoning to that of the lead opinion. Id., 533-534.

Technically, the Schultz holding is not binding on this Court. It is a plurality opinion in which a majority of the justices failed to concur on the exact reasoning for the holding. Negri v Slotkin, 397 Mich 105, 109; 244 NW2d 98 (1976); People v Anderson, 389 Mich 155, 170; 205 NW2d 461 (1973).

Nonetheless, we apply the holding in Schultz to the instant case. Four justices of the Supreme Court there addressed the issue now under consideration and concluded that the amendments to the act should be applied retroactively. Their reasonings were, if not the same, at least very similar. It would be wasteful of judicial resources to disregard Schultz. Defendant and those similarly situated to him would surely receive the benefit of sentencing under the amendments to the act upon appeal to the Supreme Court. Moreover, we are persuaded that the holding of the Schultz decision was correct. See also People v Thomas Miller, 182 Mich App 482, 485-486; 453 NW2d 269 (1990).

On remand, the trial court should consider whether substantial and compelling reasons exist to set defendant’s sentence below the minimum ten year term. MCL 333.7401(4); MSA 14.15(7401) (4). Among the factors to be considered are: rehabilitation, deterrence, the protection of society and punishment. Schultz, supra, 531-532. See also People v Troncoso, 187 Mich App 567; 468 NW2d 287 (1991).

Defendant’s sentence is vacated, and the case is remanded for resentencing. We do not retain jurisdiction.

Shepherd, J., concurred.