Cannabis Possession – From a Possible Life Sentence to 2 Years Probation

Cannabis Possession – From a Possible Life Sentence to 2 Years Probation

Mar 20, 2023 | Blog, Recent Victories

We defended our client Michael Thue who was facing a possible life sentence for the following charges in Grand Traverse Court.

1. CONTROL SUBSTANCEDEL/MANU 5-45 KILGRAM
2.  POSSESSION SCHEDULE 5 AND LSD 02/14/2023
3.  HABITUAL OFFEN-SUP WAR/4 CONV 02/14/2023
4.  CONT SUBSTANCE-POSS OF MARIJUANA 02/14/2023

Case Summary

After a SWAT style raid on Thue’s place by law enforcement where they burned his plants and removed several other items Thue retained Komorn Law and lead trial Attorney Michael Komorn jumped in the trench next to his client and started gathering information to aggressively defend him as he does for all his clients.

This was Thue’s 4th strike which means he could have been sentenced under the Michigan Habitual Offenders Sentencing Laws.

This could have been a life sentence (more detail below).

The Judge, who was familiar with Thue, eluded to the fact that Thue being charged with a life defense and now reduced to a misdemeanor indicates the laws in this area are a mess. The judge also said that smaller cannabis entities are being put out of business by larger corporations and couldn’t believe he had to pass sentence stating he was protecting the revenues of the State of Michigan. The judge insisted that Thue had to plea to something in order to be a conviction which ended up being growing more plants than allowed.

The conditions of the 2 year probation sentence were to comply with MMMA laws and MRTMA laws plus costs $800.

State or Federal Cases

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Later that same year…
Court rules that Illegal cannabis grow of any size just a misdemeanor in Michigan

Michigan Habitual Offenders

Criminal Proceedings Benchbook, Vol. 2 (michigan.gov)

4.4 Maximum Sentences for Habitual Offenders

“‘A trial court, when sentencing a defendant as an habitual offender, must exercise its discretion in setting the maximum sentence, that is, it is not required by law to increase the maximum sentence.’” People v Bonilla-Machado, 489 Mich 412, 429-430 (2011), quoting People v Turski, 436 Mich 878, 878 (1990) (remand was appropriate where the trial court “erroneously asserted that it was bound by law to enhance the maximum sentences”).

A.Second Habitual Offender Status (HO2)

This discussion presumes the prosecutor is seeking an enhanced sentence under MCL 769.13. See Section 4.2 for more information on the prosecutor’s right to seek an enhanced sentence.

A person is a second habitual offender if he or she is convicted of a felony or attempted felony and has been previously convicted of a felony or attempted felony in Michigan or in another state if the violation would have been a felony violation in Michigan. See MCL 769.10(1). A second habitual offender is subject to the following penalties, except as otherwise provided in MCL 769.10 and MCL 771.1:

•If the subsequent felony is punishable on first conviction by a term less than life imprisonment, the court “may place the person on probation[1] or sentence the person to imprisonment for a maximum term that is not more than 1-1/2 times the longest term prescribed for a first conviction of that offense or for a lesser term.” MCL 769.10(1)(a).

•If the subsequent felony is punishable on first conviction by life imprisonment, the court “may place the person on probation[2] or sentence the person to imprisonment for life or for a lesser term.” MCL 769.10(1)(b).

•If the subsequent felony is a major controlled substance offense,3 the court must sentence the person as provided by MCL 333.7401 to MCL 333.7461. MCL 769.10(1)(c).

Any term of years sentence must be indeterminate, meaning it must have a minimum and maximum sentence “in terms of years or a fraction of a year[.]” MCL 769.10(2). The maximum sentence must not be “less than the maximum term for a first conviction.” Id.

B.Third Habitual Offender Status (HO3)

This discussion presumes the prosecutor is seeking an enhanced sentence under MCL 769.13. See Section 4.2 for more information on the prosecutor’s right to seek an enhanced sentence.

A person is a third habitual offender if he or she is convicted of a felony or attempted felony and has been previously convicted of any combination of two or more felonies or attempted felonies in Michigan or in another state if the violations would have been felony violations in Michigan. A third habitual offender is subject to the following penalties, except as otherwise provided in MCL 769.11 and MCL 771.1:

•If the subsequent felony is punishable on first conviction by a term less than life imprisonment, the court “may sentence the person to imprisonment for a maximum term that is not more than twice the longest term prescribed by law for a first conviction of that offense or for a lesser term.” MCL 769.11(1)(a).

•If the subsequent felony is punishable on first conviction by life imprisonment, the court “may sentence the person to imprisonment for life or for a lesser term.” MCL 769.11(1)(b).

•If the subsequent felony is a major controlled substance offense,4 the court must sentence the person as provided by MCL 333.7401 to MCL 333.7461. MCL 769.11(1)(c).

Any term of years sentence must be indeterminate, meaning it must have a minimum and maximum sentence “in terms of years or a fraction of a year[.]” MCL 769.11(2). The maximum sentence must not be “less than the maximum term for a first conviction.” Id.

C.Fourth Habitual Offender Status (HO4)

This discussion presumes the prosecutor is seeking an enhanced sentence under MCL 769.13. See Section 4.2 for more information on the prosecutor’s right to seek an enhanced sentence.

A person is a fourth habitual offender if he or she is convicted of a felony or attempted felony and has been previously convicted of any combination of three or more felonies or attempted felonies in Michigan or in another state if the violations would have been felony violations in Michigan. A fourth habitual offender is subject to the following penalties:

•“If the subsequent felony is punishable upon a first conviction by imprisonment for a maximum term of 5 years or more or for life, the court, except as otherwise provided in this section or [MCL 771.1], may sentence the person to imprisonment for life or for a lesser term.” MCL 769.12(1)(b).

•“If the subsequent felony is punishable upon a first conviction by imprisonment for a maximum term that is less than 5 years, the court, except as otherwise provided in this section or [MCL 771.1], may sentence the person to imprisonment for a maximum term of not more than 15 years.” MCL 769.12(1)(c).

•If the subsequent felony is a major controlled substance offense,5 the court must sentence the person as provided by MCL 333.7401 to MCL 333.7461. MCL 769.12(1)(d).

In addition to the general maximum sentence enhancement provisions set out in MCL 769.12 for fourth habitual offenders, MCL 769.12(1)(a) provides for a mandatory minimum sentence of 25 years’ imprisonment for certain violent offenders. The sentencing court must impose a sentence of imprisonment for not less than 25 years if:

•the offender has been convicted of three or more prior felonies or felony attempts, including at least one listed prior felony,6 and

•the subsequent felony that the offender is convicted of committing or conspiring to commit is a serious crime. MCL 769.12(1)(a).

For purposes of MCL 769.12(1)(a) only, “[n]ot more than [one] conviction arising out of the same transaction shall be considered a prior felony conviction[.]” MCL 769.12(1)(a).

The 25-year mandatory minimum sentence imposed by MCL 769.12(1)(a) does not constitute cruel or unusual punishment under the Michigan Constitution, Const 1963, art 1, § 16.7 People v Burkett, 337 Mich App 631, 635-642 (2021) (rejecting what it characterized as a facial challenge to MCL 769.12(1)(a)). “Under the Michigan Constitution, the prohibition against cruel or unusual punishment includes a prohibition on grossly disproportionate sentences.” Burkett, 337 Mich App at 636 (cleaned up). “Legislatively mandated sentences are presumptively proportional and presumptively valid,” and “to overcome the presumption that the sentence is proportionate, a defendant must present unusual circumstances that would render the presumptively proportionate sentence disproportionate.” Id. at 637 (quotation marks and citations omitted). A three-part test is used to determine whether a punishment is cruel or unusual: “(1) the severity of the sentence imposed and the gravity of the offense, (2) a comparison of the penalty to penalties for other crimes under Michigan law, and (3) a comparison between Michigan’s penalty and penalties imposed for the same offense in other states.” Id. at 636-637 (quotation marks and citation omitted). “Consideration of the three-part test leads to the conclusion that the minimum sentence mandated by MCL 769.12(1)(a) is neither cruel nor unusual” because the statute “only applies to individuals convicted of a serious felony who have previously been convicted of three or more felonies, at least one of which is a listed prior felony,” and it “reflects a rational legislative judgment, entitled to deference, that offenders who have committed serious or violent felonies and who continue to commit felonies must be incapacitated.” Burkett, 337 Mich App at 642 (quotation marks and citation omitted).

Any term of years sentence must be indeterminate, meaning it must have a minimum and maximum sentence “in terms of years or a fraction of a year[.]” MCL 769.12(2). The maximum sentence must not be “less than the maximum term for a first conviction.” Id.

1    See Section 9.2 for more information about probation.

2    See Section 9.2 for more information about probation.

3    Sentences for subsequent major controlled substance offenses are discussed in Section 4.5.

4    Sentences for subsequent major controlled substance offenses are discussed in Section 4.5.

5    Sentences for subsequent major controlled substance offenses are discussed in Section 4.5.

6   Only convictions under the specific Michigan statutes listed in MCL 769.12(6)(a) constitute listed prior felonies for purposes of MCL 769.12(1)(a); a conviction in another jurisdiction for an offense comparable to a listed offense does not constitute a listed prior felony for purposes of the mandatory 25-year minimum sentence under MCL 769.12(1)(a). People v Pointer-Bey, 321 Mich App 609, 622-623 (2017) (noting that, unlike the general rule of MCL 769.12(1) that comparable out-of-state convictions are considered when determining fourth-habitual offender status, “MCL 769.12(6)(a) contains no indication that convictions under comparable statutes from other jurisdictions should be considered ‘listed prior felonies’ for purposes of MCL 769.12(1)(a),” and holding that the defendant’s conviction under a federal statute comparable to a Michigan statute listed in MCL 769.12(6)(a) could not be considered for purposes of MCL 769.12(1)(a)).

7   “If a punishment passes muster under the state constitution, then it necessarily passes muster under the federal constitution.” People v Burkett, 337 Mich App 631, 636 (2021) (quotation marks and citation omitted).

A Great Day for Medical Marijuana Patients

A Great Day for Medical Marijuana Patients

Feb 24, 2021 | Blog

Michigan Court of Appeals Ruling on the use of doctor recommended medical marijuana use while on probation.

If you have been on probation… you know the rules. No consuming illegal drugs especially marijuana. But according to the Michigan Medical Marijuana Act your doctor recommended use of medical marijuana in the State of Michigan… if you are a qualified patient you can not be penalized.

“A qualifying patient who has been issued and possesses a registry identification card is not subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege…” the act states

“Therefore, a court cannot revoke probation upon the use of medical marijuana that otherwise complies with the terms of the MMMA.”

This is our case and we won. But the fight is far from over…

Lead trial attorney and advocate for marijuana law reform Michael Komorn was retained to challenge the probation rule. Komorn is the type of lawyer to take on issue an like this and dive into the foxhole beside his client and fight.

In the end it turned out to be a good day for all Michigan Medical Marijuana patients as the Court of Appeals opinion granted that Michigan judges can’t stop medical marijuana use by probationers.

APPEALS in STATE or FEDERAL COURT
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Victory in Ann Arbor Court for Medical Marijuana Patient on Probation

Victory in Ann Arbor Court for Medical Marijuana Patient on Probation

Feb 22, 2021 | Blog, News, Recent Victories, Victories Project

Komorn Law is proud to report a significant and relevant case victory directly related to our recent Michigan Court of Appeals Opinion win in the People v. Thue case where as a registered medical marijuana patient cannot be penalized for consuming medical marihuana while on probation.

The Client Issue

Our client was charged with violating his probation for allegedly testing positive for “Marihuana” on 2 occasions. The allegations were based upon a urine test which both indicated the metabolite of Delta-9 THC, Carboxy -11/ COOH-11.

Our client was certified as a medical marihuana patient after the date of the first alleged violation but before the second alleged violation. We had filed several motions, including but not limited to, a “Motion to allow for the Medical Use of Marihauana While on Probation”.

A probation violation hearing began on January 14, 2021, whereby testimony was taken, from the probation officer, and our expert.

Our position and the evidence we presented established that the urine samples indicating the metabolite Carboxy-11 COOH-11, were from a lawful source. The matter was adjourned, mid hearing.

Return to Court

On February 22, 2021 – when we appeared before the court again in person, we were happy to hear the court had read and reviewed the People v,.Thue case, commented on our involvement, and was prepared to rule on the allegations regarding the 2 positive urine tests.

Because of the People v,Thue case our previous position regarding “lawful THC” became moot.

In summary the court found that because of the current valid medical marihuana patient status of my client, he could not be revoked from probation, for either violation. That is to say, that the allegation of his use prior to becoming a registered medical marihuana patient (and the allegation after he became a certified patient) were dismissed.

“Counsel, that is my interpretation of the case” the Court said. To which I replied, I agree that is the correct interpretation. 

The Court dismissed both of the violation, and amended the sentencing order to allow for the medical use of cannabis while on bond.

Huge shout out to our client for his courage in wanting to assert his rights and challenge the allegations, the legal defense team at Komorn Law PLLC, and Dr. Land for his expertise in science and assistance in presenting our case.

MK

Is it possible to use medical marijuana while on probation?

Is it possible to use medical marijuana while on probation?

Feb 21, 2021 | Blog, Komorn Law Blog, News

Is it ?

For the last 13 years of the Michigan Medical Marijuana Act (“MMMA”), patients on probation have asked that simple question. Relying on the simple plain language in the act that protects a medical marijuana patient from denial of any right or privilege (probation), as well as protection from penalty in ANY MANNER, as long as they followed the medical marijuana laws and rules.

Until now, it was up to each individual courtroom to decide the patients fate. The judges, prosecutors, probation officers and drug testing labs decided which medicines a probationer could use. In some cities and townships medical marijuana was allowed, but in others, patients had to fight. Some were successful, most were banned from using their doctor recommended medicine, and would likely face serious penalties and jail time if they broke those probation rules. Thousands of patients were sent back to jail because of testing “dirty.”

As president of the Michigan Medical Marijuana Association, Michael Komorn has fought for every patient on this issue in courtrooms across the state, by trying to secure their rights under the law to not be penalized for the legal use of medical marijuana. Komorn has fought for patients on bond to be able to use medical marijuana as a bond condition. With over 300,000 registered medical marijuana patients in Michigan, thousands of patients had their bond revoked due to choosing their medicine, as recommended by a doctor.

The justice system has crushed medical marijuana caregivers and patients for more than a decade on many issues. Usually with the excuse that “marijuana is illegal” or “a trial court has considerable discretion to set conditions of probation.”

Four years ago, this was the excuse in People v Magyari that the Michigan Court of Appeals used to deny a registered medical marijuana patient from administering medical marijuana for his condition. The Court stated in its opinion:

“Defendant has failed to offer any persuasive argument for the proposition that the MMMA prohibits a trial court from ever imposing a probationary condition barring the use of medical marijuana. The challenged probationary condition is reasonably related to the goal of defendant’s rehabilitation, including preventing future criminality, as well as protecting the public. Affirmed.”

Until February 2021, when People v Thue was published, that was the law of the land.

Today, attorneys Michael Komorn and Alyssa McCormick, of Komorn Law, provided the “persuasive argument” for medical marijuana on probation. That persuasive argument boiled down to the plain language of the law that so many courts have ignored and disparaged for the last 13 years. The plain language of the law in section 4, for the right to use medical marijuana, has not changed, so why did it take this long to have a correct ruling? No one knows.

The Court ruled:

“The Michigan Probation Act permits a court to impose multiple conditions of probation on a defendant under MCL 771.3. However, provisions of the probation act that are inconsistent with the MMMA do not apply to the medical use of marijuana.”

The Court went on to state:

“We also conclude that the revocation of probation upon the MMMA-compliant use of marijuana constitutes a “penalty” under MCL 333.26424(a) of the MMMA.”

Most times, courts will not rule on both of these issues. Due to the “first out” rule, the appeals courts usually decline to rule on further issues such as penalties.

One of the more incredible rulings in this opinion was on the issue of mootness. Because of the details of the case, Komorns client’s probation ended before the appeal could be heard. The court in its wisdom understood that this issue was of such public importance and issued an opinion even though the client no longer had standing.

The only other medical marijuana case Komorn can remember that issued a ruling where the defendant did not have standing was when the Michigan Court of Appeals issued an opinion against a patient for taking his plants out of his enclosed locked facility for spraying with pesticide. He lacked standing because he died before the court could issue its opinion. The court issued its opinion anyway, post-mortem. Issues of standing and mootness are the FIRST requirements of having a court review an issue.

Having a court rule favorably while overlooking standing and mootness is quite extraordinary. One can only chalk it up to experience and strategy, or as some call it, “lawyer magic.”

Some judges have called the MMMA the worst law they’ve ever seen.

Courts have ruled against patients in all kinds of cases because they personally feel that marijuana is bad.

The Michigan Court of Appeals in Magyari even claimed that marijuana was addictive! “Further, the trial court found that defendant would simply be replacing one addictive drug—alcohol, for another—marijuana.”

The courts have been wildly inconsistent with opinions, rulings, reversals and remands on the medical marijuana law.

Some predictions are that this ruling will also apply to patients on bond or parolees. While this might be true, we have seen most recently that the Michigan Supreme Court has upended even the simplest of understandings of the plain language of the MMMA, specifically in the case of Deruiter v Byron Township. In Deruiter, the Court unanimously said that a township could craft an ordinance that added requirements to the MMMA. This flies in the face of earlier rulings from the MSC where the justices said in oral arguments that you cannot add surplusage or make any words nugatory within the act.

Said another way, because of the ruling in Deruiter, what would stop a locality from drafting an ordinance with additional requirements to administer medical marijuana while on probation?

“As in Qualls and Miller, the local ordinance goes further in its regulation but not in a way that is counter to the MMMA’s conditional allowance on the medical use of marijuana. We therefore hold that the MMMA does not nullify a municipality’s inherent authority to regulate land use under the Michigan Zoning Enabling Act (MZEA), MCL 125.3101 et seq.,13 so long as the municipality does not prohibit or penalize all medical marijuana cultivation, like the city of Wyoming’s zoning ordinance did in Ter Beek II, and so long as the municipality does not impose regulations that are “unreasonable and inconsistent with regulations established by state law.” Qualls, 434 Mich at 363.”

It is also suggested that because the MMMA and the 2018 Michigan Regulation and Taxation of Marijuana (MRTMA) use similar language that this ruling could be used to have the same protective effects of all adults 21 and over to use marijuana while on probation.

Section 4 of the MMMA, MCL 333.26424, states:

Sec. 4. (a) A qualifying patient … is not subject to … penalty in any manner, or denied any right or privilege… for the medical use of marihuana in accordance with this act

While Section 5 of the MRTMA, MCL 333.27955, states:

Sec. 5.

1. Notwithstanding any other law or provision of this act … the following acts by a person 21 years of age or older are … not grounds for … penalty in any manner … and are not grounds to deny any other right or privilege …

Both laws have sections stating that all other laws do not apply to them. The intent of both laws is the same– to give people the right to have medical marijuana and legal marijuana. Under no other circumstances can an individual be denied access to marijuana, as long as they follow the MMMA and or MRTMA.

HANDS OFF OUR MARIJUANA ALREADY. THE PEOPLE HAVE SPOKEN.

Strangely, there is an unattributed quote, possibly from one of the judges in the case which addresses this in the opinion:

“We note, however, that the MMMA is inapplicable to the recreational use of marijuana, and thus, a trial court may still impose probation conditions related to the recreational use of marijuana and revoke probation for such recreational use, as well as for marijuana use in violation of the MMMA.”

While the opinion did not directly address the MRTMA (notwithstanding the weird uncited and dicta quotation at the bottom of page 6-7 of the slip opinion), it seems that the statutory language in MCL 333.27955(1) and MCL 333.27954(5) would compel a similar outcome with respect to adult-use marijuana.

The Thue opinion relies on the preemption language in MCL 333.26427(e) and finds that revocation of probation is a “penalty” in violation of Section 4 of the MMMA.

Similarly, Section 5(1) of the MRTMA provides, “Notwithstanding any other law or provision of this act, and except as otherwise provided in section 4 of this act, the following acts by a person 21 years of age or older are not unlawful, are not an offense, are not grounds for seizing or forfeiting property, are not grounds for arrest, prosecution, or penalty in any manner, are not grounds for search or inspection, and are not grounds to deny any other right or privilege . . .”

While Section 4(5) of the MRTMA provides, “All other laws inconsistent with this act do not apply to conduct that is permitted by this act.”

It would seem that the takeaway of Thue opinion is that revocation of probation is a “penalty” and the MRTMA prohibits the imposition of a penalty for conduct that is permitted by the MRTMA, it would stand to logically follow that the MRTMA similarly protects those who are age 21+ from having their probation revoked for engaging in conduct that is protected by the MRTMA.

An issue to be fought in court in the future.

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If you want your right to use marijuana while on bond or probation
Call Komorn Law PLLC 248-357-2550

Read The Opinion Here

Read More About The Victory Here

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Patients can use medical marijuana while on probation in Michigan, appeals court rules

Patients can use medical marijuana while on probation in Michigan, appeals court rules

Feb 14, 2021 | Blog, Komorn Law In The News, News

AP) — Judges can’t prevent people from using medical marijuana while on probation for a crime, the Michigan Court of Appeals said.

Anyone holding a state-issued medical marijuana card is immune to possible penalties, the appeals court said, 3-0.

The court, however, cautioned that the decision does not apply to the recreational use of marijuana, which was approved by voters in 2018.

Michael Thue was barred from using medical marijuana while on probation for a year in a road rage incident in the Traverse City area. A District Court judge said the marijuana ban was the policy of Circuit Court judges in Grand Traverse County.

Circuit Judge Thomas Power declined to hear an appeal.

The appeals court said Power made the wrong call, based on a line of decisions from the Michigan Supreme Court and the language of the medical marijuana law.

The law “preempts or supersedes ordinances and statutes that conflict” with it, said judges Mark Cavanagh, Deborah Servitto and Thomas Cameron.

The Attorney

Medical marijuana patients have had their doctor recommended use of cannabis while on probation in limbo for a long time.

Lead trial attorney and advocate for marijuana law reform Michael Komorn and his dedicated team of attorneys (specifically Ally McCormick) secured a victory in the Michigan Court of Appeals for Medical Marijuana Patients

As many battles for marijuana patients, caregivers and business clients represented by the Komorn Law Firm loom in the background – a decision has been made to set the tone for future cases involving those on probation.

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