People of Michigan v. Jory Joseph Hannan

STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED

November 8, 2016

Plaintiff-Appellee,

v No. 329579

Oakland Circuit Court

JORY JOSEPH HANNAN, LC No. 2014-250429-FH

Defendant-Appellant.

Before: STEPHENS, P.J., and SAAD and METER, JJ.

PER CURIAM.

Defendant appeals by leave granted his plea-based convictions of manufacturing 20 or

more but fewer than 200 marijuana plants, MCL 333.7401(2)(d)(ii), and possession with intent to

deliver marijuana, MCL 333.7401(2)(d)(iii), and the denial of his motion to withdraw his plea

before sentencing. Defendant was sentenced to two years’ probation. We affirm.

Defendant pleaded no contest to the charges and argues on appeal that the trial court

erred in denying his motion to withdraw his plea as involuntary because his prior counsel failed

to inform him before he entered the plea of a potential defense under MCL 333.26428 (§ 8) of

the Michigan Medical Marihuana Act (MMMA), MCL 333.26421 et seq., and potential

immunity under MCL 333.26424 (§ 4). “When a defendant moves to withdraw his guilty plea

before sentencing, the burden is on the defendant to establish a fair and just reason for

withdrawal of the plea.” People v Harris, 224 Mich App 130, 131; 568 NW2d 149 (1997). This

Court reviews a trial court’s ruling on a motion to withdraw a plea for an abuse of discretion.

People v Brown, 492 Mich 684, 688; 822 NW2d 208 (2012). An abuse of discretion occurs

when a decision “results in an outcome falling outside the range of principled outcomes.” People

v Fonville, 291 Mich App 363, 376; 804 NW2d 878 (2011).

Section 8 of the MMMA gives a patient or primary caregiver, even if not registered with

the state, the ability to present an affirmative defense to a marijuana-related offense. People v

Hartwick, 498 Mich 192, 226; 870 NW2d 37 (2015). MCL 333.26428(a) provides:

Except as provided in section 7(b), a patient and a patient’s primary

caregiver, if any, may assert the medical purpose for using marihuana as a defense

to any prosecution involving marihuana, and this defense shall be presumed valid

where the evidence shows that:

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(1) A physician has stated that, in the physician’s professional opinion,

after having completed a full assessment of the patient’s medical history and

current medical condition made in the course of a bona fide physician-patient

relationship, the patient is likely to receive therapeutic or palliative benefit from

the medical use of marihuana to treat or alleviate the patient’s serious or

debilitating medical condition or symptoms of the patient’s serious or debilitating

medical condition;

(2) The patient and the patient’s primary caregiver, if any, were

collectively in possession of a quantity of marihuana that was not more than was

reasonably necessary to ensure the uninterrupted availability of marihuana for the

purpose of treating or alleviating the patient’s serious or debilitating medical

condition or symptoms of the patient’s serious or debilitating medical condition;

and

(3) The patient and the patient’s primary caregiver, if any, were engaged

in the acquisition, possession, cultivation, manufacture, use, delivery, transfer, or

transportation of marihuana or paraphernalia relating to the use of marihuana to

treat or alleviate the patient’s serious or debilitating medical condition or

symptoms of the patient’s serious or debilitating medical condition.

Defendant waived any possible § 8 affirmative defenses and related ineffective-

assistance-of-counsel claims by pleading no contest. Although a guilty plea does not waive

every claim, it does waive the defenses and rights relating solely to the state’s ability to prove the

defendant’s factual guilt. People v Johnson, 207 Mich App 263, 264; 523 NW2d 655 (1994);

People v Vonins (After Remand), 203 Mich App 173, 175; 511 NW2d 706 (1993). The

Michigan Supreme Court has held:

Since a plea of nolo contendere indicates that a defendant does not wish to

contest his factual guilt, any claims or defenses which relate to the issue of factual

guilt are waived by such a plea. Claims or defenses that challenge a state’s

capacity or ability to prove defendant’s factual guilt become irrelevant upon, and

are subsumed by, a plea of nolo contendere. Hence, we hold that a plea of nolo

contendere has the same effect upon a defendant’s ability to raise an issue on

appeal as does a plea of guilty. Only those defenses which challenge the very

authority of the state to prosecute a defendant may be raised on appeal after entry

of a plea of nolo contendere. [People v New, 427 Mich 482, 493; 398 NW2d 358

(1986). ]

Because a § 8 defense relates to a defendant’s factual guilt and the state’s ability to prove that

guilt, it was waived by defendant’s plea of no contest. Id. at 495-496. Defendant’s ineffective-

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assistance-of-counsel claim based on his counsel’s failure to assert a § 8 defense was also waived

by his plea. Vonins (After Remand), 203 Mich App at 175.1

On the other hand, a claim on appeal that “implicates the very authority of the state to

bring the defendant to trial, that is, where the right of the government to prosecute the defendant

is challenged,” is not waived by a plea of guilty or no contest. New, 427 Mich at 495. Because

the immunity granted under § 4 of the MMMA challenges the government’s right to prosecute a

defendant, it is not the type of defense that is waived by entering a plea. See, generally, id. at

495-496. Accordingly, a § 4 defense and corresponding ineffective-assistance-of-counsel claim

were not waived by defendant’s plea.

Defendant claims that he was never informed by his prior counsel of his potential

immunity under § 4 before he entered his plea. Section 4 grants qualifying marijuana patients

and primary caregivers broad immunity from criminal prosecution and civil penalties. Hartwick,

498 Mich at 210. Although defendant has not waived this argument by pleading no contest, the

record does not show that he was entitled to § 4 immunity.

MCL 333.26424 provides, in pertinent part:

(a) A qualifying patient who has been issued and possesses a registry

identification card shall not be subject to arrest, prosecution, or penalty in any

manner . . . for the medical use of marihuana in accordance with this act, provided

that the qualifying patient possesses an amount of marihuana that does not exceed

2.5 ounces of usable marihuana, and, if the qualifying patient has not specified

that a primary caregiver will be allowed under state law to cultivate marihuana for

the qualifying patient, 12 marihuana plants kept in an enclosed, locked facility.

Any incidental amount of seeds, stalks, and unusable roots shall also be allowed

under state law and shall not be included in this amount. The privilege from

arrest under this subsection applies only if the qualifying patient presents both his

or her registry identification card and a valid driver license or government-issued

identification card that bears a photographic image of the qualifying patient.

* * *

(i) A person shall not be subject to arrest, prosecution, or penalty in any

manner . . . solely for being in the presence or vicinity of the medical use of

marihuana in accordance with this act, or for assisting a registered qualifying

patient with using or administering marihuana.

To qualify for immunity under § 4, a defendant must prove by a preponderance of the evidence

that, at the time of the charged offense,

1

At any rate, the record does not show that defendant had a viable § 8 defense.

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he or she (1) possessed a valid registry identification card; (2) possessed no more

marijuana than allowed under § 4(a); (3) stored any marijuana plants in an

enclosed, locked facility; and (4) was engaged in the medical use of marijuana. If

the qualifying patient establishes the first and second elements, then a

presumption exists that the qualifying patient was engaged in the medical use of

marijuana, thereby establishing the fourth element. [Hartwick, 498 Mich at 221.]

In this case, there is no evidence on the record that defendant possessed a medical

marijuana registry identification card. He was found to possess 54 grams of marijuana in his

home, as well as 24 marijuana plants, 12.15 pounds of bagged marijuana, and 371.5 grams of

marijuana in jars in his warehouse—much more than the 12 plants and 2.5 ounces of usable

marijuana permitted. No evidence was presented that the marijuana in defendant’s home or

warehouse was kept in an “enclosed, locked facility.” MCL 333.26423(d). Indeed, nothing

indicates that the 54 grams of marijuana found in defendant’s dresser was in such a facility.

Further, although the door to the warehouse housing defendant’s other marijuana was locked and

officers used defendant’s key to enter, the marijuana was found in various unlocked locations

within the building. See, generally, People v Danto, 294 Mich App 596; 822 NW2d 600 (2011).

There is no evidence that those locations could only be accessed by defendant. See MCL

333.26423(d).

Defendant claims that the 12.15 pounds of marijuana found in lawn bags in his

warehouse was not “usable marihuana” as defined by the MMMA. “‘Usable marihuana’ means

the dried leaves and flowers of the marihuana plant, and any mixture or preparation thereof, but

does not include the seeds, stalks, and roots of the plant.” MCL 333.26423(k). However, even

without including the 12.15 pounds of marijuana, the marijuana found at defendant’s home and

warehouse places defendant over the allowed amount of usable marijuana under § 4. Thus,

defendant still fails to qualify for § 4 immunity.

Defendant also claims that he is entitled to immunity under subsection § 4(i) because

some of the marijuana plants found at his warehouse belonged to a third party. However, the

record refutes this claim. Although defendant had told officers that he had a partner at one time,

he also admitted that he himself became the “sole operator” of the warehouse operation after

January 2014. At any rate, even if not all of the marijuana found in the warehouse belonged to

him, defendant would still not qualify for § 4(i) immunity because he still possessed the

marijuana that he claims did not belong to him. A person possesses marijuana under the

MMMA by exercising dominion and control over it. People v Bylsma, 493 Mich 17, 21-22, 31;

825 NW2d 543 (2012) (holding that the defendant was not entitled to § 4 immunity because he

exercised dominion and control over all of the marijuana in a leased warehouse). Additionally,

the 54 grams of marijuana found in defendant’s home was clearly his and that amount alone

made him ineligible to assert § 4(i) immunity.

Defendant has also not established that he was denied the effective assistance of counsel.

“When there has been no evidentiary hearing and no findings of fact by the trial court, this Court

reviews de novo the entire record to determine whether the defendant’s trial counsel’s

representation constituted the ineffective assistance of counsel.” People v Rose, 289 Mich App

499, 524; 808 NW2d 301 (2010). To support a claim of ineffective assistance of counsel, a

defendant must show that counsel’s performance fell below an objective standard of

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reasonableness, and that there is a reasonable probability that counsel’s deficient performance

prejudiced the defendant. Strickland v Washington, 466 US 668, 694; 104 S Ct 2052; 80 L Ed

2d 674 (1984); People v Pickens, 446 Mich 298, 302-303; 521 NW2d 797 (1994).

Reviewing the entire record, we are not persuaded that defendant’s counsel’s

representation was ineffective or that counsel failed to inform defendant about any applicable

defenses or immunities to the charges against him. At the time that defendant entered his plea,

his then-counsel stated, “we’re now satisfied that all legal avenues that we wanted to pursue have

been pursued.” A further indication that all legal avenues had been pursued is that defendant

pleaded no contest to avoid possible civil liability from a forfeiture action. Also, “[f]ailing to

advance a meritless argument . . . does not constitute ineffective assistance of counsel.” People v

Ericksen, 288 Mich App 192, 201; 793 NW2d 120 (2010). Accordingly, defendant has not

established a reasonable probability that, if his prior counsel had informed him about § 4

immunity, he would not have entered a plea and would have instead chosen to have a trial.

Padilla v Kentucky, 559 US 356, 372; 130 S Ct 1473; 176 L Ed 2d 284 (2010); Hill v Lockhart,

474 US 52, 59; 106 S Ct 366; 88 L Ed 2d 203 (1985).

Affirmed.

/s/ Cynthia Diane Stephens

/s/ Henry William Saad

/s/ Patrick M. Meter

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