The opinion
Jansen, J.
(concurring in part and dissenting in part). I concur that defendant’s conviction should be affirmed for the reasons set forth by the majority. However, while this case should be remanded for resentencing, defendant is not entitled to the benefit of the opinion in People v Schultz, 435 Mich 517 ; 460 NW2d 505 (1990). Defendant should be resentenced to the mandatory term of twenty to thirty years’ imprisonment.
i
The offense in this case occurred on June 24, 1986, when a Michigan State Police trooper observed defendant’s GMC Jimmy to be swerving between two lanes of a highway and towing a trailer without a trailer license plate. The trooper activated the emergency lights and pulled defendant over. Defendant, the driver of the vehicle, got out and was holding a small leather bag. With defendant was his codefendant, David Paul Spikes, who was a passenger in the vehicle. When the trooper who pulled defendant over radioed headquarters with defendant’s name and date of birth, he discovered that there was a warrant for defendant’s arrest. The trooper asked for, and received, backup.
After arresting defendant, a backup officer forcibly took the leather pouch from defendant, who would not voluntarily relinquish it, and he found two cellophane packets containing a white powder. The white powder was later determined to be 36.3 grams of cocaine. The officers then searched the *587 vehicle and found a garment bag on the floor behind the front seats. They found a pouch com taining approximately $16,000 in cash and seventeen white packets containing a white powder. The white powder was later determined to contain 470.98 grams of cocaine.
This was a relatively straightforward case. Defendant’s claim that he knew nothing about the cocaine in the garment bag in the car is entitled to little weight. After being pulled over, defendant left the car holding a leather pouch containing cocaine that he resisted giving to the state troopers.
n
My concern, however, is not with the majority’s disposition of defendant’s issues concerning his conviction, but with the manner in which this case has been handled since defendant’s sentencing in the lower court. A full recitation of the lower court proceedings is necessary.
Defendant was tried in a bench trial before Judge Thomas J. Brennan. The trial occurred.on December 15 and 16, 1986. Judge Brennan convicted defendant of possession with intent to deliver 225 grams or more, but less than 650 grams, of cocaine. Defendant then filed a motion for a new trial on January 14, 1987. The motion was adjourned pending the court reporter’s preparation of the trial transcripts. Judge Brennan then sentenced defendant on January 28, 1987, to twenty to thirty years’ imprisonment, the correct statutory sentence. At the time of sentencing, Judge Brennan granted defendant’s motion for bond pending the motion for a new trial.
Defendant’s motion for bond should not have been granted. Defendant filed a motion for bond *588 pending appeal. Despite the fact that defendant had not filed a claim of appeal, and this was noted by Judge Brennan, the trial judge still entertained the motion. After imposing the sentence, Judge Brennan decided to grant defendant a bond pending the motion for a new trial. This was despite the fact that defendant resided in Tiburón, California, and that this case involved over five hundred grams of cocaine, thus carrying a mandatory minimum prison term of twenty years. I would conclude that, under these circumstances, the trial court abused its discretion in granting defendant a bond. MCR 7.209(B)(2).
In fact, Judge Brennan predicted exactly what would happen in this case if he granted the bond. Incredibly, the following colloquy occurred at sentencing:
[The Prosecutor]: Well, the only problem Your Honor, is that in these particular cases, I’m not saying that defense counsel would do it but it has occurred in the past, that the Court has allowed the defendant to have bond pending appeal before a claim of appeal was filed and then the case would linger for years and years without any further action. Once a claim of appeal is filed then it’s the attorney for the defendant [sic] responsibility to pursue the matter until it’s disposed of, and then this Court would have notice of any disposition of it. At that particular time, this Court could cancel bond pending appeal or take the appropriate disposition of the case. Otherwise, the case is lost in the system.
The Court: Well, I had a case about four years ago which was not of great import, it was a criminal case and it had no penalties anywhere near what we have here, and the attorney asked for— that’s the only time that I granted it, a bond pending appeal, and I think I mentioned it to [the prosecutor], I can recall it well, it [got] caught in the cracks, and five years later, I think there was *589 probably only a two year sentence on the case . . . five years later I got word from the Court of Appeals or the prosecutor’s office, or somebody . . . what are you doing with this man . . . he’s never served any time. And so I then looked into it and I found that the attorney had just plain not followed through and it’s difficult, it’s nice if we can do it, but it’s difficult for the Court to keep a diary on every case that passes through here, and I can see what [the prosecutor] is saying.
On March 7, 1987, the court reporter filed the certificate indicating that the transcripts had been completed. On April 30, 1987, defense counsel wrote to the trial judge indicating that the transcripts had been filed and that the matter was ready for a hearing. For some reason, no action was taken in this case until the prosecutor filed a motion to revoke bond on November 13, 1992. This motion was to be before Judge Samuel A. Turner, Judge Brennan’s successor. Apparently, Judge Turner revoked the bond on November 20, 1992; however, there is no actual order in the lower court record or any transcript if there was a proceeding in court.
It appears that beginning with the prosecutor’s motion to revoke bond, a new lower court file was created in this case. This Court has never received the lower court file containing the pleadings and other documents relating to the actual trial and sentencing. The only transcripts that have been filed with this Court are the preliminary examination transcript, the two trial transcripts, and the sentencing transcript. It is not clear why a new lower court file would have been created at the point where the prosecutor filed the motion to revoke bond in November 1992. Further, the first motion for a new trial (filed in January 1987) is not contained in the lower court record. I seriously *590 question whether the motion was ever filed in good faith.
In December 1992, defendant moved to reinstate his bond and filed a supplemental motion for a new trial and for resentencing. The motions were to be heard by Judge Turner on December 22, 1992, pursuant to a praecipe contained in the lower court record. Without explanation in the record, this case ended up before Chief Judge Dalton A. Roberson. There is no order in the lower court file transferring this case to Judge Roberson, nor is there any indication regarding why this case was transferred to Judge Roberson’s docket. It appears that this case should have been decided by Judge Turner, as Judge Brennan’s successor, because there is absolutely no indication that Judge Turner could not decide the motion for a new trial and for resentencing because of "death, illness, or other disability.” MCR 2.630.
In an opinion and order dated May 26, 1993, Judge Roberson denied defendant’s motion for a new trial and granted his motion for resentencing. Judge Roberson found that there were substantial and compelling reasons to depart from the mandatory minimum sentence of twenty years and proceeded to sentence defendant to "time served.” This constituted only six months’ imprisonment for a crime involving over five hundred grams (more than one pound) of cocaine. Judge Roberson then ordered that defendant be immediately released from custody.
hi
In his opinion and order, Judge Roberson concluded that the remarks, as noted by the majority, by Judge Brennan at sentencing constituted a sentence based upon local sentencing policies and *591 was, therefore, an invalid sentence. People v Whalen, 412 Mich 166, 170 ; 312 NW2d 638 (1981). Judge Roberson’s conclusion in this regard was wrong. It is clear that Judge Brennan’s reasons for the sentence imposed were not based upon local sentencing policies.
The original sentence of twenty to thirty years imposed by Judge Brennan was not invalid for another reason not cited by the majority. The sentence was mandated by the statute in effect at the time of sentencing to be twenty to thirty years. When defendant was sentenced in January 1987, the applicable statutory provision mandated a sentence of twenty to thirty years, and there was no provision at that time allowing trial courts the discretion to depart from the mandatory minimum sentences. Thus, the trial court was required to sentence defendant to twenty to thirty years. For that reason alone, the sentence was not invalid.
Further, Judge Roberson’s opinion concerning the sentencing issue is contradictory. First, Judge Roberson concluded that the Supreme Court’s decision in People v Schultz, 435 Mich 517 ; 460 NW2d 505 (1990), did not apply to this case because this case was not pending in the trial court or on direct appeal raising a sentencing issue on or after the date of the amendments of the Public Health Code. If that is correct, then Judge Roberson should have imposed a sentence of twenty to thirty years, because the statute did not permit sentencing judges to depart from the mandatory minimum sentence at the time of defendant’s sentencing in January 1987. Thus, by his own analysis, Judge Roberson was without authority to depart below the twenty-year mandatory minimum sentence in this case.
I disagree, however, with the majority that the decision in Schultz applies to this case. Here, *592 defendant’s case was not pending in the trial court and the sentencing issue had not been raised when 1987 PA 275 was enacted. Defendant had been convicted and sentenced by January 28, 1987. By the time this case came before Judge Roberson, he had only to decide defendant’s motion for a new trial and for resentencing. As correctly noted by Judge Roberson in his opinion, defendant’s case was not pending in the trial court or on direct appeal raising an issue regarding resentencing on or after March 30, 1988.
People v Scarborough, 189 Mich App 341 ; 471 NW2d 567 (1991), cited by the majority, does not support the conclusion that defendant is entitled to the benefit of the opinion in Schultz. In Scarborough, 1989 PA 143 had gone into effect before the defendant had pleaded guilty and been sentenced, even though he committed the crime before the amendment became effective. Thus, it is quite clear that the defendant’s case was still pending in the lower court when 1989 PA 143 went into effect.
Thus, I would remand for imposition of the twenty- to thirty-year sentence. The original sentence being valid, Judge Roberson had no authority to resentence defendant to "time served.” MCR 6.429(A); In re Jenkins, 438 Mich 364, 368 ; 475 NW2d 279 (1991). I also agree that defendant’s sentence of "time served” is disproportionately low and grossly inadequate. However, this sentence is more than just an abuse of discretion. The analysis employed by the sentencing judge in the opinion and order is clearly a manipulative attempt to bypass the Legislature’s mandatory minimum sentences for controlled substances violations. Whether one agrees with the length of the mandatory minimum terms or not, manipulating the law *593 in an attempt to ignore the dictates of the Legislature constitutes an abuse of power.
Finally, defendant cannot receive the benefit of Schultz because he failed to pursue in a timely manner his appeal after his conviction. Defense counsel stated on the record that he would file a claim of appeal after the trial court decided the motion for a new trial. Not only did defendant fail to pursue in a timely manner his appeal, he also failed to pursue in a timely manner the motion for a new trial, thus allowing this case to fall through the cracks exactly as Judge Brennan predicted. Defendant failed to pursue his motion for a new trial and in the meantime avoided imprisonment. He has flagrantly abused the judicial system once. It would be unjust to allow defendant the benefit of the decision in Schultz where he is responsible for the delays in the case and where he failed to pursue his motion for a new trial, thus wrongly avoiding imprisonment.
The sentencing game that has been played in this case is a travesty of justice. Further, because the charge against the codefendant David Paul Spikes was dismissed by the trial court, Judge Roberson’s ruling would allow a crime involving over one pound of cocaine to go punished with only six months’ imprisonment. This case should be remanded to the trial court to reinstate the original valid sentence of twenty to thirty years’ imprisonment. Any other result would reward a defendant who not only has committed a serious crime, but also has abused the court system.