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Man Waives Section 8 Medical Marijuana Defense by Pleading Guilty

The Michigan Medical Marihuana Act (MMMA) (MCL 333.26421 et seq.); Whether the defendant waived his ability to argue immunity under MMMA § 4 or the MMMA § 8 affirmative defense by pleading guilty; People v. Johnson; People v. New; Principle that “jurisdictional” defenses are not waived by a guilty plea; People v. Lannom; People v. Carpentier; § 4 immunity; MCL 333.26424; People v. Hartwick; State v. McQueen; The § 8 affirmative defense; MCL 333.26428; People v. Kolanek; People v. Redden; People v. Jex; Right result reached for the wrong reason; People v. Bauder; Entrapment claim;People v. Crall; People v. Vansickle; People v. Fabiano; People v. Jamieson; Entrapment by estoppel; People v. Woods


[Unpublished opinion.] While the court held that the defendant did not waive his MMMA § 4 immunity defense by pleading guilty to delivery of marijuana, the trial court did not abuse its discretion when it denied his motion to dismiss. It held that his unconditional guilty plea did waive his § 8 affirmative defense, and noted that even if he had not waived it, this claim would still fail. Further, none of the relevant factors supported a finding of entrapment, and the trial court did not clearly err in finding that he could not assert an entrapment by estoppel defense. Thus, the court affirmed defendant’s conviction.

An undercover officer (posing as a man named Brooks) successfully sought to purchase marijuana from defendant. “In light of the nature of immunity granted under § 4 of the MMMA,” the court concluded that “it is not the type of defense that is waived by entering an unconditional guilty plea.” The “immunity granted under § 4 does not concern a defendant’s factual guilt, but rather, concerns whether the prosecution has authority to bring him to trial in the first instance.” The court determined that “this is not the type of defense that is waived by entry of an unconditional guilty plea.” However, “defendant was never connected with ‘Brooks’ as his primary caregiver through the state’s registration process.” He “admitted that he never filled out the requisite paperwork. At best, he had some discussions with ‘Brooks’ about establishing a primary caregiver relationship, but never formalized the relationship.” As the Michigan Supreme Court recognized in Hartwick, “a primary care giver providing marijuana to an unconnected patient is ‘clearly outside the parameters of § 4 . . .’ and is conduct that is not entitled to immunity under § 4. Thus, defendant failed to meet his burden of proving entitlement to immunity.” He waived the issue of a § 8 defense, and even if he had not, he was not entitled to its protections because he did not meet his burden of establishing the elements of the affirmative defense. As to the entrapment claim, the officer “did not appeal to defendant’s sympathy ‘as a friend.’” Further, his actions “merely provided defendant with an opportunity to commit a crime.”

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