                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   September 22, 2015
               Plaintiff-Appellee,

v                                                                  No. 321585
                                                                   Kent Circuit Court
JOHN CHRISTOPHER PLACENCIA,                                        LC No. 12-008461-FH;
                                                                            13-009315-FH
               Defendant-Appellant.


Before: BOONSTRA, P.J., and MURPHY and MARKEY, JJ.

PER CURIAM.

       Defendant was convicted in a bench trial of various marijuana-related offenses set forth
below and sentenced to time in the county jail. He appeals as of right, raising an issue under the
Michigan Medical Marihuana Act (MMMA), MCL 333.26421 et seq. We affirm.

        In August 2011, this Court issued its decision in Michigan v McQueen, 293 Mich App
644; 811 NW2d 513 (2011), aff’d on other grounds 493 Mich 135 (2013), effectively holding
that the MMMA does not provide immunity from prosecution with respect to the operation of a
medical-marijuana dispensary, because the “medical use” of marijuana permitted under the
MMMA does not encompass a “sale” of marijuana. Here, defendant, a registered qualifying
medical-marijuana patient and a registered “connected” primary caregiver to five registered
qualifying patients under the MMMA, was charged with conduct occurring on May 30, 2012,
well after this Court’s decision in McQueen had been released.1 As to the date of May 30, 2012,
there is no dispute that defendant owned and operated a medical-marijuana dispensary, selling
marijuana out of a storefront to any and all persons displaying MMMA registry identification
cards and not solely to the connected qualifying patients for whom defendant was the primary
caregiver. There is also no dispute that on May 30, 2012, a quantity of marijuana purportedly
associated with defendant’s dispensary business was discovered by police at defendant’s
personal residence. Additionally, the evidence established that earlier, in November 2011 (still
post McQueen, 293 Mich App 644), the police had executed a search warrant relative to


1
  “When a qualifying patient elects a primary caregiver, a registry identification card is also
issued to the primary caregiver. When a qualifying patient has properly designated a primary
caregiver under the MMMA, the primary caregiver is said to be ‘connected’ to that particular
qualifying patient.” People v Hartwick, __ Mich __, __; __ NW2d __ (2015); slip op at 8 n 15.

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defendant’s marijuana dispensary, which was in full operation, and while defendant was warned
that the dispensary violated the law, a criminal prosecution was not commenced at that time.
Thereafter, but prior to May 30, 2012, the county prosecutor distributed letters to marijuana
dispensaries, including defendant’s business, informing them to cease operations in light of the
illegality of dispensaries. However, defendant continued to operate his dispensary and was
actively doing so on May 30, 2012.

        Search warrants executed by the police on May 30, 2012, led to the discovery of the
marijuana at defendant’s home and of the ongoing marijuana-dispensary operation at the
storefront, resulting in the initiation of two lower court files or cases. One case pertained to the
operation of the dispensary and the marijuana found at that location, and the second case
concerned the marijuana found at defendant’s residence. Pretrial motions filed by defendant
under the immunity and affirmative defense provisions of the MMMA, MCL 333.26424 (§ 4)
and MCL 333.26428 (§ 8), respectively, were denied by the trial court. See People v Hartwick,
__ Mich __; __ NW2d __ (2015) (thoroughly discussing the procedural and substantive aspects
of §§ 4 and 8). Prior to defendant’s bench trial, our Supreme Court, after having granted leave,
issued its decision in Michigan v McQueen, 493 Mich 135; 828 NW2d 644 (2013), in February
2013. The Court concluded, contrary to this Court’s ruling, that the “medical use” of marijuana
allowed under the MMMA generally included a “sale” of marijuana, falling under the umbrella
of the term “transfer” as employed in the definition of “medical use” in MCL 333.26423.
McQueen, 493 Mich at 141. However, the Supreme Court nevertheless affirmed this Court’s
result, holding that § 4 immunity does not extend to transfers or sales between registered
qualifying patients, nor does it “extend to a registered primary caregiver who transfers [sells]
marijuana for any purpose other than to alleviate the condition or symptoms of a specific
patient with whom the caregiver is connected through the . . . registration process.” Id. at 156.
Accordingly, although on the basis of different reasoning, both this Court’s opinion in McQueen,
issued before defendant engaged in the charged conduct, and our Supreme Court’s opinion in
McQueen, issued after defendant engaged in the charged conduct, interpreted the MMMA in a
manner that simply did not afford immunity to defendant relative to the operation of his
marijuana dispensary.

        After the Supreme Court’s decision in McQueen was released, defendant filed a motion
in the trial court to dismiss the charges. He argued that application of the Supreme Court’s
decision in McQueen to defendant’s conduct would violate his due process rights, given that
retroactive application of that judicial decision would operate or act as an ex post facto law,
criminalizing conduct that, as claimed by defendant, had been innocent at the time it occurred.
See People v Doyle, 451 Mich 93, 100; 545 NW2d 627 (1996); People v Johnson, 302 Mich App
450, 464-465; 838 NW2d 889 (2013).2 The underlying premise of defendant’s argument was


2
    In Doyle, 451 Mich at 99-100, the Michigan Supreme Court explained:
                 It is well recognized that the Ex Post Facto Clause does not apply directly
         to the judiciary. However, ex post facto principles are applicable to the judiciary
         by analogy through the Due Process Clauses of the Fifth and Fourteenth
         Amendments. This Court has acknowledged the application of the ex post facto
         analogy to the judiciary . . . .


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based on the language in § 4(e), which provides as follows: A registered primary caregiver may
receive compensation for costs associated with assisting a registered qualifying patient in the
medical use of marihuana. Any such compensation shall not constitute the sale of controlled
substances. [Emphasis added.]

        Defendant argued that, considering the use of the indefinite article “a” in § 4(e), he had
reasonably believed that he could sell appropriate quantities of medical marijuana to any person
possessing an MMMA registry identification card, not just to “the” connected qualifying patients
for whom defendant was the primary caregiver. According to defendant, the Supreme Court’s
decision in McQueen undermined and rejected such a construction, but because McQueen was
decided after defendant engaged in the conduct at issue, its application to defendant’s case would
violate ex post facto principles. The trial court denied defendant’s motion, ruling that it was
foreseeable that the Supreme Court in McQueen would limit medical-marijuana transfers or sales
from primary caregivers to only their connected qualifying patients, not unconnected registered
qualifying patients in general.3


               Therefore, retroactive application of a judicial decision will only violate
       due process when it acts as an ex post facto law. An ex post facto law has been
       defined . . . as one that makes an action done before the passing of the law, and
       which was innocent when done, criminal; and punishes such action . . . . As a
       result of the due process analogy, it has been stated that an unforeseeable judicial
       enlargement of a criminal statute, applied retroactively, operates precisely like
       an ex post facto law . . . . The retroactive application of
       an unforeseeable interpretation of a criminal statute, if detrimental to a defendant,
       generally violates the Due Process Clause. [Citations, quotation marks, and
       emphases omitted.]
3
  With respect to § 4 immunity for primary caregivers, MCL 333.26424 provides, in part, as
follows:
               (b) A primary caregiver who has been issued and possesses a registry
       identification card shall not be subject to arrest, prosecution, or penalty in any
       manner . . . for assisting a qualifying patient to whom he or she is connected
       through the department's registration process with the medical use of marihuana
       in accordance with this act. . . . This subsection applies only if the primary
       caregiver possesses an amount of marihuana that does not exceed:

               (1) 2.5 ounces of usable marihuana for each qualifying patient to whom he
       or she is connected through the department's registration process; and

               (2) for each registered qualifying patient who has specified that the
       primary caregiver will be allowed under state law to cultivate marihuana for the
       qualifying patient, 12 marihuana plants kept in an enclosed, locked facility; and

                 (3) any incidental amount of seeds, stalks, and unusable roots. [Emphasis
       added.]


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       Subsequently, the two cases, i.e., (1) the charges related to the dispensary and (2) the
charges related to defendant’s home, were tried together in a single bench trial. With respect to
the charges arising out of the operation of the dispensary, defendant was convicted of unlawful
manufacture of marijuana, MCL 333.7401(2)(d)(iii), conspiracy to commit unlawful
manufacture of marijuana, MCL 750.157a; MCL 333.7401(2)(d)(iii), and knowingly keeping or
maintaining an illegal drug store or shop, MCL 333.7405(d). With respect to the charges arising
out of the marijuana discovered at defendant’s residence, he was convicted of unlawful
manufacture of marijuana and knowingly keeping or maintaining an illegal drug house.

        On appeal, defendant merely renews the same ex post facto argument presented to the
trial court. This Court reviews for an abuse of discretion a trial court’s decision on a motion to
dismiss, but underlying questions of law are reviewed de novo. Johnson, 302 Mich App at 456.

        As argued by the prosecution below, a major flaw in defendant’s argument is that it
essentially ignores or incorrectly minimizes this Court’s decision in McQueen, which predated
May 30, 2012; the date upon which the charges against defendant arose. The McQueen panel
construed § 4 of the MMMA and expressly held that the “medical use” of marijuana does not
permit the sale of marijuana, “because the sale of marijuana is not equivalent to the delivery or
transfer of marijuana.” McQueen, 293 Mich App at 668. In McQueen, the defendants had
argued “that they, as registered primary caregivers . . .[,] [could] actively participate in and carry
out . . . [patient-to-patient] sales and receive compensation for their assistance through their
operation of CA [ - the defendants’ dispensary].” Id. at 664. The McQueen defendants
maintained, in part, that § 4(e), the provision relied on here by defendant, “allow[ed] them to be
compensated for their assistance.” Id. This Court ultimately rejected all of the defendants’
arguments, and in regard to § 4(e), the panel stated that it “actually supports the conclusion that
the medical use of marijuana does not include the sale of marijuana.” Id. at 669. The Court
further discussed § 4(e), noting:

               In addition, because the medical use of marijuana does not include the sale
       of marijuana, defendants are not entitled to receive compensation for the costs of
       assisting in the sale of marijuana between CA [dispensary] members. See MCL
       333.26424(e) (“A registered primary caregiver may receive compensation for
       costs associated with assisting a registered qualifying patient in the medical use of
       marihuana.”). Also, in regard to § 4(e), the parties disagree whether a registered
       primary caregiver may receive compensation for the costs associated with
       assisting any registered qualifying patient in the medical use of marijuana or
       whether a registered primary caregiver may only receive compensation for
       assisting the qualifying patients with whom he or she is connected through the
       MDCH registry process. Because of our conclusion that the medical use of
       marijuana does not include the sale of marijuana, we need not, and therefore do
       not, resolve this dispute. [McQueen, 293 Mich App at 670 n 18 (emphasis
       added).]

       As indicated in this passage, this Court declined to answer whether a primary caregiver
could be compensated for assisting an “unconnected” registered qualifying patient, given that, if




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the assistance entailed the “sale” of marijuana, it would not be protected by MMMA immunity
regardless of whether the registered qualifying patient was connected or unconnected.4 For our
purposes, this Court’s decision in McQueen effectively precluded dispensary sales of medical
marijuana as between primary caregivers, such as defendant, and qualifying patients in general
(unconnected patients). Thus, the operation of defendant’s marijuana dispensary on May 30,
2012, was definitively criminal, consistent with the charges brought by the prosecution and
absent any immunity protection under the MMMA. Defendant was also informed of this fact by
the authorities, but chose to continue the operation. Under McQueen, as issued by this Court,
defendant was on notice of the illegality of his dispensary prior to the issuance of charges. It is
of no import that the “sales” approach taken by this Court was later rejected by the Supreme
Court; defendant’s conduct was illegal. Accordingly, defendant’s ex post facto argument tied to
the Supreme Court’s opinion in McQueen necessarily fails and is ultimately irrelevant. We note
that this Court’s decision in Johnson, 302 Mich App at 463-466, reinforces our conclusion,
where in Johnson, the panel accepted that this Court’s opinion in McQueen barred the operation
of marijuana dispensaries.5

        Moreover, even if we set aside any consideration of this Court’s decision in McQueen,
our Supreme Court’s decision in McQueen certainly did not constitute an unforeseeable judicial
enlargement of the MMMA, such that its application here would violate ex post facto principles.
First, this Court in Johnson, 302 Mich App at 465, while ruling that this Court’s decision in
McQueen was retroactive and that its application would not violate ex post facto principles, also
noted that the same was true in regard to our Supreme Court’s subsequent decision in McQueen.
To the extent that the Johnson panel’s statement on the retroactive application of our Supreme
Court’s decision in McQueen was dicta, we nonetheless agree with the conclusion.6

        Again, the Supreme Court in McQueen held, in part, that § 4 immunity does not “extend
to a registered primary caregiver who transfers marijuana for any purpose other than to alleviate
the condition or symptoms of a specific patient with whom the caregiver is connected through



4
  As indicated earlier, the Supreme Court’s holding in McQueen answered the question left
unresolved by this Court, i.e., only sales between connected caregivers and patients are
permissible, after the Supreme Court had rejected this Court’s conclusion that the MMMA
generally barred the selling of marijuana.
5
 The Johnson panel also indicated that “[t]his is not a case in which marijuana dispensaries were
authorized by statute and then, by judicial interpretation, deemed illegal.” Johnson, 302 Mich
App at 465.
6
  Defendant attempts to distinguish Johnson on the basis that it did not confront the retroactivity
or ex post facto issue in the context of a § 8 affirmative defense. We reject this argument. First,
the decision by this Court in McQueen would necessarily have precluded the availability of the
affirmative defense in regard to operating a dispensary, where it held that the medical use of
marijuana did not entail the sale of marijuana. McQueen, 293 Mich App at 668. Second, we see
nothing in the language of § 8 that would permit the operation of a marijuana dispensary. Third,
and finally, defendant does not even attempt to analyze § 8 and explain how it would allow for
the operation of a dispensary.

                                                -5-
the . . . registration process.” McQueen, 493 Mich at 156. This holding is based on the plain
and unambiguous language found in § 4(b), which expressly extends immunity to a primary
caregiver “for assisting a qualifying patient to whom he or she is connected . . . with the medical
use of marihuana.” (Emphasis added.) There is no mention of immunity for assisting
unconnected qualifying patients. And § 4(e) allows the primary caregiver to “receive
compensation for costs associated with assisting a registered qualifying patient in the medical
use of marihuana.” Despite the use of the indefinite article “a” in § 4(e), it is plain that § 4(e)
was intended to be read in conjunction with § 4(b), thereby making it clear that the
“compensation” referred to in § 4(e) is tied to assisting solely a connected qualifying patient. If
§ 4(b) only allows a primary caregiver to assist a connected qualifying patient for purposes of
immunity, how could a primary caregiver ever be legally entitled to compensation under § 4(e)
for assisting an unconnected qualifying patient, as indisputably and repeatedly occurred in the
operation of defendant’s marijuana dispensary. The answer is that a primary caregiver cannot
receive compensation under § 4(e) for costs associated with the impermissible act of assisting
unconnected registered qualifying patients. And the Supreme Court’s decision in McQueen
affirming that proposition was hardly a surprise and was entirely foreseeable. For these reasons,
we reject defendant’s judicial ex post facto argument.

       Affirmed.



                                                            /s/ Mark T. Boonstra
                                                            /s/ William B. Murphy
                                                            /s/ Jane E. Markey




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