                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   May 14, 2015
              Plaintiff-Appellee,

v                                                                  No. 320349
                                                                   Cass Circuit Court
KALI MARIE HEFT,                                                   LC No. 13-010150-FH

              Defendant-Appellant.


Before: BECKERING, P.J., and MARKEY and SHAPIRO, JJ.

PER CURIAM.

        Defendant appeals by leave granted her sentences for her plea-based convictions of
delivery of a controlled substance less than 50 grams, MCL 333.7401(2)(a)(iv), and possession
of a controlled substance less than 25 grams, MCL 333.7403(2)(a)(v). We affirm.

       On June 5, 2012, defendant and her boyfriend delivered heroin to the victim, allegedly in
exchange for use of the victim’s tattoo machine. Subsequently, the victim overdosed on the
heroin and died. Defendant admitted to the drug transaction and pleaded guilty to above crimes.

       Defendant first argues that the trial court improperly scored offense variables 3 and 19.
Defendant has waived her claims of scoring error because she entered into a sentencing
agreement. She agreed to a minimum sentence that fell within the guidelines range of 29 to 51
months or higher and that was to be equivalent to a delivery of heroin sentence entered in the
Berrien Circuit Court. See People v Blount, 197 Mich App 174, 175; 494 NW2d 829 (1992)
(when a defendant receives exactly the sentence to which he previously had agreed to, he may
not challenge that sentence unless he makes an effort to withdraw the plea agreement); see also
People v Ward, 206 Mich App 38, 43; 520 NW2d 363 (1994) (applying the Blount waiver rule).
Moreover, even if the sentence exceeded properly scored guidelines, “a defendant waives
appellate review of a sentence that exceeds the guidelines by understandingly and voluntarily
entering into a plea agreement to accept [a] specific sentence.” People v Wiley, 472 Mich 153,
154; 693 NW2d 800 (2005). Because the issue is waived, we do not consider it.

       Defendant also argues that her convictions violate the double jeopardy clauses of both the
United States and Michigan Constitutions. Specifically, defendant argues that she received
multiple punishments for the same offense (i.e. possession and delivery of heroin). Unpreserved
double jeopardy claims are reviewed for plain error affecting a defendant’s substantial rights.
People v McGee, 280 Mich App 680, 682; 761 NW2d 743 (2008).
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       Both the United States and Michigan constitutions prohibit a person from twice being
placed in jeopardy for the same offense. US Const, Am V; Const 1963, art 1, § 15; People v
Nutt, 469 Mich 565, 574; 677 NW2d 1 (2004). To determine whether convicting defendant of
both possession of heroin and delivery of heroin violates the double jeopardy clause, this Court
applies the “same elements” test. Id. at 575-576; People v Smith, 478 Mich 292, 295-2; 733
NW2d 351 (2007) (applying the Blockburger 1 “same elements” test to the multiple-punishment
prong of the Double Jeopardy Clause). “Under the Blockburger ‘same elements’ test, two
offenses are not the ‘same offense’ if each requires proof of an element that the other does not.”
People v Chambers, 277 Mich App 1, 5; 742 NW2d 610 (2007).

        The elements of delivering less than 50 grams of heroin are: (1) defendant’s delivery (2)
of less than 50 grams (3) of heroin or a mixture containing heroin (4) with knowledge that she
was delivering heroin. People v Collins, 298 Mich App 458, 462; 828 NW2d 392 (2012). The
elements of possession of less than 25 grams of heroin are: (1) the defendant knowingly
possessed a controlled substance; (2) the substance was heroin, and (3) the substance was in a
mixture that weighed less than twenty-five grams. MCL 333.7403(2)(a)(v).

        Applying the same-elements test to the present case, we find that defendant’s convictions
do not violate the Double Jeopardy Clause because they do not require proof of the same
elements. The delivery charge requires the element of delivery that the possession charge does
not. Chambers, 277 Mich App at 5. Similarly, the possession charge requires an element that
the delivery charge does not, which is possession. MCL 333.7403(2)(a)(v); see also People v
Binder, 215 Mich App 30, 35-36; 544 NW2d 714 (1996), vacated in part on other grounds 453
Mich 913 (1996). Accordingly, defendant’s convictions do not violate the double jeopardy
clauses of the United States Constitution and Michigan Constitution.

         We affirm.

                                                            /s/ Jane M. Beckering
                                                            /s/ Jane E. Markey




1
    See Blockburger v United States, 284 US 299, 304; 52 S Ct 180; 76 L Ed 306 (1932).


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