LANSING — A 54-year-old Cadillac man who already served his prison sentence for multiple 2017 marijuana convictions had his appeal recently denied by the Michigan Court of Appeals.
In an unpublished opinion from three Michigan Court of Appeals Judges, Deborah A. Servitto, Cynthia Diane Stephens, Mark T. Boonstra, they disagreed with all of the motions Donald Joseph Koshmider II made and affirmed the trial court's decision.
Although the opinion was released on Thursday, Koshmider said he didn't learn about it until Friday when a friend told him. He also said it is his belief he did everything to comply with the 2008 Michigan Medical Marijuana Act.
"I bent over backward to make sure I was compliant with Sec. 4 and Sec. 8 (of the Michigan Medical Marijuana Act)," he said.
Section 4 of the Michigan Medical Marijuana Act provides qualified registered patients broad immunity from “arrest, prosecution, or penalty in any manner‘ and protection from the denial of “any right or privilege, including but not limited to civil penalty or disciplinary action by a business or occupational or professional licensing board or bureau, for the medical use of marihuana in accordance with this act ..."
Section 8 of the act provides limited protection for the use of medical marijuana in criminal prosecutions, which requires dismissal of the charges if all the elements of the defense are established.
"Just because they don't like it or it doesn't fit their narrative doesn't mean I broke the law," he said. "I'm looking to take the next steps and I want to set a precedent. My fight is far from over."
What that means is he plans on appealing with the Michigan Supreme Court, Koshmider said. An email was sent to Koshmider's counsel Laurel Kelly Young seeking comment but she did not respond immediately.
Young filed four issues on behalf of her client regarding the 28th Circuit Court judgment. First, Young contended the trial court erred and abused its discretion and denied Koshmider his due process right to a fair trial when it declined to determine the amount of marijuana in his possession for the purposes of Sec. 4 and 8 immunity/affirmative defense of the Michigan Medical Marijuana Act.
Next, the appeal claimed the trial court abused its discretion in ordering a blanket prohibition against the admission of Michigan Medical Marijuana Act evidence and these errors rose to the level of "constitutional deprivations."
The third issue stated the trial court erred and abused its discretion when it failed to fairly present the issue to be tried and trial counsel was ineffective for failing to know the law and request the additional, clarifying jury instructions.
The fourth issue stated the evidence was insufficient to prove Koshmider aided and abetted the employees of Best Cadillac Provisions to illegally distribute marijuana
Koshmider also submitted six supplemental issues while in prison that he wanted the appellate court to consider.
The first of Koshmider's supplemental issues stated the trial court erred and abused its discretion and denied Koshmider his due process right to a fair trial when it declined to grant a mistrial based on the prosecution's misstatement of the law. The second supplemental issue stated Koshmider was charged, tried, convicted and sentenced to prison in violation of his constitutional rights of due process for the "misinterpretation" of the language detailed in the Michigan Medical Marijuana Act.
Next, Koshmider stated the trial court erred and abused its discretion and denied him his due process right to a fair trial when it allowed the prosecution to commit misconduct. The fourth issue stated the prosecution failed to produce legally sufficient evidence. The fifth supplemental issue Koshmider presented stated the case of People v Mazur is controlling case law as it further defines the statutory definition of "medical use."
The sixth and final supplemental issue raised by Koshmider stated he was denied access to the courts by being incarcerated in a prison facility that had no law library, computer to research case law to effectively write his Standard 4 brief.
In August 2017, Koshmider II was sentenced to between 13 months and 15 years in prison with three days credited after a jury of his peers determined he was guilty of two counts of aiding and abetting delivery of marijuana; two counts of maintaining a drug house; delivery or manufacture of marijuana; and possession of marijuana with intent to deliver. He also was sentenced to three days in jail with three days credited for a conviction to one count of possession of marijuana, second or subsequent offense. A habitual offender fourth offense notice added to the charges meant Koshmider faced up to 15 years in prison. He was released from prison last fall and is currently out on parole.
In addition to prison time, Koshmider was ordered to pay $781 in fines and fees.
Wexford County Prosecutor Jason Elmore said at the time of Koshmider's sentencing the case was never about medical marijuana and as long as someone is operating within the Michigan Medical Marijuana Act they have nothing to fear. In Koshmider’s case, however, Elmore said it was clear he was not operating within the law and he knew it but he just didn’t care.
While Koshmider and his defense counsel Joshua Covert argued the owner of Best Cadillac Provisions was not selling marijuana but providing medicine to patients during a four-day trial in July 2017, 12 jurors saw things differently.
The charges against him stemmed from Koshmider’s connection with incidents during July 2016 at his closed medical marijuana business that was located at 1552 Plett Road, and his Haring Township residence.
To read the full court of appeals opinion go to publicdocs.courts.mi.gov/OPINIONS/FINAL/COA/20190207_C340124_30_340124.OPN.PDF