Supreme Court denies request regarding Wexford man’s marijuana conviction

Donald Joseph Koshmider II , right, answers questions from his attorney during a May 2017 hearing. The Michigan Supreme Court recently denied a request for appeal from Koshmider regarding the Feb. 7 judgment of the Michigan Court of Appeals regarding his marijuana conviction in Wexford County.

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 Supreme Court.

In an order from the Michigan Supreme Court regarding the request for appeal from Donald Joseph Koshmider II regarding the Feb. 7 judgment of the Michigan Court of Appeals it stated it was considered and “it is denied because we are not persuaded that the questions presented should be reviewed by this court.‘ The order, dated July 29, said nothing more.

In the February opinion from three Michigan Court of Appeals Judges, Deborah A. Servitto, Cynthia Diane Stephens, Mark T. Boonstra, they disagreed with all of the motions Koshmider made and affirmed the trial court’s decision.

In February, Koshmider said it is his belief he did everything to comply with the 2008 Michigan Medical Marijuana Act and in particular with Sec. 4 and Sec. 8 of the Michigan Medical Marijuana Act.

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.

Koshmider’s appeal was filed on four issues regarding the 28th Circuit Court conviction. First, it was 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 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 of 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.

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 Michigan Supreme Court Order go to http://publicdocs.courts.mi.gov/SCT/PUBLIC/ORDERS/159374_36_01.pdf. To read the full court of appeals opinion go to publicdocs.courts.mi.gov/OPINIONS/FINAL/COA/20190207_C340124_30_340124.OPN.PDF

Cadillac News