People v. Fyfe

302 N.W.2d 300, 102 Mich. App. 736, 1981 Mich. App. LEXIS 2664

• Court: Michigan Court of Appeals
• Decided: January 6, 1981
• Docket: Docket Nos. 45572, 45573, 45574
• Status: Published

Opinions

Per Curiam.

Defendant was convicted on his pleas of guilty to one count of assault with intent to rob being armed, MCL 750.89; MSA 28.284, two counts of armed robbery, MCL 750.529; MSA 28.797, and three counts under the felony-firearm statute, MCL 750.227b; MSA 28.424(2). He was sentenced to three concurrent prison terms of from 2 to 15 years on the assault and armed robbery convictions,* ¹ to begin after he had finished serving a ten-year sentence on the felony-firearm convictions. The trial court imposed sentences of two years, five years, and ten years, respectively, on each of the felony-firearm convictions to run concurrently with each other and consecutively with the concurrent sentences imposed for the assault and armed robbery convictions.

The principal argument raised by defendant on appeal concerns the issue of whether the cumulative-sentencing provisions of the felony-firearm statute come into play when all of the convictions arise out of a single plea-taking proceeding. The cumulative-sentencing provisions are contained in the body of the felony-firearm statute itself, and provide as follows:

"A person who carries or has in his possession a firearm at the time he commits or attempts to commit a felony, except the violation of section 227 or section 227a, is guilty of a felony, and shall be imprisoned for 2 years. Upon a second conviction under this section, the person shall be imprisoned for 5 years. Upon a third or subsequent conviction under this section, the person shall be imprisoned for 10 years.” MCL 750.227b(l); MSA 28.424(2)(1).

The record of the plea-taking proceedings reveals that defendant was aware of the fact that by pleading guilty to the three felony-firearm counts he would receive a ten-year sentence to be served before the commencement of his sentences on the other convictions. There being no question as to defendant’s awareness of the sentencing consequences of his plea, he challenges whether the ten-year sentence was legally authorized by the statute in a case where all three convictions, although based on separate criminal transactions, nevertheless resulted from a single plea-taking proceeding.

This issue is not one of first impression. In People v Barrett, 93 Mich App 808; 287 NW2d 348 (1979), another panel of this Court held that where a defendant is simultaneously convicted on two felony-firearm charges, each arising from a distinct criminal episode, a five-year sentence is appropriate. Support for this position was principally based on distinguishing the defendant’s analogy to cases arising under the habitual offender act. See MCL 769.10 et seq.; MSA 28.1082 et seq. Affirmative support was found for the Court’s interpretation, however, in the statute’s reference to "subsequent” convictions. According to the Court in Barrett, a ten-year sentence could be imposed for either a third or a subsequent conviction, so that a defendant who had already been once convicted of a felony-firearm offense could be given a ten-year sentence on a second felony-firearm conviction so long as the second conviction followed in time and was, therefore, "subsequent” to the first. Based on this interpretation, the Barrett Court found support for the position that the Legislature intended to impose a five-year sentence on a defendant who received two simultaneous felony-firearm convictions. Barrett, supra, 815, fn 3.²

The result in Barrett was approved by a majority of another panel of this Court in People v Willis, 95 Mich App 32; 290 NW2d 82 (1980). The issue was the same as in Barrett: whether two guilty plea convictions taken on the same day, although arising out of separate criminal episodes, could form the basis of the five-year sentence mandated by the statute on a second conviction. The Willis majority quoted approvingly from Barrett and rejected the defendant’s analogy to the habitual offender act. Judge Walsh dissented in Willis, expressing his view that, in providing for increased punishment on subsequent convictions, the Legislature intended to discourage recidivism. Accordingly, he advocated a rule whereby the harsher sentencing provisions pertaining to repeat offenders would not come into play unless the criminal activity on which a subsequent conviction was based occurred after the date of the previous conviction.

In the instant case, defendant advances two arguments in support of his claim that his ten-year sentence is unlawful. The first is based on the allegation that the informations charging the second and third felony-firearm offenses are defective in that they fail to allege the prior convictions. The second is based on a construction of the statute and on the presumed intent of the Legislature in the enactment of the cumulative sentencing provisions.

Defendant’s first argument relies heavily on cases arising under the habitual offender act. We agree with Barrett and Willis insofar as they reject this analogy as determinative. See generally, Wayne County Prosecutor v Recorder’s Court Judge, 406 Mich 374; 280 NW2d 793 (1979), app dis sub nom Brintley v Michigan, 444 US 948; 100 S Ct 418; 62 L Ed 2d 317 (1979). Under the habitual offender act, the filing of a supplemental information specifically charging prior felonies is required, and a separate proceeding is provided. MCL 769.13; MSA 28.1085. These features are totally absent from the felony-firearm statute which, by its own terms, imposes a greater sentence on the repeat offender. Defendant also invites analogy to Michigan’s prohibition-era liquor law which, in a manner similar to the felony-firearm statute, provided a greater punishment for the repeat offender within its own provisions.³ The Supreme Court construed this statute in such a manner as to require that the information charge a second or subsequent offense as such before the sentence-enhancement provisions of the statute became operative. People v McDonald, 233 Mich 98; 206 NW 516 (1925), People v Ancksornby, 231 Mich 271; 203 NW 864 (1925). This analogy must also be rejected. The liquor law provided for increased punishment "for every second and subsequent offense, so committed, * * * upon conviction thereof’. Under this language, increased punishment was provided upon conviction for a second offense. This language was sufficient to compel a requirement that a second offense be charged as such. Similar language does not appear in the felony-firearm statute, which refers only to a second, third, or subsequent conviction, so that this analogy does not automatically compel the same result in the instant case.

The single plea-taking proceeding argument has no significance where, as here, the pleas were based on separate criminal offenses. On many occasions a defendant with several charges and files in a busy criminal court will plead guilty before one judge on one occasion to the charge or a reduced charge in each case. The sentences imposed are determined from the circumstances of each charge, and, if there was a repeated use of firearms, the Legislature clearly intended that the courts should count the number of times that a defendant used a firearm and sentence him accordingly.

Affirmed as to all convictions and sentences.

1 The record also reflects that the trial court imposed a sentence of from one to five years for unlawfully driving away an automobile, MCL 750.413; MSA 28.645, to be served concurrently with the sentences on the assault and armed robbery convictions.

2 The Court in Barrett was careful to limit the holding to the facts before it, questioning whether the cumulative sentencing provisions could come into play when multiple felony-firearm convictions arose out of a single criminal episode. Barrett, supra, 816, fn 4.

3 The statute provided:

"Any person, who, himself or by his clerk, agent or employe, shall violate any of the provisions of this act, for which violation a specific penalty is not herein provided, shall be guilty of a felony and upon conviction thereof be sentenced to pay a fine of not more than one thousand dollars and the costs of prosecution, or to imprisonment in any penal institution of this State for a period of not more than one year, or both such fine and imprisonment in the discretion of the court, and for every second■ and subsequent offense, so committed, whether in the same county or in any other county of the State, he shall, upon conviction thereof, be sentenced to imprisonment in any penal institution of this State for a term of not less than six months or more than two years, and in addition thereto the court may impose a fíne not to exceed one thousand dollars." 1919 PA 53, § 51. (Emphasis added.)

Another sentence enhancement scheme appears in at least two Michigan statutes. Under both the controlled substances provisions of the public health code and the criminal sexual conduct statute, increased penalties are imposed on the repeat offender. The precise issue in the instant case is avoided, however, as these statutes limit the application of their sentence-enhancement provisions to cases where a conviction on an enumerated prior offense exists before conviction on the second or subsequent offense, thereby avoiding the problem of "simultaneous” convictions. MCL 333.7413; MSA 14.15(7413), MCL 750.520f; MSA 28.788(6).