People v. Williams

814 N.W.2d 270, 491 Mich. 164, 2012 WL 1695462, 2012 Mich. LEXIS 626

Opinions

YOUNG, C.J.

Defendant appeals here his conviction of armed robbery. In particular, defendant argues that because he was unsuccessful in feloniously taking or removing any actual property from the intended target of his robbery, there was not a sufficient factual basis to support his guilty plea to the charge of armed robbery. We disagree. When the Legislature revised the robbery statute, MCL 750.530, to encompass a “course of conduct” theory of robbery, it specifically included “an attempt to commit the larceny” as sufficient to sustain a conviction for robbery itself. We conclude that this amendment effectuated a substantive change in the law governing robbery in Michigan such that a completed larceny is no longer necessary to sustain a conviction for the crime of robbery or armed robbery.

I. FACTS AND PROCEDURAL HISTORY

On July 13, 2006, defendant entered a gas station, declared that he had a gun, and ordered the attendant to give him all the money in the cash register. After the attendant complied, defendant forced the attendant into a back room and fled the scene with approximately $160 in stolen cash. The next day, defendant entered a tobacco shop, approached the clerk with his hand in his jacket, and stated, “You know what this is, just give me what I want.” The clerk did not give defendant any money or property, and defendant fled from the store without having stolen anything. Defendant was apprehended later that day by the police.

The prosecutor charged defendant with armed robbery¹ of the gas station and, in a separate information, charged defendant alternatively with assault with intent to rob while armed² and armed robbery for the events related to the tobacco shop. Defendant elected to plead guilty in both cases. At defendant’s plea hearing, the prosecutor advised that he would dismiss the charge of assault with intent to rob while armed in the tobacco shop case in return for defendant’s guilty plea to armed robbery.

After advising defendant of his options and constitutional rights, the circuit court established a factual basis for the plea relating to the incident that occurred at the tobacco shop. Under questioning by the prosecutor, defendant admitted that he had entered the tobacco shop with the intent to steal money, had his hand “up under” his coat, and told the clerk, “You know what this is, just give me what I want.” Defendant further admitted that “it was [his] intent, at that time, for [the clerk] to give [him] the money out of the cash register.” The court accepted defendant’s guilty plea.³ On February 9, 2007, the court sentenced defendant pursuant to a plea entered in accordance with People v Cobbs⁴ to concurrent prison terms of 24 to 40 years for the tobacco shop and gas station robberies.

Defendant subsequently moved to withdraw his pleas, contending that an adequate factual basis did not exist to support either conviction. Pertinent here, defendant argued that there was no evidence that he had taken or removed any property from the tobacco shop and that, absent a completed larceny, he could not be found guilty of armed robbery. The circuit court denied defendant’s motions. The court ruled that the language of the armed robbery statute as amended in 2004 allows for a conviction based on an attempted larceny, a basis that the plea discussions substantiated.⁵ The Court of Appeals granted defendant’s delayed application for leave to appeal, limited to the issue whether a factual basis existed for his conviction of the tobacco store robbery.⁶

In a split decision, the Court of Appeals affirmed.⁷ The majority acknowledged that while at common law a robbery required a completed larceny, the crimes of robbery and armed robbery now encompass attempts to commit those offenses following the 2004 statutory amendments. The dissenting judge argued that when the 2004 revisions are viewed through the “lens of common-law definitions,” there is inadequate support for the conclusion that the armed robbery statute would permit a conviction without an accomplished larceny.⁸

We granted defendant’s application for leave to appeal to determine “whether a larceny needs to be completed before a defendant may be convicted of armed robbery.”⁹

II. STANDARD OF REVIEW

This appeal concerns the proper interpretation of MCL 750.529 and MCL 750.530 and, in particular, whether the Legislature intended to remove the completed larceny requirement from the crime of robbery when it amended those statutes in 2004. Matters of statutory interpretation raise questions of law, which this Court reviews de novo.¹⁰

III. THE CRIME OF ROBBERY IN MICHIGAN

In this appeal, we are concerned with the statutes pertaining to robbery, MCL 750.530, and armed robbery, MCL 750.529. At common law, the offense of robbery was defined as “the felonious taking of money or goods of value from the person of another or in his presence, against his will, by violence or putting him in fear.”¹¹ “To constitute robbery, it [was] essential that there be a ‘taking from the person.’ ”¹² Thus, common law robbery required a completed larceny. Armed robbery required the same showing with the additional element that the robber was armed with a dangerous weapon.¹³

The crimes of robbery and armed robbery have been codified by Michigan statute since 1838.¹⁴ All subsequent iterations of the robbery statutes required a completed larceny, consistent with the common law. Before the 2004 amendments, MCL 750.529, defining armed robbery, provided:

Any person who shall assault another, and shall feloniously rob, steal and take from his person, or in his presence, any money or other property, which may be the subject of larceny, such robber being armed with a dangerous weapon, or any article used or fashioned in a manner to lead the person so assaulted to reasonably believe it to be a dangerous weapon, shall be guilty of a felony ... .

Footnotes

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[15]

In People v Randolph, this Court considered the scope of this previous version of the robbery statute and, in particular, whether the Legislature had adopted a “transactional approach” to robbery. Under a transactional theory of robbery, “a defendant has not completed a robbery until he has escaped with stolen [property]. Thus, a completed larceny may be elevated to a robbery if the defendant uses force after the taking and before reaching temporary safety.”¹⁶ In Randolph, this Court rejected the transactional approach as inconsistent with the plain language of the robbery statutes and common law history of robbery. Instead, we concluded that “the force used to accomplish the taking underlying a charge of unarmed robbery must be contemporaneous with the taking. The force used later to retain stolen property is not included.”¹⁷ Therefore, because “a larceny is complete when the taking occurs,”¹⁸ any “force, violence or putting in fear must be used before or contemporaneous with the taking” in order to elevate a larceny to a robbery.¹⁹

Following this Court’s decision in Randolph, the Legislature amended the robbery statutes. MCL 750.529, as amended by 2004 PA 128, now provides:

A person who engages in conduct proscribed under [MCL 750.530, the robbery statute] and who in the course of engaging in that conduct, possesses a dangerous weapon or an article used or fashioned in a manner to lead any person present to reasonably believe the article is a dangerous weapon, or who represents orally or otherwise that he or she is in possession of a dangerous weapon, is guilty of a felony punishable by imprisonment for life or for any term of years. If an aggravated assault or serious injury is inflicted by any person while violating this section, the person shall be sentenced to a minimum term of imprisonment of not less than 2 years.

Robbery is defined within MCL 750.530; as amended by 2004 PA 128, it states, in relevant part:

(1) A person who, in the course of committing a larceny of any money or other property that may be the subject of larceny, uses force or violence against any person who is present, or who assaults or puts the person in fear, is guilty of a felony punishable by imprisonment for not more than 15 years.

(2) As used in this section, “in the course of committing a larceny” includes acts that occur in an attempt to commit the larceny, or during commission of the larceny, or in flight or attempted flight after the commission of the larceny, or in an attempt to retain possession of the property.[20]

IV ANALYSIS

The question before this Court is whether the Legislature intended to remove the element of a completed larceny from the crime of robbery when it amended the statutes in 2004. We hold that the Legislature demonstrated a clear intent to remove the element of a completed larceny, signaling a departure from Michigan’s historical requirement and its common law underpinnings. Accordingly, an attempted robbery or attempted armed robbery with an incomplete larceny is now sufficient to sustain a conviction under the robbery or armed robbery statutes, respectively.

Our analysis begins, as it must, with the language of the robbery statutes themselves. “The cardinal rule of statutory construction is to discern and give effect to the intent of the Legislature.”²¹ This Court may best discern that intent by reviewing the words of a statute as they have been used by the Legislature. When a statute’s language is clear and unambiguous, this Court will enforce that statute as written.²²

The Legislature revised the robbery statute at issue here by removing the prior requirement that a robber feloniously “rob, steal or take” property from another, and it replaced this language with a new statutory phrase: “in the course of committing a larceny.” Key to solving the interpretative puzzle presented in this case, the Legislature specifically defined that phrase to include acts that “occur in an attempt to commit the larceny, or during commission of the larceny, or in flight or attempted flight after the commission of the larceny, or in an attempt to retain possession of the property.”²³

The Court of Appeals adopted the prosecution’s argument that the statutory language now “specifically considers and incorporates acts taken in an attempt to commit a larceny, regardless of whether the act is completed.”²⁴ In contrast, defendant and the Court of Appeals dissent argue that the statutory revisions were merely

intended to expand the temporal scope of the crime [of robbery], transforming it into a transactional offense. Reading [MCL 750.]530(1) and (2) as a contextual whole, it appears that the Legislature sought to make clear that robbery encompasses acts that occur before, during, and after the larceny, not that the Legislature intendéd to eliminate larceny as an element of the crime.[25]

In other words, construing “the statutory crime through the lens of common-law definitions,”²⁶ the Court of Appeals dissent would have held that the Legislature intended to do no more than abrogate this Court’s decision in Randolph. For the reasons stated below, we agree with the prosecution and the Court of Appeals majority.

In revising the robbery statutes, the Legislature replaced the “familiar words”²⁷ of the common law crime of robbery — “rob, steal and take” — with the phrase “in the course of committing a larceny,” which the Legislature specifically defined to include “acts that occur in an attempt to commit the larceny.” The word “attempt” has a well-known common and legal meaning:

1. The act or an instance of making an effort to accomplish something, [especially] without success. 2. Criminal law. An overt act that is done with the intent to commit a crime but that falls short of completing the crime.[28]

Particularly in the realm of the criminal law, the word “attempt” is widely used with regard to any type of crime in which a person intends to commit a crime and acts toward its commission but is unsuccessful in its completion.

Indeed, it is inherent in the word “attempt” that the illegal act intended is not accomplished. Accordingly, the plainest understanding of the phrase “in an attempt to commit the larceny” applies to situations in which a criminal defendant makes “an effort” or undertakes an “overt act” with an intent to deprive another person of his property, but does not achieve the deprivation of property. The language of this phrase is clear on its face and not ambiguous in the least, and therefore it must be enforced as written, free of any “contrary judicial gloss.”²⁹

Defendant’s alternative interpretation fails to accord this language its plain and ordinary meaning. Again, defendant argues that the 2004 amendments were merely a legislative response to this Court’s decision in Randolph and, as such, must be artificially limited to a legislative adoption of the transactional approach to robbery, which Randolph had rejected. Defendant contends that the phrase “attempt to commit the larceny” was intended to mean acts done “before” the larceny, and thus, consonant with the transactional approach, the entire time continuum in which force must be used during a robbery now includes acts done before, during, and after the commission of the larceny. This argument fails as a matter of statutory interpretation for two reasons.

First and foremost, the meaning of the word “attempt” is not synonymous with “before” or “as a preface,” as defendant’s argument requires. While “attempt” refers to an unsuccessful effort to complete an act, “before” is defined as “in front of; ahead of” and “[p]rior to.”³⁰ These concepts are not equivalent, and the best way to determine the Legislature’s intent is by giving plain meaning to the words actually used, rather than presuming that the Legislature meant to say something entirely different. This Court will not assume that the Legislature inadvertently made use of one word or phrase instead of another.³¹

Second, the Legislature used the phrase “in an attempt” twice in the statute, but defendant would have this Court impute the “before” meaning of “attempt” only to the first use of that phrase, thereby rendering the statutory provision internally inconsistent. In addition to the use of “attempt” in the phrase “in an attempt to commit the larceny,” MCL 750.530 also provides that “in the course of committing a larceny” includes “in an attempt to retain possession of the property.”³² Defendant does not argue that his “before” construction of “attempt” should apply to anything other than the phrase “in an attempt to commit the larceny.”³³ Therefore, in order to adopt defendant’s position, this Court would have to hold that the Legislature intended the same phrase to have two different meanings within the same sentence of the same statutory provision. Defendant’s interpretation would require this Court not only to redefine an unambiguous statutory phrase in a contradictory manner, but to do so selectively.

Defendant’s interpretation that the Legislature’s use of “attempt to commit the larceny” merely serves as a placeholder for actions occurring before the larceny significantly ignores the fact that pre-larceny force was already contemplated under the prior version of the statute. Randolph itself recognized that when force is used before the larceny, that force is sufficient to sustain a conviction for robbery.³⁴ Indeed, this Court was in unanimous agreement in Randolph on this point.³⁵ Thus, given that the law already provided that force used before the larceny was within the purview of the robbery statute, it would be passing strange for the Legislature to have amended this statutory language if it had merely intended to accomplish what already was. This conclusion is particularly compelling because the 2004 amendments were, in part, a legislative response to Randolph.

Instead, we believe that the clear language of the amended statutes reflects a legislative intent to effect a broader change in the robbery statutes. The 2004 revisions deleted the words denoting actual deprivation of property — “rob, steal and take” — and replaced them with a broader phrase: “in the course of committing a larceny.”³⁶ The deletion and replacement of what this Court long ago called the “familiar words” of robbery is perhaps the best and most compelling indication that the Legislature intended an extensive deviation from the common law rule. Such a revision would have been completely unnecessary if the Legislature had merely sought to adopt a transactional theory of robbery.

Ultimately, defendant and the dissent would have this Court interpret the robbery statutes in accordance with an unstated legislative intent rather than the plain meaning of the words chosen.³⁷ This approach to statutory interpretation has been consistently criticized and rejected.³⁸ So too has this Court rejected the dissent’s resort to unauthoritative legislative analyses in order to displace statutory language.³⁹ Because the Legislature specifically defined “in the course of committing a larceny,” it would be inappropriate for this Court to provide meaning to that phrase in a contrary or alternative way.⁴⁰ But by arguing that the 2004 amendments of MCL 750.530 should be limited to the adoption of a transactional approach to robbery, that is precisely what defendant and the dissent would have this Court do. Even recognizing that the Legislature’s 2004 revisions were spurred by a response to Randolph, it is clear that the Legislature has plainly and objectively done more than adopt a transactional approach to robbery. The Legislature’s decision to include attempted robbery within the understanding of robbery itself represents a legislative choice — an exercise of its prerogative to define the elements of a crime — that this Court will not upset.

We further note that the Legislature’s particular policy decision in amending the robbery and armed robbery statutes is consistent with the Model Penal Code (MPC), which provides:

(1) Robbery Defined. A person is guilty of robbery if, in the course of committing a theft, he:

(a) Inflicts serious bodily injury upon another; or

(b) Threatens another with or purposely puts him in fear of immediate serious bodily injury; or

(c) Commits or threatens immediately to commit any felony of the first or second degree.

An act shall be deemed “in the course of committing a theft” if it occurs in an attempt to commit theft or in flight after the attempt or commission.[41]

It is noteworthy that the MPC’s definition of robbery is strikingly similar to that of Michigan’s amended robbery statute.⁴² The almost identical usage of “in the course of committing a larceny/theft” in the MPC and MCL 750.530 indicates a more expansive conception of robbery than previously existed in Michigan law. In particular, like that of MCL 750.530, the MPC’s defini tion for “in the course of committing a theft” explicitly includes the attempt form of robbery in an almost identical fashion. With regard to this change to subsume attempted robbery under the robbery provision itself, the official comment to MPC § 222.1 provides a useful and telling discussion:

Since common-law larceny and robbery required asportation, the severe penalties for robbery were avoided if the victim had no property to hand over or if the theft were interrupted before the accused laid hold of the goods. Moreover, the penalties for attempted robbery were considerably milder than those authorized for the completed crime. The perception that one who attempts a robbery poses essentially the same dangers as the successful robber led legislatures to develop more serious sanctions for various forms of attempt. The offense of assault with intent to rob was one response and redefining robbery to include an assault with intent to rob was another. Often some distinctions in penalty were preserved.

There is, however, no penological justification for distinctions on this basis. The same dangers are posed by the actor who is interrupted or who is foiled by an empty pocket as by the actor who succeeds in effecting the theft. The same correctional dispositions are justified as well. The primary concern is with the physical danger or threat of danger to the citizen rather than with the property aspects of the crime. By including attempted thefts within the time span during which robbery can occur, Section 222.1 therefore makes it immaterial whether property is obtained.[43]

At least 23 states in addition to Michigan have instituted changes including attempts to rob as sufficient to prove robbery itself, often adopting a “course of conduct” theory of when robbery occurs.⁴⁴

The desire to punish attempted robberies the same as a robbery itself corresponds with the understanding, long recognized in Michigan, that the greater social harm perpetrated in a robbery is the use of force rather than the actual taking of another’s property. As this Court has explained:

Robbery, while containing elements of theft of property, is primarily an assaultive crime. “Robbery violates the social interest in the safety and security of the person as well as the social interest in the protection of property rights. In fact, as a matter of abstract classification, it probably should be grouped with offenses against the person .. ..” Classification as an offense against a person is particularly appropriate where the robbery is committed with the aggravating element of the perpetrator being armed. In this situation, the safety and security of the person is most severely threatened, and the larcenous taking is of secondary importance.[45]

In accordance, the plain language of the 2004 statutory revisions of MCL 750.529 and MCL 750.530 establishes the Legislature’s clear intent to include attempts to rob within the scope of the robbery statutes. Accordingly, when an intended robber is in possession of, appears to be in possession of, or represents that he is in possession of a dangerous weapon as stated in MCL 750.529, that person may be guilty of armed robbery even if the larcenous taking is not completed.

V APPLICATION

Aside from the question whether a completed larceny is necessary to support a conviction for robbery, the parties in this case do not dispute that defendant’s plea was sufficient to sustain a conviction for armed robbery of the tobacco shop. Having held that an attempted larceny may satisfy the requirements of MCL 750.529 and MCL 750.530, as amended, we affirm defendant’s conviction.

At his plea allocution, defendant admitted that he assaulted, or otherwise used the threat of force or violence against, the clerk in “the course of committing a larceny” of the tobacco shop. Defendant admitted that it was his intent to rob the clerk of the tobacco shop’s money. It also was established at defendant’s plea hearing that at the time of the robbery defendant intimated that he had a dangerous weapon, both by verbally alluding to this fact and by placing his hand under his clothing so as to represent that he was armed with a weapon. Even though defendant was unsuccessful in obtaining money, his attempt to complete a larceny while representing that he was armed with a dangerous weapon satisfied MCL 750.529. Accordingly, the facts elicited at the plea allocution were sufficient to sustain defendant’s conviction for armed robbery, and the circuit court did not err by denying defendant’s motion to withdraw that plea.

VI. CONCLUSION

In 2004, the Legislature considerably broadened the scope of the robbery statute, MCL 750.530, to encompass a “course of conduct” theory of robbery, which specifically includes “an attempt to commit the larceny.” We conclude that this amendment effectuated a substantive change in the law governing robbery in Michigan such that a completed larceny is no longer necessary to sustain a conviction for the crime of robbery or armed robbery. The judgment of the Court of Appeals is affirmed.

Markman, Mary Beth Kelly, and Zahra, JJ., concurred with Young, C.J.

1

MCL 750.529.

2

MCL 750.89.

3

Defendant also entered a nolo contendere plea with regard to the gas station robbery.

4

People v Cobbs, 443 Mich 276; 505 NW2d 208 (1993). Defendant and the court agreed that defendant’s minimum sentence would not exceed 24 years.

5

The circuit court also denied defendant’s motion to withdraw his nolo contendere plea with regard to the gas station robbery, holding that the plea proceeding and the police report established a sufficient factual basis for the plea.

6

People v Williams, unpublished order of the Court of Appeals, entered June 16, 2008 (Docket No. 284585).

7

People v Williams, 288 Mich App 67; 792 NW2d 384 (2010).

8

Id. at 91, 93 (Gleichek, J., dissenting).

9

People v Williams, 489 Mich 856 (2011).

10

People v Morey, 461 Mich 325, 329; 603 NW2d 250 (1999).

11

People v Covelesky, 217 Mich 90, 96; 185 NW 770 (1921) (citation and quotation marks omitted).

12

Id. at 97 (citation and quotation marks omitted).

13

People v Calvin, 60 Mich 113, 119; 26 NW 851 (1886).

14

See 1838 RS, pt 4, tit I, ch 3, §§ 10 (armed robbery) and 12 (unarmed robbery).

15 As amended by 1959 PA 71.