People v. Sawyer, 64464
| Decision Date | 10 March 1981 |
| Docket Number | No. 64464,64464 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ralph E. SAWYER, Defendant-Appellant. 410 Mich. 531, 302 N.W.2d 534 |
| Court | Michigan Supreme Court |
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Edward Reilly Wilson III, Principal Atty., Appeals, and Don W. Atkins, Asst. Pros. Atty., Detroit, for the People.
Ralph E. Sawyer, in pro. per.
Pursuant to Administrative Order 1977-4, 400 Mich. lxvii (1977), defendant has requested that this Court review his convictions. This case presents two sentencing questions arising under Michigan's felony-firearm statute, M.C.L. § 750.227b; M.S.A. § 28.424(2). We hold that multiple terms of imprisonment for felony-firearm must be served concurrently, notwithstanding the fact that each term of imprisonment for felony-firearm is to be served consecutively with and preceding any term of imprisonment imposed for the commission of the felony. We further hold that a five-year term of imprisonment for a second offense of felony-firearm cannot be imposed unless the second offense is committed subsequent to the first conviction.
On two separate occasions, defendant committed robbery while armed with a firearm. Separate prosecutions were thereafter undertaken and defendant was in each case charged with one count of armed robbery, M.C.L. § 750.529; M.S.A. § 28.797, and one count of felony-firearm, M.C.L. § 750.227b; M.S.A. § 28.424(2). At a single plea proceeding, defendant pled guilty to all four felony counts. Defendant had not previously been convicted of felony-firearm.
The trial judge thereafter sentenced the defendant to prison for armed robbery. He also sentenced the defendant to a two-year term of imprisonment for the felony-firearm offense which occurred first and to a five-year term of imprisonment for the felony-firearm offense which occurred second. He properly directed that each term of imprisonment for felony-firearm was to be served consecutively with and preceding the accompanying term of imprisonment imposed for armed robbery. He properly directed that the two terms of imprisonment for armed robbery be served with one another. He further directed, however, that the two terms of imprisonment imposed for felony-firearm be served consecutively. Defendant was thus obliged to serve a seven-year term of imprisonment for felony-firearm prior to beginning his term of imprisonment for the second armed robbery conviction. 1 The Court of Appeals affirmed, 94 Mich.App. 393, 288 N.W.2d 438.
Absent statutory authority for imposing a consecutive sentence, it is the rule in this state to impose concurrent sentences, People v. Gallagher, 404 Mich. 429, 439, 273 N.W.2d 440 (1979). The felony-firearm statute reads, in full, as follows:
A careful reading of subdivision (2) reveals that the Legislature has only directed that the sentence for felony-firearm be served prior to and consecutively with any term of imprisonment imposed for the felony. The statute neither compels nor authorizes a trial judge to impose consecutive multiple sentences for felony-firearm. 2 Thus we conclude that the trial judge erred in this case in directing that defendant's two sentences for felony-firearm be served consecutively.
Defendant pled guilty to two counts of felony-firearm at a single plea proceeding. The offense which occurred second was treated as a second offense for sentencing purposes and the defendant received a five-year term of imprisonment therefor. The statute indicates that the five-year term is to be given to one who sustains "a second conviction under this section". It is by no means clear that the Legislature intended the result found in this case. There are a number of purposes served when the Legislature provides increasing punishment for repeat offenders. These include deterrence and the proper desire of society to provide more severe punishment for a person who declines to change his or her ways following an opportunity to reform. These purposes are not served by imposing a more severe sentence on the day when a defendant first pleads guilty, and we accordingly believe that the Legislature intended that a five-year term of imprisonment for a second conviction should only be imposed where the second offense is subsequent to the first conviction.
Furthermore, this position is consistent with the well settled "rule of lenity" that has been developed by the United...
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