People v. Becoats

• Decision Date: 01 February 1990
• Docket Number: Docket No. 114274
• Citation: 181 Mich.App. 722,449 N.W.2d 687
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Lewis James BECOATS, Jr., Defendant-Appellant. 181 Mich.App. 722, 449 N.W.2d 687
• Court: Court of Appeal of Michigan — District of US

Page 687

449 N.W.2d 687

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Lewis James BECOATS, Jr., Defendant-Appellant.

Docket No. 114274.

181 Mich.App. 722, 449 N.W.2d 687

Court of Appeals of Michigan.

Submitted Sept. 11, 1989.

Decided Sept. 21, 1989.

Released for Publication Jan. 22, 1990.

Leave to Appeal Dismissed Feb. 1, 1990.

[181 MICHAPP 723] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Robert E. Weiss, Pros. Atty., Donald A. Kuebler, Chief, Appellate Div.; and Gladys L. Christopherson, Asst. Pros. Atty., for the People.

Hatchett, DeWalt, Hatchett & Hall by William M. Hatchett, Pontiac, for defendant-appellant on appeal.

Before GILLIS, P.J., and MAHER and BRENNAN, JJ.

PER CURIAM.

Defendant pled guilty to possession with intent to deliver 50 or more, but less than 225, grams of cocaine. M.C.L. Sec. 333.7401(1) and (2)(a)(iii); M.S.A. Sec. 14.15(7401)(1) and (2)(a)(iii). In exchange, a charge of possession of a firearm during the commission of a felony was dismissed. M.C.L. Sec. 750.227b; M.S.A. Sec. 28.424(2). Defendant was sentenced to five to twenty years imprisonment. Defendant appeals as of right. We affirm defendant's conviction, but remand for resentencing.

[181 MICHAPP 724] Defendant claims that the circuit court erred when it denied his motion to suppress his statement. Defendant has failed to provide us with a copy of his plea-taking transcript and there is nothing in the record to indicate that this issue was preserved for appeal; therefore, it is waived. People v. New, 427 Mich. 482, 398 N.W.2d 358 (1986).

Defendant also claims that his plea bargain was illusory because he could not have been convicted of felony-firearm, relying on People v. Myers, 153 Mich.App. 124, 395 N.W.2d 256 (1986). In Myers, the police arrived at the defendant's home to execute a search warrant at 7:00 a.m. The defendant answered the door in his underwear and was arrested and handcuffed. A large bag of marijuana was found in the front room on the television. A further search of the house revealed two smaller baggies of marijuana and several firearms in a gun cabinet in the defendant's upstairs bedroom and adjoining attic. This Court held that as a matter of law the defendant could not have been convicted of felony-firearm because the weapons were neither in his physical possession nor available and accessible to him given that he was surrounded by the police, handcuffed and confined to the living room, and fifty feet and a staircase away from the gun cabinet from the time the police entered his home until the time the firearms were discovered. Hence, this Court held that the dismissal of a felony firearm charge in exchange for defendant's guilty plea to possession of marijuana with intent to deliver was illusory.

In this case, defendant lived in a small one-story house. An informant made a controlled buy from the house, using bills whose serial numbers had been recorded. Five hours later, at 11:25 p.m., the police attempted to gain entry into defendant's [181 MICHAPP 725] home to execute a search warrant. They heard shuffling inside and observed a figure go by the living room blinds. The police forced the door and discovered two black females in the home's basement. Defendant was discovered bending over the toilet bowl in the bathroom. Once defendant observed the police, he stood upright and water was dripping from his arms. In the toilet were five snuff Seal papers containing cocaine, a baggie of cocaine, and a plastic freezer bag containing eight baggies of cocaine. Near the toilet was a tin and a baggie of cocaine. Defendant was arrested, handcuffed and taken to the living room, where he was secured.

In the northeast bedroom, across the hallway from the bathroom, the police discovered two loaded pistols. One was on the lower shelf of defendant's headboard with a baggie of marijuana on the upper shelf. The other gun was in a drawer underneath defendant's waterbed. The police also found $2,500 in the pocket of a shirt hanging in a closet in the northeast bedroom. One of the bills in that roll matched the money given to the police informant.

In the northwest bedroom, next to the bathroom, the police discovered an unloaded Titan .22 caliber semi-automatic pistol on the shelf of a wardrobe closet.

The north closet in the home contained an unloaded shotgun.

In the kitchen cupboard police found a scale and baggies containing white residue. There were also two empty inositol bottles. A white dish on top of the refrigerator contained a sifter, single-edge razor blades, five straws, a spoon, and Gem pacs containing white powder.

In the basement the police seized a gold clutch purse containing $65. In the pocket of a chair in [181 MICHAPP 726] the basement, the police found a semi-automatic pistol with four live rounds in the clip. There were also two long guns in the basement in a gun case or under a couch.

In the garage in a large garbage bag the police discovered a tin containing various size baggies, Gem pacs, two Gem...