People v. Brown, Docket No. 181738

• Decision Date: 27 December 1996
• Docket Number: Docket No. 181738
• Citation: 560 N.W.2d 80,220 Mich.App. 680
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Darryl Kim BROWN, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 80

560 N.W.2d 80

220 Mich.App. 680

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Darryl Kim BROWN, Defendant-Appellant.

Docket No. 181738.

Court of Appeals of Michigan.

Submitted Dec. 10, 1996, at Detroit.

Decided Dec. 27, 1996, at 9:25 a.m.

Released for Publication March 18, 1997.

Kenneth M. Waldhorn, Detroit, for defendant-appellant on appeal.

Before SMOLENSKI, P.J., and MICHAEL J. KELLY and J.R. WEBER, ^* JJ.

SMOLENSKI, Presiding Judge.

Defendant was convicted after a bench trial of felonious assault, M.C.L. § 750.82; M.S.A. § 28.277, and possession of a firearm during the commission of a felony, M.C.L. § 750.227b; M.S.A. § 28.424(2). He was sentenced to a term of two years' imprisonment for the felony-firearm conviction and a consecutive term of five years' probation for the felonious assault conviction. Defendant appeals by leave granted. We remand.

In reliance on subsection two of the felony-firearm statute, defendant argues that the consecutive nature of his sentence of probation is an impermissible sentence. Defendant failed to raise this issue below. Generally, this Court declines to consider an issue not decided by the trial court. However, we may consider the question if the issue is, as in this case, one of law and the record is factually sufficient. Aetna Casualty & Surety Co. v. American Community Mutual Ins. Co., 199 Mich.App. 30, 34, 501 N.W.2d 174 (1993); People v. Lumsden, 168 Mich.App. 286, 292, 423 N.W.2d 645 (1988).

Subsection two of the felony-firearm statute provides as follows:

A term of imprisonment prescribed by this section is in addition to the sentence imposed for the conviction of the felony or the attempt to commit the felony, and shall be served consecutively with and preceding any term of imprisonment imposed for the conviction of the felony or attempt to commit the felony. [M.C.L. § 750.227b(2); M.S.A. § 28.424(2)(2) (emphasis supplied).]

Specifically, defendant contends that the plain meaning of subsection two does not allow the imposition of a consecutive sentence where the sentence for the underlying felony is a term of probation and not a term of imprisonment. We agree. We have found several published decisions where a sentence of a term of probation for the underlying felony has been imposed consecutively to the mandatory two-year prison term for a felony- firearm conviction. See, e.g., People v. Vann, 448 Mich. 47, 50, 528 N.W.2d 693 (1995); People v. McShan, 120 Mich.App. 496, 498-499, 327 N.W.2d 509 (1982). However, we have been unable to find any published cases actually addressing the propriety of consecutive sentencing under such circumstances. Thus, the issue appears to be one of first impression.

The goal of statutory construction is to effect the intent of the Legislature. People v. Morris, 450 Mich. 316, 326, 537 N.W.2d 842 (1995). If the statute is clear, we enforce its directive. Id. Only where a statute is unclear and susceptible to more than one interpretation is judicial construction allowed. Id.

In this jurisdiction, concurrent sentencing is the norm. People v. Alvarado, 192 Mich.App. 718, 720, 481 N.W.2d 822 (1992). A consecutive sentence may be imposed only if specifically authorized by statute. People v. Nantelle, 215 Mich.App. 77, 79, 544 N.W.2d 667 (1996); Alvarado, supra. Although probation is a substitute for imprisonment, it is, in fact, an actual sentence. People v. Moon, 125 Mich.App. 773, 780, 337 N.W.2d 293 (1983). Probation is within the province of the sentencing judge and appellate courts will not interfere absent a showing of a violation or abuse of statutory authority or a violation of some constitutional right. People v. Lemon, 80 Mich.App. 737, 742, 265 N.W.2d 31 (1978).

Under the plain language of the first phrase of the sentence contained in M.C.L. § 750.227b(2); M.S.A. § 28.424(2)(2), the term of imprisonment imposed for defendant's felony-firearm conviction is in addition to the sentence of probation imposed for the felonious assault conviction. However, the plain language of the second phrase of this sentence provides that the term of imprisonment imposed for defendant's felony-firearm conviction shall only be served consecutively with and before a sentence of imprisonment for the underlying felony. People v. Sawyer, 410 Mich. 531, 535, 302 N.W.2d 534 (1981). Clearly, the second phrase of M.C.L. § 750.227b(2); M.S.A. § 28.424(2)(2) does not provide statutory authority for the imposition of a consecutive sentence of probation.

Subsection three of the felony-firearm statute provides as follows:

A term of imprisonment imposed under this section shall not be suspended. The person subject to the sentence mandated by this section is not eligible for parole or probation during the mandatory term imposed pursuant to subsection (1). [M.C.L. § 750.227b(3); M.S.A. § 28.424(2)(3).]

Arguably, the second sentence of this subsection only prohibits parole or probation with respect to the felony-firearm sentence itself, in the same way that the first sentence of this subsection only prohibits suspension of the prison sentence imposed for the felony-firearm conviction itself, not the sentence imposed for the conviction of the underlying felony. In any event, the second sentence of this subsection speaks only to eligibility for parole or probation. Thus, even assuming that the second sentence concerns eligibility for parole or probation for sentences imposed for both the felony-firearm conviction and the underlying felony conviction, we do not interpret this sentence as automatically delaying the commencement of any sentence of probation imposed for the underlying felony until the expiration of the two-year term of the felony-firearm sentence.

Nor do we find in the statutes concerning probation, M.C.L. § 771.1 et seq.; M.S.A. § 28.1131 et seq., any authority for the imposition of a consecutive sentence of probation in this case. M.C.L. § 771.2; M.S.A. § 28.1132 provides, in relevant part, as follows:

(1) Except as provided in section 2a of this chapter, if the defendant is convicted for an offense that is not a felony, the period of probation shall not exceed 2 years. Except as provided in section 2a of this chapter, if...