People v. Gonzalez

• Decision Date: 08 December 1992
• Docket Number: Docket Nos. 131337,131338
• Citation: 197 Mich.App. 385,496 N.W.2d 312
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Angel Luis GONZALEZ, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 312

496 N.W.2d 312

197 Mich.App. 385

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Angel Luis GONZALEZ, Defendant-Appellant.

Docket Nos. 131337, 131338.

Court of Appeals of Michigan.

Submitted July 7, 1992, at Grand Rapids.

Decided Dec. 8, 1992, at 9:35 a.m.

Released For Publication March 18, 1993.

Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., William A. Forsyth, Pros. Atty., Timothy K. McMorrow, Chief Appellate Atty., and Nadine R. Dahm, Asst. Pros. Atty., for the People.

John E. Meeks, Grand Rapids, for defendant-appellant on appeal.

Before DOCTOROFF, C.J., and REILLY and JANSEN, JJ.

PER CURIAM.

In Docket No. 131337, defendant was convicted by a jury of two counts of armed robbery, M.C.L. Sec. 750.529; M.S.A. Sec. 28.797, and one count of possession of a firearm during the commission of a felony, M.C.L. Sec. 750.227b; M.S.A. Sec. 28.424(2). The jury was unable to reach a verdict on the additional charge of felony murder, M.C.L. Sec. 750.316; M.S.A. Sec. 28.548, and a felony-firearm charge related thereto. Rather than submitting to retrial of the felony-murder charge, defendant pleaded guilty of second-degree murder, M.C.L. Sec. 750.317; M.S.A. Sec. 28.549. Defendant was sentenced to serve a term of life for his second-degree murder conviction, twenty-three to forty years for each of the armed robbery convictions, and two years for the felony-firearm conviction.

In Docket No. 131338, defendant pleaded nolo contendere to charges of assault with intent to commit murder, M.C.L. Sec. 750.83; M.S.A. Sec. 28.278, and felony-firearm. He was sentenced to serve thirteen to twenty-five years for the assault conviction, to run consecutively to the mandatory two-year sentence for his felony-firearm conviction. The sentences in this case are to run concurrently with the sentences in Docket No. 131337.

Defendant appeals claiming that his plea of guilty of second-degree murder in Docket No. 131337 and his nolo contendere pleas to assault and felony-firearm in Docket No. 131338 were involuntary because the plea agreements were illusory, that his sentences for the armed robbery convictions violate the principle of proportionality announced in People v. Milbourn, 435 Mich. 630, 461 N.W.2d 1 (1990), and that the trial court improperly communicated with the jury during deliberations. We disagree with all of these assertions of error and affirm defendant's convictions and sentences in both cases.

Defendant's convictions in Docket No. 131337 arise out of a robbery that occurred in the early morning hours of September 21, 1989. Tony Davis testified that he was at a Grand Rapids gas station after work when Charlene Bryant approached him and asked for a ride. He agreed to take Bryant to Grandville, even though he had never seen her before. Davis further testified that, when they got to Grandville, Bryant got out of the truck near a house where there were three or four Hispanic males in the front yard. Thereafter, a man whom Davis would later identify as defendant approached the truck and ordered him to get out. Davis was escorted to an area between two houses where he saw a number of other Hispanic men with Bryant.

Davis testified that the men ordered him and Bryant to their knees, whereupon defendant took Davis' wallet, his watch, and the keys to his truck. He also testified that defendant took Bryant's money as well. Davis stated that defendant left the area for a few minutes and returned with items that he believed came from his truck. Defendant then told Davis that he never wanted to see him in the area again and released him. As Davis walked away from the scene, he heard a gunshot and saw everyone running away. Davis went directly to the police station where he told officers that he had been robbed. After Davis gave a statement, the police showed him a picture of Bryant and told him that she had been shot. Davis later identified defendant in a lineup, and the charges addressed above were filed.

In addition to Davis, two other witnesses testified at trial regarding the incident. Vanessa Sanduskey testified that she saw defendant shoot a black lady in between two houses. (Bryant was a black woman.) Jesse Torrez testified that he was with defendant on the night of the robbery and that defendant had a pistol. Torrez further testified that he heard a gunshot and saw defendant running from between the two houses and trying to stick his gun in a pouch. Torrez stated that defendant told him that he shot Bryant.

Defendant's convictions in Docket No. 131338 arise out of a separate robbery that occurred on September 16, 1989, in Grand Rapids. On that night, defendant allegedly pointed a gun at Stephen Green and demanded his money. Green gave defendant twenty dollars and, as he walked away, defendant allegedly shot him in the arm. Green later identified defendant in a lineup. On September 29, 1989, an information was issued charging defendant with one count of armed robbery, one count of felony-firearm in relation to the armed robbery, one count of assault with intent to commit murder, and one count of felony-firearm in relation to the assault. Defendant pleaded nolo contendere to assault with intent to commit murder and felony-firearm, with the understanding that the prosecution would not pursue the armed robbery and felony-firearm charges and other charges arising out of an unrelated incident.

Defendant's first argument is that his plea of guilty of the second-degree murder charge was illusory because it was based upon the erroneous assumption that he could be retried for the felony-murder charge. ¹ We disagree.

A defendant's plea of guilty will not be set aside where we are convinced that it was knowingly, intelligently, and voluntarily given. MCR 6.302. However, this Court has invalidated pleas where the underlying bargain was illusory. People v. Mrozek, 147 Mich.App. 304, 306-307, 382 N.W.2d 774 (1985). Nonetheless, if the value of the bargain is genuine, valid, and known to the defendant, the plea will be upheld. Id. One instance where this Court has found a plea to be illusory is where a defendant is improperly charged with a greater offense and the defendant pleads guilty of a lesser offense to avoid conviction of the greater. Id. at 308, 382 N.W.2d 774; People v. Goins, 54 Mich.App. 456, 461-462, 221 N.W.2d 187 (1974). Notwithstanding a lack of consideration to support a defendant's plea, we will not set the plea aside where the facts indicate that the plea is voluntary. Mrozek, supra, 147 Mich.App. at 307, 382 N.W.2d 774.

In this case, defendant claims that a retrial of the felony-murder count would be a violation of his protection from double jeopardy because he was already convicted of the predicate felony. Defendant argues that because his plea of guilty of second-degree murder was premised upon the erroneous conclusion that he could be retried for felony murder, the plea agreement was illusory. We disagree with defendant's contention that principles of double jeopardy would have prohibited the prosecution from retrying him for felony murder and therefore decline to set aside his plea.

Individuals are constitutionally protected from being placed twice in jeopardy for the same offense. U.S. Const., Am. V; Const. 1963, art. 1, Sec. 15; People v. Gibbs, 120 Mich.App. 485, 492-493, 328 N.W.2d 65 (1982). There are three separate protections afforded within the guarantee: (1) protection against prosecution for the same offense after an acquittal, (2) protection against a second prosecution for the same offense after conviction, and (3) protection against multiple punishments for the same offense. Ohio v. Johnson, 467 U.S. 493, 498, 104 S.Ct. 2536, 2540, 81 L.Ed.2d 425 (1984); People v. Crawford, 187 Mich.App. 344, 347, 467 N.W.2d 818 (1991).

The focus of this case is limited to whether retrial of defendant for felony murder, following a conviction for the predicate felony, violates the protection against successive prosecutions for the same offense. We are not concerned with whether defendant was subjected to multiple punishments for the same offense because defendant pleaded guilty of second-degree murder, rather than felony murder. Had defendant pleaded guilty of felony murder, we would be faced with a situation where defendant was subjected to multiple punishments for the same offense. See People v. Passeno, 195 Mich.App. 91, 96, 489 N.W.2d 152 (1992). However, defendant's plea of guilty of second-degree murder prevented the multiple punishment problem from arising.

Whether we are evaluating double jeopardy concerns under the federal or state constitution, the purposes of the protection against multiple prosecutions for the same offense are identical: to deter prosecutorial abuse of the charging function and to preserve the finality of judgments. Johnson, supra, 467 U.S. at 501, 104 S.Ct. at 2541; People v. Sturgis, 427 Mich. 392, 398-399, 397 N.W.2d 783 (1986). In Michigan, the test to determine whether successive prosecutions violate the protection against multiple prosecutions for the same offense is commonly referred to as the "same transaction test." Id. at 401, 397 N.W.2d 783. In contrast, the United States Supreme Court merely applies a test to determine whether both prosecutions are for the "same offense." Garrett v. United States, 471 U.S. 773, 786, 105 S.Ct. 2407, 2415, 85 L.Ed.2d 764 (1985).

Although the language of the Michigan Double Jeopardy Clause is "substantially identical" to that of the federal constitution, People v. White, 390 Mich. 245, 252, n. 4, 212 N.W.2d 222 (1973); Passeno, supra, 195 Mich.App. at 95, 489 N.W.2d 152, Michigan's Double Jeopardy Clause affords a broader scope of protection than the federal clause where multiple prosecutions are concerned. People v. Carter, 415 Mich. 558, 582, 330 N.W.2d 314 (1982), People v. Harrington, 194 Mich.App. 424, 428, 487 N.W.2d 479 (1992). We conclude that no matter which of the double jeopardy clauses...