People v. Johnson, Docket Nos. 77-2389

• Court: Court of Appeal of Michigan (US)
• Writing for the Court: BEASLEY; In a scholarly and historically accurate opinion affirming; Also, in Gore, supra; KAUFMAN
• Citation: 85 Mich.App. 654,272 N.W.2d 605
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Walter JOHNSON, Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Edgar JOHNSON, Defendant-Appellant.
• Decision Date: 20 September 1978
• Docket Number: 77-2309 and 77-2397,Docket Nos. 77-2389,77-2398

Page 605

272 N.W.2d 605 85 Mich.App. 654 PEOPLE of the State of Michigan, Plaintiff-Appellee,
v.
Walter JOHNSON, Defendant-Appellant.
PEOPLE of the State of Michigan, Plaintiff-Appellee,
v.
Edgar JOHNSON, Defendant-Appellant. Docket Nos. 77-2389, 77-2398, 77-2309 and 77-2397. Court of Appeals of Michigan. Sept. 20, 1978.
Released for Publication Dec. 18, 1978.

Page 606

[85 Mich.App. 657] Richard E. Manning and Bruce R. Saperstein, Detroit, for defendants-appellants.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Edward R. Wilson, Appellate Chief Asst. Pros. Atty., Larry L. Roberts, Asst. Pros. Atty., for plaintiff-appellee.

Before KAUFMAN, P. J., and BEASLEY and MAHINSKE, ^* JJ.

BEASLEY, Judge.

Defendants pled guilty to charges of armed robbery ¹ and possession of a firearm in the commission of a felony, ² in connection

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with two robberies of two different Detroit bars, on January 9, 1977, and January 24, 1977, respectively. The pleas were the result of a plea bargain under which other charges against defendants were dropped and the prosecutor agreed not to pursue habitual criminal possibilities against them. Each defendant was sentenced for each of the two robberies, first to a two-year mandatory term for the felony-firearm violation and not less than 25 nor more than 75 years in prison for armed robbery, the latter term to commence following the completion of the former. It was understood that the two sentences for each defendant would run concurrently. Defendants appeal as of right.

First, defendants contend that the trial judge [85 Mich.App. 658] elicited no response from them as to their waiver of constitutional rights and, therefore, the plea-taking was procedurally defective. A review of the transcript in the instant case convinces us that defendants' claim of error is not supported by the facts. The trial judge explained to each defendant his various rights. He asked each defendant if he understood his rights and if he wished to plead guilty to the two counts. Each defendant said that he understood all of the rights explained by the trial judge and wished to plead guilty to the two counts. We decline to hold that there was error in this procedure.

Defendants next claim that the trial judge failed to establish a sufficient factual basis for their guilty pleas on the felony-firearm counts. The plea-taking transcript indicates Edgar Johnson had possession of and used a handgun in perpetration of both armed robberies. The claim that there was not sufficient factual basis for acceptance of the guilty plea, with respect to Edgar Johnson, is without merit.

The plea transcript indicates Walter Johnson aided and abetted the robberies and knew that his accomplice, Edgar Johnson, was armed. There is no indication that Walter carried, or had in his possession, a firearm at the time of the robberies. We interpret the felony-firearm statute to require that a defendant Personally carry or have in his possession a firearm in order to be guilty thereunder. ³ Being an aider and abetter in an armed robbery is not enough to subject a defendant to the enhanced sentence of the felony-firearm statute.

Therefore, we set aside the convictions and sentences imposed on Walter Johnson for felony-firearm,[85 Mich.App. 659] but affirm his convictions and sentences for armed robbery.

It is also contended by defendants that the felony-firearm statute violates the state constitutional prohibition against revising, altering or amending other statutes by implication.

The article of the constitution which defendants here claim is violated by the felony-firearm statute is Const.1963, art. 4, § 25, which provides:

"No law shall be revised, altered or amended by reference to its title only. The section or sections of the act altered or amended shall be re-enacted and published at length."

The rationale behind this prohibition was reviewed by the Supreme Court in Advisory Opinion re Constitutionality of 1972 P.A. 294, ⁴ which was rendered in response to a request by the Governor and the Senate for an advisory opinion as to the constitutionality of 1972 P.A. 294. In its opinion, the Supreme Court cited with approval Justice Cooley's language in People v. Mahaney, 13 Mich. 481 (1865), as follows:

"An amendatory act which purported only to insert certain words, or to substitute one phrase for another in an act or section which was only referred to but not republished, was well calculated to mislead the careless as to its effect, and was, perhaps, sometimes drawn in that form for that express purpose. Endless confusion was thus introduced into the law, and the constitution wisely prohibited such legislation. But an act complete in itself is not within the mischief designed

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to be remedied by this provision, and cannot be held to be prohibited by it without violating its plain intent." ⁵

[85 Mich.App. 660] Thus, the Court made clear that the constitution does not prohibit all amendment by implication. If an act is complete within itself, it is not within the mischief the provision was designed to remedy.

An examination of the statute under attack in the instant case ⁶ indicates that it is an act complete within itself. It requires reference to no other statute for its meaning, nor does it alter or amend another statute by reference to its title. Therefore, we decline to hold that the felony-firearm statute falls within the prohibitions of Const.1963, art. 4, § 25.

Finally, defendants contend that their convictions and consecutive sentences for armed robbery and felony-firearm arising from a single robbery violate constitutional prohibitions against double jeopardy.

The so-called felony-firearm statute, enacted in 1976, effective January 1, 1977, provides as follows:

"Sec. 227b. (1) A person who carries or has in his possession a firearm at the time he commits or attempts to commit a felony, except the violation of section 227 or section 227a, is guilty of a felony, and shall be imprisoned for 2 years. Upon a second conviction under this section, the person shall be imprisoned for 5 years. Upon a third or subsequent conviction under this section, the person shall be imprisoned for 10 years.

"(2) The term of imprisonment prescribed by this section shall be 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. * * * " ⁷

[85 Mich.App. 661] The statute was in answer to the continuing demand that the Legislature do something about the rising crime rate and, particularly, Detroit's homicide rate which, at the time, was represented by the media to be the highest in the nation. There can be no question as to the Legislature's intent; it was to require a mandatory, minimum prison sentence in all felonies and attempted felonies (except the two expressly excepted) where a firearm was carried or possessed, in the hope of reducing crime and homicides by handgun in particular. There also is no question that the legislative power encompasses both determining and defining what conduct is deemed criminal and fixing the range of sentences for violations. ⁸ Thus, defendants' claim of unconstitutionality does not go [85 Mich.App. 662] to the basic power of the Legislature to change, amend, enhance

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or otherwise augment sentences for particular crimes, but relates only to whether the Legislature chose an impermissible procedure to carry out an intent plainly within its prerogatives.

Defendants argue that among the guarantees afforded by the double jeopardy clause of the Federal and state constitutions is protection against multiple sentences for the same offense. ⁹ The language of the Federal and state double jeopardy provisions is as follows:

" * * * nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb * * *." ¹⁰

"No person shall be subject for the same offense to be twice put in jeopardy." ¹¹

The cases indicate that a single act may give rise to a charge under more than one criminal statute when there is clear legislative intent to do [85 Mich.App. 663] so. ¹² But where one of the two offenses charged is a necessarily lesser included offense of the other, under case law definitions adopted by the Supreme Court, recent Michigan cases involving drug violations appear to hold that convictions for both based on the same act are precluded. ¹³

[85 Mich.App. 664] But whether the basis for these rulings is the court's conclusion that the Legislature

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did Not intend to permit two convictions, one for sale of heroin and one for possession of heroin, Or, whether it is a new state interpretation of constitutional double jeopardy in which the judiciary interprets the words "same offense", as used in the double jeopardy clause of the Michigan constitution, as not requiring any consideration for the Legislature's intent in enacting a particular criminal statute, is far from settled. ¹⁴

We say "new interpretation" because we are unable to reconcile Martin and Stewart ¹⁵ wholly with the leading Federal decisions interpreting the double jeopardy provision of the constitution. In Blockburger v. United States, ¹⁶ defendant was found guilty by a jury of three counts of a five-count indictment alleging violations of the Federal Narcotics Act. Two counts involved sales on succeeding days of morphine hydrochloride Not in the original stamped package, and the third involved one of the same sales but Not in pursuance of a written order. Defendant was sentenced to three similar five-year terms to run consecutively. In affirming, the Supreme Court said Congress intended to make each sale a separate and distinct offense and to authorize sentence separately for each violation. The Court said "that where the same act or transaction...