People v. Longwish

• Decision Date: 19 August 1981
• Docket Number: Docket No. 53006
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Keith Brian LONGWISH, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 893

310 N.W.2d 893

109 Mich.App. 15

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Keith Brian LONGWISH, Defendant-Appellee.

Docket No. 53006.

Court of Appeals of Michigan.

Aug. 19, 1981.

Released for Publication Oct. 20, 1981.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Edward Reilly Wilson, Principal Atty., Appeals, and Timothy A. Baughman, Asst. Pros. Atty., for the People.

Gary Granader, Detroit, for defendant-appellee, on appeal.

Before RILEY, P. J., and CYNAR and GAGE, ^* JJ.

PER CURIAM.

Defendant was charged with the crime of armed robbery, M.C.L. § 750.529; M.S.A. § 28.797, and possession of a firearm during the commission of a felony, M.C.L. § 750.227b; M.S.A. § 28.424(2). On June 2, 1980, defendant pled guilty to the count of armed robbery and was sentenced to serve one year and one day to three years in prison. The felony-firearm count was dismissed pursuant to defendant's motion. The people bring this appeal challenging the propriety of the dismissal of the felony-firearm count.

The charges against defendant stemmed from the armed robbery of a Little Caesar's pizzeria on February 27, 1980. The manager of the pizzeria testified at the preliminary examination that a young man and young woman had entered the store, that the young woman had pointed a pistol at him and demanded money, that he had handed over the money, and that the pair then left, running to a car.

A Livonia police officer testified that he arrested defendant based on the strength of information from a female juvenile who stated that she had robbed the store with the defendant. This juvenile told the officer that defendant had taken the gun, belonging to his father, from his house without the father's knowledge. The officer further testified that when arrested, defendant admitted to having some money from the robbery and agreed to go to his house to retrieve the pistol used in the robbery. The pistol was given to the officer by defendant's father at his house.

A statement made by defendant to the police indicated that defendant had taken the pistol from his father's drawer, had driven to a gas station where he had given the gun to another female who robbed the gas station, and then drove to Little Caesar's where he gave the gun to the female juvenile. In pleading guilty, defendant admitted having knowingly participated in the armed robbery but indicated that during the robbery the female juvenile held the gun which came from his father's drawer.

At the time this matter was in circuit court, there was a split in the Court of Appeals concerning application of the aider and abettor statute to the felony-firearm statute. That conflict has since been resolved in People v. Johnson, 411 Mich. 50, 303 N.W.2d 442 (1981), wherein the Court held that one may be convicted of aiding and abetting the commission of a separately charged crime of carrying or having a firearm in one's possession during the commission of a felony, if it is established that the defendant procured, counseled, aided or abetted and so assisted in obtaining the proscribed possession or in retaining such possession otherwise obtained. 411 Mich. at 54, 303 N.W.2d 442.

Although the trial court's dismissal of the felony-firearm count, under the facts of this case, was erroneous in view of the Johnson decision, it was validly supported at the time by the decisions in People v. Powell, 90 Mich.App. 273, 282 N.W.2d 803 (1979), and People v. Johnson, 85 Mich.App. 654, 272 N.W.2d 605 (1978). The issue in the present case, therefore, is whether the decision in Johnson is to be applied retroactively.

Generally, full retroactivity is the rule, and prospectivity is the exception. People v. Markham, 397 Mich. 530, 548, 245 N.W.2d 41, 49 (1976) (Levin, J., dissenting), People v. Young, 410 Mich. 363, 373, 301 N.W.2d 803 (1981) (Levin, J., concurring and dissenting), People v. Bryant, 80 Mich.App. 428, 435, 264 N.W.2d 13 (1978). Retroactivity may be limited, however, when a balancing of three factors so dictates. The three factors are: (1) the purpose of the new rule; (2) the general reliance upon the old rule; and (3) the effect of retroactive application of the new rule on the administration of justice. People v. Young, supra, 410 Mich. 366, 301 N.W.2d 803.

Applying the first factor, it is clear that the purpose of the rule announced in Johnson was to mend the split concerning application of the felony-firearm statute which had developed within this Court by providing criteria for determining guilt based on participation not involving actual possession or use of a firearm during the commission of a felony.

The Court's choice of granting leave to decide two cases involving conflicting results indicates the Supreme Court's purpose was to clarify existing law. This purpose supports retroactive application of the rule since such an application would serve to reconcile the inconsistent results under the felony-firearm statute which have preceded the new rule. Such a reconciliation would provide for a uniform application of criminal justice. In addition, relying upon People v. Kamin, 405 Mich. 482, 275 N.W.2d 777 (1979), this Court has indicated that a purpose of clarifying existing law is sufficient for the retroactive application of a rule of law. People v. Slager, 105 Mich.App. 593, 307 N.W.2d 376 (1981)...