People v. Myers, Docket No. 82189
| Decision Date | 05 November 1986 |
| Docket Number | Docket No. 82189 |
| Court | Court of Appeal of Michigan — District of US |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Kurt Douglas MYERS, Defendant-Appellant. 153 Mich.App. 124, 395 N.W.2d 256 |
[153 MICHAPP 125] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Conrad J. Sindt, Pros. Atty., and Ronald D. Reed, Asst. Pros. Atty., for the People.
Vlachos, Jerkins & Hurley by Randall S. Levine and James E. Vander Roest, Kalamazoo, for defendant-appellant on appeal.
Before MAHER, P.J., and ALLEN and LAMB *, JJ.
On September 11, 1984, defendant entered a plea of guilty to possession of marijuana with intent to deliver, M.C.L. Sec. 333.7401; M.S.A. Sec. 14.15(7401). Pursuant to the plea agreement, a charge of possession of a firearm during the commission of a felony was dismissed, and the prosecution made no recommendation at the time of sentencing. On October 22, 1984, defendant was sentenced to three years probation with the first six months of probation to be served in jail. Costs in the amount of $500 were assessed and defendant was ordered to participate in a substance abuse program. Defendant appeals as of right. We reverse.
Defendant argues that his plea bargain was illusory because, on these facts, he could not have been properly convicted of possession of a firearm during the commission of a felony.
These charges arise out of a single incident which occurred on January 29, 1984. At about 7 a.m., police arrived at defendant's home to execute a search warrant. Defendant answered the door in his underwear, whereupon he was arrested and, shortly thereafter, handcuffed. A large bag of marijuana was found in the front room on the television. [153 MICHAPP 126] A further search of the house revealed two smaller baggies of marijuana and several firearms in a gun cabinet in defendant's upstairs bedroom and the adjoining attic.
The felony-firearm statute, M.C.L. Sec. 750.227b; M.S.A. Sec. 28.424(2), reads in pertinent part:
"A person who carries or has in his possession a firearm at the time he commits or attempts to commit a felony * * * is guilty of a felony * * *."
Defendant contends that, for purposes of application of this statute to these facts, he did not "possess" the firearms at the time of the commission of the felony. This Court held in People v. Terry, 124 Mich.App. 656, 663, 335 N.W.2d 116 (1983):
"[A] person 'carries or has in his possession' a firearm during a felony when the person has physical possession of the weapon or when the weapon...
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