People v. Witt

• Decision Date: 01 April 1985
• Docket Number: Docket No. 74975
• Citation: 140 Mich.App. 365,364 N.W.2d 692
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Alex WITT, Jr., Defendant-Appellant. 140 Mich.App. 365, 364 N.W.2d 692
• Court: Court of Appeal of Michigan — District of US

Page 692

364 N.W.2d 692

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Alex WITT, Jr., Defendant-Appellant.

Docket No. 74975.

140 Mich.App. 365, 364 N.W.2d 692

Court of Appeals of Michigan.

Submitted April 16, 1984.

Decided Jan. 7, 1985.

Released for Publication April 1, 1985.

[140 MICHAPP 367] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., L. Brooks Patterson, Pros. Atty., Robert C. Williams, Chief Appellate Counsel, and Lisa Varnier, Asst. Pros. Atty., for the people.

William G. Wolfram, Franklin, for defendant-appellant on appeal.

Before SHEPHERD, P.J., and BEASLEY and CAPRATHE ^*, JJ.

PER CURIAM.

Defendant was convicted on his plea of guilty of bank, safe or vault robbery, M.C.L. Sec. 750.531; M.S.A. Sec. 28.799, armed robbery, M.C.L. Sec. 750.529; M.S.A. Sec. 28.797, and felony-firearm, M.C.L. Sec. 750.227b; M.S.A. Sec. 28.424(2). He was sentenced to concurrent terms of from 3 to 20 years' imprisonment on each robbery offense, to be served following the mandatory two-year prison term on the felony-firearm conviction. He appeals as of right [140 MICHAPP 368] claiming (1) that there was an insufficient factual basis to support the felony-firearm plea, but the matter should not be remanded, and (2) that his convictions of vault robbery and armed robbery violate the constitutional prohibitions against double jeopardy. We agree that there was insufficient evidence to support the felony-firearm plea, but remand the case to the trial court for further proofs. We disagree with defendant's double jeopardy claim.

WAS THERE A SUFFICIENT FACTUAL BASIS TO SUPPORT DEFENDANT'S GUILTY PLEA TO FELONY-FIREARM?

In order to support a felony-firearm conviction under People v. Johnson, 411 Mich. 50, 54, 303 N.W.2d 442 (1981), it must be shown that defendant either personally possessed a firearm during the commission of a felony or that defendant procured, counseled, aided, or abetted and so assisted another in obtaining or retaining possession of the firearm.

A factual basis for acceptance of a guilty plea exists if an inculpatory inference can reasonably be drawn by a jury from the facts admitted by the defendant, even if an exculpatory inference could also be drawn and defendant asserts the latter is the correct inference. Guilty Plea Cases, 395 Mich. 96, 130, 235 N.W.2d 132 (1975).

In the present case, the prosecutor tacitly admits that the defendant's statements at the plea proceeding did not establish a basis for a reasonable inference that he personally possessed a firearm during commission of the robberies or that he assisted the co-perpetrator in obtaining or retaining possession of a firearm. However, the prosecutor argues that a sufficient factual basis may be established through independent evidence, i.e., he cites testimony taken at the preliminary examination in this case. Therefore, we remand the case to [140 MICHAPP 369] the trial court to permit the prosecutor to establish the possession element of felony-firearm. If the prosecutor is able to do so and there is no contrary evidence, the felony-firearm conviction shall be affirmed. If the prosecutor is unable to do so, the felony-firearm conviction shall be set aside. If contrary evidence is produced, the matter shall be treated as a motion to withdraw the guilty plea to felony-firearm and the court shall decide the matter in the exercise of its discretion. People v. Johnson, supra, 411 Mich. at pp. 54-55, 303 N.W.2d 442.

DO DEFENDANT'S CONVICTIONS OF VAULT ROBBERY AND ARMED ROBBERY VIOLATE THE CONSTITUTIONAL PROHIBITIONS AGAINST DOUBLE JEOPARDY, U.S. Const., Am. V: Const.1963, art. 1, Sec. 15?

According to defendant's testimony at the plea proceeding, on December 27, 1982, he and Donald Fritz made an unsuccessful attempt to rob an armored car. Defendant stated that Fritz took the guard's gun and fired a shot, whereupon the guard fainted. It is a reasonable inference from defendant's statements that Fritz was armed with another weapon prior to taking the guard's gun. Defendant testified that he dissuaded Fritz from shooting the guard and that both men then ran away. The only property taken was the guard's gun. Defendant stated that he knowingly participated in the attempt to rob the armored car and that he knew Fritz had a gun.

Defendant contends that his convictions of vault robbery and armed robbery were based on the same criminal conduct and violated the double jeopardy clauses of the United States and Michigan constitutions.

In People v. Robideau, 419 Mich. 458, 355 N.W.2d 592 (1984), a four-member majority of the Supreme Court established a new test to determine whether the "multiple-punishment" prohibition of the double[140 MICHAPP 370] jeopardy clause has been violated. The Court disavowed the Blockburger test, ¹ which had been applied under the federal constitution, as well as the so-called "factual double jeopardy" test which had been applied under the state constitution. Under Robideau, the sole inquiry is whether the Legislature intended to permit multiple convictions under separate statutes based on a single criminal enterprise. If so, no double jeopardy violation has occurred. The Robideau Court rejected prior tests, "preferring instead to use traditional means to determine the intent of the Legislature: the subject, language, and history of the statutes". Robideau, supra, p. 486, 355 N.W.2d 592. ²

This Court finds that there is a legislative intent to permit punishment under both the vault robbery statute and the armed robbery statute. The former statute is apparently aimed at the protection of funds kept in a building, bank, safe, vault or other depository of money, as well as the protection of persons charged with guarding the money and those otherwise in custody of the money. Neither use of a weapon nor an actual taking of money or property is required under the vault robbery statute. It is also clear from the statute that the offense may be committed without the [140 MICHAPP 371] presence of another person. The armed robbery statute, on the other hand, requires an assault, a felonious taking of money or property from the victim's presence and the use of a weapon during the offense. See People v. Avery, 115 Mich.App. 699, 701-702, 321 N.W.2d 779 (1982). It is aimed at persons who violate social norms by taking property from the presence of another by force or threat of force while armed with a weapon. The purpose of the armed robbery statute is, therefore, different from that of the vault robbery statute.

We conclude that the Legislature did intend to permit multiple punishment under both the armed robbery and vault robbery statutes and accordingly reject defendant's double jeopardy challenge.

Affirmed.

BEASLEY and CAPRATHE, JJ., concur.

SHEPHERD, Presiding Judge (concurring in part and dissent in part).

I agree with the majority's decision to remand this case to permit the prosecutor to establish a factual basis for the plea of guilty to felony-firearm. I also agree that the convictions for armed robbery and bank robbery do not constitute double jeopardy. However, I would reach the latter result by a different route than does the majority, since I disagree with its apparent holding that a defendant may be convicted of armed robbery and bank robbery for the very same conduct.

In People v. Robideau, 419 Mich. 458, 486, 355 N.W.2d 592 (1984), the Supreme Court held that punishment under more than one provision of the Penal Code is permitted if the Legislature so intended. The Court stated that "[s]tatutes prohibiting conduct that is violative of...