Wayne County Prosecutor v. Recorder's Court Judge

• Decision Date: 25 June 1979
• Docket Number: 62084,Nos. 5,6,Docket Nos. 62083,s. 5
• Citation: 406 Mich. 374,280 N.W.2d 793
• Parties: WAYNE COUNTY PROSECUTOR, Plaintiff-Appellant, v. RECORDER'S COURT JUDGE, Defendant-Appellee. PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Curtis BRINTLEY, Defendant-Appellee. Calendar406 Mich. 374, 280 N.W.2d 793
• Court: Michigan Supreme Court

Page 793

280 N.W.2d 793

WAYNE COUNTY PROSECUTOR, Plaintiff-Appellant, v. RECORDER'S COURT JUDGE, Defendant-Appellee.

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Curtis BRINTLEY, Defendant-Appellee.

Docket Nos. 62083, 62084.

Calendar Nos. 5, 6.

406 Mich. 374, 280 N.W.2d 793

Supreme Court of Michigan.

Argued Jan. 10, 1979.

Decided June 25, 1979.

Kenneth M. Mogill, Detroit, for Annette Gail Alexander.

Alphonso R. Harper, Detroit, William L. Cahalan, Pros. Atty., Timothy A. Baughman, Asst. Pros. Atty., Detroit, for Judge of Recorder's Court.

Edward Reilly Wilson, Principal Atty., Appeals, Detroit, Craig L. John, Asst. Pros. Atty., for the People.

Arthur H. Landau, Detroit, for defendant-appellee.

Janet Tooley, Asst. Defender, Peter J. Van Hoek, Research Atty., Ann Miller, Research Asst., State Appellate Defender Office, Detroit, filed brief amicus curiae.

Peter E. Deegan, President, Pros. Attys. Ass'n of Mich., Joseph T. Barberi, Chairman, amicus curiae committee, Donald A. Johnston, Chairman, Prosecutors' Appellate Forum, Lansing, filed brief of Prosecuting Attys. Ass'n of Michigan, amicus curiae.

Dennis M. Hertel, Lansing, amicus curiae.

L. Brooks Patterson, Pros. Atty., Oakland County, Robert C. Williams, Chief Appellate Counsel, Asst. Pros. Atty., by Lawrence J. Bunting, Asst. Pros. Atty., Pontiac, filed brief amicus curiae.

David M. Lawson, Southfield, filed brief for Oakland County Criminal Defense Bar Ass'n, amicus curiae.

COLEMAN, Chief Justice (for reversal).

Leave to appeal was Sua sponte granted in these cases ¹ to resolve a substantial conflict among our lower courts as to the constitutionality of Michigan's felony-firearm statute, M.C.L. § 750.227b; M.S.A. § 28.424(2), which states:

"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 (carrying a concealed weapon) or section 227a (unlawful possession of a weapon by a licensee), is guilty of a felony, and shall be imprisoned for 2 years.

"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."

In Wayne County Prosecutor v. Recorder's Court Judge (People v. Alexander ), the evidence indicated that the defendant, Annette Gail Alexander, shot and killed a man with a shotgun. She was convicted in a single trial of second-degree murder and felony-firearm. The trial judge sentenced her on the murder conviction, but refused to impose the mandatory two-year sentence for felony-firearm because he believed to do so would violate constitutional prohibitions against double punishment. In People v. Brintley, the evidence indicated that defendant carried and exhibited a handgun while he robbed a woman. He was convicted in a single trial of armed robbery and felony-firearm. ² The trial judge sentenced him on the armed robbery conviction and also imposed the mandatory two-year consecutive sentence for felony firearm. ³

The question presented is whether separate convictions and consecutive sentences for both a felony and for felony-firearm in cases such as these violate the Michigan and United States constitutional prohibition against being twice placed in jeopardy for the same offense. ⁴

The Court of Appeals concluded in both of these cases that the Michigan and the United States Constitutions were violated, and therefore vacated the defendants' respective convictions for felony-firearm. ⁵

We reverse, reinstate the convictions and remand People v. Alexander to the trial court for imposition of the mandatory two-year consecutive sentence for felony-firearm.

I

Although different panels of the Court of Appeals have reached widely divergent conclusions as to the constitutionality of the felony-firearm statute, almost all of them seem to agree that the Legislature intended to create a separate crime distinct from the felony or attempted felony and intended that cumulative punishment should be imposed. ⁶ We agree.

6. See, for example, People v. Brintley, 85 Mich.App. 714, 272 N.W.2d 582 (1978); People v. Gary Hughes, 85 Mich.App. 674, 272 N.W.2d 567 (1978); People v. Walter Johnson, 85 Mich.App. 654, 272 N.W.2d 605 (1978), and Wayne County Prosecutor v. Recorder's Court Judge, 85 Mich.App. 727, 272 N.W.2d 587 (1978). Most of the cases construing the statute as merely a sentence enhancing or sentence augmenting device have done so only to avoid perceived constitutional problems. See, for example, People v. McDowell, 85 Mich.App. 697, 272 N.W.2d 576 (1978), opinion of Bashara, P. J.

The statute decrees that any person carrying or possessing a firearm during a felony or attempted felony "Is guilty of a felony " and shall be imprisoned for two years. This two-year sentence must be imposed "In addition to " the sentence for the felony or attempted felony and must be served "Consecutively " to and "Preceding " the sentence for that crime. (Emphasis added.)

This language is markedly different from the language used by the Legislature in those statutes which are merely sentence enhancement statutes. For example, the habitual offender statute regarding second offenders states:

"A person, who after having been convicted within this state of a felony, or an attempt to commit a felony, or, under the laws of any other state, government or country, of a crime which if committed within this state, would be a felony, commits any felony within this state, is punishable upon conviction as follows: If the subsequent felony is such that, upon a first conviction the offender would be punishable by imprisonment for any term less than his natural life, then such person may be placed on probation or sentenced to imprisonment for a term not more than 1 1/2 times the longest term prescribed for a first conviction of such offense or for any lesser term in the discretion of the court; if the subsequent felony is such that, upon a first conviction the offender might be punished by imprisonment for life then such person may be placed on probation or sentenced to imprisonment for life or for any lesser term in the discretion of the court." ⁷

There is no language in this statute indicating that the defendant shall be deemed guilty of a separate felony or that a consecutive sentence is to be imposed. The one sentence originally imposed for the felony which gives rise to the habitual offender proceedings is simply increased.

The language of the felony-firearm statute is also significantly different from the language used by the Legislature in those statutes which establish mandatory minimum sentences. For example, the armed robbery statute states:

"Any person who shall assault another, and shall feloniously rob, steal and take from his person, or in his presence, any money or other property, which may be the subject of larceny, such robber being armed with a dangerous weapon, or any article used or fashioned in a manner to lead the person so assaulted to reasonably believe it to be a dangerous weapon, shall be guilty of a felony, punishable by imprisonment in the state prison for life or for any term of years. If an aggravated assault or serious injury is inflicted by any person while committing an armed robbery as defined in this section, the sentence shall be not less than 2 years' imprisonment in the state prison." ⁸ (Emphasis added.)

Again, there is no indication of an intent to establish a separate felony or require a consecutive sentence. The sentencing judge is merely required to impose a single sentence with a minimum term of at least two years.

The language employed by the Legislature in the felony-firearm statute, especially when analyzed against the backdrop of the sentence enhancement and mandatory minimum sentencing provisions quoted above, leaves no doubt that the Legislature intended to make the carrying of a weapon during a felony a separate crime and intended that cumulative penalties should be imposed. The Legislature has clearly expressed its judgment that carrying a firearm during any felony which may, but need not necessarily involve the carrying of a firearm, entails a distinct social harm inimical to the public health, safety and welfare which deserves separate treatment. In order to deter the use of guns, the Legislature has chosen to create a separate crime.

We are thus squarely faced with the question of whether separate convictions and cumulative punishments for both a felony and for felony-firearm violates the Double Jeopardy Clause of the United States or Michigan constitutions.

II

In Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977), the United States Supreme Court stated that the Double Jeopardy Clause does not substantively restrict the legislative branch:

"Because it was designed originally to embody the protection of the common law pleas of former jeopardy, see United States v. Wilson, 420 U.S. 332, 339-340, 95 S.Ct. 1013, 1019-1020, 43 L.Ed.2d 232 (1975), the Fifth Amendment double jeopardy guarantee serves principally as a restraint on courts and prosecutors. The legislature remains free under the Double Jeopardy Clause to define crimes and fix punishments ; but once the legislature has acted courts may not impose more than one punishment for the same offense and prosecutors ordinarily may not attempt to secure that punishment in more than one trial." Brown, supra, 165, 97 S.Ct. 2225. (Emphasis added, footnote omitted.)

Then, after recognizing that the Double Jeopardy Clause protects against multiple punishments for the same offense, the Court stated that in the single prosecution context (such as that in the cases at bar), the Clause only serves to ensure that the defendant is not subjected to more punishment than the legislative branch has...