*1 v LUMPKIN PEOPLE Detroit . Decided June No. 77-3100. Submitted Docket 20, 1978. September posses- guilty, Lumpkin, of on of was convicted his James C. during a the commis- firearm sion of heroin and Court for the to commit a sion of or Detroit, Roberson, A. Dalton Court, bargain sentence for record the the entered the suspended of heroin was to mandatory was to serve the appeals challenging charge. the firearm plea proceedings. Held: made to defendant So as no is that he could failure to inform a defendant Therefore, charged did not err trial court so is harmless. that he could be the defendant inform defendant was not offender act since the under the habitual his was not en- offender and status. The facts hanced due to his habitual offender was in established that the defendant the trial court felony when he committed possessing A heroin. factual by jury if an exclupa- even if from the facts admitted tory and the defendant asserts inference could also be drawn is inference. the latter the correct part part dissented in concurred in application and would hold that of the case clauses statute to this violated double that, United States and Constitutions [1, [3] Court’s 2] 21 Am Jur ALR2d 549. 21 Am Jur duty guilty, 2d, to advise or admonish accused References 2d, or Criminal Law §§ determine that Law §§ Points in Headnotes 486-491. he 188, 189. as to advised thereof. consequence of of a firearm the commis- sion of a should be vacated. op Opinion the Court *2 op Guilty Informing 1. Criminal Law —Plea — Defendant —Habit- ual Offenders —Harmless Error. accepting guilty of a Failure court when to inform the might subsequently defendant that he offender harmless error where the defendant was not thereaf- ter as offender and his sentence was not enhanced due to his habitual offender status. 2. Law —Plea of —Inferences. A factual if from the facts the defendant even if an inference could also be drawn and the defendant asserts the latter is the correct inference. Part,
Concurrence Dissent Part Jeopardy 3. Constitutional Law —Criminal Law —Double —Fel- ony Firearm. The conviction of criminal defendant for both heroin and aof ñrearm the commission of or to commit the of heroin violates the double clause of the United States and Constitutions. Kelley, Attorney General, Frank J. Robert A. Derengoski, General, Solicitor Cahalan, William L. Prosecuting Attorney, Principal Wilson, R. Edward Attorney, Appeals, Monk, and Robert T. Assistant Prosecuting Attorney, people. for the Milliken,
Elaine W. for defendant. R. Before: M. and H. Gillis JJ. McGregor,* pled
J. H. J. On June Gillis, * Appeals judge, sitting Appeals by Former Court of assignment pursuant to Const 6, art in 1968. as amended § heroin, offenses, possession to
guilty two 18.1070(41)(4)(a), 335.341(4)(a); trary to MCL MSA during the commission of a‘firearm to contrary commit a of or 28.424(2). time, on the record bargain entered to be sus- heroin was possession of the man- to serve pended, datory right chal- appeals now
charge. Defendant proceedings. lenging the trial court first contends explain the adequately erred 28.1082 et act, seq.; et MCL 769.10 offender and, not advised defendant was seq., imposed could the maximum sentence 785.7(l)(c). by GCR upon required him as 379, 382; 256 Love, In *3 602 it was held: NW2d is made to a defendant no "So defendant he failure to inform a as could be so People v Michael charged is harmless. (1976).” Jones, 554 of- not Defendant was not was in the instant case. His sentence fender status. to his habitual offender enhanced due to this respect in we find no error Accordingly, issue. the facts
Defendant next contends to establish inadequate the trial court were by aof in that defendant did fact have felony. commission March you did on or about "The Court: Tell me what in Lillibridge at 3836 avenue 1977 Detroit: 725 R. M. J.P. house, know, Lumpkin:
"Mr. you sitting was in the police on the couch and the came in had and I a small pack gun of heroin me and it was a in there. gun "The Court: The in the house? Lumpkin:
"Mr. Yes.
"The Court: You your had it in side? Lumpkin:
"Mr. Yes.” "A factual basis for exists if an drawn by from facts the defendant even if inference could also be drawn and de- fendant asserts the is the latter correct inference.” Cases, (1975). 96; Guilty Plea Mich NW2d 132 exchange
The aforementioned between defend- ant and the court establishes defend- ant was firearm when he com- mitted the possessing heroin. The ex- change requirements satisfies the factual basis set Cases, supra. forth in Plea allegation Defendant’s final of error in respect 750.227b; of MCL constitutionality 28.424(2) in light fails the advisory opinion issued Supreme of this state Advisory Opinion re of 1972 PA Constitutionality (1973). NW2d 469
McGregor, concurred. (concurring part; dissent- ing in part). agree While I majority 28.424(2) does not violate the *4 provision against revising, constitutional altering or amending by implica- other statutes tion, I find another law problem which ignored, should not I sponte. which raise sua For opinions my reasons well stated in fellow defendant’s judges, conviction under App constitutionally firearm statute cannot be Prosecutor v County Wayne doned. See Judge, 85 Mich Hughes, v Gerald (1978) (D. Walsh, F. dissent- 270 NW2d ing). would vacate the commission of a but
a firearm of heroin undis- leave the conviction for turbed.