*1
Mich 626
PEOPLE PERKINS
(Calendar
7).
9,2005
Argued
July
Docket No. 126727.
March
No. Decided
29, 2005.
following
Wayne
Perkins was
trial
David M.
convicted
a bench
in the
Court,
Jones, J,
Massey
possession
Circuit
Vera
of a firearm
(felon
person
possession)
possession
a
convicted of a
in
and
during
felony.
of a firearm
the commission of a
The defendant
appealed.
Appeals,
EJ.,
The Court of
and Wilder
and
Markey,
JJ., affirmed, holding
750.224f(2),
that under MCL
Meter,
prosecution
prove
right
possess
must
a
that
to
defendant’s
produces
has not
firearm
been restored
if the defendant
some
right
Appeals
evidence that the
been
restored. The Court of
larceny
person,
also concluded that
from the
of which the defen-
previously convicted,
specified felony
dant was
is a
within the
750.224f,
meaning
felon-in-possession
of MCL
statute. 262
(2004).
App
Supreme
granted
Mich
Court
the defendant’s
application
appeal.
for leave to
Affirmed. larceny dissenting, stated that from the Justice Cavanagh, “specified felony” by person the statute because is not a defined is risk of force or threat of force when there not a substantial Appeals judgment of crime is The of Court should committed. be reversed. by Specified of of 1. Criminal Law —Possession a Firearm Person Convicted — Felony Specified Felonies. felony larceny of from the carries a substantial risk may against “specified physical is a force be used another and (MCL felon-in-possession felony” purposes statute for 750.357). [¿], [2], [6] 750.224Í Specified 2. Criminal Law —Possession of of a Firearm Person Convicted — Felony of Burden Proof. charged possession A defendant with a firearm producing specified has the burden convicted of right possess evidence to establish that the defendant’s restored; only if the meets this burden firearm been defendant production prosecution required to introduce evidence to is the 776.20). (MCL 750.224f[2][b], prove of restoration lack Cox, General, Casey, L. Attorney Thomas Michael A. Prosecuting Attor- General, Kym Worthy, L. Solicitor 473 MICH 626 Opinion of the Court Research, A. ney, Timothy Baughman, Chief Train- Bernacki, J ing, and and Frank Appeals, Assistant Attorney, for Prosecuting the people. Appellate Defender Peter (by
State Jon Van Hoek and Hoek) Daum Van for the defendant. granted
PER CURIAM. We leave case consider involving 750.224f, two issues which sets forth concerning restrictions possession1 of firearms by persons having been felony. convicted first is whether from the is a “specified felony” purposes 750.224f(6)(i), for the of MCL subjecting thus stringent requirements defendant more in order to his regain a firearm. We conclude that involves a substantial risk that and, force be during will used its commission therefore, hold that it is a specified felony.
The second *3 issue whether the prosecution is al- ways required to person show that a convicted of a specified felony has not had or her right possess his to a firearm restored pursuant 750.224(2)(b), to MCL whether the prosecution’s burden to disprove restora- only tion if the arises defendant first introduces evi- dence the defendant’s to a right possess firearm conclude, has been restored. We on the basis of MCL 776.20 and People Henderson, 612, 616; 391 Mich 2 (1974), NW2d that the defendant has the burden of producing evidence to establish that her right his or to a possess firearm has been restored. Once defen- dant meets this burden of production, the prosecution persuasion bears the burden of beyond a reasonable 1 Although only possession opinion, we mention in this MCL 750.224Í pertain only possession firearms, use, does not to the to but also sale, transportation, purchase, carrying, shipping, receiving, or distribu tion of firearms. Opinion of the Court to case, produce defendant failed evidence In this
doubt. restored, and the prosecu- were rights his firearm to the lack of restora- prove required tion thus was not of the Court judgment affirm the Accordingly, tion. we of Appeals.
I. PROCEDURALHISTORY FACTSAND 1977, David M. Perkins was convicted In defendant person from the in violation offense of 2001, in an In Perkins was involved of MCL 750.357. person, a at another pointed gun where he altercation As a and, struggle, gun discharged. in the subsequent with, things,2 charged among other result, Perkins was (felon in a firearm possession a felon in being 750.224f(2). of MCL This stat- violation possession) for a who has been makes a crime ute in- that either “specified felony” convicted —one of, as element a risk or contains an volves substantial threatened, of, physical or actual use attempted, a firearm property possess a against force —to firearm possess had the to a right until that MCL 28.424 and fulfilled certain pursuant to restored requirements. other trial, concluded that court,
The trial after bench was conviction for 750.224f(2) and, thus, apply could specified felony Moreover, the court construed statute Perkins. right prove that Perkins’s requiring if had not been restored firearm possess his affirmatively produced evidence that first Perkins by proper restored concealed had been charged assault with felonious in violation Defendant was also *4 attempting committing 750.82, possession of a firearm while charges felony not These are of MCL 750.227b. to commit a violation appeal. at issue in 630 Mich 626 473 op the Court weapons licensing board. the trial court convicted Perkins of he not the offense because had any evidence, relieving such produced prosecu- thus tion proving right of the burden of that Perkins’s had not possession been restored. of Appeals Court affirmed.3 It concluded that specified felony a constitutes
within meaning 750.224f, of MCL and that a defen- dant must of present evidence claimed restoration a prosecution’s firearm before the burden of proving lack restoration arises. granted application
We defendant’s for leave to ap- peal.4
II. OF STANDARD REVIEW statutory This case involves issues construction. These are de issues law that we review novo. People (2002). Koonce, v 515, 518; 466 Mich 648 153 NW2d statutes, When our interpreting goal give effect to of the Legislature by reviewing intent plain language of the statute. Id.
III. LARCENY FROM THE PERSON IS A “SPECIFIED FELONY”
places
MCL 750.22415
felons in two different catego
ries.
category
The first
consists of persons convicted of
(2004).
People Perkins,
267;
App
262 Mich
ship, receive, or firearm distribute in this state until expiration years following after all of circumstances exist:
(a) paid imposed all fines for violation. *5 People v Perkins Opinion of the Court regain right possess their “felony.” persons These for paying imposed three after all fines years firearm violations, serving imposed, all time jail their pro- of or successfully parole all conditions completing 750.224f(l). category The second consists bation. felony.” These “specified of of convicted persons the same years completing must five after wait persons their moreover, have and, must requirements 750.224f(2). a firearm restored. MCL is defined in MCL “specified felony” The term 750.224f(6), provides: which (2), felony” “specified
As used in means subsection felony following 1 or more of the circumstances which exist:
(i) use, use, felony attempted An element of against person or physical of force or threatened use (b) imprisonment imposed person all terms of The has served the violation. for (c) successfully person completed all conditions of The has parole imposed probation or for the violation. (2) felony person specified possess, of a shall A convicted receive, use, transport, sell, purchase, carry, ship, or distribute a following in this until all of the circumstances exist: firearm state
(a) expiration years following circum- The of 5 after all of exist: stances
(¿) paid imposed all fines for the violation. The has (ii) imposed imprisonment all terms of The has served the violation. for (Hi) successfully completed all conditions parole imposed
probation for the violation. (b) sell, use, transport, pur- person’s right possess, receive, chase, carry, ship, a firearm has been or distribute pursuant of the Public Acts of Act No. 372 restored to section Michigan Compiled 1927, being Laws. 28.424 section Mich 626 Opinion of the Court another, nature,
property or that involves a physical against risk force substantial may property of another used in be the course commit- ting the offense.
(ii) felony An element of that is the unlawful manufac- ture, distribution, possession, importation, exportation, dispensing of a controlled substance.
(Hi) felony possession An element of that is the unlawful distribution firearm. (iv) An element of that is the unlawful use of an explosive.
(v) burglary of an occupied dwelling, is breaking entering occupied dwelling, and an or arson. [Emphasis added.]
The prosecution in case has alleged neither that an larceny use, element of person from the is attempted “the use, or threatened physical against use of force the person another,” 750.224f(6)(i), of property nor that any of the criteria in ii subsections through apply v in this case. the inquiry larceny is whether from the person a crime that “by nature, is a involves substan- tial physical risk that against force person property may another be used course of committing the offense.” We hold that it does.
The crime of larceny person from the consists of a larceny effectuated by “stealing from the person of another.”6 The acknowledges defendant that there is a risk of larceny force inherent in the crime of from the person potential because for the victim to notice taking his or her personal property use force to prevent However, it.7 a he claims that such risk is not
6 MCL 750.357. argument, stated, certainly At dispute oral defense counsel “I don’t any larceny person require- that there’s a risk in from a because Perkins Opinion op the Court disagree. We substantial. or considerable ample “of defined as is
“Substantial” House Webster’s size, Random etc.” amount, quantity, (1995). Therefore, is the issue Dictionary College involves its nature person from the larceny whether force physical that risk or considerable a substantial to commit In order that it does. used. We believe will be must steal the defendant larceny person, from presence. person’s in that something from the defendant when present must be is, the victim That the victim Unless from the victim. something steals theft, not notice theft or does to the submits .8 response used in certainly be will almost force physical explained: Appeals the Court of As separated from larceny from a [T]he offense in the larceny it is committed because offenses other “Legislature person. another presence of immediate larceny or near the either from the has to occur ment risk, nobody said, always a there is person, is a risk.... As there larceny always deny from a that violence a risk there is could may occur.” “every felony” posits a risk of force. Cavanagh involves Justice fully appreciate However, that not Cavanagh fails Justice Post at 665. something require from the victim’s to steal the defendant all felonies something from the victim’s must steal presence. a defendant Because person, from the presence in order to commit *7 force, poses just a substantial risk of pose a risk of person does force. that, detected, perpetrator could if Cavanagh contends also Justice apparent the that force or if it becomes confrontation “choose to avoid 665. complete intended act.” Post at the force must be used
threat of attempt the to steal However, perpetrator to abandon the if chooses detected, perpetrator has not commit- property the victim once from larceny from the person. to commit a larceny In order from ted a likelihood, would, to use force or the perpetrator have person, in all larceny property from the victim. to steal the threat of force potential” threat of force or person a “mere involves more than from the 665, rather, risk of force force; a “substantial” post it involves at of force. threat 634 473 MICH 626 Opinion of the Court larceny person presents decided that from a prob- a social separate lem apart simple larceny.” from Specifically, “the person invasion of the presence immediate of the person victim.” Because a property whose is stolen from his presence may steps possession, take to retain and the may violently, offender react we conclude that the offense larceny nature, person, “by from a involves substan- physical tial risk that against property force may another be used in the committing course ” larceny We therefore hold that from a ais offense. specified felony meaning within the of MCL 750.224f. {Perkins, (citations supra omitted; at 272 emphasis in the original).]
That the Legislature recognized involves a substantial risk of physical force is demonstrated the different punishments it has to impose chosen for larceny9 and larceny from the person. If a defendant10 steals property from another person’s outside the presence and the property is worth less than $1,000, the defendant is only guilty of 750.356(4)(a). a misdemeanor. MCL If the property is worth $200, less than the defendant cannot be impris oned for more than ninety-three days. MCL 750.356(5).12 hand, On the other if the same defendant steals the same property directly from the person, the defendant can imprisoned be for years. ten A defendant who steals property from a outside the person’s A property is committed when one steals the of another person’s presence. outside the MCL 750.356. following hypothetical All examples involve a defendant who any prior larceny does not have convictions. 11A property defendant person’s who steals from another outside the presence only guilty property $1,000 is if the is worth or more. 750.356(2)(a) (3)(a). property If more, $1,000, $200 worth but less than imprisoned defendant year. cannot be for more than one 750.356(4)(a). *8 People v Perkins 635 Opinion of the Court prop- if the ten-year can face a sentence presence 750.356(2)(a). $20,000 That erty is worth or more. a defendant who subject has chosen to person person’s presence from a that property steals sentence, of the ten-year regardless to a value who subject and has chosen to a defendant property, a person worth less than from property $200 steals presence ninety-three-day to a person’s outside Legislature recognized that the sentence demonstrates risk of force that is involved when one substantial something somebody’s person, from a risk that is steals something person’s when one steals outside the absent presence.13 person we hold that from the 750.224f(6)(i). felony” under MCL
“specified THE THE BURDEN PRODUCING IV DEFENDANT BEARS OF THE FIREARM EVIDENCE THAT DEFENDANT’S RIGHTS HAVE BEEN RESTORED pro- 2 statute felon-in-possession Subsection felony specified hibits a convicted of a certain are a firearm “until” conditions possessing 750.224f(2). the conditions set satisfied. MCL One of forth in the statute is that the defendant’s legally a firearm must have been restored. 750.224f(2) provides: pos- specified A convicted of a shall not sell, receive, sess, use, carry, ship, transport, purchase, following distribute a firearm this state until all circumstances exist-. 13 Although necessary analysis, note that the federal it is not to our we for held that from the is a "crime violence” courts have sentencing guidelines, purpose define a crime of of the federal which presents “involves conduct a serious violence as a crime that 4B1.2(a)(2); physical injury potential to another.” USSG United risk of (CA 1998). 6, 371, Payne, 163 F3d States v 473 Mich Opinion of the Court (a) expiration years following after all of the circumstances exist:
(i) paid imposed all fines for the viola- *9 tion.
(ii) The imprisonment has served all terms of imposed for the violation.
(Hi) successfully The completed all condi- probation parole tions of imposed for the violation. (b) person’s right use, sell, The possess, transport, purchase, carry, receive, ship, or distribute a firearm has been pursuant restored to section of Act 372 of No. 1927, being Public Acts of Michigan section 28.424 of the Compiled [Emphasis Laws. added.] Thus, the statute provides that a convicted of a specified felony may possess a firearm “until” all the listed circumstances exist. Specifically, the felon (1) may not possess firearm “until” years five have expired from the payment fines, of all the service of all terms of imprisonment, and the successful completion (2) of all conditions of probation parole, person’s right a firearm has been restored. In case, this as noted in our issue, discussion of the first established that the defendant was convicted of a specified felony and that he possessed firearm. question remains, however, whether the pros-
ecution must prove that the possession defendant’s the firearm occurred before the restoration of firearm rights where, here, produced defendant no evi- dence that his firearm rights had been restored. In answering question, we 776.20, must consider MCL which states: any prosecution In any for the violation of acts of the. use, state licensing possession relative to pistols
firearms, establishing any excuse, the burden of exception, People v Perkins Opinion of the Court any proviso exemption contained in such act shall be upon the defendant but this does not shift the burden of proof for the violation.
It
that the
enacted this statute
appears
211, 217;
Schrader,
v
10 Mich
response
People
App
Jiminez,
In
v
27 Mich
People
App
Prior to we would have serious consider objection. (1968), ation to an such Schrader However, year, App legislature Mich 211. in that took holding notice of our decisions that was the burden of the prosecutor prove that the did not defendant come within statutory exception. legislature responded enact that, ing [MCL 776.20] a law which held trials for carrying weapons, concealed the burden is on the defen exempt dant to show that he comes within one of the ions.[14] language
The broad used in MCL 776.20 plainly *10 statute, felon-in-possession extends MCL 750.224Í, use, it a regarding because is statute possession and of licensing, firearms. We must therefore give effect to the of plain language requir- MCL 776.20 ing excuse, the defendant to “any” exception, establish proviso, exemption any contained “relative statute use, possession” licensing firearms. 776.20, In the text of MCL applying we adhere to this 14 disagree We with Justice assertion that MCL 776.20 cannot Kelly’s prove alter what the has to in order to obtain a conviction under MCL 750.224f. Post at 653. The authority has the wishes, change by enacting the law if it this what did MCL enactment, Moreover, controlling. 776.20. After MCL 776.20 was statements, contrary to Justice MCL never altered Kelly’s 776.20 predated 750.224f because it it. This fact also undercuts Justice Kelly’s because, lenity process arguments enacted, rule of and due when fitting legal already by 750.224Í had to be read as into the context created MCL 776.20. Mich 626 473 Opinion of the Court Henderson,
Court’s in Henderson. In interpretation in prosecu- Court considered the effect of MCL 776.20 carrying pistol tion for in a motor vehicle in violation of MCL the prosecution 750.227. issue was whether or the establishing defendant bore the burden of carry whether the defendant had a license to a pistol. considering 776.20, After the text of MCL this Court concluded that the defendant bore burden of pro- ducing regarding licensure, evidence while prosecu- tion bore the ultimate burden of persuasion.15 Specifi- cally, the Henderson Court stated:
Accordingly,
upon
showing
we hold that
that a defen-
pistol
dant
operated
occupied
has carried a
a vehicle
him,
prima
[a]
facie
case
violation of the statute has
Upon
been made
prima
out.
the establishment of such a
case,
facie
injecting
burden
defendant
by offering
proof-not necessarily
issue
license
some
record —that he has been so licensed. The people
official
thereupon
obliged
contrary beyond
are
to establish the
[Henderson, supra
reasonable doubt.
(emphasis
at 616
added).]
The interpretation
set forth in Henderson accords
with the well-established
principle
“[c]ourts must
give
every word,
effect to
phrase, and clause in a
statute, and
an interpretation
must avoid
that would
any part
render
surplusage
statute
or nugatory.”
Services, Inc,
304, 312;
Koontz Ameritech
466 Mich
NW2d
The Henderson Court gave effect
entirety
to the
of MCL
By recognizing
776.20.
that the
defendant bore the
producing
burden of
for-
going
licensed,
ward with evidence that he was
the Henderson
Kelly
Justice
asserts that Henderson “cannot be correct” because it
only two,
three,
mean
would
that there are
elements
the crime of
*11
carrying
weapon
puzzled by
a concealed
in a vehicle. Post at 656. We are
argument
requirement
minimum,
because we know of no
for
or a
maximum, number of elements.
op
the Court
“the
of
statutory phrase
effect to the
burden
gave
Court
excuse, proviso
exemp-
establishing any exception,
any
upon
in
such act shall be
tion contained
that
by concluding
prosecu-
defendant...And
beyond
of
persuasion
tion bore the ultimate burden
doubt, the Henderson Court avoided render-
reasonable
not
nugatory
phrase
“but this does
shift
ing
of
for the violation.”16
proof
burden
thus adhere to the framework established
We
Henderson. Like the firearms offense considered
Henderson,
possession
of felon in
falls
offense
of
requiring
within
strictures
MCL 776.20
excuse,
“any exception,
proviso
defendant
to establish
may
dictionary
....” We
consult
defini-
exemption
Koontz,
tions of terms that are not defined in a statute.
dictionary
at 312. The
definition of the term
supra
A
“an
“proviso”
“proviso”
is instructive.
article
stipulation.”
clause that
introduces a condition:
Web-
ster’s Seventh New
Collegiate Dictionary
750.224f(2)
contains
clause
introduces conditions
that must met before a
convicted of a
speci-
be
firearm.
felony may possess
Specifically,
fied
five-year
specified
from the
events described in
period
the statute must have
and the felon’s firearm
expired,
have
rights must
been restored. Until those conditions
satisfied,
may
are
the felon
a firearm.
that the
statute con-
felon-in-possession
We conclude
Thus,
the plain
tains a
we are bound to follow
proviso.
language
analytic approach
of MCL 776.20 and the
in Henderson.
established
necessary
analysis,
majority
it is not
to our
we note that the
While
similarly
this issue has
courts in other states
have considered
production regarding
the burden of
the lack of license to
allocated at least
proof
Burden
lack
license in criminal
the defendant. See Anno:
as to
license,
carrying
possession
weapon
without
for
ALR3d 1054.
*12
Defendant here no evidence establish a firearm had restored. right possess that his to been to meet his of produc- Because defendant failed burden the lack tion, required prove was not to prosecution rights beyond firearm a reasonable of restoration 776.20; Henderson, supra at 616. doubt.
V CONCLUSION from the a crime larceny We conclude physical risk that force will be carries substantial Therefore, against agree used or threatened another. we that it Appeals qualifies specified with the Court of 750.224f(6)(i). felony under MCL Also, producing a defendant bears the burden of evidence to establish that his or her to right possess restored, in light firearm has been of MCL 776.20 and Court’s decision Henderson. Because defendant in case, failed to meet his burden of in this production prosecution required the lack of prove was rights beyond restoration of firearm reasonable doubt. Accordingly, we affirm the of the judgment Court Appeals. C.J., and and Weaver, Corrigan,
Taylor, Young, JJ., concurred. Markman, in (concurring part dissenting part). J. KELLY granted appeal
We this case to address two leave (1) questions: “speci- whether from a is a 750.224f(6)(i) (2) fied for the felony” purposes of MCL whether, 750.224f(2)(b), under MCL the lack of restora- possess tion of the a firearm is an element of the Mich offense. 471 I regard question,
With to the first believe that from a I specified felony. is a concur in the result of the majority opinion on this issue. to the I respect question, With second believe that the lack of of the right restoration a firearm is an element of the in possession offense felon of a firearm (possession someone convicted of a felony). I Accordingly, that, would hold to secure a conviction, must the lack show right. restoration of that MCL 750.224f. Consequently, dissent from the portion majority dealing opinion with that issue.
I would affirm in part the decision of the Court of *13 Appeals, reverse it in part, and vacate defendant’s convictions and sentences.
I. UNDERLYING FACTS AND PROCEDURAL HISTORY Defendant was arrested after a dispute involving firearm. He was charged assault,1 with felonious felon in possession,2 and possession of a firearm when com- mitting or attempting felony commit a (felony- firearm).3 acquitted court him of the charge, assault con- that,
cluding offense, at the time of the he was too intoxicated to formulate the necessary intent for the crime. Defendant stipulated that he had been convicted in 1977 of larceny person. from a MCL 750.357. The court convicted him of the two firearm charges. It ruled defendant’s admissions of the 1977 convic- possessing tion and of a firearm provided sufficient evidence to convict him of the offense of felon in possession.
1 MCL 750.82.
2 MCL 750.224f.
3 MCL 750.227b. [July- 473 Mich Appeals
On the Court of affirmed4 the trial appeal, stating: prove “The must rulings prosecutor court’s a firearm right defendant’s if produces been restored the defendant some evidence that his has been restored.” Id. at 271. It larceny also concluded that from a constitutes specified felony meaning within the of MCL 750.224f. It reasoned: property
Because a whose is stolen from his may presence steps possession, take to retain and the may violently, offender react we conclude that the offense nature, person, “by from involves a substan- physical against property tial risk that force may committing another be used the course 750.224f(6)(i) 272, quoting [Id. at (emphasis offense.” original).] granted leave to appeal. We
II. FELONIES AND SPECIFIED FELONIES
Both questions before this Court
involve issues of
Hence,
construction.
statutory
we review them de novo.
Kimble,
305, 308-309;
Mich
The statute
types,
divides felonies into two
“felonies”
“specified
and
felonies.” A person convicted of a
cam
“felony”
legally possess
years
a firearm three
after
(a) completing
imprisonment
all terms of
for
imposed
(b)
violation,
all
paying
imposed
fines
for the
(c)
violation,
completing
all
of probation
conditions
750.224f(l).
or
MCL
parole.
Perkins,
People v
262 Mich
A convicted of must person the same and must obtain resto- satisfy requirements pursuant of the a firearm ration Also, after years must wait five person 28.424. statutory requirements, compared completion years for other felonies. to three felony” in “specified The defines 750.224f(6). provides: It (2), felony” “specified
As used subsection means a felony following which or more of the circumstances exist:
(i) felony use, use, attempted An element of that is the physical against or threatened use of force another, nature, property of or that involves against physical substantial risk that force may property of another be in the used course of commit- ting the offense.
(if) felony An element of that is the unlawful manufac- ture, distribution, possession, importation, exportation, dispensing of a controlled substance.
(Hi) felony An possession element of that is the unlawful or distribution of a firearm. (iv) felony An element of that is the unlawful use of an
. explosive.
(v) burglary occupied dwelling, of an breaking entering occupied dwelling, an or arson. [Emphasis added.]
All parties agree through that subsections ii v do not apply specified to this case. to constitute felony, larceny defendant’s 1977 conviction of must fall within the definition in subsection i. use, use, and threatened attempted use of force fact, are not elements of from a In person. of force and the absence of the threat of force absence are from a from rob- distinguish what *15 473 MICH 626 by Opinion Kelly, J. 532, 544; 466 Mich 648 NW2d bery. People Randolph, than just But subsection includes more crimes those i that, It in which force is an element. includes crimes nature, their involve a substantial risk of the use of force.
III. A SUBSTANTIAL RISK OF FORCE case, argu- In this defense counsel conceded at oral ment from a involves a risk that However, force will be he that the is used. asserted risk not “substantial.” is defined as “of ample
“Substantial” considerable amount, size, quantity, etc.” Random House Webster’s (2001). The College Dictionary question becomes whether, during of a from a commission there is an amount” of risk person, “ample considerable that force will be used. prohibiting larceny
The statute from a person pro- vides:
Any person larceny by who shall commit the offense of stealing guilty felony, of another shall be from punishable by imprisonment prison the state not more added).] years. (emphasis [MCL than 10 750.357 Hence, larceny requires from a direct contact with perpetrator personal the victim. The must take property it possession. victim while is the victim’s This increases the risk that A perpetrator force will be used. is force or threaten the obliged use use of force to obtain property willingly unless victim submits to or remains theft.5 ignorant argues perpetrator attempt Justice that the Cavanagh could abort the property may apparent obtain the when becomes that he need to use Larceny from a person quickly robbery evolves into when force employed complete is the theft.
Physical may force be used during commission many felonies, if the especially perpetrator *16 caught However, in the act. the risk force will be during larceny used a from a person considerably is greater than the in many risk of force other felonies. crime, by nature, This is because the is often always confrontational and the presence involves perpetration victim. Its requires either direct contact with presence actual the victim. Also, the risk of detection is heightened. With an ample risk of confrontation and detection comes an ample risk of the use or threatened use of force to .6 complete the crime larceny from a involves a “substantial” risk of the use or threat of physical force.
Additionally, very structure of the larceny stat- ute, when compared with larceny-from-a-person statute, supports a conclusion Legislature recognized that larceny from a a involves sub- stantial risk that force will be used. general larceny statute7 punishment allocates to the according value of the property taken. For if example, property is $1,000, valued at from the thief guilty $200 is property. perpetrator or threaten force to obtain the But if the aborts the attempt property, larceny to obtain the from a will not be my analysis may perpetrator committed. I center on what if occur attempt. circumstances, does not abort the Under those I believe that the risk of is force “substantial.” every felony Justice notes that almost runs some risk of Cavanagh analysis the use of force. But his does not consider the fact that larceny person requires presence a from contact with or the of the every distinguishes victim the crime is committed. time This it from many being felonies that can be committed without in victim way. harm’s 7 MCL 750.356. MICH626
Opinion by Kelly, J. year jail, punishable by much one misdemeanor as as 750.356(4). fine, $2,000 a or both. MCL But if it has $1,000 $20,000, the a a value of from felony crime is years’ punishable impris- much as five 750.356(3). onment, $10,000 fine, or both. MCL larceny person, This contrasts with which gradation punishment. The defendant abandons subject possible years prison to a ten is regard without property
to the value of the stolen. MCL 750.357. larceny difference between the crimes of presence from a is the of the victim. question, possibility
Without of harm to the victim greater property person. is if the taken from his Consequently, appears it that the threat to the victim greater was of concern to the than the loss property, provided greater penalty hence, person. for from a *17 magnitude penalties in The of the difference dem- just seriously Legislature onstrates how viewed against larceny of force risk victim a person. property If the value of the taken in a $200, normal is less than the defendant is subject ninety-three days jail. But, to no more than in property directly if the defendant takes that same person, guilty felony subject from a he is of a 750.356(5); potentially years prison. ten MCL MCL 750.357. only logical great
The reason for the difference in penalties significant danger that a exists that force injuring used, will be person. the victim of a from a Legislature Therefore, the viewed that crime involving physical substantial risk that force will employed against qualifies be another. This it as a 750.224f(6)(i). felony specified under MCL Kelly, J. 750.224f(2) ELEMENT OF MCL OF RIGHTS IS AN IV RESTORATION 750.224f(2) OF MCL A. THE AND STRUCTURE LANGUAGE indi- felon-in-possession statute Section con- under which cates the circumstances a firearm. felony may possess specified victed of a 750.224f(2). contained requirements One of the have had the defendant must in that statute is legally a firearm restored. his case, that it need prosecution argues But in in order to restoration has not occurred not show that Rather, it elements of the crime. asserts establish the that burden. Neither the that it is defendant who bears supports of the statute language nor the structure contention.8 prosecution’s 750.224f(2) provides: pos- specified
A shall not convicted sell, receive, sess, use, carry, ship, transport, purchase, following distribute a firearm this state until all exist: circumstances
(a) years following expiration The of 5 after all of the circumstances exist:
(i) imposed fines for the paid all viola- tion. prosecution lack of restoration would hold that must show the (1) contingent years passed five have not on its failure show (2) jail paid, years passed have not since all since all fines were five (3) served, years passed
time was five have not since the defendant parole. successfully completed probation all conditions of prosecution option carrying its burden on one would have the 750.224f(2). four, subparts proves Once it one of the of the four of MCL go further. I believe that it need not 750.224f(2) element of MCL intended the to choose which *18 contingent nature of the element should not to address. But persuasion change production lie. on the burdens of whom 473 MICH626
(ii) imprisonment The all has served terms of imposed for the violation.
(Hi)
successfully completed
The
has
all condi-
probation
parole imposed
tions of
for the violation.
(b)
use,
person’s right
possess,
sell,
The
transport,
receive,
purchase, carry, ship,
distribute
firearm has
pursuant
been restored
section
of Act No. 372 of the
1927, being
Public Acts of
Michigan
section 28.424 of the
Compiled
[Emphasis
Laws.
added.]
In interpreting
750.224f(2),
MCL
our goal
give
is to
effect to the Legislature’s
Koonce,
intent. People v
515, 518;
Mich
This section apply does not to a conviction that has been expunged aside, or set for which the has been pardoned, order, expunction, unless the pardon ex- pressly provides shall not a firearm. [Emphasis added.]
By using “unless,” the term it demonstrated its intent to create an exception.9 “Unless” is an exclusion- ary By contrast, term. in subsection 2 of the felon-in- repeatedly used the term “unless” to create an exception Examples 750.14, the Penal Code. are: MCL MCL 750.42b(2), 750.50(2)(g), 750.51, 750.61, MCL MCL MCL MCL 750.115(2), 750.141, 750.144, 750.147a(l), MCL MCL 750.197(3), and MCL 750.216. *19 J. Kelly, statute, chose not to use an the possession Instead, phrase it “until exclusionary term. used all.” helps the definition of “until” demonstrate
Looking at The definition is “1. phrase. “until all” an inclusive that is when; to time that or till. 2. before... 3. onward up to the College Dictionary Random House Webster’s or till....” (2001). statute, the defen- this definition to the Applying if he possession only of the offense of felon guilty dant is (2) (1) possessed offense and specified was convicted (a) years of five passage firearm “before” term, fines, or he his pertinent time he all served paid all successfully completed probation he conditions (b) firearm right possess his was parole, 750.224f(2). restored. crime, must prove prosecution that the occurred “before” one possession
demonstrate prove If the fails to specified prosecution events. this, Legisla- it has not met the burden created ture. Legisla- different had the quite
The result would be exclusionary term like “unless.” ture chosen to use an the circum- except “Unless” is defined as “1. under but; Random House except; save[.]” stances that... 2. Dictionary Webster’s College change into the would
Substituting this word
statute
would
meaning,
the statute’s
so that
(1) had
that
the defendant
been
prove
need
(2) possessed
and
specified
convicted of a
offense
left to
evi-
produce
firearm. The defendant would be
(1)
before,
paid
he had
that,
years
dence
more than five
(2)
(3)
fines,
term,
successfully
all
served his
pertinent
parole,
probation
all conditions
completed
(4)
currently
had the
he
firearm.
Hence, the difference production burden of on the prosecution and on the defense is enormous depend- on ing whether “until” introduces an element or an exception. Accordingly, should we assume that the de- cision to use “until” rather than carefully “unless” was made.
We
presuppose
the words the Legislature uses
have a purpose. And we should not speculate that
inadvertently used one word or phrase when it intended
another. The chosen wording
presumed
intentional.
Detroit v
453,
253 Mich
Twp,
456;
When writing statute, Legislature demon- strated a clear knowledge of how to create an exception, it but chose not to do so. Its use of the term “until” is a strong indication that it intended the restoration of rights to be a contingent element of the offense.
Because Legislature chose to use the term “un- til,” the prosecution bears the burden of production for 750.224f(2). Here the prosecution failed to present any evidence that defendant’s right possess a firearm had not been restored. And it made no effort to show any of the three other factual circumstances listed 750.224f(2) in MCL had Hence, not occurred. it did not satisfy burden, and defendant’s convictions were in error.
C. MCL 776.20 majority asserts that MCL 776.20 controls this case and holds that it requires that defendant bear the burden production regarding the restoration of the right a firearm. MCL provides: 776.20 any prosecution In for any the violation of acts of the use,
state licensing possession relative to pistols Perkins Kelly, J. excuse, any establishing exception, firearms, the burden any be such act shall exemption contained proviso or the burden not shift but this does upon the defendant for the proof violation. prosecu- after the into play comes
MCL 776.20
Therefore, for
of a crime.
all the elements
tion proves
merit, I
have to
would
to have
majority’s argument
750.224f(2)(b) is an
that MCL
the conclusion
accept
conclusion is im-
above, this
As discussed
exception.
chosen
and structure
language
given
plausible
Legislature.
to this case.
inapplicable
776.20
I find MCL
had intended MCL
that,
if
believe
have used a term
it
would
apply,
specifically
776.20
have
Alternatively, would
in that statute.
contained
“until,”
similarly
or a
term
repeated
used its often
or a
exception
proviso.
to create an
expression,
clear
“
excuse,[11]
proviso[12]
exception,[10]
The words
where
apply
in MCL 776.20
to situations
exemption[13]”
Once
of a crime have been established.
all the elements
elements,
it is for
all the
has satisfied
the exist
showing
evidence
produce
the defendant
excusing
culpability.14
him from
ence of a circumstance
exclude;
“Except”
out.” Random House Webster’s
means “to
leave
*21
(2001).
College Dictionary
11
obligation
duty.” Random
release from an
or
“Excuse” means “to
(2001).
College Dictionary
House Webster’s
12
clause,
contract, by
“proviso”
or
which a
is “a
as in a statute
A
stipulation or condition.” Random House
or “a
condition
introduced”
(2001).
College Dictionary
Webster’s
13
obligation
liability
“Exempt”
free from an
to which
means “to
College Dictionary
subject;
are
release.” Random House Webster’s
others
(2001).
14
apply
any
“proviso”
may argue
could
that the definition of
Some
apply only
Legislature intended it to
that
clause. But I believe
place-
liability.
relieving
This is indicated
a defendant
clauses
An example situation in which MCL 776.20 750.224f(4): would apply can be seen in MCL “This section does not to a apply conviction that has been expunged or aside, set or for which the person has pardoned been . . . .” This subsection creates an ex- ception to the felon-in-possession crime. Under MCL 776.20, the defendant would have the burden of producing evidence to prove the exception.15 776.20,
In MCL the Legislature demonstrated its ability to use the “exception,” terms “excuse,” “ex- ception,” and “proviso.” But in 750.224f(2), it used none of them. It could have stated in MCL 750.224f(2): A specified felony convicted' of a pos- shall not
sess, use,
sell,
transport,
purchase, carry,
receive,
ship,
distribute a firearm
providing
in this state
following
circumstances do not exist.
“exception,” “excuse,”
ment in a list
“exemption.”
with
requires
doctrine of
noscitur
sociis
interpret
that this Court
terms in
context with the other words around them. G C
&
Timmis
Co v
Co,
416,
(2003).
420-422;
Guardian Alarm
468 Mich
to this case reading does not mean nugatory. renders it *22 653 Perkins v by Or: felony pos- shall not specified of a
A convicted receive, carry, sell, ship, use, purchase, sess, transport, state, except when all in this a firearm distribute exist. following circumstances
Or: pos- not shall specified person convicted
A receive, sell, carry, ship, sess, use, purchase, transport, state, excused in this but a firearm distribute following circumstances exist. when wordings, Legis- these or other any Instead strong a I this is “until all.” believe chose to use lature not MCL 776.20 should it intended that indication that 750.224f(2). MCL apply to statutes, are reluctant assume we interpreting
In it did accident wrote what Legislature in its majority presumes But this is what error. Legisla- to the giving effect today. support holding it to fit changing than rather phrasing chosen ture’s 776.20.16 within MCL not alter what 776.20 does of MCL
The existence a conviction to obtain order prove has 750.224f(2)(b) reading But MCL in possession. for felon production the burden of shift a does proviso 16 my argument majority in n misunderstood I believe that the Legislature can course I know that opinion, at 637. Of ante intentionally Legislature drafted My point change is that the law. 750.224f(2) apply it. The MCL 776.20 would so that MCL 750.224f(2) it MCL 776.20. after enacted Legislature enacted 750.224f(2) requires MCL 776.20 Hence, it it knew when wrote involving production in matters the burden of to shoulder the defendant proviso in MCL Accordingly, to make proviso. if it had wanted clearly contain 750.224f(2), the statute it had to write it knew that, it did not intend must conclude that proviso. do we Since it did not proviso. Mich Opinion Kelly, J. intended,
what the because turns what is an element of the into a proviso. crime
D.
PEOPLE PEGENAU
*23
The
on
v
prosecution
Pegenau17
relies
People
support
argument.
This
is misplaced.
reliance
In
the
Pegenau,
charged
defendant was
with unlawful
possession of Xanax and Valium pursuant
to MCL
333.7403(1).18People Pegenau,
278, 281;
447 Mich
523
(1994).
NW2d
at
question
325
trial was
whether the defendant
prescription,
had
valid
which
would
him
exclude
under the lan-
guage of MCL 333.7403 and MCL 333.7531.19Pegenau,
at 282.
held
supra
This Court
burden
proof
the
of
the
regarding
existence
valid prescription was on
the defendant.
Pegenau,
278;
People v
447 Mich
trolled a controlled substance or a substance, tion form unless the controlled controlled substance analogue, prescription directly from, or form was obtained or to, pursuant prescription practitioner a valid or order of a while acting practitioner’s professional practice, course of the or except as otherwise this authorized article. provides: MCL 333.7531 (1) necessary negate any exemption It is not state for this or exception complaint, information, indictment, article in a hearing, pleading trial, proceeding other or in a or other under this proof exemption exception burden upon article. The an is person claiming it. (2) proof In the absence of that a is the authorized appropriate holder of an license order form issued under this article, presumed is not to be the holder the license proof upon or order form. burden of is to rebut the presumption. v Perkins Opinion by Kelly, J. present case be- distinguishable from is Pegenau an creating uses term expressly MCL 333.7403 cause fact, MCL uses the term “unless.” In 333.7403 exception. under above, except is defined as “1. As “unless” discussed Ran- except; but; save[.]” 2. that... circumstances (2001). Because Dictionary College House Webster’s dom created, the defendant bears specifically an is exception production under 333.7531. burden 750.224f(2) does an contrast, provide In felon-in-possession prosecu- exemption exception use a term that would Legislature did not tions. The “until phrase the inclusive exception. an It used create Therefore, are all.” subsections elements and MCL does not than 776.20 exceptions, crime rather apply. in clear to this inapplicable and is contrast
Pegenau no support prosecu- I find it of case. argument. tion’s
E.
v HENDERSON
PEOPLE
persuasive
finds
v Henderson20
majority
of the
on the issue whether
restoration
in
possession.
a
is an element of felon
believe
firearm
aid the majority’s position.21
decision does not
decided.
Moreover,
wrongly
I find that
was
Henderson
(3)
liability
imposed by this article
authorized
A
is not
or an
state, county,
officer, engaged
performance of
in the lawful
or local
duties.
the officer’s
20
(1974).
612;
Mich
Henderson dealt with MCL at that time, provided:
Any carry dagger, dirk, person who shall a stiletto or dangerous weapon hunting other except adapted knives such, and person, carried concealed on about as or his or any operated whether or concealed otherwise in vehicle by him, occupied except dwelling in place his house or him; other possessed by any business or on land carry pistol who shall person, concealed on or about his or, otherwise, any operated whether concealed or vehicle him, occupied by except dwelling place his house or by him, possessed business or on other land without a carry pistol by law, license to said provided so shall be guilty felony, punishable by imprisonment in the state prison years, for not more than five fine of not more than two thousand five hundred dollars. that, Court Henderson concluded as regards the case,
facts of that
the only elements of the crime were:
(1)
(2)
was carrying
defendant
pistol
he
inwas
a vehicle
operated
It
occupied by him.
ruled that the
language “without a
carry
license to so
said pistol” did
not add an element to the
People Henderson,
offense.
616;
612,
Mich
This conclusion cannot be correct. If only two ele- existed, ments the sole defenses available to a defen- (1) (2) dant would that he carry be did not a pistol or that he in a was vehicle with it. Whether defendant licensed was carry pistol would not matter. He guilty crime, would be even though (1) (2) licensed, he because carried pistol in a vehicle. It there key obvious that is a third element. It is found in the language statute’s “without license.”22 22 Contrary majority’s contention, suggest to the I do not that there are *25 a minimum number elements that must he contained in a criminal Rather, pointing statute. I am out that this statute has three elements. recognized only The Henderson Court them. two of People 657 by that, in the fact interpretation strengthened by My not any did use 750.227, writing The clause “without listed in MCL 776.20. the terms anything signaling or other- by not prefaced license” is an exception, it signal constitutes phrased wise excuse, exemption. proviso, dwelling in his language “except
Contrast this with possessed by land or on other place house or of business in The Legislature the statute. that is also contained him” excuse, proviso, or exception, an how create knew And, fact, it did when it wrote 750.227. exemption the term explicitly using “except.” in that statute so respect to the any of those terms with But it did use wording Legislature’s choice of Again, lack of license. supra Twp, not be accidental. presumed should Redford at 456. read Henderson did, Court had to
To rule it it had to read in Specifically, into the statute. words excuse, proviso, exemption form of exception, some “without a license.” But this vio- language before statutory rule of construction lates the well-established read into a is not there. that a court cannot statute what Detroit, v 388, 412; Mich AFSCME 468 662 695 NW2d (2003).23 the Henderson Court failed construe Instead, it Legislature.
language actually chosen language change production. added burden so, today trap. doing into the same And majority falls statutory con- repeatedly its own stated rule violates struction. 23 Halloran v repeated by majority. principle This is a often See
Bhan,
People Phillips,
(2004),
v
572, 577;
469
470 Mich
658 473 626 Mich by Opinion J. Kelly, E THE MAJORITY’S PHILOSOPHICAL CONTRADICTIONS of the justices majority have from their departed own of statutory construing rules construction in 750.224f(2). term, During very court most of the justices same stated: statutory interpretation require
Fundamental canons of
give
us
and
Legislature’s
to discern
effect to the
intent as
expressed
the language of its
such language
statutes. If
unambiguous,
is,
language
is
as most
presume
[sic]
such
we
meaning
that
clearly
intended
expressed
judicial
required
further
is
construction
—no
permitted, and the statute must be enforced as written.
[Garg
Community
Services,
v Macomb Co
Mental Health
(citations
(2005)
263, 281;
472 Mich
Moreover, the citation of the annotation at 69 ALR3d nothing adds majority’s analysis statute in this case. The decisions cited the annota- tion are based on widely divergent statutory language in other states. that language Because is so different language 750.224f(2), conclusions the annotation are of no determining assistance in what the Michigan Legislature intended enacting when our statute. this, at
Beyond least some the cases cited in the annotation demonstrate a legislature that can create an easily recognizable it exception proviso when desires to do example, so. For the Pennsylvania statute pro- public a firearm in carry no shall vides “ carry is fire- licensed ‘unless ... such ’ ” 330, Super 250 Pa Bigelow, arm!.] Commonwealth (1977), 18 Pa Consol Stat 332; quoting A2d 961 added). Michigan Legisla- Clearly (emphasis Pennsylvania legislature have done what ture could an exemption.24 created explicitly did: by the Furthermore, analysis under the offered even wrongly thing decided. One Henderson was majority, about in the instant case agree majority *27 has to excuse, exemption or be proviso, an exception, In of the statute. the clearly language indicated the us, 750.224f(2), majority argues the statute before proviso. “until” introduces a the word (cid:127) contrast, in con- In the involved Henderson statute a li- the “without nothing preceding language tains exemption, introduce an argued could be to cense” that I exemption.25 believe excuse, proviso, must that, majority’s analysis, the Henderson be under addition, wrongly In found have been decided. to majority’s analy- contradicts the reliance on Henderson excuses, exemp- discussing exceptions, provisos, sis end, supportive nothing tions. In the Henderson offers 750.224f(2). majority’s the construction of MCL how to the terms Again, Legislature the knows use “excuse,” And “exception,” “proviso,” “exemption.” the of the term exceptions by to create use it knows how the “unless,” repeatedly throughout it has done any of Legislature But the chose not to use Penal Code. language above, Legislature to used the same “unless” As noted 750.224f(4). exception in create an possesses” qualify. not “Unless the defendant would “Without” does case, Legislature qualify. at issue in this could As with the statute exemption, phrased language do critical as an but it chose to have so. 473 Mich 750.224f(2) 750.227, in
those terms either MCL or MCL analyzed I statute Henderson. would not turn a Instead, eye blind to those choices. I enforce the would case, statutes as the them. In it wrote this requires finding that right restoration to possess a firearm is an element of the offense of felon possession. THE PLACED THE
G. BURDEN ON PROSECUTION that, The prosecution initially asserts if it must go forward right with evidence that defendant’s to possess restored, a firearm has not been its burden of proof will that, too argues be rendered difficult. It to make this showing, would it have to obtain certificates showing no right restoration of defendant’s to firearms all eighty-three in Michigan. counties wildly believe that is a exaggerated approach Normally, situation. satisfy MCL 750.224f(2), the prosecution would have to show simply years five not passed had since defendant served term completed probation his fines. paid Only his if none of those situations existed would necessary become whether address carry a firearm had then, been restored. And *28 case, every in almost the prosecution could show that the defendant in resided one two counties while eligible right to have the restored and that those counties had not right. restored the
My reading requires of the statute proofs more the then it would prefer. But the fact that may find difficulty in crime proving a does not provide a reason for this Court to rewrite the the change law Legislature’s intent. I am language satisfied that the of the statute demonstrates that a of showing no restora- 661 an of the a firearm is element of the tion persuasion Hence, production of the burdens crime. prosecution. on the are
H. THE RULE OF LENITY to admit that no textualist would have A consistent 750.224f(2) 750.227 creates in or MCL language MCL excuse, At exemption. explicit exception, proviso, an infer an most, exception those could be read to statutes By an finding them. by adding words to proviso the textu- majority violates its exception proviso, that holding today require Its seems philosophy. alist form an can be added to a statute to any time words added. those should be exception words proviso, text of the give not effect to the statute Surely, this does Rather, it reads into the statute what written. include and chose not perhaps did not the majority’s with include. Not is this inconsistent it also violates textualist "plain language” approach, lenity. rule of any ambiguity regarding held that long Courts have in favor of criminal statutes must be resolved scope States, 814, v 415 US lenity. Huddleston United of 1262; (1974), L 2d 830-831, quoting 94 S Ct 39 Ed 808, 812; 1056; States, S Ct Rewis United US 2d This is time-honored part 28 L Ed are in penal that statutes construed favor rule As of United States defendant. Chief Justice Marshall Court 1820: Supreme stated strictly, is rule laws are to be construed penal itself. It is not much less old than construction perhaps rights for the on tenderness the law founded individuals; power plain principle and on judicial legislative, in the not punishment vested Court, legislature, which is to department. is the It *29 473 Mich 626 Opinion J. Kelly, crime, punishment. [United define and ordain its States v (5 Wheat) (1820).] 95; Wiltberger, 76, 5 L Ed US beyond I believe that a court text may go the ambiguous statute when it or when questions serious regarding meaning arise the reasonable of language. statute, But the weighing when words of criminal the place court must on the lenity. scales rule of This requires rule that strictly statute be construed in of favor the defendant.
Here, the majority disregards the language contained in MCL 776.20 effectively that, and finds if certain are exception words added to form an proviso, statute read way. should be that interpretation This lenity. violates the rule of Far from reading statute defendant, favor it requires the statute be read to disfavor him.
I believe that my interpretation of the statute best gives effect to Legislature’s intent. And it best long-established adheres to the tradition of applying of lenity rule to criminal statutes. The majority’s construction violates the spirit rule lenity. And it turns hardened on the eye “tenderness of the for the rights law of individuals. . . .” Wiltberger, at supra 95. following
Instead of rule, this longstanding the ma- jority focuses on the potential burden on placed prosecution. continue to adhere to the of lenity. rule Therefore, I hold would bears the of production burden regardless whether might, at times, find that burden difficult.
I. THE DUE PROCESS PROBLEM This Court that exemptions has ruled provisos criminal statutes must be defined with specificity. statute must provisos criminal within Exemptions prohibitive specificity as the same be defined with language the statute. *30 able, process, due the bounds of not
This court is within an am- which contains a criminal statute “interpret” of the it results in conviction biguous exemption such that not the “fair charged specific in case. That is the defendant Demp- [People v warning” the Constitution. demanded (citation (1976) 700, ster, 715; NW2d 381 Mich omitted).] a gloss” placed is on “clarifying a Therefore, when violations. court, it can to future apply statute that retroactively. This includes cases It cannot apply clarify exemption proviso exists. at Id. when an 715-717. the the first instance when
This constitutes case on MCL question placed has been gloss” “clarifying 750.224f(2). least, the Therefore, majority’s at the apply the retroac- interpretation of statute cannot first time finds for the tively. majority Because the not defendant did proviso, that the statute contains he warning of what would have constitutional fair his conviction cannot Accordingly, have to prove. supra at 717-718. Dempster, stand. THE
J. MY REGARDING FELON-IN-POSSESSION CONCLUSION STATUTE clearly indicates that felon-in-possession statute showing that five has the burden (1) paid all passed not since defendant years have (2) fines, his term since defendant served (3) successfully since defendant imprisonment, or of probation parole, completed all conditions (4) the defendant’s showing case, In the pros- not been restored. firearm has showing evidence that it no presented ecution concedes 473 Mich Dissenting Opinion by Cavanagh, that one of the four occurrences did take place. Therefore, to satisfy Accordingly, failed its burden. I would reverse the decision Appeals Court of part and vacate defendant’s convictions and sentences.
V CONCLUSION The risk that during force will be used a larceny from a considerably greater than the risk of many force in other felonies. This is because crime, by nature, is often confrontational always presence involves the victim. with majority concur
is a specified felony.
But I dissent from majority’s holding on the second issue. The felon-in-possession statute indicates clearly that the prosecution of produc- burden *31 persuasion tion and on all the elements of the offense. This includes lack of the restoration of the a firearm.
I part would affirm in the decision of the Court of Appeals, reverse in part, and vacate defendant’s convictions and sentences. J. (dissenting). disagree I the majori- with CAVANAGH,
ty’s position that the crime larceny person of from the is 750.224f(6). a specified felony pursuant to MCL Be- cause I believe larceny that from the person is not a specified felony 750.224f(6), under MCL I do reach the issue whether the lack of restoration of firearm 750.224f(2). rights an of is element MCL Accordingly, I respectfully dissent. a “specified defined felony” as
including a felony in which following the circumstance exists: People by Dissenting Opinion Cavanagh, J. use, use, or felony attempted the
An element of that
is
against
or
physical
person
of
force
the
use
threatened
another,
nature,
its
involves
property of
against
person
force
physical
risk
substantial
commit
may
another
used in the course of
property of
be
750.224f(6)(i).][1]
ting
[MCL
the offense.
“Any
Larceny
person
from the
defined
follows:
is
as
larceny by
person
of
who shall commit the offense
person
guilty
stealing
of
from the
of another shall be
felony, punishable by imprisonment
in the state
prison
years.”
Lar-
not more than 10
MCL 750.357.
person
robbery
ceny
from
from the
differs
because
larceny
from the
is committed without
use
“[R]obbery
larceny
of
aggravated
or the
of force.
is a
force
threat
taking
the fact that the
is from
person,
presence, accomplished
force or
or in his
with
”
Randolph,
532,
Mich
the threat of force.
(2002). By
very nature,
544;
While of or threat force when force essentially with committed, this is case felony. every Indeed, can conceive of force one risk every is com- in almost situation which However, mere not believe that mitted. do potential the mere force, for force or threat may potential perpetrator that a become confronta- detected, if from the tional means presents threat of a “substantial risk” force or just likely perpetrator choose to force. A could apparent that force confrontation if it becomes avoid complete used threat of force must be *32 specifying circumstances subsections of the statute additional Other specified felony applicable in this case. also define a are 473MICH626 Dissenting Opinion by Cavanagh, intended act. because there is not a “sub- stantial risk” of force or threat of force when respectfully from the committed, dissent.