People v. Powell, 282 N.W.2d 803

People v. Powell

282 N.W.2d 803

Mich. Ct. App.

1979

Check Treatment

PEOPLE v POWELL

Docket No. 78-322

90 MICH APP 273

May 21, 1979

272 N.W.2d 605

Submitted December 7, 1978, at Lansing.

Defendant, Kelvin D. Powell, was convicted, on his plea of guilty, of armed robbery and felony-firearm in the Genesee Circuit Court, Donald R. Freeman, J. The facts are that, while he participated in the robbery, he did not have possession of a firearm but that his codefendant did. Defendant appeals. Held:

To be convicted of felony-firearm, a defendant must have had personal possession of a firearm.
Under the facts, conviction of both felony-firearm and armed robbery violates the double jeopardy provisions of the Federal and state constitutions.

Affirmed as to the armed robbery conviction and reversed as to the felony-firearm conviction.

CYNAR, J., dissented. He would hold that conviction of felony-firearm does not require proof of personal possession of a firearm and that an aider and abettor of an armed robbery without personal possession may be properly convicted of both. He would affirm.

OPINION OF THE COURT

1. CRIMINAL LAW — STATUTES — FELONY-FIREARM — PERSONAL LIABILITY — AIDERS AND ABETTORS.

The felony-firearm statute, which makes carrying a firearm during the commission of a felony not excepted by the statute a separate punishable offense, requires for a finding of guilt that a defendant personally carry or have in his possession a firearm; an aider and abettor in an armed robbery, who was not armed, may not be convicted of violation of the felony-firearm statute (MCL 750.227b; MSA 28.424[2]).

REFERENCES FOR POINTS IN HEADNOTES

[1, 3] 67 Am Jur 2d, Robbery §§ 4, 8, 9.

[2] 21 Am Jur 2d, Criminal Law § 182 et seq.

67 Am Jur 2d, Robbery § 48.

[3] 21 Am Jur 2d, Criminal Law §§ 115, 119, 123, 182 et seq.

2. CRIMINAL LAW — DOUBLE JEOPARDY — ARMED ROBBERY — FELONY-FIREARM.

Conviction of both armed robbery and possession of a firearm during the commission of the armed robbery constitutes double conviction and punishment for the same offense and is prohibited by the Federal and state constitutions.

DISSENT BY CYNAR, J.

3. CRIMINAL LAW — AIDING AND ABETTING — FELONY-FIREARM — POSSESSION OF A FIREARM.

One not in possession of a firearm may be punished as an aider and abettor to a felony-firearm offense; one who, along with another, intended to and did commit a robbery in which the other used a firearm may properly be convicted as an aider and abettor of both armed robbery and felony-firearm.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Robert F. Leonard, Prosecuting Attorney, and Donald A. Kuebler, Chief, Appellate Division, for the people.

Jon T. Warren, for defendant on appeal.

Before: D. E. HOLBROOK, P.J., and D. E. HOLBROOK, JR., and CYNAR, JJ.

D. E. HOLBROOK, P.J. Defendant pled guilty May 24, 1977, to charges of armed robbery, MCL 750.529; MSA 28.797, and possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). He was sentenced to from 20 to 39 years on the robbery charge and to the mandatory consecutive two-year possession term. The defendant appeals of right, alleging that the factual basis elicited during his plea proceedings does not support his conviction for possession of a firearm and that his conviction on both counts violates the constitutional prohibition of double jeopardy.

The testimony elicited in support of the defendant‘s plea indicates that he was sentenced under MCL 750.227b as a result of his codefendant‘s possession of a firearm. We agree with the holding of

People v Walter Johnson, 85 Mich App 654; 272 NW2d 605 (1978), that the language of the felony-firearm statute clearly contemplates “personal” possession of a firearm by the defendant.

Further, we find that it would be necessary to prove the same facts to convict defendant under the armed robbery charge and to convict defendant under the possession of a firearm during the commission of a felony charge. Conviction of both offenses offends the double jeopardy provision of the Federal and state constitutions prohibiting being twice convicted and punished for the same offense. See

People v Walter Johnson, supra (dissent by KAUFMAN, J.) and .

For these reasons, defendant‘s conviction under MCL 750.227b is reversed. Defendant‘s conviction for armed robbery under MCL 750.529 is affirmed.

D. E. HOLBROOK, JR., J., concurred.

CYNAR, J. (dissenting). I do not believe that MCL 750.227b; MSA 28.424(2) requires proof of personal possession of the firearm. See my opinion in

People v Tavolacci, 88 Mich App 470; 276 NW2d 919 (1979). I believe that one can be convicted as an aider and abettor to the offense of felony firearm. See MCL 767.39; MSA 28.979 and . See also Judge KAUFMAN‘S opinion in .

To be convicted as an aider and abettor one must assist another in the commission of a crime with knowledge that a criminal act is contemplated.

People v Spry, 74 Mich App 584, 594; 254 NW2d 782 (1977), . When one pleads guilty to aiding and abetting an offense, there must be a substantial factual basis for the plea and the plea must represent a well-considered and well-advised choice by the defendant. .

Appellant stated he and his codefendant intended to commit a robbery to “get some money“. They entered the car and said: “This is a stick up.” Powell had a knife in his hand and the victim gave them a dollar. Powell, while in the car, observed Reynolds with a gun. He described in detail Reynolds’ use of the gun during the robbery, but he said he had not seen the gun until they were in the victim‘s automobile. Powell stated he kept the money taken in the robbery and indicated that he had a vivid memory of the robbery and that he combined with the codefendant in the use of the gun in perpetration of the robbery.

On the basis of these facts, the defendant‘s guilty plea to the charge of armed robbery and felony-firearm is supported by his testimony and should be affirmed.