Summary
In People v Boswell, 95 Mich. App. 405, 408-409; 291 N.W.2d 57 (1980), the argument that because the gun was "jammed," thus temporarily inoperable, it did not meet the statutory definition of a "firearm," was rejected.
Summary of this case from People v. HillOpinion
Docket No. 78-2504.
Decided January 10, 1980.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward R. Wilson, Principal Attorney, Appeals, and Andrea L. Solak, Assistant Prosecuting Attorney, for the people.
P.E. Bennett, Assistant State Appellate Defender, for defendant on appeal.
Pursuant to a bargaining agreement, defendant pled guilty to armed robbery, MCL 750.529; MSA 28.797, and possession of a firearm in the commission of a felony, MCL 750.227b; MSA 28.424(2). He was sentenced to a term of eight years to life imprisonment on the armed robbery conviction and received the mandatory two-year sentence on the felony-firearm conviction. Defendant now appeals as of right, raising several issues for our consideration.
Defendant first claims that the felony-firearm statute is unconstitutional because it violates the double jeopardy prohibition and alters and amends existing laws without reenacting and republishing them as required by Const 1963, art 4, § 25. Contrary to defendant's position, the statute withstands attack on both grounds. Wayne County Prosecutor v Recorder's Court Judge, 406 Mich. 374; 280 N.W.2d 793 (1979), People v Walter Johnson, 85 Mich. App. 654; 272 N.W.2d 605 (1978), People v Gary Hughes, 85 Mich. App. 674; 272 N.W.2d 567 (1978).
We also reject defendant's argument that the felony-firearm statute is inapplicable when the firearm involved belonged to the complainant rather than defendant. Such reasoning leads to the absurd conclusion that a defendant who has appropriated a stolen or borrowed firearm which he possesses during the commission of or attempt to commit a felony is excluded from the statutory prohibition. Defendant relies on People v Walter Johnson, supra, in which a panel of this Court held that the felony-firearm statute does not apply to aiders and abettors. The Johnson Court refused to extend the statute to include defendants who did not personally possess a firearm during the commission of a felony. The instant case is clearly distinguishable. Defendant herein discovered and seized a loaded gun in complainant's truck. It remained in his possession upon complainant's return to the vehicle, at which point defendant brandished the weapon and took the driver's wallet. Defendant was carrying the gun at the time he committed the robbery. The suggestion that conviction under the statute requires some incident of ownership of the firearm strains logic.
Defendant's remaining assignments of error concern alleged defects in the guilty plea proceedings. In accordance with our disposition of defendant's constitutional challenges to the felony-firearm statute, his contention that the plea was involuntary because it was given in misapprehension of the value of the plea agreement is without merit.
Defendant further contends that the trial court failed to establish a sufficient factual basis to support the plea on the felony-firearm charge. It is defendant's position that since the gun was temporarily inoperable because it was "jammed" it does not meet the definitional requirements of a "firearm" as set forth in MCL 8.3t; MSA 2.212(20), which provides:
"Sec. 3t. The word `firearm', except as otherwise specifically defined in the statutes, shall be construed to include any weapon from which a dangerous projectile may be propelled by using explosives, gas or air as a means of propulsion, except any smooth bore rifle or handgun designed and manufactured exclusively for propelling BB's not exceeding .177 calibre by means of spring, gas or air."
We believe the statute demonstrates a legislative intent to distinguish the firearm from other potentially dangerous weapons by describing its general construction and manner of use. The gun used in the instant case clearly falls within the above definition. Furthermore, this Court found the operability of a gun to be irrelevant for a conviction under MCL 750.227; MSA 28.424, carrying a concealed weapon, in People v Clark, 24 Mich. App. 440; 180 N.W.2d 342 (1970), and People v Jiminez, 27 Mich. App. 633; 183 N.W.2d 853 (1970). The same reasoning is equally apt here, and a contrary result would thwart the deterrent purpose of the felony-firearm statute.
Another alleged defect in the plea proceeding concerns the trial court's advice to defendant regarding the right against compulsory self-incrimination. The court advised the defendant that he would not have to testify at trial but failed to inform him that no adverse inferences could be drawn from his silence. This imprecise recital does not require reversal. The Michigan Supreme Court, in Guilty Plea Cases, 395 Mich. 96, 123; 235 N.W.2d 132 (1975), made specific reference to the consolidated case of People v Adkins which raised the identical issue present here:
"Nor is reversal justified in Adkins because of the failure to advise the defendant `that at a trial no inferences adverse to him may be properly drawn' if he chooses not to testify."
Accordingly, defendant's claim is without merit.
We must additionally decide whether the trial court's failure to inform defendant that the armed robbery and felony-firearm sentences would be served consecutively rendered the plea involuntary. The court is only required to inform defendant of the maximum sentence and any mandatory minimum sentence. Guilty Plea Cases, supra, at 118. He need not be advised of the possibility of consecutive sentences. People v Bennett, 76 Mich. App. 264; 256 N.W.2d 459 (1977), People v Cummings, 84 Mich. App. 509; 269 N.W.2d 658 (1978). The trial court in the case at bar informed defendant of the potential maximum life sentence or a sentence for any term of years for armed robbery as well as the mandatory two-year term for the felony-firearm conviction. We find the trial court acted in compliance with GCR 1963, 785.7(1). People v Harper, 83 Mich. App. 390; 269 N.W.2d 470 (1978).
At the conclusion of the sentencing hearing, the court imposed a sentence of eight years to life imprisonment. Defendant correctly asserts that this sentence violates MCL 769.9; MSA 28.1081, which provides in part:
"(2) In all cases where the maximum sentence in the discretion of the court may be imprisonment for life or any number or term of years, the court may impose a sentence for life or may impose a sentence for any term of years. If the sentence imposed by the court is for any term of years, the court shall fix both the minimum and the maximum of that sentence in terms of years or fraction thereof, and sentences so imposed shall be considered indeterminate sentences. The court shall not impose a sentence in which the maximum penalty is life imprisonment with a minimum for a term of years included in the same sentence."
Therefore, the sentence must be vacated and the cause remanded for resentencing on the armed robbery conviction. People v Holcomb, 47 Mich. App. 573; 209 N.W.2d 701 (1973).
Affirmed in part and reversed in part.