People v. Powell , 90 Mich. App. 273 ( 1979 )

90 Mich. App. 273 (1979) 282 N.W.2d 803

PEOPLE
v.
POWELL

Docket No. 78-322.

Michigan Court of Appeals.

Decided May 21, 1979.

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 People v Chamblis, 88 Mich. App. 734; 279 NW2d 541 (1978).

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 People v Doemer, 35 Mich. App. 149, 151-152; 192 NW2d 330 (1971). See also Judge KAUFMAN'S opinion in People v Walter Johnson, 85 Mich. App. 654; 272 NW2d 605 (1978).

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), People v Penn, 70 Mich. App. 638, 649; 247 NW2d 575 (1976). 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. People v Haack, 396 Mich. 367, 376-377; 240 NW2d 704 (1976).

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.