People v. Reed , 121 Mich. App. 575 ( 1982 )

Per Curiam.

Defendant was charged with two counts of armed robbery, MCL 750.529; MSA 28.797, and with one count of felony-firearm. MCL 750.227b; MSA 28.424(2). Defendant pled guilty to the crimes charged. Defendant was sentenced to a term of one to ten years on an armed robbery count plus the mandatory two-year term on the felony-firearm count. Defendant appealed as of right.

A panel of the Court of Appeals found that the record did not show that defendant assisted his accomplice in obtaining or retaining possession of the firearm which his accomplice possessed during the commission of the felony. The Court of Appeals remanded defendant’s case for a hearing under the authority of People v Johnson, 411 Mich 50; 303 NW2d 442 (1981). People v Reed (Docket No. 53733, decided May 28, 1981 [unreported]). The trial court conducted a hearing. Upon making a finding of insufficient evidence on the element of assisting his accomplice in obtaining or retaining possession of the firearm used by the accomplice, the court vacated defendant’s conviction under the felony-firearm count. The prosecutor filed a claim of appeal and appeals as of right.

Prior to accepting defendant’s guilty plea on July 11, 1980, the trial court questioned defendant to determine whether defendant was guilty of the crime charged. When the court asked defendant whether he was armed, defendant replied that he was armed with a stick and that his accomplice had a revolver.

The Johnson remand hearing was held July 7, 1981. The prosecutor presented William Miller and Torri Whitehead as witnesses, both of whom had testified at the preliminary examination. Whitehead testified that defendant possessed what appeared to her to be a pipe. Miller testified that defendant possessed what appeared to be a shotgun, but he was not sure. The prosecutor did not present evidence that defendant assisted his accomplice in obtaining or retaining possession of the firearm used by the accomplice. Defendant did not testify at the evidentiary hearing. Miller and Whitehead testified consistently with their testimony at the preliminary examination.

The trial court concluded that it was limited by the Court of Appeals opinion to considering evidence that defendant assisted his accomplice in obtaining or retaining possession of the firearm used by the accomplice. The court found that it was without jurisdiction to redetermine the nature of the instrument possessed by defendant.

The prosecutor argues that the trial court erroneously dismissed the felony-firearm count when, under a Johnson remand, the prosecution presented evidence from which actual possession could be inferred to support a guilty plea.

In a felony-firearm prosecution, the possession of a firearm is a crime distinct from the underlying felony. The aiding and abetting charge must, therefore, be established in each to support the conviction for each. Johnson, supra, p 54.

"On remand the prosecutor shall be given an opportunity to establish that the defendant procured, counselled, aided or abetted and so assisted the accomplice to obtain or retain possession of the firearm which the accomplice possessed during the commission of the felony. If the prosecutor is able to do so and there is no contrary evidence, the judgments of conviction of felony-firearm in these cases shall be affirmed. If the prosecutor is unable to do so, the judgments of conviction of felony-firearm shall be set aside. If contrary evidence is produced, these matters shall be treated as a motion to withdraw the guilty pleas and the court shall decide these matters in the exercise of its discretion. Guilty Plea Cases, 395 Mich 96; 235 NW2d 132 (1975).” Johnson, supra, pp 54-55.

A panel of this Court instructed the trial court to, upon remand, give the prosecutor an opportunity to establish the missing element pursuant to the dictates of Johnson. People v Reed (Docket No. 53733, decided May 28, 1981 [unreported]). This Court has similarly ordered a remand for supplementation of the record concerning guilty pleas on felony-firearm charges in other recent cases. See People v Bynum, 109 Mich App 93; 310 NW2d 905 (1981), and People v Sees, 104 Mich App 477; 304 NW2d 612 (1981), lv den 412 Mich 897 (1982).

The problems of the case at bar arise because the prosecutor failed to follow the explicit directions of this Court. The trial court felt bound by this Court’s instructions and vacated defendant’s felony-firearm convicton because of the prosecutor’s failure.

A trial court may take any action on remand which is not inconsistent with the instructions of the remanding court where the action is otherwise proper. See Meyering v Russell, 85 Mich App 547, 552; 272 NW2d 131 (1978), lv den 406 Mich 866 (1979), and Sokel v Nickoli, 356 Mich 460, 464; 97 NW2d 1 (1959).

In the case at bar, the prosecutor clearly failed to follow the instructions of this Court. The trial court refused to permit the prosecutor to use the Johnson hearing to create an issue of fact concerning whether defendant held a rifle or a stick during the robbery. It appears the trial court’s limitations were proper in this case. Permitting the prosecutor to create an issue of fact concerning a weapon held by defendant would have been inconsistent with this Court’s prior decision and inappropriate at this stage of the proceedings. See Theisen v City of Dearborn, 48 Mich App 571; 210 NW2d 777 (1973).

Affirmed.