People v. Sawyer , 410 Mich. 531 ( 1981 )

410 Mich. 531 (1981) 302 N.W.2d 534

PEOPLE
v.
SAWYER

Docket No. 64464.

Supreme Court of Michigan.

Decided March 10, 1981.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, and Don W. Atkins, Assistant Prosecuting Attorney, for the people.

Ralph E. Sawyer, in propria persona.

PER CURIAM:

Pursuant to Administrative Order 1977-4, 400 Mich lxvii (1977), defendant has requested that this Court review his convictions. This case presents two sentencing questions arising under Michigan's felony-firearm statute, MCL 750.227b; MSA 28.424(2). We hold that multiple terms of imprisonment for felony-firearm must be served concurrently, notwithstanding the fact that each term of imprisonment for felony-firearm is to be served consecutively with and preceding any term of imprisonment imposed for the commission of the felony. We further hold that a five-year term of imprisonment for a second offense of felony-firearm cannot be imposed unless the second offense is committed subsequent to the first conviction.

I

On two separate occasions, defendant committed robbery while armed with a firearm. Separate prosecutions were thereafter undertaken and defendant was in each case charged with one count of armed robbery, MCL 750.529; MSA 28.797, and one count of felony-firearm, MCL 750.227b; MSA 28.424(2). At a single plea proceeding, defendant pled guilty to all four felony counts. Defendant had not previously been convicted of felony-firearm.

The trial judge thereafter sentenced the defendant to prison for armed robbery. He also sentenced the defendant to a two-year term of imprisonment for the felony-firearm offense which occurred first and to a five-year term of imprisonment for the felony-firearm offense which occurred second. He properly directed that each term of imprisonment for felony-firearm was to be served consecutively with and preceding the accompanying term of imprisonment imposed for armed robbery. He properly directed that the two terms of imprisonment for armed robbery be served with one another. He further directed, however, that the two terms of imprisonment imposed for felony-firearm be served consecutively. Defendant was thus obliged to serve a seven-year term of imprisonment for felony-firearm prior to beginning his term of imprisonment for the second armed robbery conviction.^[1] The Court of Appeals affirmed.

II

Absent statutory authority for imposing a consecutive sentence, it is the rule in this state to impose concurrent sentences, People v Gallagher, 404 Mich 429, 439; 273 NW2d 440 (1979). The felony-firearm statute reads, in full, as follows:

"(1) A person who carries or has in his possession a firearm at the time he commits or attempts to commit a felony, except the violation of section 227 or section 227a, is guilty of a felony, and shall be imprisoned for 2 years. Upon a second conviction under this section, the person shall be imprisoned for 5 years. Upon a third or subsequent conviction under this section, the person shall be imprisoned for 10 years.

"(2) The term of imprisonment prescribed by this section shall be in addition to the sentence imposed for the conviction of the felony or the attempt to commit the felony, and shall be served consecutively with and preceding any term of imprisonment imposed for the conviction of the felony or attempt to commit the felony.

"(3) The term of imprisonment imposed under this section shall not be suspended. The person subject to the sentence mandated by this section shall not be eligible for parole or probation during the mandatory term imposed pursuant to subsection (1)."

A careful reading of subdivision (2) reveals that the Legislature has only directed that the sentence for felony-firearm be served prior to and consecutively with any term of imprisonment imposed for the felony. The statute neither compels nor authorizes a trial judge to impose consecutive multiple sentences for felony-firearm.^[2] Thus we conclude that the trial judge erred in this case in directing that defendant's two sentences for felony-firearm be served consecutively.

III

Defendant pled guilty to two counts of felony-firearm at a single plea proceeding. The offense which occurred second was treated as a second offense for sentencing purposes and the defendant received a five-year term of imprisonment therefor. The statute indicates that the five-year term is to be given to one who sustains "a second conviction under this section". It is by no means clear that the Legislature intended the result found in this case. There are a number of purposes served when the Legislature provides increasing punishment for repeat offenders. These include deterrence and the proper desire of society to provide more severe punishment for a person who declines to change his or her ways following an opportunity to reform. These purposes are not served by imposing a more severe sentence on the day when a defendant first pleads guilty, and we accordingly believe that the Legislature intended that a five-year term of imprisonment for a second conviction should only be imposed where the second offense is subsequent to the first conviction.

Furthermore, this position is consistent with the well settled "rule of lenity" that has been developed by the United States Supreme Court: "[A]mbiguity concerning the ambit of criminal statutes should be resolved in favor of lenity". Rewis v United States, 401 US 808, 812; 91 S Ct 1056; 28 L Ed 2d 493 (1971). In the context of sentencing, "[t]his policy of lenity means that the Court will not interpret a federal criminal statute so as to increase the penalty that it places on an individual when such an interpretation can be based on no more than a guess as to what Congress intended". Ladner v United States, 358 US 169, 178; 79 S Ct 209; 3 L Ed 2d 199 (1958), quoted in Whalen v United States, 445 US 684, 695 fn 10; 100 S Ct 1432; 63 L Ed 2d 715 (1980).

Accordingly, the request filed by the defendant under Administrative Order 1977-4 is treated as an application for leave to appeal and, pursuant to GCR 1963, 853.2(4), in lieu of granting leave to appeal, we remand the case to the Recorder's Court of Detroit for resentencing in a manner consistent with this opinion. The judgment of the Court of Appeals is thus modified. Leave to appeal is otherwise denied.

WILLIAMS, LEVIN, RYAN, and BLAIR MOODY, JR., JJ., concurred.

COLEMAN, C.J. (dissenting).

It is beyond the concept of "lenity" to hold that two felonies committed separately, each with the use of a gun, should be treated as one under the "felony-firearm act" because the plea bargaining for both took place at one hearing. The judge made clear the requirements of the act for two gun counts and the defendant accepted them. If the judge had held separate plea hearings for each offense, there would be no question that the felony-firearm statute would have applied consecutively. The armed robbery counts would have run concurrently. The cliche "form over substance" assumes demonstrative meaning.

We would affirm.

FITZGERALD, J., concurred with COLEMAN, C.J.

KAVANAGH, J. (dissenting).

I would affirm the Court of Appeals.

I am sympathetic to the effort of my colleagues to read sense into this statute by giving it the construction they propose, but I feel constrained to enforce it as the Legislature wrote it.

NOTES

[1] The trial court did not specify which felony-firearm sentence was to be served first.

[2] We do not today consider the propriety of directing that multiple sentences for felony-firearm be served consecutively where such a judgment is imposed on a defendant whose actions permit consecutive sentencing under another theory.