People v. Burks

128 Mich. App. 255 (1983) 339 N.W.2d 734

PEOPLE
v.
BURKS

Docket No. 64934.

Michigan Court of Appeals.

Decided August 17, 1983.

Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Deputy Chief, Civil and Appeals, and Mark J. Cavanagh, Assistant Prosecuting Attorney, for the people.

Thomas A. Law, for defendant on appeal.

Before: HOOD, P.J., and V.J. BRENNAN and D.S. DEWITT,^[*] JJ.

PER CURIAM.

Pursuant to a plea bargain, the defendant pled guilty to armed robbery, MCL 750.529; MSA 28.797, and felony-firearm, MCL 750.227b; MSA 28.424(2). Defendant was sentenced to life imprisonment for the armed robbery conviction and received a five-year prison term for the felony-firearm conviction.

Defendant appealed as of right to this Court. A panel of this Court affirmed the defendant's conviction by granting the prosecution's motion to affirm. Thereafter, the defendant filed an application for leave to appeal in the Supreme Court. In lieu of granting leave to appeal, the Supreme Court remanded the case to the trial court for resentencing because the sentencing record reflected that the defendant was not given the opportunity for allocution pursuant to GCR 1963, 785.8(2). Further, the Supreme Court instructed the trial court that it must not impose a five-year term of imprisonment with respect to defendant's conviction for felony-firearm.

Upon remand, the defendant was sentenced to a prison term of 18 to 40 years for the armed robbery conviction and a consecutive 2-year prison term for the felony-firearm conviction, to be served prior to the sentence for armed robbery. Defendant then filed the present claim of appeal in this Court. Subsequently, the prosecutor filed a motion to dismiss on the basis that the issues raised by the defendant were outside the scope of the Supreme Court's remand order. A panel of this Court denied the motion and found that the defendant is entitled to maintain an appeal as of right from the resentencing judgment. However, the panel also found that the defendant's appeal is confined to issues that arose as a result of the resentencing.

Defendant's first three claims on appeal concern the validity of the defendant's guilty plea. Because these issues did not arise as a result of the resentencing, we will not review them. Issues outside the scope of a remand order will not be considered on appeal following remand. People v LeFlore, 122 Mich. App. 314; 333 NW2d 47 (1983).

In addition, we find the defendant's remaining claim to be without merit. "Proposal B", MCL 791.233b; MSA 28.2303(3), is not unconstitutional as a denial of due process and equal protection of the laws in violation of the federal and state constitutions. "Proposal B" is an initiated law ratified by the people of Michigan in the general election held on November 7, 1978. Const 1963, art 2, § 9 reserves the power to propose laws and to enact and reject laws to the people. People v Cohens, 111 Mich. App. 788, 791-792; 314 NW2d 756 (1981). "Proposal B" meets all the tests of constitutional scrutiny.

Affirmed.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.