Opinion
Docket Nos. 58939, 58940.
Decided August 26, 1982.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Earl H. Morgan, Jr., Prosecuting Attorney, and Gary W. Rapp, Assistant Prosecuting Attorney, for the people. Peter J. Van Hoek, Assistant State Appellate Defender, for defendant on appeal.
Defendant pled guilty to one count of delivery of marijuana, MCL 333.7401(1)(2)(c); MSA 14.15(7401)(1)(2)(c), one count of possession of a firearm in the commission of a felony, MCL 750.227b; MSA 28.424(2), and two counts of delivery of a controlled substance, LSD, MCL 333.7401(1)(2)(b); MSA 14.15(7401)(1)(2)(b). Those pleas stemmed from a plea bargaining agreement between the defendant and the prosecutor which provided that, in exchange for those guilty pleas, the prosecutor would not prosecute the defendant for seven other felony charges and would allow the defendant's son, who was charged with two felonies, to plead guilty to a one-year misdemeanor. Defendant now appeals his convictions and sentences as of right.
Defendant first argues that, because part of the agreement made in exchange for his guilty pleas included a reduced charge for his son, the agreement was coercive and "potentially renders [his] subsequent pleas involuntary". A promise of leniency for a relative is not coercive so as to render a guilty plea involuntary as a matter of law; it is only evidence that the plea may be involuntary as a matter of fact. People v James, 393 Mich. 807, 808; 225 N.W.2d 520 (1975). Where a defendant definitively asserts that the promise of leniency made his guilty plea involuntary and requests a remand for an evidentiary hearing to establish the grounds alleged, the request should be granted. People v Walker, 75 Mich. App. 552, 553-554; 255 N.W.2d 658 (1977). In this case, the defendant argues only that the promise of leniency to his son may have rendered his plea involuntary, a speculation we decline to engage in. No motion to remand for an evidentiary hearing on the issue was filed during the pendency of this appeal. In light of these factors and the fact that the defendant gained substantial benefit from the plea agreement regarding his own criminal liability, we find the defendant's plea to have been voluntarily made.
Defendant argues next that his right to assistance of counsel was violated because the same attorney represented both him and his son thus presenting a conflict of interest. We find no merit to this argument. Cases cited by the defendant which deal with dual representation and the effective assistance of counsel concern codefendants, represented by the same attorney, who have potentially conflicting defenses. This is not the case here.
Defendant next argues that his conviction for felony-firearm was erroneous because there was no showing that the defendant intended to carry or possess a firearm during the commission of a felony. There is no explicit scienter requirement in the felony-firearm statute and when the language of a statute is clear and unambiguous, there is no room for judicial construction. Ypsilanti Police Officers Ass'n v Eastern Michigan University, 62 Mich. App. 87, 92; 233 N.W.2d 497 (1975). Furthermore, this Court has held that the statute does not require a nexus between the felony and the firearm. People v Elowe, 85 Mich. App. 744; 272 N.W.2d 596 (1978). Therefore, the defendant's intent regarding his possession of a firearm during the commission of a felony is irrelevant. The felony-firearm conviction is affirmed. Defendant's claim that this conviction impinges on his constitutional right to bear arms does not change our conclusion. Defendant concedes that the right to bear arms is subject to the valid exercise of the state's police power to regulate the carrying of firearms. The felony-firearm statute regulates the possession of firearms and the statute's constitutionality was upheld in Wayne County Prosecutor v Recorder's Court Judge, 406 Mich. 374; 280 N.W.2d 793 (1979).
Finally, the defendant argues that he is entitled to credit for 90 days served in jail prior to his sentence on the first felony charge, despite the fact that the incarceration was due to his inability to post bond on a subsequent felony charge. We note that there is a split of authority in this Court on the issue of how much credit is to be given, under MCL 769.11b; MSA 28.1083(2), for time served in a situation such as this. See People v Coyle, 104 Mich. App. 636, 649-650; 305 N.W.2d 275 (1981), for a discussion of the three points of view on this issue. We hold that the defendant should be credited with the time he was confined during this period, i.e., 90 days, despite the fact that such confinement stemmed from a different charge.
Defendant's convictions are affirmed; defendant's sentence on his first felony conviction is modified to include credit for 90 days in jail.