Opinion
SC: 163937 COA: 358825
07-21-2023
PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Lashawn Dewon MONROE, Defendant-Appellant.
Order
On April 5, 2023, the Court heard oral argument on the application for leave to appeal the November 17, 2021 order of the Court of Appeals. On order of the Court, the application is again considered, and it is DENIED, because we are not persuaded that the question presented should be reviewed by this Court.
Welch, J. (concurring).
I respectfully concur in this Court's order denying leave. Defendant argues that his dual convictions for carrying a firearm during the commission of a felony (felony-firearm), MCL 750.227b(1), and being a felon in possession of a firearm (felon-in-possession), MCL 750.224f(1), which arose out of a single act of possession of a gun, violate the Double Jeopardy Clauses of the United States and Michigan Constitutions. Because I believe the Legislature clearly intended for multiple punishments to be imposed when a person with a felony possesses a firearm, I agree that denying leave in this matter is appropriate. However, I write separately to urge the Legislature to reconsider the current draconian status quo of allowing dual convictions for the single act of possessing a firearm.
It is a felony for a convicted felon to possess a firearm unless a restoration process outlined by statute has been followed. MCL 750.224f(1) (setting forth the felon-in-possession prohibition). Additionally, "[a] person who carries or has in his or her possession a firearm when he or she commits or attempts to commit a felony , [unless subject to one of the listed exceptions], is guilty of a felony and shall be punished by imprisonment for 2 years." MCL 750.227b(1) (setting forth the felony-firearm prohibition) (emphasis added). The specific exceptions to the felony-firearm statute are: (1) MCL 750.223 (unlawful sale of a firearm); (2) MCL 750.227 (carrying a concealed weapon); (3) MCL 750.227a (unlawful possession by licensee); and (4) MCL 750.230 (alteration or removal of identifying marks from a firearm). While all of these exceptions to a felony-firearm charge involve crimes without a victim, felon-in-possession of a firearm, MCL 750.224f(1), is not included. Meshing the felon-in-possession and felony-firearm statutes means that if a felon is found by the police to have a gun, that defendant can be charged with felon-in-possession. Then, that felon-in-possession charge serves as the basis for an additional charge of felony-firearm. In other words, possession of the gun forms the predicate felony to then charge the defendant with a felony-firearm violation. One gun possession results in both charges. While a felon-in-possession conviction often results in probation, a felony-firearm conviction requires a mandatory two-year prison term.
The second subsequent conviction results in a mandatory prison term of five years. Any other convictions after the second result in a mandatory prison term of ten years. MCL 750.227b(1).
In this case, defendant was the passenger in a vehicle that was stopped by the police. Defendant was found to be in possession of a firearm and subsequently pled guilty to felony-firearm and felon-in-possession. Defendant was eventually sentenced to 18 months’ probation for the felon-in-possession conviction and the required consecutive two years’ imprisonment sentence for felony-firearm. Thus, defendant was subjected to two separate convictions—and punishments—for the single act of possessing a firearm. While this result is currently permitted under the law, I believe the time has come for the Legislature to revisit the interplay of these statutes.
It has generally been recognized that the Double Jeopardy Clauses of the United States and Michigan Constitutions protect against governmental abuses for both (1) multiple prosecutions for the same offense after a conviction or acquittal and (2) multiple punishments for the same offense. Ohio v Johnson , 467 U.S. 493, 497-498, 104 S.Ct. 2536, 81 L.Ed.2d 425 (1984). The second category is at issue here; we frame this as a protection "against multiple punishments for the same offense." People v Mitchell , 456 Mich. 693, 695, 575 N.W.2d 283 (1998). "Where the issue is one of multiple punishment rather than successive trials, the double jeopardy analysis is whether there is a clear indication of legislative intent to impose multiple punishment for the same offense. If so, there is no double jeopardy violation." Id. at 695-696, 575 N.W.2d 283.
In People v Calloway , 469 Mich. 448, 451, 671 N.W.2d 733 (2003), we affirmed that because "the power to define crime and fix punishment is wholly legislative, the [double jeopardy] clause is not a limitation on the Legislature, and the only interest of the defendant is in not having more punishment imposed than intended by the Legislature." (Quotation marks and citations omitted.) "Thus, ‘even if the crimes are the same, ... if it is evident that a state legislature intended to authorize cumulative punishments, a court's inquiry is at an end.’ " Id. (brackets omitted), quoting People v Sturgis , 427 Mich. 392, 400, 397 N.W.2d 783 (1986), quoting Ohio , 467 U.S. at 499 n 8, 104 S.Ct. 2536. Accordingly, we held that "[b]ecause the felon in possession charge is not one of the felony exceptions in the statute, it is clear that defendant could constitutionally be given cumulative punishments when charged and convicted of both felon in possession, MCL 750.224f, and felony-firearm, MCL 750.227b." Calloway , 469 Mich. at 452, 671 N.W.2d 733.
Recently, we also reaffirmed that legislative intent is what must be considered in the "multiple punishment" in-the-same-prosecution double jeopardy analysis. People v Wafer , 509 Mich. 31, 38, 983 N.W.2d 315 (2022). We stated that double jeopardy "does not prevent the Legislature from specifically authorizing cumulative punishment under two statutes." Id. (cleaned up). Thus, it is well settled that multiple punishments are allowable where authorized by the Legislature.
In Wafer , we held that concurrent convictions for second-degree murder, MCL 750.317, and involuntary manslaughter, MCL 750.329, constituted a double jeopardy violation when arising out of the same act. Wafer , 509 Mich. at 34, 983 N.W.2d 315. We determined that the phrase "without malice" in the involuntary manslaughter statute specifically indicated legislative intent "to prevent the prosecution from obtaining convictions and sentences for both with regard to the same conduct." Id. at 48, 983 N.W.2d 315. Because "without malice" was not an element of second-degree murder, it would be nugatory if it failed to prevent double punishments. Id.
Defendant, in asking us to revisit our holding in Calloway , presents an overview of the legislative history of both the felon-in-possession and felony-firearm statutes. Defendant persuasively notes that, in 1976, when the felony-firearm statute was first promulgated, the mere possession of a firearm was not intended to result in cumulative punishments like those received by defendant in this case. But the legal landscape has changed considerably since 1976.
The felon-in-possession statute, MCL 750.224f(1), was passed in 1992. The Legislature was thus aware of the then-existing felony-firearm statute and is presumed to have understood the consequences of not having contemporaneously amended the felony-firearm statute, MCL 750.227b(1), to add felon-in-possession as one of its exemptions. Walen v Dep't of Corrections , 443 Mich. 240, 248, 505 N.W.2d 519 (1993) (stating that it is "a well-known principle that the Legislature is presumed to be aware of, and thus to have considered the effect on, all existing statutes when enacting new laws.") (citation omitted). In 2015, the Legislature actually did amend MCL 750.227b(1) to incorporate some minor changes and still did not add felon-in-possession as an exemption. 2015 PA 26. Thus, given the felony-firearm statute's explicit allowance for multiple punishments arising out of the same crime, it is difficult to conclude that the Calloway Court was mistaken. This position is only bolstered by the Legislature's 2015 amendments to the felony-firearm statute and its lack of action at that time to add the felon-in-possession statute as an exemption. Despite this, I sincerely question the policy of the Legislature in allowing these cumulative punishments for one single act of possessing a firearm after being convicted of a felony. As defendant notes, the 1976 felony-firearm statute was intended to deter would-be criminals from using a firearm when committing a crime by imposing a mandatory consecutive two-year prison sentence in addition to a sentence for the other felony. Indeed, Governor Milliken argued that HB 5073 was a priority because "[w]eapon-related offenses are increasing: armed robbery, often a handgun crime, was up 11 percent in the first half of 1975—more than any other index crime." 1975 Senate Journal 2124 (from the October 13, 1975, Special Message from the Governor to the Legislature). The Bill's legislative analysis also focused on the exponential danger created when firearms are present during the commission of other crimes and the need for a specific deterrent, noting that "persons committing crimes like breaking and entering or shoplifting sometimes carry a gun intending to use it only as a threat, but when unexpectedly confronted, use the gun violently. Such persons might think twice before carrying a firearm if they knew that conviction would result in a mandatory sentence. " House Legislative Analysis, HB 5073 (February 4, 1976) (emphasis added). Thus, the purpose for the felony-firearm statute was to punish people who carried guns while committing another crime.
That amendment made minor changes to Subsection (1) but notably left the same exceptions in place. The Legislature also added a new Subsection (2) that applies the felony-firearm rules to pneumatic guns (high power air rifles) and includes the same list of excepted crimes as in Subsection (1).
Because the legislative intent to allow multiple punishments is clear here, this legal challenge does not present an ideal vehicle for examining the continuing validity of People v Ream , 481 Mich. 223, 750 N.W.2d 536 (2008). This is because, as we recently reaffirmed, the abstract legal elements test from Ream is only applicable where the Legislature has not clearly indicated an intent to authorize multiple punishments. Wafer , 509 Mich. at 39, 983 N.W.2d 315.
While the 1976 felony-firearm statute was built upon the understandable goal of decreasing the chance of a crime escalating into fatal violence by punishing use of a firearm when committing another crime, such a deterrent effect is not served where the underlying felony and the felony-firearm conviction arise from the identical action. The possession of a firearm is baked into the felon-in-possession conviction itself. In other words, charging a defendant under the felony-firearm statute because they violated the felon-in-possession statute does not deter the felon from unlawfully possessing the firearm under the felon-in-possession statute. The charges arise out of the identical transaction so one cannot deter the other.
I urge the Legislature to re-examine the list of exceptions in the felony-firearm statute and consider the consequences that the criminal justice system has had to bear due to the mandatory two-year prison term that must be tacked onto a felon-in-possession conviction. Until such time, our hands are tied, and defendant's convictions must stand. Therefore, I concur in this Court's order denying leave.
One scholar has noted that Michigan's trend has been to increase sentencing penalties over time, "with the average sentence length nearly doubling from 1990 to 2009." Yantus, Sentence Creep: Increasing Penalties in Michigan and the Need for Sentencing Reform , 47 U Mich J L Reform 645, 646 (2014). This correspondingly has included a dramatic increase in Michigan's prison population, from 9,079 in 1970 to 43,000 prisoners by the end of 2012. Id. at 646-647. This scholar noted that one of the causes has been the Legislature's decision to revise the maximum penalty for a number of crimes since the mid-1970s, including requiring a consecutive sentence for felony-firearm. Id. at 667-669. These increases to the maximum penalties have been "significant, costly, and tend to the move the entire system of punishment into a higher realm." Id. at 675.
Bolden, J., joins the statement of Welch, J.