PEOPLE
v.
BYNUM.
Docket Nos. 51202, 51203.
Michigan Court of Appeals.
Decided September 8, 1981.Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, and Andrea L. Solak, Assistant Prosecuting Attorney, for the people.
*94 Gail Rodwan, Assistant State Appellate Defender, for defendant on appeal.
Before: DANHOF, C.J., and M.J. KELLY and D.L. SULLIVAN,[*] JJ.
PER CURIAM.
Defendant, in a single proceeding in Detroit Recorder's Court, pled guilty in case No. 51202 (L.C. No. 79-08194) to one count each of armed robbery, MCL 750.529; MSA 28.797, and possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). In case No. 51203 (L.C. No. 79-08195), he pled guilty to one count each of the same two offenses. The pleas stemmed from defendant's participation in armed robberies on September 20 and 29, 1979, and were made pursuant to a plea-bargaining agreement whereby defendant received sentencing considerations and the prosecution agreed to dismiss two other cases against defendant. Defendant was sentenced to concurrent prison terms of two and five years for the felony-firearm offenses to be served consecutively with the armed robbery sentences. For the armed robberies, defendant received concurrent sentences of from five to ten years and from two to ten years. He appeals as of right.
Defendant first argues that an insufficient factual basis existed for acceptance of his plea to the felony-firearm charge in No. 51202 because there was no evidence that he possessed a firearm during the robbery upon which the charge was based. The record indicates that when questioned by the trial judge about the September 29 robbery, defendant stated that he did not possess a gun at the time although one of his companions pulled a gun on the victim.
*95 The Supreme Court has declared that evidence of knowledge of an accomplice's possession and intent to use a weapon is insufficient for conviction of aiding and abetting felony-firearm. People v Johnson, 411 Mich. 50; 303 NW2d 442 (1981). Rather, it must be shown that the defendant assisted his accomplice in obtaining or retaining possession of the firearm. Id. Therefore, we remand to the trial court. If the prosecutor is able to present evidence of aiding and abetting in No. 51202 the conviction of felony-firearm in that case shall be affirmed and defendant shall be resentenced in accordance with People v Sawyer, 410 Mich. 531; 302 NW2d 534 (1981). In the event the facts elicited do not indicate that defendant assisted in obtaining or retaining possession of the firearm, the felony-firearm conviction in No. 51202 shall be dismissed.
Defendant's conviction for armed robbery in case No. 51202 is affirmed, as are his felony-firearm and armed robbery convictions in case No. 51203.
Remanded.
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment.