Michigan Supreme Court
Lansing, Michigan 48909
____________________________________________________________________________________________
Chief Justice Justices
Elizabeth A. Weaver Micha el F. Cavana gh
Opinion
Marilyn Kelly
Cliffor d W. Taylor
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
____________________________________________________________________________________________________________________________
FILED DECEMBER 12, 2000
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v No. 116029
RAJAHAAN FARUQ CLARK,
Defendant-Appellant.
________________________________
PER CURIAM
The defendant was convicted of great number of weapon
offenses, including two counts of felony-firearm. We affirm
his convictions, but remand this case to the circuit court to
correct the judgment of sentence with regard to the felony
firearm convictions.
I
At about 3:45 a.m. on a morning in August 1995, the State
Police stopped a van that was being driven erratically on a
Lansing street. On the basis of what they learned after
making the stop, the troopers searched the van. Inside, they
found a supply of weapons.
The defendant, a passenger in the van, was charged with
fifteen weapon-related offenses.1 Among those charges were
two counts of felony-firearm2 and two counts of possessing a
bomb with unlawful intent.3 The information and amended
1
The fifteen counts were: (1) possession of a bomb, with
unlawful intent, MCL 750.210; MSA 28.407; (2) possession of a
bomb, with unlawful intent; (3) felony-firearm, MCL 750.227b;
MSA 28.424(2); (4) felony-firearm; (5) carrying a concealed
weapon, MCL 750.227; MSA 28.424; (6) CCW; (7) CCW; (8) CCW;
(9) possession of a shortbarreled shotgun, MCL 750.224b; MSA
28.421(2); (10) possession of a short-barreled shotgun; (11)
possession of a “Ground Burst Simulator,” MCL 750.210; MSA
28.407; (12) possession of a “hand grenade simulator;” (13)
placement a pipe bomb near a building, MCL 750.208; MSA
28.405; (14) conspiracy to commit first-degree murder, MCL
750.157a, 750.316; MSA 28.354(1), 28.548; (15) felon in
possession of a firearm, MCL 750.224f; MSA 28.421(6). In
addition, the prosecutor gave notice that the defendant was
subject to an enhanced sentence as an habitual (second)
offender, MCL 769.10; MSA 28.1082.
2
In pertinent part, the statute provides:
(1) A person who carries or has in his or her
possession a firearm when he or she commits or
attempts to commit a felony, except a violation of
section 223, section 227, 227a or 230, is guilty of
a felony, and shall be imprisoned for 2 years.
. . .
(2) A term of imprisonment prescribed by this
section is 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. [MCL
750.227b; MSA 28.424(2).]
In Wayne Co Prosecutor v Recorder’s Court Judge, 406 Mich 374,
389-391; 280 NW2d 793 (1979), we explained that felony-firearm
is a separate felony offense, not a sentence enhancement
measure.
3
In 1995, the statute read:
Any person who carries or possesses a bomb or
bombshell or any article containing an explosive or
combustible substance or foul, offensive or
injurious substance or compound, with intent to use
2
information further alleged that the felony-firearm offenses
occurred in connection with the bomb possession.4
Near the conclusion of the trial, the jury was instructed
in this fashion:
[T]he defendant is charged with the crime of
possessing a firearm at the time he committed the
crime of possession of a bomb with unlawful intent.
To prove this charge, the prosecutor must prove
each of the following elements beyond a reasonable
doubt.
First, that the defendant committed the crime
of possession of a bomb with unlawful intent, which
has been defined for you. It is not necessary,
however, that the defendant be convicted of that
crime.
Second, that at the time the defendant
committed that crime, he knowingly carried or
possessed a firearm. It does not matter whether or
not the gun was loaded.
At the conclusion of its deliberations, the jury found
the defendant guilty of all the charged offenses,5 including
the same unlawfully against the person or property
of other [sic], shall be guilty of a felony,
punishable by imprisonment in the state prison for
not less than two nor more than five years. [MCL
750.210; 28.407, as enacted in 1927 PA 119.]
The statute was substantially revised by 1998 PA 208.
4
The information and amended information alleged that
the defendant
did carry or have in his/her possession a firearm,
to-wit: a handgun, at the time he/she committed or
attempted to commit a felony, to-wit: Possession of
a Bomb with Unlawful Intent; contrary to MCL
750.227b; MSA 28.424(2).
5
Actually, the jury returned guilty verdicts on fourteen
of the fifteen counts. The fifteenth count-- --felon in
possession--
--had been separated to avoid prejudice to the
defendant. After the jury returned its verdict, the defendant
pleaded guilty of that charge.
3
the two counts of felony-firearm and the two counts of
possessing a bomb with unlawful intent.
The circuit court imposed enhanced sentences on the
defendant, who was an habitual offender. For each count of
possessing a bomb with unlawful intent, the court sentenced
the defendant to serve four to seven and a half years in
prison. Various sentences were imposed for the other
offenses, the longest minimum sentences being eight years for
placing a pipe bomb near a building and for conspiracy to
commit murder. The court directed that the defendant serve
two years for each count of felony-firearm.
The court’s written judgment listed the sentences imposed
for each of the fifteen counts. It further provided that the
felony-firearm sentences were to be consecutive to all
thirteen of the other charges.6
The defendant appealed, but the Court of Appeals affirmed
his convictions.7 He now has applied to this Court for leave
to appeal.
II
The defendant raises several issues, but we will address
only one. He says that his two felony-firearm sentences
6
The two felony-firearm sentences were themselves
concurrent. People v Sawyer, 410 Mich 531, 534-535; 302 NW2d
534 (1981).
7
The Court of Appeals remanded the case to the circuit
court “for the ministerial act of issuing an amended judgment
of sentence that makes the felony-firearm sentences
consecutive to all of the felony sentences except the four CCW
sentences.” Unpublished opinion per curiam, issued November
5, 1999, reh den December 17, 1999 (Docket No. 198394).
4
should be consecutive only to the two convictions for
possessing a bomb with unlawful intent, not to the remaining
convictions.8 We agree, and remand this case for correction
of the judgment of sentence.
From the plain language of the felony-firearm statute,9
it is evident that the Legislature intended that a felony
firearm sentence be consecutive only to the sentence for a
specific underlying felony.10 Subsection 2 clearly states that
the felony-firearm sentence “shall be served consecutively
with and preceding any term of imprisonment imposed for the
conviction of the felony or attempt to commit the felony.” It
is evident that the emphasized language refers back to the
predicate offense discussed in subsection 1, i.e., the offense
during which the defendant possessed a firearm. No language
8
As indicated, the Court of Appeals agreed with him in
part, noting that the felony-firearm statute specifically says
that one cannot commit the offense of felony-firearm by
possessing a firearm while committing CCW.
9
The proper interpretation of a statutory provision is
a question of law that we decide de novo. In re Investigation
of March 1999 Riots in East Lansing, 463 Mich 378, 383; 617
NW2d 310 (2000); People v Burgenmeyer, 461 Mich 431, 436, n
10; 606 NW2d 645 (2000); People v Morey, 461 Mich 325,
329-330; 603 NW2d 250 (1999).
10
In People v Lewis, 415 Mich 443, 453; 330 NW2d 16
(1982), we stated:
Although the Legislature no doubt contemplated
that a person convicted of felony-firearm would
also have been convicted of an underlying felony,
it made commission or the attempt to commit a
felony and not conviction of a felony an element of
felony-firearm.
Obviously, a felony-firearm sentence is consecutive only when
the defendant is also convicted of the underlying felony.
5
in the statute permits consecutive sentencing with convictions
other than the predicate offense.
In this instance, the jury found that the defendant
possessed a firearm while he possessed two bombs with unlawful
intent. While it might appear obvious that the defendant also
possessed a firearm while committing the other crimes of which
he was convicted, neither a trial court nor an appellate court
can supply its own findings with regard to the factual
elements that have not been found by a jury.11
Neither the Court of Appeals nor the prosecution has
offered a textual analysis to support its view. To the
contrary, they identify a supposed statutory purpose that
compels a favored result independent of any textual analysis.
As we explained in People v McIntire, 461 Mich 147, 155-156;
599 NW2d 102 (1999), however, the clear language of the
statute is to be applied as written.12
For these reasons, we affirm the defendant’s convictions,
but we modify the judgment of the Court of Appeals. We remand
this case to the circuit court for correction of the judgment
11
At the discretion of the prosecuting attorney, the
complaint and the information could have listed additional
crimes as underlying offenses in the felony-firearm count, or
the prosecutor could have filed more separate felony-firearm
counts.
12
In the past, we have reached similar results by order.
People v Carlson, 440 Mich 895; 488 NW2d 783 (1992); People v
Johns, 434 Mich 880; 452 NW2d 207 (1990); People v Wooden, 422
Mich 863; 365 NW2d 764 (1985); People v Embry, 417 Mich 982
(1983); People v Littke, 417 Mich 981 (1983).
6
of sentence.13 Each felony-firearm sentence is consecutive
only to the corresponding conviction for possession of a bomb
with unlawful intent.14 MCR 7.302(F)(1).
WEAVER , C.J., and KELLY , TAYLOR , CORRIGAN , YOUNG , and MARKMAN ,
JJ., concurred.
CAVANAGH, J., concurred in the result only.
13
As to all other issues raised by defendant in his
application for leave to appeal, we deny leave because we are
not persuaded that the questions presented should be reviewed
by this Court.
14
Since the defendant began serving many of his
concurrent sentences upon imprisonment, it may also be
necessary for the circuit court on remand to adjust the jail
credit.
7
People v Clark
Jennifer Granholm, Attorney General, Thomas L. Casey,
Solicitor General, Jeffrey L. Sauter, Prosecuting Attorney,
and William M. Worden, Assistant Prosecuting Attorney [1045
Independence Blvd., Charlotte, MI 48813] [(517) 543-7500, ext.
265], for the people.
State Appellate Defender (by Gary L Rogers) [3300
Penobscot Building, 645 Griswold, Detroit, MI 48226] [(313)
256-9833] for defendant-appellant.
1