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Docket Number

Docket No. 45642.

Attorney(S)

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, and Dianne M. Odrobina, Assistant Prosecuting Attorney, for the people. Elliot D. Margolis, for defendant.

Judges

D.C. RILEY, J. (concurring).
E.A. QUINNELL, J.

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Smart Summary

Case Summary: People v. Ferrell, Docket No. 45642 (Mich. Ct. App. Aug. 27, 1980)

Factual and Procedural Background

Defendant was tried by jury and convicted of first-degree criminal sexual conduct (MCL 750.520b; MSA 28.788(2)) and unarmed robbery (MCL 750.530; MSA 28.798). He received concurrent sentences of 5 to 15 years' imprisonment. On appeal the defendant raised, among other claims, a double jeopardy challenge to his convictions. The Court of Appeals reviewed these claims and affirmed the convictions.

Legal Issues Presented

Whether the defendant's convictions for first-degree criminal sexual conduct and unarmed robbery violate the Double Jeopardy Clause (i.e., whether multiple convictions/punishments for these offenses arising from the same act are barred).
Whether the convictions are constitutionally infirm under the standard set out in People v. Martin (i.e., whether there is a constitutional double jeopardy problem given possible legislative intent to authorize multiple punishments).

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Wayne County Prosecutor v. Recorder's Court Judge, 406 Mich. 374, 280 N.W.2d 793 (1979) (app. dis. sub nom. Brintley v. Michigan, 444 U.S. 948)	The Michigan Supreme Court's interpretation of the Blockburger test — that the Blockburger inquiry turns on what the prosecution is legally required to prove to obtain a conviction, not on what the prosecution actually established in a particular case; and that where the legislature clearly intends to authorize multiple convictions/punishments arising from a common act, double jeopardy is not violated.	The Court of Appeals treated Wayne County Prosecutor as controlling authority and applied its holding to reject defendant's double jeopardy claim and to uphold multiple convictions arising from the same act.
Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932)	Provides the two-offense test for double jeopardy inquiries (as interpreted by the Michigan Supreme Court in Wayne County Prosecutor).	The court applied the Michigan Supreme Court's interpretation of Blockburger (focusing on what the prosecution must legally prove) to determine there was no double jeopardy violation.
People v. Martin, 398 Mich. 303, 247 N.W.2d 303 (1976)	Standard for assessing constitutional infirmity of convictions (as cited by the panel).	The court stated there was no constitutional infirmity with the convictions under the Martin standard.
People v. Robideau, 94 Mich. App. 663, 289 N.W.2d 846 (1980)	Used to illustrate or support a finding of clear legislative intent to authorize multiple convictions and punishments.	The court cited Robideau as indicating a clear legislative intent to authorize multiple convictions/punishments and relied on that point in affirming both convictions.
People v. Allen, 94 Mich. App. 539, 288 N.W.2d 451 (1980)	Cited by the concurring judge to reaffirm his prior position that prosecution for felony murder and armed robbery presents a valid double-jeopardy claim.	Referenced in the concurrence: the concurring judge reiterated his disagreement with Wayne County Prosecutor and reaffirmed his view stated in Allen, although the concurrence agreed with the panel's ultimate result.

Court's Reasoning and Analysis

The court's analysis proceeded in two principal steps:

Double Jeopardy Claim: Relying on the Michigan Supreme Court's decision in Wayne County Prosecutor (and the Michigan Supreme Court's interpretation of Blockburger), the panel held that the appropriate inquiry is what the prosecution was legally required to prove to obtain convictions, rather than what the prosecution actually proved at trial. Applying that test, the court observed that first-degree criminal sexual conduct required proof that a sexual penetration occurred under circumstances involving the commission of some other felony. By contrast, the prosecution was not legally required to prove unarmed robbery as an element of first-degree criminal sexual conduct. Because the elements required for the two offenses did not make them the same offense for double jeopardy purposes under the Blockburger/Wayne County framework, there was no double jeopardy violation.
Constitutional Infirmity / Legislative Intent: The court next addressed the constitutional question under the standard articulated in People v. Martin and under the further guidance of Wayne County Prosecutor. Wayne County held that when the legislature clearly expresses an intent to authorize multiple convictions and punishments arising from a common act, double jeopardy does not bar multiple convictions. The panel found a clear legislative intent to permit multiple convictions in this case (and cited People v. Robideau in support). Because of this clear legislative intent and the binding nature of Wayne County Prosecutor, the court concluded that both convictions could stand.

The court also noted briefly that the defendant's other claims of error lacked merit and did not warrant discussion.

Separately, a concurring judge (D.C. Riley, J.) expressly concurred in the result based on Wayne County Prosecutor but wrote to state his disagreement with that decision and to reaffirm his view (as articulated in People v. Allen) that prosecution for felony murder and armed robbery can present a valid double-jeopardy claim. That concurrence does not change the panel's application of precedent to this case.

Holding and Implications

Holding: Affirmed. The Court of Appeals affirmed the defendant's convictions for first-degree criminal sexual conduct and unarmed robbery and the concurrent sentences of 5 to 15 years' imprisonment.

Implications: The direct effect of the decision is that defendant's multiple convictions and concurrent sentences are upheld. The panel's ruling follows and applies the Michigan Supreme Court's interpretation of the Blockburger test as set forth in Wayne County Prosecutor and relies on a finding of legislative intent to allow multiple convictions; the opinion does not announce a new precedent beyond applying existing Michigan Supreme Court authority. A concurring judge registered disagreement with Wayne County Prosecutor but concurred in the result of this appeal.

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PEOPLE v FERRELL

E.A. QUINNELL, J.

Defendant was convicted by a jury of first-degree criminal sexual conduct, MCL 750.520b; MSA 28.788(2), and unarmed robbery, MCL 750.530; MSA 28.798. He was sentenced to concurrent terms of 5 to 15 years imprisonment.

Defendant's double jeopardy claim must be rejected in light of the Michigan Supreme Court holding in Wayne County Prosecutor v Recorder's Court Judge, 406 Mich. 374; 280 N.W.2d 793 (1979), app dis sub nom Brintley v Michigan, 444 U.S. 948; 100 S.Ct. 418; 62 L Ed 2d 317 (1979). In Wayne County Prosecutor, supra, 397-398, the Court held that the double jeopardy test of Blockburger v United States, 284 U.S. 299; 52 S.Ct. 180; 76 L Ed 306 (1932), turned on an analysis of what the prosecution was legally required to prove to obtain a conviction, and not what the prosecution established in a particular case. Here, the prosecution was legally required to prove that a sexual penetration occurred under circumstances involving the commission of some other felony. The prosecution was not legally required to prove unarmed robbery. Thus, under the Michigan Supreme Court's interpretation of Blockburger, no double jeopardy violation exists.

Furthermore, there is no constitutional infirmity with the convictions for unarmed robbery and first-degree criminal sexual conduct under the standard set out in People v Martin, 398 Mich. 303; 247 N.W.2d 303 (1976). In Wayne County Prosecutor, supra, 399-402, the Court held that where there is a clear expression of legislative intent to authorize multiple convictions and punishments arising out of a common act, there is no double jeopardy problem. In the instant case, there is a clear legislative intent to authorize multiple convictions and punishments. See People v Robideau, 94 Mich. App. 663; 289 N.W.2d 846 (1980). We are thus bound by Wayne County Prosecutor, supra, to uphold both of defendant's convictions.

Defendant's other claims of error lack any merit and do not require discussion.

Affirmed.

BASHARA, P.J., concurred.

D.C. RILEY, J. (concurring).

While I concur in the result reached in this matter based on our Supreme Court's decision in Wayne County Prosecutor v Recorder's Court Judge, 406 Mich. 374, 397-398; 280 N.W.2d 793 (1979), I write separately to indicate my disagreement with that decision and to reaffirm my position in People v Allen, 94 Mich. App. 539; 288 N.W.2d 451 (1980) (lest my approval here be interpreted as a repudiation of same), that prosecution for felony murder and armed robbery presents a valid double-jeopardy claim.

PEOPLE v. FERRELL