People v. Minch

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Docket Number

Docket No. 301316.

Attorney(S)

Bill Schuette, Attorney General, John J. Bursch, Solicitor General, Tony Tague, Prosecuting Attorney, and Charles F. Justian, Chief Appellate Attorney, for the people. Nolan Law Offices, PLLC, Muskegon, (by Kevin J. Wistrom), for defendant.

Judges

PER CURIAM.

Acts

Crimes And Criminal Procedure — Firearms — Crimes — Unlawful Acts

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Smart Summary

Factual and Procedural Background

Defendant pleaded guilty to one count of possession of a short-barreled shotgun, MCL 750.224b, and one count of possessing a firearm during the commission of a felony, MCL 750.227b. Police seized 87 firearms during a raid; only one (the short-barreled shotgun) was illegal to possess. The trial court granted defendant's motion for return of 86 noncontraband firearms and ordered the Fruitport Police Department to return them to defendant's designee, his mother, Carol L. Cutler. The prosecution did not initiate forfeiture proceedings and stated it did not intend to. The prosecution obtained leave to appeal the trial court's order and a stay of enforcement pending appeal. The Court of Appeals affirmed the trial court's order.

Legal Issues Presented

Whether the trial court erred in ordering the Fruitport Police Department to deliver noncontraband firearms seized from defendant to his designee in light of Michigan's felon-in-possession statute, MCL 750.224f, which prohibits a convicted felon from possessing, using, transporting, selling, purchasing, carrying, shipping, receiving, or distributing a firearm.
Whether permitting the police to deliver firearms to the defendant's designee would constitute a prohibited "distribution" by the defendant or otherwise violate the felon-in-possession statute.
Whether withholding the noncontraband firearms without instituting forfeiture proceedings would violate the defendant's due-process rights.

Arguments of the Parties

Prosecution's Arguments

Allowing the police to deliver the firearms to Cutler would be akin to allowing defendant to distribute them, which is barred by MCL 750.224f.
The prosecution attempted to distinguish prior cases by arguing defendant's due-process rights were not implicated because the Fruitport Police Department was not seeking permanent retention of the firearms.

Defendant's Position

Defendant moved for return of the noncontraband firearms and designated his mother to receive them; denying return would deprive him of property without due process because no forfeiture proceedings had been instituted.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
People v. Waclawski, 286 Mich.App. 634, 780 N.W.2d 321 (2009)	Standard of review for statutory interpretation and application (de novo).	Cited to justify reviewing the interpretation and application of MCL 750.224f de novo.
People v. Williams, 475 Mich. 245, 716 N.W.2d 208 (2006)	Primary obligation to ascertain legislative intent from the plain language of the statute.	Used to support interpreting MCL 750.224f by its plain language.
People v. Osby, 291 Mich.App. 412, 804 N.W.2d 903 (2011)	Courts look to plain meaning of terms unless defined within the statute.	Applied in deciding whether to consult external definitions for "distribute."
People v. Breidenbach, 489 Mich. 1, 798 N.W.2d 738 (2011)	Courts may read nothing into an unambiguous statute beyond legislative intent.	Quoted to emphasize enforcing unambiguous statutory text.
People v. Davis, 468 Mich. 77, 658 N.W.2d 800 (2003)	Support for the principle cited in Breidenbach regarding unambiguous statutes.	Quoted via Breidenbach to reinforce statutory interpretation principles.
People v. Patton, 285 Mich.App. 229, 775 N.W.2d 610 (2009)	Legislature presumed to intend plain meaning; enforce unambiguous statutes as written.	Used to affirm reliance on plain statutory language.
People v. Haynes, 281 Mich.App. 27, 760 N.W.2d 283 (2008)	Permits consulting a dictionary where a statute does not define a term.	Supported consulting dictionary definitions for "distribute."
Banks v. Detroit Police Dep't, 183 Mich.App. 175, 454 N.W.2d 198 (1990)	Under facts where police did not institute forfeiture, denying return of noncontraband firearms to a convict violates due process; allowed designation of third party to receive firearms.	Relied on as a similar precedent (federal statute context) to support allowing a designee to receive firearms where no forfeiture proceedings exist.
People v. Oklad, unpublished opinion per curiam of the Court of Appeals, issued March 3, 2000 (Docket No. 206589), 2000 WL 33529628	Applied Banks to Michigan's felon-in-possession statute, allowing a designee to receive firearms when no forfeiture proceedings existed.	Followed as persuasive authority to hold that defendant could designate an individual to receive firearms despite being prohibited from possessing them.
People v. Green, 260 Mich.App. 710, 680 N.W.2d 477 (2004)	Explains that unpublished opinions have no precedential value but may be followed if persuasive; cites MCR 7.215(C)(1).	Used in a note to justify the Court's consideration of the unpublished Oklad opinion as persuasive.

Court's Reasoning and Analysis

The court interpreted MCL 750.224f according to its plain language and reviewed statutory interpretation de novo. Because the Michigan Penal Code does not define "distribute," the court consulted dictionary definitions showing "distribute" includes "deliver." The prosecution's argument—that police delivery to the designee would amount to an unlawful distribution by defendant—was rejected because the police had not initiated forfeiture proceedings and had not asserted intent to do so. The court concluded that retaining noncontraband firearms without forfeiture would deprive defendant of property without due process. The court relied on Banks (federal-context precedent) and the Court's unpublished Oklad decision (applied Banks to Michigan law) to hold that a convicted felon may designate a third party to receive noncontraband firearms when no forfeiture proceeding exists. The prosecution's attempt to distinguish those cases by noting the police did not intend permanent retention was unpersuasive because the prosecution did not explain what alternative action would satisfy due-process requirements absent forfeiture proceedings. Accordingly, the trial court did not err in ordering delivery to the designee.

Holding and Implications

Affirmed.

Direct effect: The Court of Appeals affirmed the trial court's order requiring the Fruitport Police Department to deliver the 86 noncontraband firearms to defendant's designee, Carol L. Cutler. The opinion does not announce a new legal rule beyond applying existing precedent (Banks and Oklad) and statutory interpretation principles; it enforces the consequence that, where no forfeiture proceedings exist, due process requires return of noncontraband property to a defendant's designee.

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PEOPLE v. MINCH.

PER CURIAM.

Bill Schuette, Attorney General, John J. Bursch, Solicitor General, Tony Tague, Prosecuting Attorney, and Charles F. Justian, Chief Appellate Attorney, for the people. Nolan Law Offices, PLLC, Muskegon, (by Kevin J. Wistrom), for defendant. Before: HOEKSTRA, P.J., and KIRSTEN FRANK KELLY and BECKERING, JJ.

PER CURIAM.

The prosecution appeals by leave granted an order of the trial court directing the Fruitport Police Department to turn certain firearms over to defendant's designee, Carol L. Cutler, who is also his mother. We affirm.

I. BASIC FACTS AND PROCEDURAL HISTORY

Defendant pleaded guilty to one count of possession of a short-barreled shotgun, MCL 750.224b, and one count of possessing a firearm during the commission of a felony, MCL 750.227b. The trial court granted defendant's motion for the return of 86 noncontraband firearms seized during a police raid of defendant's home and ordered the Fruitport Police Department to return the firearms to defendant's designee-his mother, Carol L. Cutler. The police initially seized 87 firearms from defendant, but only one firearm, the short-barreled shotgun, was illegal to possess. The prosecution did not bring forfeiture proceedings, nor did it intend to do so in the future.

We granted the prosecution's emergency application for leave to appeal, People v. Minch, unpublished order of the Court of Appeals, entered December 1, 2010 (Docket No. 301316), as well as the prosecution's motion to stay enforcement of the trial court's order pending the resolution of this appeal, People v. Minch, unpublished order of the Court of Appeals, entered November 29, 2010 (Docket No. 301316).

II. ANALYSIS

Under the felon-in-possession statute, MCL 750.224f, it is illegal for defendant to possess or distribute firearms. The prosecution argues that allowing the police to deliver the firearms to Cutler would be akin to allowing defendant to distribute them and that this action should be barred under MCL 750.224f. We disagree. We review de novo the interpretation and application of statutes. People v. Waclawski, 286 Mich.App. 634, 645, 780 N.W.2d 321 (2009).

MCL 750.224f(2) provides, in relevant part:

A person convicted of a specified felony shall not possess, use, transport, sell, purchase, carry, ship, receive, or distribute a firearm in this state until all of the following circumstances exist:

A “specified felony” under the statute includes a felony for the unlawful possession or distribution of a firearm. MCL 750.224f(6)( iii ). In this case, defendant's possession of a short-barreled shotgun offense or his felony-firearm offense qualifies as a “specified felony.”

(a) The expiration of 5 years after all of the following circumstances exist:

( i ) The person has paid all fines imposed for the violation.

( ii ) The person has served all terms of imprisonment imposed for the violation.

( iii ) The person has successfully completed all conditions of probation or parole imposed for the violation.

(b) The person's right to possess, use, transport, sell, purchase, carry, ship, receive, or distribute a firearm has been restored pursuant to section 4 of Act No. 372 of the Public Acts of 1927, being section 28.424 of the Michigan Compiled Laws. [Emphasis added.] Our primary obligation when interpreting a statute is to ascertain the intent of the Legislature from the plain language of the statute and to give effect to that intent. People v. Williams, 475 Mich. 245, 250, 716 N.W.2d 208 (2006). “When interpreting statutes, this Court looks to the plain meaning of terms unless those terms are defined within the statute.” People v. Osby, 291 Mich.App. 412, 415, 804 N.W.2d 903 (2011). “ ‘[A] court may read nothing into an unambiguous statute that is not within the manifest intent of the Legislature as derived from the words of the statute itself.’ ” People v. Breidenbach, 489 Mich. 1, 10, 798 N.W.2d 738 (2011), quoting People v. Davis, 468 Mich. 77, 79, 658 N.W.2d 800 (2003). The Legislature is presumed to have intended its plain meaning, and this Court should enforce unambiguous statutes as written. People v. Patton, 285 Mich.App. 229, 234, 775 N.W.2d 610 (2009).

MCL 28.424 allows a person to apply to the county concealed weapon licensing board in his or her county of residence for a restoration of these rights.

The Michigan Penal Code does not specifically define “distribute” in the context of firearms violations. We may therefore consult a dictionary to determine the meaning of “distribute.” See People v. Haynes, 281 Mich.App. 27, 29, 760 N.W.2d 283 (2008). The definition of “distribute” includes “deliver.” Black's Law Dictionary (9th ed); Random House Webster's College Dictionary (1997). The prosecution argues that if defendant is permitted to authorize the police department to dispose of the weapons on his behalf, the department would effectively be acting as defendant's agent when it delivers the weapons to Cutler. However, the prosecution's position fails to account for defendant's due-process rights or previous decisions of this Court. The Fruitport police have not instituted forfeiture proceedings, nor have they asserted that forfeiture proceedings would be proper. Therefore, denying defendant's designee the right to take possession of the weapons would deprive defendant of his property without due process of law. Banks v. Detroit Police Dep't, 183 Mich.App. 175, 180, 454 N.W.2d 198 (1990); People v. Oklad, unpublished opinion per curiam of the Court of Appeals, issued March 3, 2000 (Docket No. 206589), 2000 WL 33529628.

While an unpublished opinion has no precedential value, this Court may follow the opinion if it finds the reasoning persuasive. See People v. Green, 260 Mich.App. 710, 720 n. 5, 680 N.W.2d 477 (2004); MCR 7.215(C)(1).

A criminal defendant is entitled to the return of his or her property after the case is concluded unless there is a lawful reason to deny its return. Banks, 183 Mich.App. at 178, 454 N.W.2d 198. The party seeking to retain the property “has the burden of proof to establish a lawful reason for denying the return of the property to the person from whom it was seized.” Id. However, while criminal defendants are entitled to the return of property that is legal to possess, they are not entitled to the return of contraband. Id. at 181, 454 N.W.2d 198. Likewise, criminal defendants are not entitled to property that has been forfeited. See id. at 178, 454 N.W.2d 198.

In Banks, this Court addressed an issue similar to the one raised in this appeal, although it was decided under the federal felon-in-possession statute, not the Michigan felon-in-possession statute. Banks, 183 Mich.App. at 179–180, 454 N.W.2d 198. In Banks, police officers had seized various items from the plaintiff while executing a search warrant, including firearms that were not illegal to possess. Id. at 177, 454 N.W.2d 198. The Detroit Police Department did not institute forfeiture proceedings against the seized property. Id. at 180, 454 N.W.2d 198. The plaintiff, who had been convicted on felony charges in a previous criminal proceeding, sought return of his property, including the firearms, to a designated third party. Id. at 177–178, 454 N.W.2d 198. The police department opposed his request with regard to the firearms because the plaintiff was a convicted felon and, as such, was prohibited by federal law from possessing or transporting firearms. ID. AT 179–180, 454 n.w.2d 198. this court acknowLedgeD that under the federal felon-in-possession statute, the plaintiff could not himself possess or transfer the firearms; however, it concluded that allowing the police to retain possession of the firearms without having instituted forfeiture proceedings would violate defendant's due-process rights. Id. at 180, 454 N.W.2d 198. Accordingly, this Court allowed the plaintiff to designate someone to receive the firearms, even though it would have been illegal for defendant to transfer or possess them. Id.

Under 18 U.S.C. § 922(g), convicted felons are prohibited from possessing or transporting firearms that affect or have been transported in interstate commerce.

While Banks addressed the federal felon-in-possession statute, this Court applied the holding in Banks to Michigan's felon-in-possession statute in Oklad, in which police officers had seized guns and illegal contraband from the defendant's home. Oklad, unpub. op. at 2–3. As with the firearms seized in Banks, the firearms seized were not illegal to possess and were not the subject of forfeiture proceedings. Id. at 3–4. The defendant, who was a convicted felon, moved for the return of his firearms, arguing that withholding the guns was a deprivation of property without due process. Id. at 3. The prosecution objected to the return of the firearms, citing MCL 750.224f and arguing that it would be illegal for the defendant to possess them because of his status as a convicted felon. Id. Consistently with its holding in Banks, this Court held that although the defendant could not legally possess, use, transport, or distribute the firearms, he was nonetheless entitled to designate an individual to receive them. Id. at 4. This Court determined that if the firearms were not the subject of forfeiture proceedings, the police lacked a valid reason to retain possession of them and, therefore, due process required that the firearms be returned to the defendant's designee. Id. at 3–4.

The prosecution attempts to distinguish these cases by arguing that defendant's due-process rights are not implicated because the Fruitport Police Department is not seeking to retain the firearms permanently. However, the prosecution explains neither what the department will do with the firearms if it does not deliver them to Cutler nor how any other action could be consistent with defendant's due-process rights. It fails to acknowledge that any other action the department could take, whether it be selling the weapons, melting them down, or retaining possession of them permanently, could only be accomplished through a forfeiture proceeding. The trial court did not err by ordering the Fruitport Police Department to deliver the firearms to defendant's designee.

Affirmed. HOEKSTRA, P.J., and KIRSTEN FRANK KELLY and BECKERING, JJ., concurred. -------- Notes: