PEOPLE OF MI V DAVID PERKINS
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Michigan Supreme Court
Lansing, Michigan
Chief Justice:
Opinion
Justices:
Clifford W. Taylor
Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
FILED JULY 29, 2005
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v
No. 126727
DAVID MICHAEL PERKINS,
Defendant-Appellant.
_______________________________
BEFORE THE ENTIRE BENCH
PER CURIAM
We granted leave in this case to consider two issues
involving
MCL
750.224f,
which
sets
forth
restrictions
concerning the possession1 of firearms by persons having
been convicted of a felony.
The first is whether larceny
from the person is a “specified felony” for the purposes of
MCL
750.224f(6)(i),
stringent
possess
1
a
thus
requirements
firearm.
in
We
subjecting
order
conclude
to
defendant
regain
that
his
larceny
to
more
right
to
from
the
Although we mention only possession in this opinion,
MCL 750.224f does not pertain only to the possession of
firearms, but also to the use, transportation, sale,
purchase, carrying, shipping, receiving, or distribution of
firearms.
person involves a substantial risk that force will be used
during its commission and, therefore, hold that it is a
specified felony.
The second issue is whether the prosecution is always
required to show that a person convicted of a specified
felony has not had his or her right to possess a firearm
restored
pursuant
to
MCL
750.224(2)(b),
or
whether
the
prosecution’s burden to disprove restoration only arises if
the
defendant
first
introduces
evidence
that
the
defendant’s right to possess a firearm has been restored.
We
conclude,
on
the
basis
of
MCL
776.20
and
People
v
Henderson, 391 Mich 612, 616; 218 NW2d 2 (1974), that the
defendant has the burden of producing evidence to establish
that
his
restored.
or
her
Once
right
the
to
possess
defendant
a
firearm
has
this
burden
meets
been
of
production, the prosecution bears the burden of persuasion
beyond a reasonable doubt.
In this case, defendant failed
to produce evidence that his firearm rights were restored,
and the prosecution thus was not required to prove the lack
of restoration.
Accordingly, we affirm the judgment of the
Court of Appeals.
I.
FACTS
AND
PROCEDURAL HISTORY
In 1977, defendant David M. Perkins was convicted of
the felony offense of larceny from the person in violation
of
MCL
750.357.
In
2001,
Perkins
2
was
involved
in
an
altercation where he pointed a gun at another person, and,
in
the
subsequent
struggle,
the
gun
discharged.
As
a
result, Perkins was charged with, among other things,2 being
a felon in possession of a firearm (felon in possession) in
violation of MCL 750.224f(2).
This statute makes it a
crime for a person who has been convicted of a “specified
felony”-one that either involves a substantial risk of, or
contains as an element the threatened, attempted, or actual
use
of,
physical
force
against
a
person
or
property–to
possess a firearm until that person has had the right to
possess
a
firearm
restored
pursuant
to
MCL
28.424
and
fulfilled certain other requirements.
The trial court, after a bench trial, concluded that
the
1977
conviction
for
larceny
from
the
person
was
a
specified felony and, thus, MCL 750.224f(2) could apply to
Perkins.
Moreover,
the
court
construed
the
statute
as
requiring the prosecution to prove that Perkins’s right to
possess a firearm had not been restored only if Perkins
first
affirmatively
produced
evidence
that
his
right
to
possess had been restored by a proper concealed weapons
licensing
board.
Therefore,
2
the
trial
court
convicted
Defendant was also charged with felonious assault in
violation of MCL 750.82, and possession of a firearm while
committing or attempting to commit a felony in violation of
MCL 750.227b.
These charges are not at issue in this
appeal.
3
Perkins of the offense because he had not produced any such
evidence, thus relieving the prosecution of the burden of
proving that Perkins’s right to possession had not been
restored.
The Court of Appeals affirmed.3
larceny
from
the
person
constitutes
It concluded that
a
specified
felony
within the meaning of MCL 750.224f, and that a defendant
must present evidence of a claimed restoration of the right
to possess a firearm before the prosecution’s burden of
proving a lack of restoration arises.
We
granted
defendant’s
application
for
leave
to
appeal.4
II.
STANDARD OF REVIEW
This case involves issues of statutory construction.
These are issues of law that we review de novo.
Koonce,
466
Mich
515,
518;
648
NW2d
153
People v
(2002).
When
interpreting statutes, our goal is to give effect to the
intent of the Legislature by reviewing the plain language
of the statute.
Id.
III. LARCENY FROM THE PERSON IS A “SPECIFIED FELONY”
3
People v Perkins, 262 Mich App 267; 686 NW2d 237
(2004).
4
471 Mich 914 (2004).
4
750.224f5
MCL
5
places
felons
in
two
different
This statute provides, in part:
(1) Except as provided in subsection (2), a
person convicted of a felony shall not possess,
use, transport, sell, purchase, carry, ship,
receive, or distribute a firearm in this state
until the expiration of 3 years after all of the
following circumstances exist:
(a) The person has paid all fines imposed
for the violation.
(b) The person has served all
imprisonment imposed for the violation.
terms
of
(c) The person has successfully completed
all conditions of probation or parole imposed for
the violation.
(2) 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) 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
imprisonment imposed for the violation.
terms
of
(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.
5
categories.
The
first
convicted of a “felony.”
category
consists
of
persons
These persons regain their right
to possess a firearm three years after paying all fines
imposed
imposed,
for
their
and
violations,
successfully
serving
completing
parole or probation.
convicted
all
MCL 750.224f(1).
consists
of
persons
of
a
all
jail
conditions
time
of
The second category
“specified
felony.”
These persons must wait five years after completing the
same requirements and, moreover, must have their right to
possess a firearm restored.
The
term
“specified
MCL 750.224f(2).
felony”
is
defined
in
750.224f(6), which provides:
As
used
in
subsection
(2),
“specified
felony” means a felony in which 1 or more of the
following circumstances exist:
(i) An element of that felony is the use,
attempted use, or threatened use of physical
force against the person or property of another,
or that by its nature, involves a substantial
risk that physical force against the person or
property of another may be used in the course of
committing the offense.
(ii) An element of that felony is the
unlawful manufacture, possession, importation,
exportation, distribution, or dispensing of a
controlled substance.
(iii) An element of that felony is the
unlawful possession or distribution of a firearm.
(iv) An element of that
unlawful use of an explosive.
6
felony
is
the
MCL
(v) The felony is burglary of an occupied
dwelling, or breaking and entering an occupied
dwelling, or arson. [Emphasis added.]
The prosecution in this case has neither alleged that
an
element
of
larceny
from
the
person
is
“the
use,
attempted use, or threatened use of physical force against
the person or property of another,” MCL 750.224f(6)(i), nor
that any of the criteria in subsections ii through v apply
in this case.
Therefore, the inquiry is whether larceny
from the person is a crime that “by its nature, involves a
substantial risk that physical force against the person or
property of another may be used in the course of committing
the offense.”
We hold that it does.
The crime of larceny from the person consists of a
larceny
effectuated
another.”6
by
“stealing
from
the
person
of
The defendant acknowledges that there is a risk
of force inherent in the crime of larceny from the person
because
of
the
potential
for
the
victim
to
notice
the
taking of his or her personal property and use force to
prevent it.7
substantial.
6
7
However, he claims that such a risk is not
We disagree.
MCL 750.357.
At oral argument, defense counsel stated, “I
certainly don’t dispute that there’s a risk in any larceny
from a person because of the requirement that the larceny
has to occur either from the person or near the person,
there is a risk. . . . As I said, there is always a risk,
(continued…)
7
“Substantial” is defined as “of ample or considerable
amount,
quantity,
size,
etc.”
College Dictionary (1995).
larceny
from
the
Random
House
Webster’s
Therefore, the issue is whether
person
by
its
nature
involves
a
substantial or considerable risk that physical force will
be used.
We believe that it does.
In order to commit a
larceny from the person, the defendant must steal something
from a person in that person’s presence.
That is, the
victim must be present when the defendant steals something
from the victim.
Unless the victim submits to the theft or
does
the
not
notice
theft,
physical
certainly be used in response.8
force
will
almost
As the Court of Appeals
explained:
(…continued)
and nobody could deny there is always a risk in larceny
from a person that violence may occur.”
8
Justice Cavanagh posits that “every felony” involves
a risk of force.
Post at 2
However, Justice Cavanagh
fails fully to appreciate that not all felonies require the
defendant to steal something from the victim’s presence.
Because a defendant must steal something from the victim’s
presence in order to commit a larceny from the person, a
larceny from the person does not just pose a risk of force,
it poses a substantial risk of force.
Justice Cavanagh also contends that, if detected, a
perpetrator could “choose to avoid confrontation if it
becomes apparent that force or the threat of force must be
used to complete the intended act.”
Post at 3.
However,
if the perpetrator chooses to abandon the attempt to steal
the property from the victim once detected, the perpetrator
has not committed a larceny from the person.
In order to
commit a larceny from the person, the perpetrator would, in
(continued…)
8
[T]he offense of larceny from a person is
separated from other larceny offenses because it
is committed in the immediate presence of another
person.
The “Legislature decided that larceny
from a person presents a social problem separate
and apart from simple larceny.”
Specifically,
“the invasion of the person or immediate presence
of the victim.” Because a person whose property
is stolen from his presence may take steps to
retain possession, and the offender may react
violently, we conclude that the offense of
larceny from a person, “by its nature, involves a
substantial risk that physical force against the
person or property of another may be used in the
course of committing the offense.”
We therefore
hold that larceny from a person is a specified
felony within the meaning of MCL 750.224f.
[Perkins,
supra
at
272
(citations
omitted;
emphasis in the original).]
That the Legislature has recognized that larceny from
the person involves a substantial risk of physical force is
demonstrated
by
the
different
punishments
that
it
has
chosen to impose for larceny9 and larceny from the person.
If a defendant10 steals property from another outside the
person’s
presence
and
the
property
is
worth
less
$1,000, the defendant is only guilty of a misdemeanor.
than
MCL
(…continued)
all likelihood, have to use force or the threat of force to
steal the property from the victim.
Therefore, a larceny
from the person involves more than a “mere potential” of
force or threat of force; post at 2, rather, it involves a
“substantial” risk of force or threat of force.
9
A larceny is committed when one steals the property
of another outside the person’s presence. MCL 750.356.
10
All of the following hypothetical examples involve a
defendant who does not have any prior larceny convictions.
9
750.356(4)(a).11
If the property is worth less than $200,
the defendant cannot be imprisoned for more than ninetyMCL 750.356(5).12
three days.
On the other hand, if the
same defendant steals the same property directly from the
person, the defendant can be imprisoned for ten years.
A
defendant who steals property from a person outside the
person’s presence can only face a ten-year sentence if the
property
is
worth
$20,000
or
more.
MCL
750.356(2)(a).
That the Legislature has chosen to subject a defendant who
steals property from a person in that person’s presence to
a
ten-year
sentence,
regardless
of
the
value
of
the
property, and has chosen to subject a defendant who steals
property worth less than $200 from a person outside that
person’s
presence
demonstrates
that
to
the
a
ninety-three-day
Legislature
sentence
recognized
the
substantial risk of force that is involved when one steals
something from somebody’s person, a risk that is absent
when one steals something outside the person’s presence.13
11
A defendant who steals property from another outside
the person’s presence is only guilty of a felony if the
property is worth $1,000 or more.
MCL 750.356(2)(a) and
(3)(a).
12
If the property is worth $200 or more, but less than
$1,000, the defendant cannot be imprisoned for more than
one year. MCL 750.356(4)(a).
13
Although it is not necessary to our analysis, we
note that the federal courts have held that larceny from
(continued…)
10
Therefore, we hold that larceny from the person is a
“specified felony” under MCL 750.224f(6)(i).
IV.
THE DEFENDANT BEARS THE BURDEN OF PRODUCING EVIDENCE THAT THE
DEFENDANT’S FIREARM RIGHTS HAVE BEEN RESTORED
Subsection
2
of
the
felon-in-possession
statute
prohibits a person convicted of a specified felony from
possessing
a
satisfied.
forth
in
firearm
“until”
MCL 750.224f(2).
the
statute
is
that
certain
conditions
are
One of the conditions set
the
defendant’s
right
to
possess a firearm must have been legally restored.
MCL 750.224f(2) provides:
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) 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
imprisonment imposed for the violation.
terms
of
(iii) The person has successfully completed
all conditions of probation or parole imposed for
the violation.
(…continued)
the person is a “crime of violence” for the purpose of the
federal sentencing guidelines, which define a crime of
violence as a crime that “involves conduct that presents a
serious potential risk of physical injury to another.”
USSG 4B1.2(a)(2); United States v Payne, 163 F3d 371, 375
(CA 6, 1998).
11
(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.]
Thus, the statute provides that a person convicted of
a specified felony may not possess a firearm “until” all
the listed circumstances exist.
may
not
possess
a
firearm
Specifically, the felon
“until”
(1)
five
years
have
expired from the payment of all fines, the service of all
terms of imprisonment, and the successful completion of all
conditions of probation or parole, and (2) the person’s
right to possess a firearm has been restored.
In this
case, as noted in our discussion of the first issue, the
prosecution established that the defendant was convicted of
a specified felony and that he possessed a firearm.
The question remains, however, whether the prosecution
must prove that the defendant’s possession of the firearm
occurred before the restoration of firearm rights where, as
here, the defendant produced no evidence that his firearm
rights had been restored.
In answering this question, we
must consider MCL 776.20, which states:
In any prosecution for the violation of any
acts of the state relative to use, licensing and
possession of pistols or firearms, the burden of
establishing any exception, excuse, proviso or
exemption contained in any such act shall be upon
the defendant but this does not shift the burden
of proof for the violation.
12
It appears that the Legislature enacted this statute
in response to People v Schrader, 10 Mich App 211, 217; 159
NW2d 147 (1968).
In People v Jiminez, 27 Mich App 633,
635; 183 NW2d 853 (1970), the Court of Appeals stated:
Prior to 1968, we would have given serious
consideration to such an objection.
People v
Schrader (1968), 10 Mich App 211.
However, in
that year, the legislature took notice of our
decisions holding that it was the burden of the
prosecutor to prove that the defendant did not
come
within
a
statutory
exception.
The
legislature responded by enacting a law [MCL
776.20] which held that, in trials for carrying
concealed weapons, the burden is on the defendant
to show that he comes within one of the
exemptions.[14]
The broad language used in MCL 776.20 plainly extends
to the felon-in-possession statute, MCL 750.224f, because
it
is
a
statute
regarding
possession of firearms.
the
use,
licensing,
and
We must therefore give effect to
the plain language of MCL 776.20 requiring the defendant to
establish “any” exception, excuse, proviso, or exemption
14
We disagree with Justice Kelly’s assertion that MCL
776.20 cannot alter what the prosecution has to prove in
order to obtain a conviction under MCL 750.224f.
Post at
18. The Legislature has the authority to change the law if
it wishes, and this is what it did by enacting MCL 776.20.
After
its
enactment,
MCL
776.20
was
controlling.
Moreover, contrary to Justice Kelly’s statements, MCL
776.20 never altered MCL 750.224f because it predated it.
This fact also undercuts Justice Kelly’s rule of lenity and
due process arguments because, when enacted, MCL 750.224f
had to be read as fitting into the legal context already
created by MCL 776.20.
13
contained in any statute “relative to use, licensing and
possession” of firearms.
In applying the text of MCL 776.20, we adhere to this
Court’s interpretation in Henderson.
In Henderson, this
Court considered the effect of MCL 776.20 in a prosecution
for carrying a pistol in a motor vehicle in violation of
MCL 750.227.
The issue was whether the prosecution or the
defendant
bore
defendant
had
the
a
burden
license
of
to
establishing
carry
a
whether
pistol.
the
After
considering the text of MCL 776.20, this Court concluded
that the defendant bore the burden of producing evidence
regarding
ultimate
licensure,
burden
of
while
the
persuasion.15
prosecution
bore
the
Specifically,
the
Henderson Court stated:
Accordingly, we hold that upon a showing
that a defendant has carried a pistol in a
vehicle operated or occupied by him, [a] prima
facie case of violation of the statute has been
made out. Upon the establishment of such a prima
facie case, the defendant has the burden of
injecting the issue of license by offering some
proof–not necessarily by official record—that he
has been so licensed.
The people thereupon are
obliged to establish the contrary beyond a
reasonable doubt.
[Henderson, supra at 616
(emphasis added).]
15
Justice Kelly asserts that Henderson “cannot be
correct” because it would mean that there are only two, not
three, elements to the crime of carrying a concealed weapon
in a vehicle.
Post at 21-22.
We are puzzled by this
argument because we know of no requirement for a minimum,
or a maximum, number of elements.
14
The interpretation set forth in Henderson accords with
the
well-established
principle
that
“[c]ourts
must
give
effect to every word, phrase, and clause in a statute, and
must avoid an interpretation that would render any part of
the statute surplusage or nugatory.”
Koontz v Ameritech
Services, Inc, 466 Mich 304, 312; 645 NW2d 34 (2002).
The
Henderson Court gave effect to the entirety of MCL 776.20.
By
recognizing
producing
or
that
going
the
defendant
forward
with
bore
the
evidence
burden
that
he
of
was
licensed, the Henderson Court gave effect to the statutory
phrase “the burden of establishing any exception, excuse,
proviso or exemption contained in any such act shall be
upon the defendant . . . .”
And by concluding that the
prosecution bore the ultimate burden of persuasion beyond a
reasonable
doubt,
the
Henderson
Court
avoided
rendering
nugatory the phrase “but this does not shift the burden of
proof for the violation.”16
We
thus
Henderson.
adhere
Like
the
to
the
firearms
16
framework
established
in
offense
considered
in
While it is not necessary to our analysis, we note
that the majority of courts in other states that have
considered this issue has similarly allocated at least the
burden of production regarding the lack of license to the
defendant. See Anno: Burden of proof as to lack of license
in criminal prosecution for carrying or possession of
weapon without license, 69 ALR3d 1054.
15
Henderson, the offense of felon in possession falls within
the strictures of MCL 776.20 requiring the defendant to
establish
“any
exception,
excuse,
proviso
. . . .”
We may consult dictionary definitions of terms
that are not defined in a statute.
The
dictionary
instructive.
definition
of
or
exemption
Koontz, supra at 312.
the
term
“proviso”
is
A “proviso” is “an article or clause that
introduces a condition: stipulation.”
New Collegiate Dictionary (1967).
Webster’s Seventh
MCL 750.224f(2) contains
a clause that introduces conditions that must be met before
a person convicted of a specified felony may possess a
firearm.
Specifically,
specified
expired,
events
and
restored.
the
described
the
felon’s
five-year
in
the
firearm
period
statute
rights
must
from
the
must
have
have
been
Until those conditions are satisfied, the felon
may not possess a firearm.
We
conclude
that
the
felon-in-possession
statute
contains a proviso.
Thus, we are bound to follow the plain
language
776.20
of
MCL
and
the
analytic
approach
established in Henderson.
Defendant here produced no evidence to establish that
his right to possess a firearm had been restored.
defendant
failed
prosecution
was
to
not
meet
his
required
16
burden
of
to
prove
Because
production,
the
lack
the
of
restoration of firearm rights beyond a reasonable doubt.
MCL 776.20; Henderson, supra at 616.
V.
CONCLUSION
We conclude that larceny from the person is a crime
that carries a substantial risk that physical force will be
used or threatened against another.
Therefore, we agree
with the Court of Appeals that it qualifies as a specified
felony under MCL 750.224f(6)(i).
Also,
a
defendant
bears
the
burden
of
producing
evidence to establish that his or her right to possess a
firearm has been restored, in light of MCL 776.20 and this
Court’s decision in Henderson.
to
meet
his
prosecution
burden
was
not
of
Because defendant failed
production
required
to
in
this
prove
case,
the
lack
the
of
restoration of firearm rights beyond a reasonable doubt.
Accordingly,
we
affirm
the
judgment
of
the
Appeals.
Clifford W. Taylor
Elizabeth A. Weaver
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
17
Court
of
S T A T E
M I C H I G A N
O F
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v
No. 126727
DAVID MICHAEL PERKINS,
Defendant-Appellant.
_______________________________
KELLY, J. (concurring in part and dissenting in part).
We granted leave to appeal in this case to address two
questions:
(1)
whether
larceny
from
a
person
is
a
“specified felony” for the purposes of MCL 750.224f(6)(i)
and
(2)
whether,
under
MCL
750.224f(2)(b),
the
lack
of
restoration of the right to possess a firearm is an element
of the offense.
With
regard
471 Mich 914 (2004).
to
the
first
question,
I
larceny from a person is a specified felony.
believe
that
Therefore, I
concur in the result of the majority opinion on this issue.
With respect to the second question, I believe that the
lack of restoration of the right to possess a firearm is an
element of the offense of felon in possession (possession
of
a
firearm
by
someone
convicted
of
a
felony).
Accordingly, I would hold that, to secure a conviction, the
prosecution
must
show
the
lack
of
restoration
of
that
right.
MCL 750.224f.
Consequently, I dissent from the
portion of the majority opinion dealing with that issue.
I would affirm in part the decision of the Court of
Appeals,
reverse
it
in
part,
and
vacate
defendant’s
convictions and sentences.
UNDERLYING FACTS
I.
Defendant
was
arrested
AND
PROCEDURAL HISTORY
after
a
dispute
involving
a
He was charged with felonious assault,1 felon in
firearm.
possession,2 and possession of a firearm when committing or
attempting to commit a felony (felony-firearm).3
The
court
acquitted
him
of
the
assault
charge,
concluding that, at the time of the offense, he was too
intoxicated
crime.
to
formulate
the
intent
necessary
for
the
Defendant stipulated that he had been convicted in
1977 of larceny from a person.
MCL 750.357.
convicted him of the two firearm charges.
The court
It ruled that
defendant’s admissions of the 1977 felony conviction and of
possessing
a
firearm
provided
sufficient
evidence
convict him of the offense of felon in possession.
1
MCL 750.82.
2
MCL 750.224f.
3
MCL 750.227b.
2
to
On appeal, the Court of Appeals affirmed4 the trial
court’s rulings stating:
“The prosecutor must prove that
the defendant’s right to possess a firearm has not been
restored only if the defendant produces some evidence that
his
right
concluded
has
been
that
restored.”
larceny
from
Id.
a
at
271.
person
It
also
constitutes
a
specified felony within the meaning of MCL 750.224f.
It
reasoned:
Because a person whose property is stolen
from his presence may take steps to retain
possession, and the offender may react violently,
we conclude that the offense of larceny from a
person, “by its nature, involves a substantial
risk that physical force against the person or
property of another may be used in the course of
committing the offense.”
[Id. at 272, quoting
MCL 750.224f(6)(i) (emphasis in original).]
We granted leave to appeal.
II.
Both
FELONIES
questions
before
statutory construction.
People
v
(2004).
Kimble,
The
470
first
AND
SPECIFIED FELONIES
this
Court
involve
issues
of
Hence, we review them de novo.
Mich
305,
question
is
308-309;
whether
684
NW2d
larceny
669
from
a
person is a specified felony under the felon-in-possession
statute.
MCL 750.224f.
4
People v Perkins, 262 Mich App 267; 686 NW2d 237
(2004).
3
The
statute
divides
felonies
“felonies” and “specified felonies.”
into
two
types,
A person convicted of
a “felony” can legally possess a firearm three years after
(a) completing all terms of imprisonment imposed for the
violation, (b) paying all fines imposed for the violation,
and (c) completing all conditions of probation or parole.
MCL 750.224f(1).
A
person
convicted
of
a
“specified
felony”
must
satisfy the same requirements and must obtain restoration
of the right to possess a firearm pursuant to MCL 28.424.
Also, the person must wait five years after completion of
the statutory requirements, as compared to three years for
other felonies.
The
Legislature
750.224f(6).
defines
“specified
felony”
in
It provides:
As
used
in
subsection
(2),
“specified
felony” means a felony in which 1 or more of the
following circumstances exist:
(i) An element of that felony is the use,
attempted use, or threatened use of physical
force against the person or property of another,
or that by its nature, involves a substantial
risk that physical force against the person or
property of another may be used in the course of
committing the offense.
(ii) An element of that felony is the
unlawful manufacture, possession, importation,
exportation, distribution, or dispensing of a
controlled substance.
(iii) An element of that felony is the
unlawful possession or distribution of a firearm.
4
MCL
(iv) An element of that
unlawful use of an explosive.
felony
is
the
(v) The felony is burglary of an occupied
dwelling, or breaking and entering an occupied
dwelling, or arson. [Emphasis added.]
All parties agree that subsections ii through v do not
apply to this case.
felony,
defendant’s
Therefore, to constitute a specified
1977
conviction
of
larceny
from
a
person must fall within the definition in subsection i.
The use, attempted use, and threatened use of force
are not elements of larceny from a person.
In fact, the
absence of force and the absence of the threat of force are
what
distinguish
larceny
from
a
person
from
robbery.
People v Randolph, 466 Mich 532, 544; 648 NW2d 164 (2002).
But subsection i includes more crimes than just those
in which force is an element.
It includes crimes that, by
their nature, involve a substantial risk of the use of
force.
A SUBSTANTIAL RISK
III.
In
this
case,
defense
OF
counsel
FORCE
conceded
at
oral
argument that larceny from a person involves a risk that
force will be used.
However, he asserted that the risk is
not “substantial.”
“Substantial” is defined as “of ample or considerable
amount,
quantity,
size,
College Dictionary (2001).
etc.”
Random
House
Webster’s
The question becomes whether,
5
during the commission of a larceny from a person, there is
an “ample or considerable amount” of risk that force will
be used.
The
statute
prohibiting
larceny
from
a
person
provides:
Any person who shall commit the offense of
larceny by stealing from the person of another
shall be guilty of a felony, punishable by
imprisonment in the state prison not more than 10
years. [MCL 750.357 (emphasis added).]
Hence, larceny from a person requires direct contact with
the victim.
The perpetrator must take personal property
from the victim while it is in the victim’s possession.
This
increases
the
risk
that
force
will
be
used.
A
perpetrator is obliged to use force or threaten the use of
force to obtain the property unless the victim willingly
submits to or remains ignorant of the theft.5
a
person
quickly
evolves
into
robbery
Larceny from
when
force
is
employed to complete the theft.
Physical force may be used during the commission of
many felonies, especially if the perpetrator is caught in
5
Justice Cavanagh argues that the perpetrator could
abort the attempt to obtain the property when it becomes
apparent that he may need to use or threaten force to
obtain the property.
But if the perpetrator aborts the
attempt to obtain the property, larceny from a person will
not be committed. I center my analysis on what may occur
if the perpetrator does not abort the attempt. Under those
circumstances, I believe that the risk of force is
“substantial.”
6
the act.
However, the risk that force will be used during
a larceny from a person is considerably greater than the
risk of force in many other felonies.
This is because the
crime, by its nature, is often confrontational and always
involves
the
presence
of
the
victim.
Its
perpetration
requires either direct contact with or the actual presence
of the victim.
Also, the risk of detection is heightened.
With an ample risk of confrontation and detection comes an
ample
risk
of
complete
the
involves
a
the
use
crime.6
or
threatened
Therefore,
“substantial”
risk
use
larceny
of
the
of
force
from
use
or
a
to
person
threat
of
physical force.
Additionally,
statute,
when
statute,
supports
recognized
the
very
compared
that
a
structure
with
the
conclusion
larceny
from
the
larceny
larceny-from-a-person
that
a
of
the
person
substantial risk that force will be used.
Legislature
involves
a
The general
larceny statute7 allocates punishment according to the value
of the property taken.
For example, if the property is
6
Justice Cavanagh notes that almost every felony runs
some risk of the use of force. But his analysis does not
consider the fact that larceny from a person requires
contact with or the presence of the victim every time the
crime is committed.
This distinguishes it from many
felonies that can be committed without the victim being in
harm’s way.
7
MCL 750.356.
7
valued at from $200 to $1,000, the thief is guilty of a
misdemeanor punishable by as much as one year in jail, a
$2,000 fine, or both.
MCL 750.356(4).
But if it has a
value of from $1,000 to $20,000, the crime is a felony
punishable
by
as
much
$10,000 fine, or both.
This
abandons
contrasts
a
as
five
years’
imprisonment,
a
MCL 750.356(3).
with
gradation
larceny
of
from
punishment.
a
person,
The
which
defendant
is
subject to a possible ten years in prison without regard to
the value of the property stolen.
MCL 750.357.
The only difference between the crimes of larceny and
larceny
from
a
person
is
the
presence
of
the
victim.
Without question, the possibility of harm to the victim is
greater
if
the
property
is
taken
from
his
person.
Consequently, it appears that the threat to the victim was
of greater concern to the Legislature than the loss of the
property,
and
hence,
it
provided
a
greater
penalty
for
larceny from a person.
The
magnitude
of
the
difference
in
penalties
demonstrates just how seriously the Legislature viewed the
risk
of
person.
force
against
the
victim
of
a
larceny
from
a
If the value of the property taken in a normal
larceny is less than $200, the defendant is subject to no
more than ninety-three days in jail.
But, if the defendant
takes that same property directly from a person, he is
8
guilty of a felony and subject to potentially ten years in
prison.
MCL 750.356(5); MCL 750.357.
The only logical reason for the great difference in
penalties is that a significant danger exists that force
will
be
person.
used,
injuring
the
victim
of
a
larceny
from
a
Therefore, the Legislature viewed that crime as
involving a substantial risk that physical force will be
employed against another.
This qualifies it as a specified
felony under MCL 750.224f(6)(i).
IV.
RESTORATION
A.
OF
RIGHTS
THE LANGUAGE AND
IS AN
ELEMENT
STRUCTURE
OF
OF
MCL 750.224f(2)
MCL 750.224f(2)
Section 2 of the felon-in-possession statute indicates
the
circumstances
under
which
a
person
specified felony may possess a firearm.
convicted
of
a
MCL 750.224f(2).
One of the requirements contained in that statute is that
the defendant must have had his right to possess a firearm
legally restored.
But in this case, the prosecution argues that it need
not show that restoration has not occurred in order to
establish the elements of the crime.
Rather, it asserts
that it is defendant who bears that burden.
9
Neither the
language
nor
the
structure
of
the
statute
supports
the
prosecution’s contention.8
MCL 750.224f(2) provides:
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) 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
imprisonment imposed for the violation.
terms
of
(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.]
8
I would hold that the prosecution must show the lack
of restoration contingent on its failure to show that (1)
five years have not passed since all fines were paid, (2)
five years have not passed since all jail time was served,
or (3) five years have not passed since the defendant
successfully completed all conditions of probation or
parole. The prosecution would have the option of carrying
its burden on only one of the four subparts of MCL
750.224f(2).
Once it proves one of the four, it need not
go further.
Therefore, I believe that the Legislature
intended the prosecution to choose which element of MCL
750.224f(2) to address.
But the contingent nature of the
element should not change on whom the burdens of production
and persuasion lie.
10
In interpreting MCL 750.224f(2), our goal is to give
effect to the Legislature’s intent.
People v Koonce, 466
Mich 515, 518; 648 NW2d 153 (2002).
language
of
the
statute
itself.
We start with the
The
language
of
MCL
750.224f(2) demonstrates a clear intent to include among
the
prosecution’s
proofs
a
showing
that
the
right
to
possess a firearm was not restored to the defendant.
B. CREATION
OF AN
EXCEPTION
BY
USE
OF THE
TERM “UNLESS”
The Legislature has demonstrated that it knows how to
create an exception, and it created one in subsection 4 of
the very statute in question.
MCL 750.224f(4) provides:
This section does not apply to a conviction
that has been expunged or set aside, or for which
the
person
has
been
pardoned,
unless
the
expunction, order, or pardon expressly provides
that the person shall not possess a firearm.
[Emphasis added.]
By using the term “unless,” it demonstrated its intent
to create an exception.9
By
contrast,
in
“Unless” is an exclusionary term.
subsection
2
of
the
felon-in-possession
statute, the Legislature chose not to use an exclusionary
term.
Instead, it used the phrase “until all.”
9
The Legislature has repeatedly used the term “unless”
to create an exception in the Penal Code.
Examples are:
MCL 750.14, MCL 750.42b(2), MCL 750.50(2)(g), MCL 750.51,
MCL 750.61, MCL 750.115(2), MCL 750.141, MCL 750.144, MCL
750.147a(1), MCL 750.197(3), and MCL 750.216.
11
Looking at the definition of “until” helps demonstrate
that “until all” is an inclusive phrase.
“1. up to the time that or when; till.
onward to or till . . .”
Dictionary
(2001).
The definition is
2. before . . .
3.
Random House Webster’s College
Applying
this
definition
to
the
statute, the defendant is guilty of the offense of felon in
possession only if he (1) was convicted of a specified
offense
and
(2)
possessed
a
firearm
“before”
(a)
the
passage of five years from the time he paid all pertinent
fines, or he served his term, or he successfully completed
all conditions of probation or parole, or (b) his right to
possess a firearm was not restored.
MCL 750.224f(2).
Therefore, to prove the crime, the prosecution must
demonstrate that the possession occurred “before” one of
the specified events.
If the prosecution fails to prove
this, it has not met the burden created by the Legislature.
The
result
Legislature
“unless.”
would
chosen
to
be
use
quite
an
different
exclusionary
had
term
the
like
“Unless” is defined as “1. except under the
circumstances that . . . 2. except; but; save[.]”
Random
House Webster’s College Dictionary (2001).
Substituting this word into the statute would change
the statute’s meaning, so that the prosecution would need
to prove only that the defendant (1) had been convicted of
a
specified
offense
and
(2) possessed
12
a
firearm.
The
defendant would be left to produce evidence that, more than
five years before, he had (1) paid all pertinent fines, (2)
served his term, (3) successfully completed all conditions
of probation and parole, and that (4) he currently had the
right to possess the firearm.
Hence, the difference in the burden of production on
the prosecution and on the defense is enormous depending on
whether
“until”
Accordingly,
we
introduces
should
an
assume
element
that
or
the
an
exception.
decision
to
use
“until” rather than “unless” was carefully made.
We presuppose that the words the Legislature uses have
a
purpose.
And
inadvertently
another.
Detroit
used
The
v
we
should
one
word
chosen
Redford
or
wording
Twp,
253
not
speculate
phrase
is
Mich
when
it
presumed
453,
that
it
intended
intentional.
456;
235
NW
217
(1931).
When
writing
demonstrated
a
clear
this
statute,
knowledge
of
exception, but it chose not to do so.
“until”
is
a
strong
indication
the
how
Legislature
to
create
an
Its use of the term
that
it
intended
the
restoration of rights to be a contingent element of the
offense.
Because the Legislature chose to use the term “until,”
the
prosecution
750.224f(2).
bears
the
burden
of
production
for
MCL
Here the prosecution failed to present any
13
evidence that defendant’s right to possess a firearm had
not been restored.
of
the
three
And it made no effort to show that any
other
factual
circumstances
750.224f(2) had not occurred.
listed
in
MCL
Hence, it did not satisfy
its burden, and defendant’s convictions were in error.
C.
The
majority
asserts
MCL 776.20
that
MCL
776.20
controls
this
case and holds that it requires that defendant bear the
burden of production regarding the restoration of the right
to possess a firearm.
MCL 776.20 provides:
In any prosecution for the violation of any
acts of the state relative to use, licensing and
possession of pistols or firearms, the burden of
establishing any exception, excuse, proviso or
exemption contained in any such act shall be upon
the defendant but this does not shift the burden
of proof for the violation.
MCL 776.20 comes into play only after the prosecution
proves all the elements of a crime.
Therefore, for the
majority’s argument to have merit, I would have to accept
the conclusion that MCL 750.224f(2)(b) is an exception.
As
discussed above, this conclusion is implausible given the
language and structure chosen by the Legislature.
I
find
MCL
776.20
inapplicable
to
this
case.
I
believe that, if the Legislature had intended MCL 776.20 to
apply, it specifically would have used a term contained in
that statute.
Alternatively, it would have used its often
14
repeated term “until,” or a similarly clear expression, to
create an exception or a proviso.
The
words
“exception,[10]
excuse,[11]
proviso[12]
or
exemption[13]” in MCL 776.20 apply to situations where all
the elements of a crime have been established.
Once the
prosecution has satisfied all the elements, it is for the
defendant to produce evidence showing the existence of a
circumstance excusing him from culpability.14
10
“Except” means “to exclude; leave out.” Random House
Webster’s College Dictionary (2001).
11
duty.”
“Excuse” means “to release from an obligation or
Random House Webster’s College Dictionary (2001).
12
A “proviso” is “a clause, as in a statute or
contract, by which a condition is introduced” or “a
stipulation or condition.”
Random House Webster’s College
Dictionary (2001).
13
“Exempt” means “to free from an obligation or
liability to which others are subject; release.”
Random
House Webster’s College Dictionary (2001).
14
Some may argue that the definition of “proviso”
could apply to any clause.
But I believe that the
Legislature intended it to apply only to clauses relieving
a defendant of liability.
This is indicated by its
placement in a list with “exception,” “excuse,” and
“exemption.”
The doctrine of noscitur a sociis requires
that this Court interpret terms in context with the other
words around them.
G C Timmis & Co v Guardian Alarm Co,
468 Mich 416, 420-422; 662 NW2d 710 (2003). When words are
grouped in a list, they must be given related meaning.
Third Nat’l Bank in Nashville v Impac, Ltd, Inc, 432 US
312, 322; 97 S Ct 2307; 53 L Ed 2d 368 (1977).
Interpretive aids, such as the doctrine of noscitur a
sociis, are meant to aid us in arriving at the meaning
intended by the Legislature.
By using a term in a list,
the Legislature gave this Court a legitimate means of
(continued…)
15
An example of a situation in which MCL 776.20 would
apply can be seen in MCL 750.224f(4):
“This section does
not apply to a conviction that has been expunged or set
aside, or for which the person has been pardoned . . . .”
This
subsection
creates
possession crime.
have
the
burden
an
exception
to
the
felon-in-
Under MCL 776.20, the defendant would
of
producing
evidence
to
prove
the
demonstrated
its
exception.15
In
MCL
ability
to
776.20,
use
the
the
Legislature
terms
“exception,” and “proviso.”
none of them.
“exception,”
“excuse,”
But in 750.224f(2), it used
It could have stated in MCL 750.224f(2):
A person convicted of a specified felony
shall
not
possess,
use,
transport,
sell,
purchase, carry, ship, receive, or distribute a
(…continued)
finding its intent.
The main goal in interpreting any
statute
is
to
ascertain
and
give
effect
to
the
Legislature’s intent.
People v Tombs, 472 Mich 446, 451;
697 NW2d 494 (2005). By interpreting the word “proviso” in
the context it was used, I have chosen to give effect to
the Legislature’s demonstrated intent.
15
Some may claim that my analysis renders sections of
MCL 776.20 nugatory. But this is not true. I simply find
the statute inapplicable to this case.
It would fully
apply to other statutes actually containing an exception,
excuse, proviso, or exemption. MCL 750.224f(4) provides an
example of when I would apply MCL 776.20.
A defendant
would bear the burden of proving that his crime had been
expunged, set aside, or pardoned. Just because I disagree
with the application of MCL 776.20 to this case does not
mean that my reading renders it nugatory.
16
firearm in this state providing
circumstances do not exist.
the
following
Or:
A person convicted of a specified felony
shall
not
possess,
use,
transport,
sell,
purchase, carry, ship, receive, or distribute a
firearm in this state, except when all of the
following circumstances exist.
Or:
A
person convicted of a specified felony
shall
not
possess,
use,
transport,
sell,
purchase, carry, ship, receive, or distribute a
firearm in this state, but the person is excused
when the following circumstances exist.
Instead
of
any
of
these
or
Legislature chose to use “until all.”
other
wordings,
the
I believe this is a
strong indication that it intended that MCL 776.20 should
not apply to MCL 750.224f(2).
In interpreting statutes, we are reluctant to assume
that
the
Legislature
error.
But
this
holding
today.
is
I
wrote
what
what
the
support
it
did
majority
giving
by
accident
presumes
effect
in
to
or
its
the
Legislature’s chosen phrasing rather than changing it to
fit within MCL 776.20.16
16
I believe that the majority has misunderstood my
argument in n 14 of its opinion, ante at 13. Of course I
know that the Legislature can change the law. My point is
that the Legislature intentionally drafted MCL 750.224f(2)
so that MCL 776.20 would not apply to it. The Legislature
enacted MCL 750.224f(2) after it enacted MCL 776.20.
Hence, it knew when it wrote MCL 750.224f(2) that MCL
776.20 requires the defendant to shoulder the burden of
(continued…)
17
The existence of MCL 776.20 does not alter what the
prosecution has to prove in order to obtain a conviction
for felon in possession.
But reading MCL 750.224f(2)(b) as
a proviso does shift the burden of production from what the
Legislature intended, because it turns what is an element
of the crime into a proviso.
D.
PEOPLE
V
PEGENAU
The prosecution relies on People v Pegenau17 to support
its argument.
This reliance is misplaced.
In Pegenau, the
defendant was charged with unlawful possession of Xanax and
Valium pursuant to MCL 333.7403(1).18
People v Pegenau, 447
Mich 278, 281; 523 NW2d 325 (1994).
The only question at
trial was whether the defendant had a valid prescription,
(…continued)
production in matters involving a proviso. Accordingly, if
it had wanted to make a proviso in MCL 750.224f(2), it knew
it had to write the statute to clearly contain a proviso.
Since it did not do that, we must conclude that it did not
intend a proviso.
17
People v Pegenau, 447 Mich 278; 523 NW2d 325 (1994).
18
MCL 333.7403(1) provides:
A
person
shall
not
knowingly
or
intentionally possess a controlled substance, a
controlled substance analogue, or a prescription
form unless the controlled substance, controlled
substance analogue, or prescription form was
obtained directly from, or pursuant to, a valid
prescription or order of a practitioner while
acting in the course of the practitioner’s
professional practice, or except as otherwise
authorized by this article.
18
which would exclude him from prosecution under the language
of MCL 333.7403 and MCL 333.7531.19
Pegenau, supra at 282.
This Court held that the burden of proof regarding the
existence of a valid prescription was on the defendant.
Pegenau
because
MCL
exception.
is
distinguishable
333.7403
expressly
from
uses
the
a
present
term
case
creating
an
In fact, MCL 333.7403 uses the term “unless.”
As discussed above, “unless” is defined as “1. except under
the
circumstances
that
.
.
.
2.
except;
but;
save[.]”
Random House Webster’s College Dictionary (2001).
Because
an exception is specifically created, the defendant bears
the burden of production under MCL 333.7531.
19
MCL 333.7531 provides:
(1) It is not necessary for this state to
negate any exemption or exception in this article
in a complaint, information, indictment, or other
pleading or in a trial, hearing, or other
proceeding under this article. The burden of
proof of an exemption or exception is upon the
person claiming it.
(2) In the absence of proof that a person is
the authorized holder of an appropriate license
or order form issued under this article, the
person is presumed not to be the holder of the
license or order form. The burden of proof is
upon the person to rebut the presumption.
(3) A liability is not imposed by this
article or an authorized state, county, or local
officer, engaged in the lawful performance of the
officer's duties.
19
In
contrast,
MCL
750.224f(2)
does
not
provide
an
exception or exemption to felon-in-possession prosecutions.
The Legislature did not use a term that would create an
exception.
It
used
the
inclusive
phrase
“until
all.”
Therefore, the subsections are elements of the crime rather
than exceptions, and MCL 776.20 does not apply.
Pegenau is inapplicable and is in clear contrast to
this case.
Therefore, I find it of no support to the
prosecution’s argument.
E.
PEOPLE
V
HENDERSON
The majority finds People v Henderson20 persuasive on
the issue whether restoration of the right to possess a
firearm is an element of felon in possession.
I believe
that this decision does not aid the majority’s position.21
Moreover, I find that Henderson was wrongly decided.
Henderson dealt with MCL 750.227, which, at that time,
provided:
Any person who shall carry a dagger, dirk,
stiletto or other dangerous weapon except hunting
knives adapted and carried as such, concealed on
20
391 Mich 612; 218 NW2d 2 (1974).
21
I also find Henderson simply inapplicable to this
case because it does not analyze the core question before
us.
That question is what language in a statute
constitutes an exception, excuse, proviso, or exemption.
Henderson becomes relevant only after a determination is
made that an exception, excuse, proviso, or exemption
exists.
20
or about his person, or whether concealed or
otherwise in any vehicle operated or occupied by
him, except in his dwelling house or place of
business or on other land possessed by him; and
any person who shall carry a pistol concealed on
or about his person, or, whether concealed or
otherwise, in any vehicle operated or occupied by
him, except in his dwelling house or place of
business or on other land possessed by him,
without a license to so carry said pistol as
provided by law, shall be guilty of a felony,
punishable by imprisonment in the state prison
for not more than five years, or by fine of not
more than two thousand five hundred dollars.
The
Henderson
Court
concluded
that,
as
regards
the
facts of that case, the only elements of the crime were:
(1) the defendant was carrying a pistol and (2) he was in a
vehicle operated or occupied by him.
It ruled that the
language “without a license to so carry said pistol” did
not add an element to the offense.
People v Henderson, 391
Mich 612, 616; 218 NW2d 2 (1974).
This
elements
conclusion
existed,
cannot
the
be
sole
correct.
defenses
If
only
available
to
two
a
defendant would be (1) that he did not carry a pistol or
(2) that he was not in a vehicle with it.
defendant
was
matter.
He
licensed
would
be
to
carry
guilty
of
that
the
pistol
crime,
Whether the
would
even
not
though
licensed, because he (1) carried a pistol (2) in a vehicle.
21
It is obvious that there is a third key element.
It is
found in the statute’s language “without a license.”22
My interpretation is strengthened by the fact that, in
writing MCL 750.227, the Legislature did not use any of the
terms listed in MCL 776.20.
The clause “without a license”
is not prefaced by anything signaling or otherwise phrased
to
signal
that
it
constitutes
an
exception,
excuse,
proviso, or exemption.
Contrast
dwelling
house
this
with
or
the
place
of
language
business
“except
or
on
in
other
his
land
possessed by him” that is also contained in the statute.
The Legislature knew how to create an exception, excuse,
proviso, or exemption when it wrote MCL 750.227.
And, in
fact, it did so in that statute by explicitly using the
term “except.”
But it did not use any of those terms with
respect to the lack of a license.
choice
of
wording
should
not
Again, the Legislature’s
be
presumed
accidental.
Redford Twp, supra at 456.
To rule as it did, the Henderson Court had to read
words into the statute.
some
form
of
exception,
Specifically, it had to read in
excuse,
22
proviso,
or
exemption
Contrary to the majority’s contention, I do not
suggest that there are a minimum number of elements that
must be contained in a criminal statute.
Rather, I am
pointing out that this statute has three elements.
The
Henderson Court recognized only two of them.
22
before the language “without a license.”
But this violates
the well-established rule of statutory construction that a
court cannot read into a statute what is not there.
AFSCME
v Detroit, 468 Mich 388, 412; 662 NW2d 695 (2003).23
Therefore, the Henderson Court failed to construe the
language actually chosen by the Legislature.
Instead, it
added language to change the burden of production.
majority today falls into the same trap.
The
And in doing so,
it violates its own repeatedly stated rule of statutory
construction.
F. THE MAJROITY’S PHILOSOPHICAL CONTRADICTIONS
The justices of the majority have departed from their
own
rules
750.224f(2).
of
statutory
construction
in
construing
MCL
During this very court term, most of the same
justices stated:
Fundamental
canons
of
statutory
interpretation require us to discern and give
effect to the Legislature’s intent as expressed
by the language of its statutes.
If such
language is unambiguous, as most such [sic]
language is, we presume that the Legislature
intended the meaning clearly expressed—no further
judicial construction is required or permitted,
and the statute must be enforced as written.
23
This is a principle often repeated by this majority.
See Halloran v Bhan, 470 Mich 572, 577; 683 NW2d 129
(2004), People v Phillips, 469 Mich 390, 395; 666 NW2d 657
(2003), People v Davis, 468 Mich 77, 79; 658 NW2d 800
(2003), Lesner v Liquid Disposal, Inc, 466 Mich 95, 101;
643 NW2d 553 (2002), and Roberts v Mecosta Co Gen Hosp, 466
Mich 57, 63; 642 NW2d 663 (2002).
23
[Garg v Macomb Co Community Mental Health
Services, 472 Mich 263, 281; 696 NW2d 646 (2005)
(citations and quotation marks omitted).]
There is no suggestion that the majority finds the
language in MCL 750.224f(2) ambiguous.
Hence, it violates
its own rules of statutory interpretation when it relies on
decisions in sister states to interpret the intent of the
Michigan
Legislature.
Under
the
majority’s
judicial
philosophy, reference to outside material is of no value in
the face of a clear text.
Moreover, the citation of the annotation at 69 ALR3d
1054 adds nothing to the majority’s analysis of the statute
in this case.
based
on
states.
The decisions cited in the annotation are
widely
divergent
statutory
language
in
other
Because that language is so different from the
language of MCL 750.224f(2), conclusions in the annotation
are
of
no
assistance
in
determining
what
the
Michigan
Legislature intended when enacting our statute.
Beyond this, at least some of the cases cited in the
annotation
demonstrate
that
a
legislature
can
create
an
easily recognizable exception or proviso when it desires to
do so.
For example, the Pennsylvania statute provides that
no person shall carry a firearm in public “‘unless . . .
such
person
is
licensed
to
carry
a
firearm[.]’”
Commonwealth v Bigelow, 250 Pa Super 330, 332; 378 A2d 961
(1977), quoting 18 Pa Consol Stat 6108 (emphasis added).
24
Clearly the Michigan Legislature could have done what the
Pennsylvania
legislature
did:
it
explicitly
created
an
exemption.24
Furthermore, even under the analysis offered by the
majority,
Henderson
was
wrongly
decided.
One
thing
the
majority and I agree about in the instant case is that an
exception, excuse, proviso, or exemption has to be clearly
indicated by the language of the statute.
In the statute
before us, MCL 750.224f(2), the majority argues that the
word “until” introduces a proviso.
In
contrast,
the
statute
involved
in
Henderson
contains nothing preceding the language “without a license”
that could be argued to introduce an exemption, excuse,
proviso, or exemption.25
Therefore, I believe that, under
the majority’s analysis, Henderson must be found to have
been
wrongly
Henderson
decided.
contradicts
In
the
addition,
majority’s
its
analysis
exceptions, excuses, provisos, and exemptions.
24
As
reliance
discussing
In the end,
noted above, the Legislature used
“unless”
language
to
create
an
exception
750.224f(4).
25
on
the
in
same
MCL
“Without” does not qualify.
“Unless the defendant
possesses” would qualify. As with the statute at issue in
this case, the Legislature could have phrased the critical
language as an exemption, but it chose not to do so.
25
Henderson
offers
nothing
supportive
of
the
majority’s
construction of MCL 750.224f(2).
Again,
the
Legislature
knows
how
to
use
the
“exception,” “excuse,” “proviso,” or “exemption.”
knows
how
to
create
exceptions
by
the
use
of
terms
And it
the
term
“unless,” as it has repeatedly done throughout the Penal
Code.
But the Legislature chose not to use any of those
terms in either MCL 750.224f(2) or MCL 750.227, the statute
analyzed in Henderson.
those choices.
I would not turn a blind eye to
Instead, I would enforce the statutes as
the Legislature wrote them.
In this case, it requires
finding that the restoration of the right to possess a
firearm
is
an
element
of
the
offense
of
felon
in
possession.
G.
THE BURDEN PLACED
ON THE
PROSECUTION
The prosecution asserts that, if it must initially go
forward with evidence that defendant’s right to possess a
firearm has not been restored, its burden of proof will be
rendered
too
difficult.
It
argues
that,
to
make
this
showing, it would have to obtain certificates showing no
restoration of defendant’s right to possess firearms from
all eighty-three counties in Michigan.
I believe that this is a wildly exaggerated approach
to the situation.
Normally, to satisfy MCL 750.224f(2),
the prosecution would have to show simply that five years
26
had
not
passed
since
the
defendant
served
completed probation or paid his fines.
those
situations
address
whether
restored.
could
existed
the
would
right
to
it
carry
term
or
Only if none of
become
a
his
necessary
firearm
had
to
been
And then, in almost every case, the prosecution
show
that
the
defendant
resided
in
one
or
two
counties while eligible to have the right restored and that
those counties had not restored the right.
My reading of the statute requires more proofs from
the prosecution then it would prefer.
But the fact that it
may find difficulty in proving a crime does not provide a
reason for this Court to rewrite the law to change the
Legislature’s intent.
I am satisfied that the language of
the statute demonstrates that a showing of no restoration
of the right to possess a firearm is an element of the
crime.
Hence, the burdens of production and persuasion are
on the prosecution.
H.
THE RULE
OF
LENITY
A consistent textualist would have to admit that no
language
in
MCL
750.224f(2)
explicit
exception,
excuse,
or
MCL
proviso,
750.227
or
creates
exemption.
an
At
most, those statutes could be read to infer an exception or
proviso by adding words to them.
and
a
proviso,
philosophy.
the
majority
By finding an exception
violates
its
textualist
Its holding today seems to require that any
27
time words can be added to a statute to form an exception
or proviso, those words should be added.
Surely, this does
not give effect to the text of the statute as written.
Rather, it reads into the statute what the Legislature did
not include and perhaps chose not to include.
this
inconsistent
with
the
majority’s
Not only is
“plain
language”
textualist approach, it also violates the rule of lenity.
Courts have long held that any ambiguity regarding the
scope of criminal statutes must be resolved in favor of
lenity.
Huddleston v United States, 415 US 814, 830-831,
94 S Ct 1262; 39 L Ed 2d 782 (1974), quoting Rewis v United
States, 401 US 808, 812; 91 S Ct 1056; 28 L Ed 2d 493
(1971).
This is part of the time-honored rule that penal
statutes are construed in favor of the defendant.
As Chief
Justice Marshall of United States Supreme Court stated in
1820:
The rule that penal laws are to be construed
strictly, is perhaps not much less old than
construction itself. It is founded on the
tenderness
of
the
law
for
the
rights
of
individuals; and on the plain principle that the
power of punishment is vested in the legislative,
not in the judicial department. It is the
legislature, not the Court, which is to define a
crime, and ordain its punishment. [United States
v Wiltberger, 18 US (5 Wheat) 76, 95; 5 L Ed 37
(1820).]
I believe that a court may go beyond the text of a
statute
arise
when
it
regarding
is
the
ambiguous
reasonable
28
or
when
meaning
serious
questions
of
language.
its
But when weighing the words of a criminal statute, the
court must place on the scales the rule of lenity.
This
rule requires that the statute be construed strictly in
favor of the defendant.
Here, the majority disregards the language contained
in MCL 776.20 and effectively finds that, if certain words
are added to form an exception or proviso, the statute
should be read that way.
rule of lenity.
This interpretation violates the
Far from reading the statute in favor of
defendant, it requires that the statute be read to disfavor
him.
I believe that my interpretation of the statute best
gives effect to the Legislature’s intent.
And it best
adheres to the long-established tradition of applying the
rule
of
lenity
to
criminal
statutes.
The
majority’s
construction violates the spirit of the rule of lenity.
And it turns a hardened eye on the “tenderness of the law
for the rights of individuals . . . .”
Wiltberger, supra
at 95.
Instead
majority
of
focuses
following
on
the
this
longstanding
potential
burden
rule,
placed
on
the
the
prosecution.
I continue to adhere to the rule of lenity.
Therefore,
would
I
hold
that
the
prosecution
bears
the
burden of production regardless of whether it might, at
times, find that burden difficult.
29
I. THE DUE PROCESS PROBLEM
This Court has ruled that exemptions and provisos in
criminal statutes must be defined with specificity.
Exemptions and provisos within a criminal
statute must be defined with the same specificity
as the prohibitive language of the statute.
This court is not able, within the bounds of
due process, to “interpret” a criminal statute
which contains an ambiguous exemption such that
it results in conviction of the defendant charged
in the specific case.
That is not the “fair
warning” demanded by the Constitution. [People v
Dempster, 396 Mich 700, 715; 242 NW2d 381 (1976)
(citation omitted).]
Therefore, when a “clarifying gloss” is placed on a statute
by a court, it can apply only to future violations.
cannot
apply
retroactively.
This
includes
clarify when an exemption or proviso exists.
cases
It
that
Id. at 715-
717.
This
case
“clarifying
750.224f(2).
constitutes
gloss”
in
the
question
Therefore,
at
first
has
the
instance
been
least,
when
placed
the
on
the
MCL
majority’s
interpretation of the statute cannot apply retroactively.
Because the majority finds for the first time that the
statute
contains
a
proviso,
defendant
did
not
have
constitutional fair warning of what he would have to prove.
Accordingly, his conviction cannot stand.
at 717-718.
30
Dempster, supra
J. MY CONCLUSION REGARDING
THE
FELON-IN-POSSESSION STATUTE
The felon-in-possession statute indicates clearly that
the prosecution has the burden of showing that five years
have not passed (1) since the defendant paid all fines, or
(2) since the defendant served his term of imprisonment, or
(3)
since
the
defendant
successfully
completed
all
conditions of probation or parole, or of showing (4) that
the defendant’s right to possess a firearm has not been
restored.
In this case, the prosecution concedes that it
presented
no
evidence
showing
occurrences did not take place.
satisfy
decision
its
burden.
of
the
that
of
of
the
four
Therefore, it failed to
Accordingly,
Court
one
I
Appeals
would
in
part
reverse
and
the
vacate
defendant’s convictions and sentences.
V.
CONCLUSION
The risk that force will be used during a larceny from
a person is considerably greater than the risk of force in
many other felonies.
This is because the crime, by its
nature, is often confrontational and always involves the
presence
of
the
victim.
Therefore,
I
concur
with
the
majority that larceny from a person is a specified felony.
But
I
dissent
second issue.
from
the
majority’s
holding
on
the
The felon-in-possession statute indicates
clearly that the prosecution has the burden of production
and persuasion on all the elements of the offense.
31
This
includes the lack of restoration of the right to possess a
firearm.
I would affirm in part the decision of the Court of
Appeals,
reverse
it
in
part,
and
vacate
convictions and sentences.
Marilyn Kelly
32
defendant’s
S T A T E
O F
M I C H I G A N
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v
No. 126727
DAVID MICHAEL PERKINS,
Defendant-Appellant.
_______________________________
CAVANAGH, J. (dissenting).
I disagree with the majority’s position that the crime
of larceny from the person is a specified felony pursuant
to MCL 750.224f(6).
Because I believe that larceny from
the person is not a specified felony under MCL 750.224f(6),
I do not reach the issue whether the lack of restoration of
firearm
rights
is
an
element
of
MCL
750.224f(2).
Accordingly, I respectfully dissent.
The Legislature has defined a “specified felony” as
including
a
felony
in
which
the
following
circumstance
exists:
An element of that felony is the use,
attempted use, or threatened use of physical
force against the person or property of another,
or that by its nature, involves a substantial
risk that physical force against the person or
property of another may be used in the course of
committing the offense. [MCL 750.224f(6)(i).][1]
Larceny from the person is defined as follows:
“Any
person who shall commit the offense of larceny by stealing
from the person of another shall be guilty of a felony,
punishable by imprisonment in the state prison not more
than 10 years.”
MCL 750.357.
Larceny from the person
differs from robbery because larceny from the person is
committed without the use of force or the threat of force.
“[R]obbery is a larceny aggravated by the fact that the
taking is from the person, or in his presence, accomplished
with force or the threat of force.”
Mich 532, 544; 648 NW2d 164 (2002).
People v Randolph, 466
By its very nature,
larceny from the person involves the absence of force or
threat of force.
While I agree with the majority that there is a risk
of force or threat of force when larceny from the person is
committed, this is essentially the case with every felony.
Indeed, one can conceive of a risk of force in almost every
situation in which a felony is committed.
However, I do
not believe that the mere potential for force or threat of
force, or the mere potential that a perpetrator may become
1
Other
subsections
of
the
statute
specifying
additional circumstances that also define a specified
felony are not applicable in this case.
2
confrontational if detected, means larceny from the person
presents a “substantial risk” of force or threat of force.
A
perpetrator
confrontation
could
if
it
just
as
becomes
likely
apparent
choose
that
to
force
avoid
or
the
threat of force must be used to complete the intended act.
Therefore, because there is not a “substantial risk” of
force or threat of force when larceny from the person is
committed, I respectfully dissent.
Michael F. Cavanagh
3
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