People v. Fairfax

Bashara, P.J. Defendant appeals his plea-based convictions of armed robbery, MCL 750.529; MSA 28.797, and violation of the felony-firearm statute, MCL 750.227b; MSA 28.424(2). Defendant alleges that there was an insufficient factual basis to support the two pleas presented at the hearing, GCR 1963, 785.7(3)(a). Specifically, defendant contends that only an attempted robbery was established, there being no indication that any property was actually taken before the police interrupted the robbery. The court asked the defendant, "Did the guy give some money over [689] and the police come [sic] in just at that time?” Defendant answered, "Yes”. The police interrupted the robbery after asportation of the money. Thus, the record establishes an adequate factual basis for the armed robbery plea. People v Royce Alexander, 17 Mich App 30; 169 NW2d 190 (1969). However, we agree with defendant’s assertion that the factual basis in support of the felony-firearm plea was deficient. The defendant stated that there were two shotguns used by the three robbers, but it is not clear whether the defendant possessed or aided and abetted in the possession of one of the shotguns. We have reviewed the transcript in light of People v Johnson, 411 Mich 50; 303 NW2d 442 (1981). In that case, the Court stated: "To convict one of aiding and abetting the commission of a separately charged crime of carrying or having a firearm in one’s possession during the commission of a felony, it must be established that the defendant procured, counselled, aided, or abetted and so assisted in obtaining the proscribed possession, or in retaining such possession otherwise obtained. See People v Doemer, 35 Mich App 149; 192 NW2d 330 (1971); People v Francis, 71 Cal 2d 66; 450 P2d 591; 75 Cal Rptr 199 (1969). "In neither of the instant cases does the record show that the defendant assisted the accomplice to obtain or retain possession of the firearm which the accomplice possessed during the commission of the felony.” Johnson, supra, 54. The facts in the present case do not appear to be distinguishable from those presented in Johnson. Thus, the felony-firearm conviction must be reversed and the matter remanded in order that the prosecutor be given the opportunity to establish a sufficient factual basis at a new hearing. Guilty Plea Cases, 395 Mich 96, 129; 235 NW2d 132 (1975). [690] The armed robbery conviction is affirmed. The felony-firearm conviction is reversed and the matter is remanded for further proceedings. We do not retain jurisdiction. J. H. Gillis, J., concurred.