
    PEOPLE v JOEZELL WILLIAMS
    Docket Nos. 128294, 128533.
    Decided May 31, 2006.
    On applications by the defendant and the prosecution for leave to appeal, the Supreme Court ordered oral argument on whether to grant the applications or take other peremptory action. Following oral argument, the Supreme Court issued a memorandum opinion affirming the judgment of the Court of Appeals and denied the defendant’s application in all other respects.
    Joezell Williams II was convicted by a jury in the Wayne Circuit Court, Brian R. Sullivan, J., of first-degree premeditated murder, first-degree felony murder, larceny from the person of another, and other felonies for the slaying of one person and other acts. The court imposed one sentence of life imprisonment on the alternative theories of first-degree premeditated minder and first-degree felony minder, and other sentences of imprisonment for the larceny and other convictions. The defendant appealed, alleging a double-jeopardy violation. The Court of Appeals, Sawyer, J., and Schuette, RJ. (O’Connell, J., dissenting), affirmed in part and vacated in part, noting that, although double-jeopardy protections are violated when a defendant is convicted of both first-degree premeditated murder and first-degree felony murder arising out of the death of a single victim, a single conviction of murder based on two alternative theories will be upheld. The Court of Appeals affirmed the one conviction and one sentence based on the two theories of premeditated murder and felony murder. However, the Court of Appeals noted that, because the defendant was convicted and sentenced for the murder on the alternative bases of premeditation and felony murder, the conviction for larceny, the felony underlying the felony-minder theory, must be vacated. 265 Mich App 68 (2005). The defendant and the prosecution sought leave to appeal. The Supreme Court ordered and heard oral argument on whether to grant the applications. 474 Mich 882 (2005).
    In a memorandum opinion signed by Chief Justice Taylor and Justices Cavanagh, Kelly, Young, and Markman, the Supreme Court held.-.
    
    If the defendant’s murder conviction is reversed on grounds only affecting the murder element, entry of a judgment of conviction of larceny may be directed by the appellate court. The defendant’s conviction must be affirmed.
    
      Affirmed.
    Justice Weaver, dissenting, stated that the defendant’s conviction of larceny from the person of another should he affirmed for the reasons stated in her dissenting statement in People v Curvan, 473 Mich 896 (2005).
    Justice Corrigan, dissenting, would hold this case in abeyance for the decision in People v Smith (Docket No. 130353), lv gtd 475 Mich 864 (2006), concerning whether People v Robideau, 419 Mich 458 (1984), or Blockburger v United States, 284 US 299 (1932), sets forth the proper test to determine whether multiple punishments are barred on double-jeopardy grounds under Const 1963, art 1, § 15. Otherwise, under the currently controlling test of People v Robideau, 419 Mich 458 (1984), she would decide this case on the basis that larceny from the person and first-degree murder based on alternative theories of premeditation and felony murder are not the “same offense” for the purposes of the protection against double jeopardy.
    Criminal Law — Double Jeopardy.
    A defendant who receives one conviction of first-degree murder supported by two theories, first-degree premeditated murder and first-degree felony murder, and is also convicted of the felony underlying the felony-minder charge and whose conviction of the underlying felony is thereafter vacated on double-jeopardy grounds may have a judgment of conviction of the underlying felony entered against the defendant where the defendant’s murder conviction is reversed on grounds that only affect the murder element.
    
      Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, Kym L. Worthy, Prosecuting Attorney, Timothy A. Baughman, Chief of Research, Training and Appeals, and Ana I. Quiroz, Assistant Prosecuting Attorney, for the people.
    
      Neil J. Leithauser for the defendant.
    Amicus Curiae:
    
      Ronald J. Frantz, Kym L. Worthy, and Timothy A. Baughman, for Prosecuting Attorneys Association of Michigan.
   Memorandum. In this case, we examine the double-jeopardy concerns that are involved when a defendant who has committed a felony and a concurrent, single homicide is charged with and convicted of first-degree premeditated murder, first-degree felony-murder, and the felony underlying the felony-murder charge. Under the current case law, to avoid double-jeopardy implications, the defendant receives one conviction of first-degree murder, supported by two theories, and the conviction of the predicate felony underlying the felony murder is vacated. See People v Wilder, 411 Mich 328; 308 NW2d 112 (1981); People v Bigelow 229 Mich App 218; 581 NW2d 744 (1998). The defendant thus receives one conviction and one sentence for having committed one crime.

In this case, the trial court followed that procedure in part, and the Court of Appeals affirmed in part and vacated in part, but invited us to consider modifying Bigelow. 265 Mich App 68; 692 NW2d 722 (2005). We decline to do so, affirming the judgment of the Court of Appeals, and we provide a brief analysis of our reasoning.

The prosecutor in this case is concerned that if the judgment vacates defendant’s larceny conviction, in the unlikely situation that defendant’s conviction of murder is overturned for some reason unrelated to his conviction of larceny, defendant could “go free” even though there is no question that he was found guilty of larceny. Although such a situation is unprecedented in Michigan case law, we find reassurance in the federal law that these concerns are groundless. Although the United States Supreme Court has not considered this specific context, it came close in Rutledge v United States, 517 US 292; 116 S Ct 1241; 134 L Ed 2d 419 (1996). We believe Rutledge presents the correct method of handling this case.

In Rutledge, the defendant was convicted of both conducting a continuing criminal enterprise (CCE) and conspiracy to distribute a controlled substance and was sentenced to two concurrent life sentences. The Court held that under the common-elements test of Blockburger v United States, 284 US 299; 52 S Ct 180; 76 L Ed 306 (1932), the conspiracy was a lesser included offense of CCE. The Court then found that the defendant could not receive two sentences and that the second conviction, even without a second sentence, was presumptively impermissible under Ball v United States, 470 US 856; 105 S Ct 1668; 84 L Ed 2d 740 (1985).

Next, the Court addressed the government’s concern that without a “backup” conviction, the defendant might escape punishment altogether if he successfully challenged the CCE conviction in a manner that did not affect his conspiracy conviction. Rutledge at 305. The Court found “no reason why this pair of greater and lesser offenses should present any novel problem,” and noted that “federal appellate courts appear to have uniformly concluded that they may direct the entry of judgment for a lesser included offense when a conviction for a greater offense is reversed on grounds that affect only the greater offense.” Id. at 306. Justice Stevens continued, “This Court has noted the use of such a practice with approval.” Id.

Under this approach, if defendant’s murder conviction is reversed on grounds only affecting the murder element, entry of a judgment of conviction of larceny may be directed by the appellate court. Such was the practice of this Court in, for example, People v Randolph, 466 Mich 532, 553; 648 NW2d 164 (2002), and People v Bearss, 463 Mich 623, 631; 625 NW2d 10 (2001). We continue to support this approach and thus affirm defendant’s conviction.

Affirmed.

Taylor, C.J., and Cavanagh, Kelly, Young, and MARKMAN, JJ., concurred.

WEAVER, J.

(dissenting). I dissent from the majority’s decision to affirm the Court of Appeals judgment that vacated defendant’s conviction of larceny from the person of another and would affirm defendant’s convictions because I continue to adhere to the position expressed in my dissent in People v Curvan, 473 Mich 896 (2005).

CORRIGAN, J.

0dissenting). I respectfully dissent from the majority’s declination to tackle the central question presented in this case, i.e., whether double-jeopardy principles prohibit the imposition of multiple punishments for the underlying offense of larceny from the person of another, MCL 750.357, and first-degree murder based on alternative theories of premeditated murder and felony murder, MCL 750.316(1). I would hold this case in abeyance for the decision in People v Smith (Docket No. 130353), lv gtd 475 Mich 864 (2006), in which we have granted leave to appeal to consider the appropriate test for resolving a “multiple punishments” double-jeopardy claim that arose from a conviction of armed robbery, MCL 750.529, and felony murder based on a predicate felony of larceny.

An abeyance for Smith is appropriate for the following reasons:

First, this case and Smith are in similar postures. In both cases, the defendant received dual convictions for felony murder and a predicate felony or an offense related to the predicate felony. In Smith, the defendant was convicted of armed robbery and felony murder based on larceny. In this case, the defendant was convicted of larceny from the person of another and first-degree murder based on alternative theories of premeditated murder and felony murder.

Second, both cases potentially present the question whether People v Robideau, 419 Mich 458; 355 NW2d 592 (1984), or Blockburger v United States, 284 US 299, 304; 52 S Ct 180; 76 L Ed 306 (1932), sets forth the proper test to determine whether multiple punishments are barred on double-jeopardy grounds under Const 1963, art 1, § 15. Our grant order in Smith directed the parties to consider “this Court’s prior precedent in ‘multiple punishment’ claims and the common understanding of ‘same offense’ as it relates to the ‘multiple punishments’ prong of double jeopardy. Cf. People v Nutt, 469 Mich 565 (2004).” Smith, supra at 864.

Thus, our resolution of the appropriate test in Smith may offer guidance in addressing the “multiple punishments” claim in this case. If this Court decides in Smith that the Blockburger test governs the resolution of multiple punishments claims, then we should consider the proper application of that test in this case. Therefore, because an abeyance for Smith is warranted, I must respectfully dissent.

Next, I will articulate what I believe to be the correct disposition of this case under the currently controlling Robideau test. For the following reasons, I believe that double jeopardy does not preclude the imposition of multiple punishments for larceny from the person of another and first-degree murder based on alternative theories of premeditation and felony murder.

In People v Curvan, 473 Mich 896 (2005) (CORRIGAN, J., dissenting), I agreed with Justice Riley’s dissenting view in People v Harding, 443 Mich 693; 506 NW2d 482 (1993), that felony murder and the predicate offense of armed robbery are not the “same offense” for the purposes of the protection against double jeopardy. Plainly, the two offenses protect against distinct societal harms. Felony murder punishés homicide committed with malice in the course of a felony, while armed robbery protects against the violent deprivation of property. Id. Moreover, the structure of the first-degree murder statute reflects that felony murder is one of three classifications of the crime of first-degree murder. The predicate felonies are used to differentiate felony murder “from the other two types of first-degree murder, and from second-degree murder, MCL 750.317, rather than merely to enhance the penalty for the enumerated predicate felonies.” Curvan, supra at 904 (Corrigan, J., dissenting).

As in Curvan, the majority here again declines to answer a fairly straightforward question: Are first-degree murder supported by alternative theories and larceny from the person the “same offense”? Under our current test set forth in Robideau, legislative intent is the fundamental criterion in discerning whether multiple punishments are authorized. Although this Court held in People v Wilder, 411 Mich 328; 308 NW2d 112 (1981), and Harding, supra, that separate convictions and sentences for felony murder and the underlying felony are not permitted, this Court has never addressed whether multiple punishments for an underlying felony and first-degree murder are permitted where, as here, the murder conviction is based on alternative theories of premeditated murder and felony murder.

I would decide this case on the basis of the views I expressed in Curvan. First-degree murder and the underlying felony of larceny from the person simply are not the “same offense.” I can discern no indication that our Legislature ever prohibited multiple punishments for these distinct offenses. The two offenses protect against distinct social harms. That is particularly true where, as here, the murder conviction is supported by an alternative theory of premeditation. It cannot reasonably be disputed that protecting against a premeditated homicide is a social interest that is distinct from the aim of preventing the taking of property from the person of another.

In lieu of answering any of these questions or holding this case in abeyance, the majority has imported a doctrine from federal case law allowing a conviction that has been vacated to be revived in certain circumstances. Because I question the majority’s avoidance of the double-jeopardy issues that are so clearly before us, and because an abeyance for Smith is warranted, I respectfully dissent from the majority’s decision. 
      
       Const 1963, art 1, § 15.
     
      
       The Court did not ultimately decide whether the second conviction was impermissible under Ball alone because the fact that each conviction carried its own $50 “special assessment” established a second punishment, even without a second prison term. Rutledge at 301.
     
      
       In all other respects, the application for leave to appeal in Docket No. 128533 is denied.
     
      
       The Court of Appeals special panel in People v Bigelow, 229 Mich App 218; 581 NW2d 744 (1998), of which I was a member, vacated the conviction for a felony underlying a murder conviction based on alternative theories of premeditated murder and felony murder. In his dissent in this case, Judge O’Connell, who was a member of the Bigelow special panel, opined that he and the other members of the Bigelow special panel had erred in holding that the underlying felony conviction must be vacated in this situation. I share Judge O’Connell’s view that the special panel members in Bigelow, myself included, erred in this regard.
     