Muskegon Circuit Court LC No. 06-053640-FC.
The opinion of the court was delivered by: Talbot, J.
Before: OWENS, P.J., and TALBOT and GLEICHER, JJ.
Defendant appeals by leave granted*fn1 the trial court's denial of his request to withdraw his guilty plea to armed robbery. MCL 750.529. The trial court sentenced defendant, as a fourth habitual offender, MCL 769.12, to 24 to 40 years' imprisonment. We affirm.
I. FACTUAL AND PROCEDURAL HISTORY
Defendant was initially charged with two separate armed robberies, which occurred on consecutive days at different locations involving a Clark Gas Station and the Admiral Tobacco Shop. As part of a "package" deal, defendant pleaded guilty to armed robbery on both files. Difficulties were encountered when the trial court tried to establish a factual basis for defendant's pleas. In this appeal, we are interested solely in defendant's plea in the Admiral Tobacco Shop case.
With regard to the Admiral Tobacco Shop, defendant acknowledged that his intent, upon entering the store, was to steal money. Defendant also admitted that he had placed his hand "up under" his coat, suggesting the possession of a weapon and told the clerk, "[Y]ou know what this is, just give me what I want." The trial court accepted the plea finding it "to be knowing, voluntary, understanding, and accurate." Subsequently, defendant was sentenced to 24 to 40 years' imprisonment for the armed robbery.
Approximately one year after pleading guilty and six months after being sentenced, defendant filed a motion seeking to withdraw his pleas. Defendant argued that his plea in the Admiral Tobacco Shop case was deficient because there was no demonstration or showing that defendant actually took any property from the store. Following the submission of additional briefs, the trial court issued a written opinion and order denying defendant's motion to withdraw his plea. This appeal ensued.
The issue before this Court can be summarized as whether a completed larceny is necessary to sustain a conviction for armed robbery, pursuant to MCL 750.529. Consequently, the outcome of this appeal is completely dependent on the statutory language comprising MCL 750.529 and MCL 750.530. It is well recognized:
"[T]he interpretation and application of statutes is a question of law that is reviewed de novo." People v Webb, 458 Mich 265, 274; 580 NW2d 884 (1998). The primary goal of statutory interpretation is to give effect to the intent of the Legislature. People v Williams, 475 Mich 245, 250; 716 NW2d 208 (2006). The objective of statutory interpretation is to discern the intent of the Legislature from the plain language of the statute. People v Sobczak-Obetts, 463 Mich 687, 694-695; 625 NW2d 764 (2001). "We begin by examining the plain language of the statute; where that language is unambiguous, 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." People v Morey, 461 Mich 325, 330; 603 NW2d 250 (1999). In doing so, we must be mindful that "[i]t is the role of the judiciary to interpret, not write, the law." People v. Schaefer, 473 Mich 418, 430-431; 703 NW2d 774 (2005), clarified in part on other grounds People v Derror, 475 Mich 316, 320; 715 NW2d 822 (2006). [People v Barrera, 278 Mich App 730, 735-736; 752 NW2d 485 (2008).]
This Court also reviews de novo whether specific conduct falls within the prohibitions of a statute as a question of law. People v Adkins, 272 Mich App 37, 39; 724 NW2d 710 (2006). Relevant to this appeal, we would further note that there exists no absolute right to withdraw a guilty plea, which is within the trial court's discretion. People v Ovalle, 222 Mich App 463, 465; 564 NW2d 147 (1997).
The four statutes pertaining to robbery are contained within Chapter LXXVIII of the Michigan Penal Code.*fn2 In this appeal, we are concerned with the statutes pertaining to robbery and unarmed robbery following their legislative revision in 2004 PA 128. Specifically, MCL 750.529, defining armed robbery, currently provides:
A person who engages in conduct proscribed under section 530 and who in the course of engaging in that conduct, possesses a dangerous weapon or an article used or fashioned in a manner to lead any person present to reasonably believe the article is a dangerous weapon, or who represents orally or otherwise that he or she is in possession of a dangerous weapon, is guilty of a felony punishable by imprisonment for life or for any term of years. If an aggravated assault or serious injury is inflicted by any person while violating this section, the person shall be sentenced to a minimum term of imprisonment of not less than 2 years.
Robbery is defined within MCL 750.530, which states:
(1) A person who, in the course of committing a larceny of any money or other property that may be the subject of larceny, uses force or violence against any person who is present, or who assaults or puts the person in fear, is guilty of a felony punishable by imprisonment for not more than 15 years.
(2) As used in this section, "in the course of committing a larceny" includes acts that occur in an attempt to commit the larceny, or during commission of the larceny, or in flight or attempted flight after the commission of the larceny, or in an attempt to retain possession of the property.
Based on these recent revisions, it must be determined whether a perpetrator must actually commit a completed larceny to be convicted of an armed robbery.*fn3 Specifically, with reference to the issue on appeal, we must address whether the trial court erred in accepting defendant's guilty plea to the offense of armed robbery when there was no proof or evidence of a completed larceny. We find that the statutory language now encompasses attempts and that, as a result, a completed larceny is no longer required for a conviction of armed robbery.*fn4
It is undisputed that MCL 750.529 and MCL 750.530 must be read together because armed robbery requires that a person be "engage[d] in conduct proscribed under section [MCL 750].530." MCL 750.529. In addition, for a robbery to rise to the level of an armed robbery, MCL 750.529 requires that the individual "possess a dangerous weapon or an article used or fashioned in a manner to lead any person . . . to reasonably believe the article is a dangerous weapon, or who represents orally or otherwise that he or she is in possession of a dangerous weapon." Notably, defendant acknowledged during his plea that he acted in a manner to suggest to the store clerk that he possessed a weapon. Hence, the issue before us is restricted solely to whether a larceny must be completed for defendant's armed robbery conviction to stand.
Clearly, other than separately requiring the existence or representation of the presence of a weapon, the crime of armed robbery is restricted to the "conduct proscribed under section 530." MCL 750.529. In turn, MCL 750.530 indicates that the conduct "proscribed" is the use of "force or violence" while "in the course of committing a larceny of any money or other property that may be the subject of larceny." Our analysis must focus on the definition, contained in MCL 750.530(2), of the term "in the course of committing a larceny," which "includes acts that occur in an attempt to commit the larceny, or during the commission of the larceny, or in flight or attempted flight after the commission or the larceny, or in an attempt to retain possession of the property."*fn5 (Emphasis added.) This Court has no alternative but to strictly adhere to the language used by the Legislature in revising this statute and not seek to attribute either motive or reasoning beyond the plain and ordinary meaning of the wording chosen for use. As such, the crime of armed robbery now also encompasses attempts to commit that offense.
"Where, as here, a statute supplies its own glossary, courts may not import any other interpretation, but must apply the meaning of the terms as expressly defined." People v Muzzin & Vincenti, Inc, 74 Mich App 634, 639; 254 NW2d 599 (1977). When dealing with statutory language, it is a well-defined precept:
While courts may decide the validity of statutes and ordinances and construe laws in order to determine the actual legislative intent, the duty of the courts, both with respect to city ordinances and with respect to enactments of the legislature, is merely to interpret and apply the law as it is found to be. They cannot, under the guise of construction, redraft, or change the plain phrasing of the legislative fiat. They may not legislate, or undertake to compel legislative bodies to do so. [1 Michigan Pleading & Practice, Statutory Construction (2d ed), § 2:28 (footnotes omitted).]
[W]hen a statute specifically defines a given term, that definition alone controls. Therefore, a statutory definition supersedes a commonly accepted dictionary or judicial definition of a term. [22 Michigan Civil Jurisprudence, Legislative Definitions, § 202 (footnotes omitted).]
The legislative definition of "in the course of committing a larceny" specifically "includes acts that occur in an attempt to commit the larceny." The term "attempt," which is not defined within the statute, is recognized to mean:
1. The act or an instance of making an effort to accomplish something, esp. without success. 2. Criminal law. An overt act that is done with the intent to commit a crime but that falls short of completing the crime. * Attempt is an inchoate offense distinct from the attempted crime. Under the Model Penal Code, an attempt includes any act that is a substantial step toward commission of a crime, such as enticing, lying in wait for, or following the intended victim or unlawfully entering a building where a crime is expected to be committed. [Black's Law Dictionary (8th ed).]
As such, the statutory language specifically considers and incorporates acts taken in an attempt to commit a larceny, regardless of whether the act is completed. This is consistent with the language of MCL 750.530(2), which distinguishes by the use of the word "or" between acts committed in "an attempt to commit the larceny" from those acts occurring "during the commission of the larceny" or any subsequent acts comprising flight or efforts to retain any property. The term "or" is "used to connect words, phrases, or clauses representing alternatives." Random House Webster's College Dictionary (1997). Hence, an attempt to commit a larceny comprises a separate and distinct action and is not merely a component of the completed act. In addition, we would note that MCL 750.530(2) defines "in the course of committing a larceny" (emphasis added) and not "the larceny." The term "a larceny" denotes a more generic, non-specific or generalized act. The fact that the term "the larceny" is subsequently used within this subsection of the statute merely denotes a reference back to the more generalized "a larceny." Logically, acts taken in the process of committing a larceny necessarily includes steps or behaviors occurring at any point in the continuum, despite whether they are successfully completed. This language necessarily demonstrates the Legislature's intent to include attempts to commit a larceny, both by implication and by the specific language contained in this statutory provision.
Consistent with the statutory language, which expands the crime of armed robbery to include attempts, is the recently revised criminal jury instruction relating to this crime.*fn6 The language of the criminal jury instruction pertaining to armed robbery is clearly consistent with the language of MCL 750.529 and MCL 750.530, providing:
(1) The defendant is charged with the crime of armed robbery. To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:
(2) First, the defendant [used force or violence against / assaulted / put in fear] [state complainant's name].
(3) Second, the defendant did so while [he / she] was in the course of committing a larceny. A "larceny" is the taking and movement of someone else's property or money with the intent to take it away from that person permanently.
"In the course of committing a larceny" includes acts that occur in an attempt to commit the larceny, or during the commission of the larceny, or in flight or attempted flight after the commission of the larceny, or in an attempt to retain possession of the property or money.
(4) Third, [state complainant's name] was present while defendant was in the course of ...