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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED May 5, 2015

v No. 319678 Wayne Circuit Court ANGELO WEEMS, LC No. 12-011011-FH

Defendant-Appellant.

Before: T ALBOT , C.J., and M URPHY and G LEICHER , JJ.

P ER C URIAM

.

Pursuant to a Cobbs 1 agreement, defendant pleaded guilty to the charges of felon in possession of a firearm, MCL 750.224f, and possession of a fire arm during the commission of a felony (felony-firearm), MCL 750.227b. Consistent with the ple a agreement, he was sentenced to two years’ probation for the felon-in-possession conviction and two years’ imprisonment for the felony-firearm conviction. In a timely-filed motion, defen dant had sought to withdraw his plea. The trial court denied t he motion, and defendant appeals by leave granted. We affirm.

I. THE PLEA AGREEMENT AND RELATED HEARING

Defendant had been charged with felony-firearm, felon-in-posse ssion, and carrying a concealed weapon, MCL 750.227, accompanied by a fourth-habitual offender notice, MCL 769.12. The plea agreement entailed defendant pleading guilty to the felon-in-possession and felony-firearm charges in exchange for dismissal of the conceal ed-weapon charge and the habitual notice, along with a promised sentence of two years’ i mprisonment for the felonyfirearm offense and an order of two years’ probation for the fe lon-in-possession offense. At the plea hearing, defendant expressed his approval of this agreemen t. Defendant was placed under oath and the trial court engage d him in the following colloquy:

Trial Court : How far did you go in school?

Defendant : Twelfth grade.

1 People v Cobbs , 443 Mich 276; 505 NW2d 208 (1993).-2- Trial Court : Do you read, write[,] and understand English?

Defendant : Yes.

Trial Court : You know what’s going on here today?

Defendant : Yes.

Trial Court : This is your signature on the plea form?

Defendant : Yes.

Trial Court : You went over it with your attorney?

Defendant : Yes.

Trial Court : Are you satisfied with his services?

Defendant : Yes.

. . .

Trial Court : [H]ave there been any other pr omises or agreements made
t o you outside of this?

Defendant : No, sir.

Trial Court : You understand, sir, if I accept your plea you will not have a trial?

Defendant : Yes.

Trial Court : That you will be waiving or givi ng up the rights listed at the bottom of the plea form?

Defendant : Yes.[ 2 ]

2 The plea form that defendant acknowledged having read and that listed the rights he was agreeing to waive provided in part: (1) If the plea is accepted, the defendant will not have a tria l of any kind, and so gives up the rights the defendant would have at a trial, includ ing the right:

(a) to be tried by a jury

(b) to be presumed inno cent until proven guilty-3- Trial Court : After waiving those rights, you still wish to plead guilty here?

Defendant : Yes, sir.

Trial Court : Have there been any threats to do that?

Defendant : No, sir.

Trial Court : Any drugs or alcohol affecting you now?

Defendant : No, sir.

Defendant proceeded to testify that, with respect to the date of October 30, 2012, he had possessed a firearm absent a permit, he was a convicted felon, and his right to carry a firearm had not been restored. Defense couns el and the prosecutor then voi ced satisfaction with the plea and its factual basis, and the trial c ourt indicated its satisfacti on and approval of the plea.

Defendant later moved to have the plea withdrawn prior to sent encing, but the trial court did not entertain and decide a mo tion to withdraw the plea unti l after sentencing. Defendant contended that his “waiver of tr ial rights was invalid as the [ c]ourt did not advise him of the right to jury trial, confrontation[,] and silence on the record,” tha t “the written plea form was invalid as the [c]ourt did not use a form approved by the State Court A dministrative Office [SCAO] as required by MCR 6.302(B),” and that “the plea was legally invol untary as the state and federal double jeopardy protections should preclude dual convictions fo r felony-firearm and felon in possession of a weapon.” The tri al court denied the motion.

(c) to have the prosecutor prove beyond a reasonable doubt tha t the defendant is guilty

(d) to have the witnesses agains t the defendant appear at the trial

(e) to question the witnesse s against the defendant

(f) to have the court order a ny witnesses the defendant has fo r the defense to appear at the trial

(g) to remain silent during the trial

(h) to not have that silence us ed against the defendant and

(i) to testify at the trial if the defenda nt wants to testify.

Defendant and his attorney signed and dated the document just below this acknowledgement of rights.-4- II. ANALYSIS

A. STANDARDS OF REVIEW

We review for an abuse of discr etion a trial court’s ruling on a motion to withdraw a guilty plea, but our review is de novo with respect to related constitutional issues, as well as the interpretation and application of the court rules. People v Cole , 491 Mich 325, 329-330; 817 NW2d 497 (2012).

B. CONSTITUTIONAL REQU IREMENTS AND ARGUMENTS

In Cole , the Michigan Supreme Court addressed the requirements of cons titutional due process in regard to the entry of a guilty plea and the associa ted waiver of various constitutional rights, observing:

A no-contest or a guilty plea constitutes a waiver of several constitutional rights, including the privilege against compulsory self-incrimi nation, the right to a trial by jury, and the right to confront one's accusers. Boykin v Alabama , 395 US 238, 243; 89 S Ct 1709; 23 L Ed 2d 274 (1969); People v Jaworski , 387 Mich 21, 28-29; 194 NW2d 868 (1972). For a plea to constitute an effecti ve waiver of these rights, the Due Process Clause of the Fourteenth Amendment requ ires that the plea be voluntary and knowing. McCarthy v United States , 394 US 459, 466; 89 S Ct 1166; 22 L Ed 2d 418 (1969); see also North Carolina v Alford , 400 US 25, 31; 91 S Ct 160; 27 L Ed 2d 162 (1970) (noting that a plea must be “a voluntary and intelligent choice among the alternative courses of action open to the defendant”). In Brady v United States , 397 US 742, 748; 90 S Ct 1463; 25 L Ed 2d 747 (1970), the United States Supreme Court held that “[w]ai vers of constitutional rights not only must be voluntary but must be kn owing, intelligent acts done with sufficient awarene ss of the relevant circumstanc es and likely consequences.” [ Cole , 491 Mich at 332-333 (footnote omitted).]

Here, defendant argues that his plea was constitutionally defe ctive because the trial court failed to explain on the record the constitutional rights that defendant was waiving by accepting the plea agreement. Defendant mai ntains that “there was no ora l advisement of the enumerated trial rights – including the right to jury trial.” Defendant s olely cites McCarthy , 394 US 459, in support of his claim that the trial court was constitutionally required to orally advise him of the rights that were being waived.

McCarthy examined “the procedure that must be followed under Rule 11 of the Federal Rules of Criminal Procedure before a United States District Cou rt may accept a guilty plea and the remedy for a failure to follow that procedure.” McCarthy , 394 US at 460. FR Crim P 11 at the time provided that a court could not accept a guilty plea “ ‘without first addressing the defendant personally and determining that the plea is made volu ntarily with understanding of the nature of the charge and the consequence of the plea.’ ” Id. at 462 n 4, quoting FR Crim P 11, as amended February 28, 1966, and made effective July 1, 1966. Wh en the petitioner entered his guilty plea, the district court had failed to “personally inqui re whether petitioner understood the nature of the charge.” McCarthy , 394 US at 464. The Supreme Court stated that “although the procedure embodied in Rule 11 has not been held to be constitutionally mandated , it is designed-5- to assist the district judge in making the constitutionally req uired determination that a defendant's guilty plea is truly voluntary.” Id. at 465 (emphasis added; citations omitted). The McCarthy Court ultimately set aside the guilty plea, holding that “preju dice inheres in a failure to comply with Rule 11, for noncompliance deprives the defendant of the R ule's procedural safeguards that are designed to facilitate a mor e accurate determination of the voluntariness of his plea.” Id. at 471-472.

Clearly, McCarthy did not constitutionally mandate oral advisement of the rights being waived by a defendant pleading guilty to a criminal offense. R ather, the Supreme Court indicated that the constitutional touchstone is ultimately whet her a plea is knowing and voluntary, and when the federal district court failed to abide by the procedural safeguard of personal inquiry embodied in FR Crim P 11, the voluntariness of the plea could not be accurately determined. It is vitally important to note that McCarthy did not involve the petitioner’s execution of any document associated with the plea, let alone o ne comparable to the plea form signed by defendant here.

The record in our case reflected that the trial court did not expressly or orally advise defendant that he was waiving hi s rights to a jury trial, to th e presumption of innocence, to have the prosecutor prove guilt beyond a reasonable doubt, to the pr ivilege against compulsory selfincrimination, to confront accusers, to call witnesses and have them produced as part of his defense, and to testify. While the trial court did not express ly set forth those rights, the court asked defendant whether he understood that he was “waiving or g iving up the rights listed at the bottom of the plea form,” thereby incorporating by reference th ose rights into the question being posed to defendant; a question that defendant responded to in t he affirmative. This was after defendant had unequivocally indicated that he could read and un derstand English, that he had reviewed the plea form with counsel, and that he had signed the plea form. Further, defendant replied, “Yes, sir,” when asked whether he still wished to plea d guilty “[a]fter waiving those rights.” (Emphasis added). Mor eover, all of the rights being referenced were trial-related constitutional rights, and the tr ial court did expressly or ora lly inform defendant that with acceptance of the plea, defendant would “not have a trial.” In response, defendant indicated that he was aware of and understood that fact. Therefore, even if i t cannot be said that defendant was expressly or orally advised of the constitutional rights that h e was forgoing in pleading guilty, under the circumstances presented as alluded to above and conta ined in the record, we conclude that he was adequately advised of his rights and that defendant ’s plea was constitutionally sound, in that, the plea was volunta ry, understanding, intelligent, an d knowing.

Contrary to defendant’s assertion, our holding is not in confl ict with the United States Supreme Court’s decision in Boykin
, 395 US 238, wherein the defendant pled guilty absent any record of questions by the trial court or statements by the def endant regarding the plea. The Boykin Court held:

A plea of guilty is more than a confession which admits that t he accused did various acts; it is itself a conviction; nothing remains bu t to give judgment and determine punishment. Admissibility of a confession must be bas ed on a reliable determination on the voluntariness issue which satisfies the co nstitutional rights of the defendant. The requireme nt that the prosecution spread o n the record the prerequisites of a valid waiver is no constitutional innovation

.-6- . . .
Several federal constitutional rights are involved in a waiver that takes place when a plea of guilty is en tered in a state criminal tria l. First, is the privilege against compulsory self-incrimination guaranteed by the Fifth A mendment and applicable to the States by r eason of the Fourteenth. Second, i s the right to trial by jury. Third, is the right to confront one's accusers. We cannotpresume a waiver of these three important federal rights from a silent record. [ Id. at 242-243 (citations and quotation marks omitted).]

We do not have a silent record. Rather, when the transcript o f the plea hearing is examined and considered in conjunction with the plea form signe d and acknowledged by defendant, which are both part of the record, it is abundantly clear that defendant was advised of the privilege against compulsory self-incrimination, the right to a jury trial, and the right to confront his accusers.

In addition, and again contrary to defendant’s position, our h olding is not in conflict with the Michigan Supreme Court’s ruling in Jaworski , 387 Mich 21, wherein the defendant pled guilty and was “advised of two of the three, but not the third [right against self-incrimination], of the three constitutional rights Boykin found in a waiver of a guilty plea.” Id. at 25. Our Supreme Court, in vacating the defendant ’s plea and conviction, held th at “the record must show that the defendant has been informed of each and all of the three consti tutional rights he waives on pleading guilty.” Id. at 30. Here, the “record,” which includes the plea-hearing tra nscript and the plea form, established that defendant was informed of the t hree constitutional rights alluded to in Boykin and Jaworski.

In sum, there was no constitutional violation with respect to defendant’s guilty plea, as the plea was voluntary, understanding, intelligent, and knowing

. C. REQUIREMENTS AND ARGUMENTS UNDER MCR 6.302

MCR 6.302 addresses pleas of guilty and nolo contendere and th e requirements of accepting such pleas, providing, in pertinent part, as follows:

(A) The court may not accept a plea of guilty or nolo contende re unless it is convinced that the plea is understanding, voluntary, and acc urate. Before accepting a plea of guilty or nolo contendere, the court must p lace the defendant or defendants under oath and persona lly carry out subrules (B)- (E).

(B) Speaking directly to the de fendant or defendants, the cour t must advise the defendant or defendants of the following and determine that each defendant understands:

. . . (3) if the plea is accepted, the defendant will not have a tri al of any kind, and so gives up the rights the defe ndant would have at a trial, including the right:

(a) to be tried by a jury;-7- (b) to be presumed innocent until proved guilty;

(c) to have the prosecutor prove beyond a reasonable doubt tha t the defendant is guilty;

(d) to have the witnesses agains t the defendant appear at the trial;

(e) to question the witnesse s against the defendant;

(f) to have the court order any witnesses the defendant has fo r the defense to appear at the trial;

(g) to remain silent during the trial;

(h) to not have that silence us ed against the defendant; and

(i) to testify at the trial if the defenda nt wants to testify.

. . . (5) [The] requirements of subrule[] (B)(3) . . . may be satisf ied by a writing on a form approved by the State Court Administrative Of fice. If a court uses a writing, the court shall address the defe ndant and obtai n from the defendant orally on the record a stateme nt that the rights were read and understood and a waiver of those rights. The waiv er may be obtained without repe ating the individual rights.

Accordingly, under the court rule and as relevant here, the tr ial court was required, subject to the applic ation of subrule (B)(5 ), to speak directly to defendant and advise him of the constitutional rights listed in subrule (B)(3) that he was givi ng up or waiving by pleading guilty and determine that defendant understood that he was waiving the se rights. An argument can be made that the trial court, when speaking to defendant, did advi se him of the constitutional rights that were being waived, doing so by verbally incorporating by r eference the rights set forth in the plea form when questioning and informing defendant. That said, MCR 6.302(B)(5), which allows a writing to be used to satisfy the requirements of subr ule (B)(3), still obligated the trial court to, without repeating the rights, “address the defendant and obtain from the defendant orally on the record a statement that the rights were read and understood and a waiver of those rights.” Given the specific colloquy at the plea hearing and t he concomitant use of the plea form, it is evident that the trial court was accepting the plea throu gh reliance on subrule (B)(5) with respect to the disclosure and wa iver of constitutional rights. Defendant, however, argues that subrule (B)(5) was not an available avenue to obtain a valid wa iver of constitutional rights, considering that, while subrule (B)(5) permits compliance with the requirements of subrule (B)(3) through the use of “a writing on a form approved by . . . [SCAO,]” the plea form signed by defendant was not a SCAO-approved form.

The plea form used in this case is one utilized by the courts in the Wayne County Circuit Court and it lacks a stamp or notation specifically indicating that the form is approved by SCAO. The actual SCAO-approved form – “CC 291 (1/06) ADVICE OF RIGHTS (CIRCUIT COURT PLEA)” – sets forth information regarding the constitutional ri ghts being waived, employing-8- language that is nearly verbatim, absent any meaningful differe nce, to the information contained in subsection (1) of the county plea form that was used. See f ootnote 2, supra . Additionally, both the SCAO form and the Wayne County plea form alert a defen dant that any appeal is by application for leave to appeal and not by right. Next, the co unty plea form goes even further, warning a defendant, in language identical to that in MCR 6.302 (B)(4), that “[i]f the plea is accepted, the defendant will be giving up any claim that the pl ea was the result of promises or threats that were not disclosed to the court at the plea procee ding, or that it was not the defendant’s own choice to enter the plea.” The SCAO-approved f orm does not include this valuable provision. The only arguably relevant distinction is that the language in the county plea form is in slightly smaller prin t, yet it is nonetheless easily legible. The smaller print is evidently used because the top part of the plea form contains space to al low entry of a defendant’s name, the specific charges, the statut ory citation of the charged off enses, the statutory maximum penalty, as must be disclosed under MCR 6.302(B)(2), and the na ture and particulars of the specific plea agreement, none of which information is allotted space in the SCAO-approved form. The county plea form is effectively “a form approved by” SCAO, MCR 6.302(B)(5), with some additional warnings consistent with and mandated by law an d some spacing to allow for the entry of information regarding a specific case. We find th at the county plea form is compliant with subrule (B)(5).

Furthermore, assuming a lack of full compliance, the county pl ea form substantially complied with MCR 6.302(B)(5). In People v Plumaj , 284 Mich App 645, 649; 773 NW2d 763 (2009), this Court observed:

Strict compliance with MCR 6.302 is not essential; rather, our Supreme Court has “adopted a doctrine of substantial compliance, holdin g that ‘whether a particular departure from Ru le 785.7 [now MCR 6.302] justifies or requires reversal or remand for additional proceedings will depend on th e nature of the noncompliance.’” [ People v ] Saffold , [465 Mich 268, 273; 631 NW2d 320 (2001)] . . ., quoting Guilty Plea Cases , 395 Mich 96, 113; 235 NW2d 132 (1975). Automatic reversal is required only when the trial court fails to procure “an enumeration and a waiver on the record of the three federal con stitutional rights as set forth in Boykin . . .: the privilege against compulsory self-incrimination, the right to trial by jury, and the right to confront one’s accuser s.” Saffold
, supra at 281. This Court may consider “the record as a whole” to determ ine whether the Boykin requirements were satisfied and whether a guilty plea was made knowingly and voluntarily. People v Bettiste a (After Remand) , 181 Mich App 194, 197; 448 NW2d 781 (1989). [First se t of brackets in origi nal 3 .]

Here, assuming noncompliance, t he nature of the noncompliance was entirely insignificant for the reasons discussed above; therefore, there was substantial compliance with MCR 6.302(B)(5) and thus no basis for reversal under the court rule. We also note the following statement in Saffold , a case in which the defendant w as not informed of the right t o the

3 We have already determined and held that the Boykin requirements were satisfied based on the record as a whole.-9- presumption of innocence as required by MCR 6.302 and wherein o ur Supreme Court recognized the substantial-compliance doctr ine and reinstated the defendan t’s guilty plea:

[T]he question on appeal is whether it appears on the record t hat the defendant was informed of such constitutional rights and incide nts of a trial as is reasonable to warrant the conclu sion that he understood what a trial is and that by pleading guilty he was knowingly and voluntarily giving up his right to a trial and such rights and incidents. [ Saffold , 465 Mich at 273.]

We hold that in the case at ba r, the record supports the findi ng that defendant was informed of his constitutional rights and the incidents of a tr ial as was reasonable to warrant the conclusion that he understood the nature of a trial and that by pleading guilty he was knowingly and voluntarily giving up his right to a trial and such rights and incidents.

Finally, we note that defendant presents an argument under MCR 6.402(B), which addresses waiver of a jury trial and record requirements; howev er, the provision is applicable in the context of a situation in w hich a defendant is going to tri al but has opted for a bench or waiver trial instead of a trial by jury. See MCR 6.401 (“The d efendant has the right to be tried by a jury, or may, with the consen t of the prosecutor and appro val by the court, elect to waive that right and be tried before the court without a jury.”). MC R 6.302 governs the analysis with respect to plea agreements, not MCR 6.402. 4 Accordingly, defendant’s a rgument is unavailing.

D. DOUBLE JEOPARDY IMPLICATIONS

Lastly, defendant argues that the plea agreement should be set aside because a conviction for both felony-firearm and felon- in-possession violates the co nstitutional protections against double jeopardy, US Const, Am V; Const 1963, art 1, § 15. The Michigan Supreme Court rejected this precise argument in People v Calloway , 469 Mich 448; 671 NW2d 733 (2003). The Court noted that the issue concer ned the multiple-punishments p rong or strand of double jeopardy and that the analysis of this prong solely involved de termining whether the Legislature had intended to authorize cumulative punishments. Id. at 450-451. The Calloway Court opined that with respect to the felony-firearm statute, MCL 750.227b, the Legislature intended to provide for an additional felony charge and sentence when a def endant possessed a firearm and committed a felony, other than one of the four enumerated felon ies in MCL 750.227b. Id. at 452. 5 The Court then held:

4 Defendant makes an analogous argument under MCL 763.3(1), but that also pertains to a situation in which a defendant, “with the consent of the prosec utor and approval by the court, waive[s] a determinati on of the facts by a jury and elec t[s] to be tried before the court without a jury.”

5 Subsection (1) of MCL 750.227b, the felony-firearm statute, pr ovides, in part, that “[a] person who carries or has in his or her possession a firearm when he o r she commits or attempts to commit a felony, except a violation of [MCL 750.223, MCL 750.22 7, MCL 750.227a, or MCL 750.230] . . . is guilty of a felony, a nd shall be imprisoned f or 2 years.”-10- Because the felon in possession charge is not one of the felon y exceptions in the statute [MCL 750.227b(1)], i t is clear that defendant co uld constitutionally be given cumulative punishments when charged and convicted of b oth felon in possession, MCL 750.224f, and fel ony-firearm, MCL 750.227b. Bec ause there is no violation of the double jeopar dy clause, the Court of Appeal s properly affirmed defendants convictions. In lieu of granting leave to a ppeal, we affirm the judgment of the Court of Appeals on this point. [ Id. ]

Defendant argues that Calloway was wrongly decided. However , “it is well established that this Court is bound by stare decisis to follow the decisio ns of the Supreme Court.” Charles A Murray Trust v Futrell , 303 Mich App 28, 48; 840 NW2d 775 (2013). Defendant also contends that our Supreme Court’s ruling in People v Smith , 478 Mich 292; 733 NW2d 351 (2007), overruled or modified the analytical framework applied in Calloway. While we agree with this proposition, revers al is still unwarranted.

The Calloway Court relied on the analysis in People v Sturgis , 427 Mich 392; 397 NW2d 783 (1986). Calloway , 469 Mich at 450-451. And the Sturgis Court, which held that, “[i]n sum, where the issue is the propriety of multiple punishments in a s ingle trial, our obligation is to determine what punishment the Legislature has authorized[,]” re lied heavily on People v Robideau , 419 Mich 458; 355 NW2d 592 (1984). Sturgis , 427 Mich at 400-411. However, the Smith Court ruled that “we feel compelled to overrule Robideau and preceding decisions that are predicated on the same error o f law, and to hold instead that Blockburger [ 6 ] sets forth the appropriate test to determine whether multiple punishments are barred by Const 1963, art 1, § 15.” Smith , 478 Mich at 315. Our Supreme Court in Smith held:

We conclude that in adopting Const 1963, art 1, § 15, the rati fiers of our constitution intended that our double jeopardy provision be con strued consistently with then-existing Michigan caselaw and with the interpretation given to the Fifth Amendment by federal courts at the time of ratification. We fur ther conclude that the ratifiers intended that the term “same offense” be given th e same meaning in the context of the “multiple punishments” strand of double jeop ardy that it has been given with respect to the “successive prosecutions” strand . . . . At the time of ratification, we had defined the language “same offense” in the context of successive prosecutions by applying the federal “same elements” test. In interpreting “same offense” in the context of multiple punishme nts, federal courts first look to determine whether t he legislature expressed a cle ar intention that multiple punishments be imposed. Where the Legislature does cle arly intend to impose such multiple punishments, imposition of such sentences does not violate the Constitution, regardless of whether the offenses share the “same elements.” Where the Legislature has not clearly expressed its intention to authorize multiple punishments, federal courts apply the “same elements” test of Blockburger to determine whether multiple punishments are permitted. Accordingly, we conclude that the “same elements” test set fort h in Blockburger

6 Blockburger v United States , 284 US 299; 52 S Ct 180; 76 L Ed 306 (1932).-11- best gives effect to the intenti ons of the ratifiers of our con stitution. [ Smith , 478 Mich at 315-316 (citations and quotation marks omitted).]

Subsection (2) of the felony-firearm statute, MCL 750.227b, pr ovides that “[a] term of imprisonment prescribed by this section is in addition to the sentence imposed for the conviction of the felony or the attempt to commit the felony, and shall be served consecutively with and preceding any term of imprisonment imposed for the conviction o f the felony or attempt to commit the felony.” (Emphasis added). Because felon-in-posses sion is a permissible underlying felony for purposes of felony-fi rearm, MCL 750.227b(1), and bec ause subsection (2) of the statute specifically provides for punishment of both crimes, in deed consecutively, the Legislature clearly expressed its intention to authorize multiple punishmen ts for the two firearm offenses. Moreover, even assuming the lack of a clearly expressed intent to authorize multiple punishments for felony-firearm a nd felon-in-possession and the need to apply the Blockburger same-elements test, defendant’s double jeopardy p rotections wou ld not be infringed. In applying the test, the Smith Court ruled that “[b]ecause each of the felonies of which defen dant was convicted, first-degree felony mu rder and armed robbery, has an element that the other does not, they are not the ‘same offense’ under either Const 1963, art 1, § 15 or US Const, Am V.” Smith
, 478 Mich at 324. The offense of felon-in-possession requires t hat a defendant be an existing felon when possessing a firearm in order to be convicted, which is not required with felonyfirearm. MCL 750.227b; MCL 750.224f . And felony-firearm requi res that a defendant possess a firearm during the commission of a felony, while felon-in-posse ssion does not require the commission of a felony, although a felony is effectively commit ted when a felon possesses a firearm. Id. This is very comparable to the felony-murder and underlying-f elony analysis in Smith . In sum, there was no double jeopardy violation in accepting the plea agreement.

III. CONCLUSION

The plea agreement and the related proceeding did not result i n a violation of defendant’s due process rights relative to pleas and the waiver of associat ed constitutional rights, did not result in a violation of the applicable court rule, MCR 6.302, and the agreement did not infringe on defendant’s right to be free from twice being placed in jeop ardy. Accordingly, the trial court did not err in denying defendant’s motion to withdraw the guilt y plea.

Affirmed.

/s/ Michael J. Talbot /s/ William B. Murphy /s/ Elizabeth L. Gleicher