People of Michigan v. Frankie Jermaine Davis ( 2015 )

STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
May 12, 2015
Plaintiff-Appellee,
v No. 320326
Wayne Circuit Court
FRANKIE JERMAINE DAVIS, LC No. 13-006930-FH
Defendant-Appellant.
Before: TALBOT, C.J., and CAVANAGH and METER, JJ.
PER CURIAM.
Defendant appeals as of right his jury trial convictions of possession of a firearm during
the commission of a felony (felony-firearm), MCL 750.227b, and felon in possession of a
firearm (felon-in-possession), MCL 750.224f. The trial court sentenced defendant to two years’
imprisonment for the felony-firearm conviction and three years’ probation for the felon-in-
possession conviction (along with court costs and attorney fees or, alternatively, 100 hours of
community service). We affirm.
Defendant raises two issues on appeal. First, he argues that the trial court lacked
statutory authority to assess $600 in court costs against him. Second, he argues that the jury
verdicts in his case were inconsistent and should not be permitted to stand because the jury
acquitted him of carrying a concealed weapon (CCW), MCL 750.227.
I. STATUTORY AUTHORITY TO ASSESS COURT COSTS
Questions of statutory interpretation are questions of law that this Court reviews de novo,
but because defendant did not object to the imposition of court costs at sentencing, we review for
plain error. People v Konopka, ___ Mich App ___; ___ NW2d ___ (2015) (Docket No.
319913); slip op at 6. The resolution of this issue is directly controlled by this Court’s recent
decision in Konopka. Defendant is correct that MCL 769.1k did not provide the trial court
statutory authority to assess court costs against him for his convictions at the time of his
sentencing on January 10, 2014. Id. at ___; slip op at 6, citing People v Cunningham, 496 Mich.
145, 147; 852 NW2d 118 (2014). However, the Legislature curatively amended MCL 769.1k on
October 17, 2014, with the amended statute immediately effective. Konopka, ___ Mich App at
___; slip op at 5-6, citing 2014 PA 352. As amended by 2014 PA 352, MCL 769.1k(b) states:
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The court may impose any or all of the following:
(i) Any fine authorized by the statute for a violation of which the
defendant entered a plea of guilty or nolo contendere or the court determined that
the defendant was guilty.
(ii) Any cost authorized by the statute for a violation of which the
defendant entered a plea of guilty or nolo contendere or the court determined that
the defendant was guilty.
(iii) Until 36 months after the date the amendatory act that added
subsection (7)[1] is enacted into law, any cost reasonably related to the actual
costs incurred by the trial court without separately calculating those costs
involved in the particular case, including, but not limited to, the following:
(A) Salaries and benefits for relevant court personnel.
(B) Goods and services necessary for the operation of the court.
(C) Necessary expenses for the operation and maintenance of court
buildings and facilities.
(iv) The expenses of providing legal assistance to the defendant.
(v) Any assessment authorized by law.
(vi) Reimbursement under section 1f of this chapter. [Emphasis added.]
This amended version of MCL 769.1k(b) retroactively “applies to all fines, costs, and
assessments under MCL 769.1k before June 18, 2014 [the date of the Cunningham decision], and
after the effective date of the amendatory act. 2014 PA 352. The amended act was a curative
measure to address the authority of courts to impose costs under MCL 769.1k before the issuance
of Cunningham.” Konopka, ___ Mich App at ___; slip op at 6.
Defendant was sentenced before June 18, 2014; therefore, the amended version of MCL
769.1k(b) retroactively applies to the imposition of costs in this case. Thus, the trial court was
retroactively granted statutory authority to assess court costs against defendant. Unlike
Konopka, in the instant case it is unnecessary to remand to the trial court “for determination of
the factual basis for the costs imposed pursuant to MCL 769.1k(1)(b)(iii).” Konopka, ___ Mich
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The referenced subsection states, “Beginning January 1, 2015, the court shall make available to
a defendant information about any fine, cost, or assessment imposed under subsection (1),
including information about any cost imposed under subsection (1)(b)(iii). However, the
information is not required to include the calculation of the costs involved in a particular case.”
MCL 769.1k(7). Subsection (7) was added by 2014 PA 352.
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App at ___; slip op at 16. In Konopka, the defendant “specifically challenge[d] the lack of
reasoning for the costs imposed,” id. at ___; slip op at 8, but here defendant challenges only the
statutory authority of the trial court to assess costs.
II. INCONSISTENT VERDICTS
Defendant failed to raise this constitutional issue before the trial court and, therefore, the
issue is unpreserved and subject to plain error review under the test set forth in People v Carines,
460 Mich. 750; 597 NW2d 130 (1999). “To avoid forfeiture under the plain error rule, three
requirements must be met: 1) error must have occurred, 2) the error was plain, i.e., clear or
obvious, 3) and the plain error affected substantial rights.” Id. at 763. In order to satisfy the
third requirement, the defendant bears the burden of persuasion to show “prejudice, i.e., that the
error affected the outcome of the lower court proceedings.” Id.
As the Court noted in People v Garcia, 448 Mich. 442, 461; 531 NW2d 683 (1995):
Before People v Vaughn, 409 Mich. 463; 295 NW2d 354 (1980),
inconsistent verdicts in this jurisdiction could not stand unless explainable on a
rational basis. More recently, this Court has recognized the jury’s power of
leniency and allowed inconsistent verdicts to stand. Vaughn, supra; People v
Lewis, 415 Mich. 443; 330 NW2d 16 (1982).
Verdicts are considered to be “inconsistent” where “the verdicts cannot rationally be reconciled.”
See Garcia, 448 Mich. at 464 (citations and quotation marks omitted). A defendant “is guilty of
felony-firearm if the [defendant] possesses a firearm during the commission of a felony.” People
v Jackson, 292 Mich. App. 583, 588; 808 NW2d 541 (2011), citing MCL 750.227b. A defendant
is guilty of felon-in-possession under MCL 750.224f if the person is a convicted felon and
possesses a firearm before legally entitled to do so. Pursuant to MCL 750.227, a defendant is
guilty of CCW if that “defendant knowingly possess[es] a concealed weapon.” See People v
Hernandez-Garcia, 477 Mich. 1039, 1040 n 1; 728 NW2d 406 (2007).
Defendant admits that Michigan has a longstanding practice of permitting inconsistent
verdicts in jury trials, but argues as a matter of legal reform that inconsistent verdicts should no
longer be permitted to stand. However, this Court is bound by stare decisis to follow established
caselaw. See, e.g., People v Cross, 281 Mich. App. 737, 738; 760 NW2d 314 (2008), citing MCR
7.215(C)(2). Moreover, the verdicts in this case are consistent because they can be rationally
reconciled: a person can possess a handgun that is not concealed. Thus, there is no logical
inconsistency between the verdicts simultaneously acquitting defendant of CCW while
convicting him of felon-in-possession and felony-firearm. The jury could have concluded that
defendant was a felon and illegally possessed a firearm and further concluded that the
prosecution had not proven beyond a reasonable doubt that the firearm defendant possessed was
ever concealed. Defendant has failed to demonstrate any plain error.
Affirmed.
/s/ Michael J. Talbot
/s/ Mark J. Cavanagh
/s/ Patrick M. Meter
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