People of Michigan v. Derek James Smith ( 2019 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
November 19, 2019
Plaintiff-Appellee,
v No. 340991
Wayne Circuit Court
DEREK JAMES SMITH, LC No. 15-001476-01-FC
Defendant-Appellant.
Before: M. J. KELLY, P.J., and FORT HOOD and SWARTZLE, JJ.
PER CURIAM.
Defendant, Derek Smith, appeals as on leave granted1 his jury trial convictions of two
counts of assault with intent to do great bodily harm less than murder (AWIGBH), MCL 750.84,
three counts of assault with a dangerous weapon (felonious assault), MCL 750.82, one count of
possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b, one
count of felon in possession of a firearm (felon-in-possession), MCL 750.224f, and two counts of
assault and battery, MCL 750.81. For the reasons stated in this opinion, we affirm, but remand
to the trial court to determine which felony was the predicate offense for the felony-firearm
conviction and to amend the judgment of sentence so that Smith’s sentence for felony-firearm is
consecutive to the sentence for the predicate offense only, but concurrent to the sentences for the
remaining felonies.
I. BASIC FACTS
Smith’s convictions arise from his decision to push a property manager, punch a
repairman, and then shoot at the property manager and two repairmen as they left the area in
separate vehicles. The trial court originally sentenced Smith to 71 months to 10 years for his
AWIGBH convictions, one to four years for his felonious assault convictions, two years for his
felony-firearm conviction, one to five years for his felon-in-possession conviction, and 93 days
1
People v Smith, 503 Mich. 884 (2018).
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in jail for his assault and battery convictions. The trial court ordered that Smith’s felony-firearm
sentence be served consecutively to his other sentences, which are all to be served concurrently
to each other. On July 22, 2015, Smith appealed as of right his convictions and sentences; this
Court affirmed his convictions, but remanded for resentencing.2 Subsequently, Smith was
resentenced to 3 to 10 years for his AWIGBH convictions, one to four years for his felonious
assault convictions, two years for his felony-firearm conviction, one to five years for his felon-
in-possession conviction, and 93 days in jail for his assault and battery convictions. In addition,
the trial court ordered that Smith’s felony-firearm sentence be served concurrently to the assault
and battery sentences but consecutively to his other sentences, which are all to be served
concurrently to each other.
II. CONSECUTIVE SENTENCING
A. STANDARD OF REVIEW
Smith argues that because the AWIGBH charges as stated in the felony information did
not include the possession of a gun, his felony-firearm sentence cannot be consecutive to his
AWIGBH sentence. “Sentencing issues are reviewed by this Court for an abuse of discretion by
the trial court.” People v Sabin (On Second Remand), 242 Mich. App. 656, 660; 620 NW2d 19
(2000). “Whether a consecutive sentence may be imposed is a question of statutory
interpretation that is reviewed de novo.” People v Gonzalez, 256 Mich. App. 212, 229; 663
NW2d 499 (2003).
B. ANALYSIS
The felony-firearm statute, MCL 750.227b, provides for consecutive sentencing:
(1) A person who carries or has in his or her possession a firearm when he
or she commits or attempts to commit a felony . . . is guilty of a felony and shall
be punished by imprisonment for 2 years. . . .
* * *
(3) 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 of the felony or attempt to commit the
felony.
In People v Clark, 463 Mich. 459, 463-464; 619 NW2d 538 (2000), our Supreme Court
explained:
2
People v Smith, unpublished per curiam opinion of the Court of Appeals, issued November 22,
2016 (Docket No. 328477), pp 3-4.
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From the plain language of the felony-firearm statute, it is evident that the
Legislature intended that a felony-firearm sentence be consecutive only to the
sentence for a specific underlying felony. Subsection [3] clearly states that the
felony-firearm sentence “shall be served consecutively with and preceding any
term of imprisonment imposed for the conviction of the felony or attempt to
commit the felony.” It is evident that the emphasized language refers back to the
predicate offense discussed in subsection 1, i.e., the offense during which the
defendant possessed a firearm. No language in the statute permits consecutive
sentencing with convictions other than the predicate offense. [Citations omitted.]
In dicta, the Clark Court added that “[a]t the discretion of the prosecuting attorney, the complaint
and the information could have listed additional crimes as underlying offenses in the felony-
firearm count, or the prosecutor could have filed more separate felony-firearm counts.” Id. at
464 n 11. The Clark Court did not, however, state that “all of the listed felonies could have run
consecutive. People v Coleman, ___ Mich App ___, ___; ___ NW2d ___ (2019) (Docket Nos.
339482 and 340368); slip op at 6. In Coleman, this Court affirmed a trial court’s decision to
make the defendant’s two-year sentence for felony-firearm consecutive only to his sentence for
felon-in-possession rather than consecutive to all his sentences. Id. at ___; slip op at 1, 6. The
Coleman Court explained:
The statute at issue here refers to a singular predicate felony for a felony-firearm
conviction. MCL 750.227b(3) provides that a felony-firearm sentence shall be
served consecutive with the sentence imposed for “the [underlying] felony or
attempt to commit the felony.” (Emphasis added.) “ ‘[T]he’ is a definite article.”
When followed by a singular noun, “the” contemplates one subject. . . . A felony-
firearm sentence must therefore be served consecutive with the sentence for the
one predicate felony. [Id. at ___; slip op at 5 (citations omitted).]
Applying Coleman to this case, it is apparent that the trial court erred by making Smith’s
felony-firearm sentence consecutive to all his other sentences (excluding assault and battery).
Here, regarding the felony-firearm charge, the information stated: Smith “did carry or have in
his/her possession a firearm, to-wit: GUN, at the time he/she committed or attempted to commit
a felony to-wit: [AWIM] OR [AWIGBH] OR FELONIOUS ASSAULT OR FELON[-]IN[-
]POSSESSION; contrary to MCL 750.227b.” The jury convicted Smith of the predicate offenses
of AWIGBH, felonious assault, and felon-in-possession, but he was only convicted of one count
of felony-firearm. Based on the record, it is unclear as to which underlying felony the felony-
firearm sentence was linked. However, unlike the convictions of felonious assault and felon-in-
possession, the jury was not required to find that Smith possessed or used a firearm to commit
AWIGBH. Accordingly, it is plain that AWIGBH cannot be the underlying predicate offense.
Therefore, we remand to the trial court so it may determine which felony—felonious assault or
felon-in-possession—was the predicate offense for the felony-firearm conviction and to amend
the judgment of sentence so that Smith’s sentence for felony-firearm is consecutive to the
sentence for the predicate offense only, and concurrent to the remaining felonies.
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Affirmed but remanded for amendment of the judgment of sentence. We do not retain
jurisdiction.
/s/ Michael J. Kelly
/s/ Karen M. Fort Hood
/s/ Brock A. Swartzle
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