People of Michigan v. Michael Roy Parkmallory

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, FOR PUBLICATION
May 16, 2019
Plaintiff-Appellee, 9:10 a.m.
v No. 342546
Saginaw Circuit Court
MICHAEL ROY PARKMALLORY, LC No. 17-044076-FH
Defendant-Appellant.
Before: SWARTZLE, P.J., and M. J. KELLY and TUKEL, JJ.
M. J. KELLY, J.
Defendant, Michael Parkmallory, appeals as of right his jury-trial convictions of felon in
possession of a firearm (felon-in-possession), MCL 750.224f(1), and possession of a firearm
during the commission of a felony, second offense (felony-firearm), MCL 750.227b(1). For the
reasons stated in this opinion, we reverse.
I. BASIC FACTS
Parkmallory was charged with felon-in-possession and second-offense felony-firearm
following an incident on New Year’s Eve, December 31, 2016, in which Parkmallory and his
girlfriend took turns firing a gun into the air. Before the trial began, Parkmallory’s lawyer
stipulated that Parkmallory had a prior conviction of receiving and concealing a stolen motor
vehicle, which rendered Parkmallory “ineligible to possess the firearm.” At trial, Parkmallory’s
lawyer argued that Parkmallory never possessed the gun because he only touched it briefly when
his girlfriend tossed it to him “in a panic.” The jury convicted Parkmallory as charged.
II. INEFFECTIVE ASSISTANCE
A. STANDARD OF REVIEW
Parkmallory argues that his convictions should be reversed because his lawyer provided
constitutionally ineffective assistance by stipulating that he was ineligible to possess a gun
because of a June 2009 conviction of receiving and concealing a stolen motor vehicle. He did
not, however, preserve the issue by filing a motion for a new trial or for an evidentiary hearing.
See People v Johnson, 144 Mich. App. 125, 129; 373 NW2d 263 (1985). Because no evidentiary
hearing was conducted, “our review of [his] claim of ineffective assistance of counsel is limited
to mistakes that are apparent on the record.” People v Mack, 265 Mich. App. 122, 125; 695
NW2d 342 (2005).
Although our review is limited to mistakes apparent on the record, Parkmallory has only
supported his claim with documentary evidence that is not in the record. Therefore, the first
question we must answer is whether the documents appended to Parkmallory’s appeal may be
considered by this Court. As a general rule, “[a]ppeals to the Court of Appeals are heard on the
original record,” MCR 7.210(A), and the parties may not expand the record on appeal, People v
Nix, 301 Mich. App. 195, 203; 836 NW2d 224 (2013). However, MCR 7.216(A)(4) provides a
mechanism for this Court to permit additions to the record. That court rule explains:
(A) Relief Obtainable. The Court of Appeals may, at any time, in
addition to its general powers, in its discretion, and on the terms it deems just:
* * *
(4) permit amendments, corrections, or additions to the transcript or
record. [MCR 7.216(A)(4).]
Here, we discern no reason to deny the expansion of the record. The records provided by
Parkmallory are copies of court orders signed by the judge presiding over the 2009 case. On
appeal, the prosecution argues that the records were not included in the proceedings before the
trial court in this case, but does not otherwise challenge their accuracy or completeness.
Moreover, we note that the documents appended to Parkmallory’s appeal contain the type of
facts that a court may, generally speaking, take judicial notice of. See MRE 201(b) (“A
judicially noticed fact must be one not subject to reasonable dispute in that it is . . . capable of
accurate and ready determination by resort to sources whose accuracy cannot reasonably be
questioned.”). Accordingly, under the present circumstances we deem it just to allow the
expansion of the record to include the following records: (1) the May 20, 2011 motion and bench
warrant, (2) the August 2, 2011 order of conviction and sentence, (3) the September 7, 2011
motion and bench warrant, and (4) the September 21, 2011 order of conviction and sentence.
B. ANALYSIS
In order to establish that his lawyer provided ineffective assistance, Parkmallory must
establish (1) that his lawyer provided deficient assistance, i.e., that his performance “fell below
an objective standard of reasonableness,” and (2) that he was prejudiced by his lawyer’s deficient
performance, i.e., “that there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceedings would have been different.” People v Gioglio (On Remand),
296 Mich. App. 12, 22; 815 NW2d 589 (2012), remanded for resentencing 493 Mich. 864
(quotation marks and citation omitted). “Because there are countless ways to provide effective
assistance in any given case, in reviewing a claim that counsel was ineffective courts must
indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance.” Id. (quotation marks and citation omitted).
-2-
Parkmallory argues that his lawyer’s performance was deficient because instead of
presenting evidence showing that Parkmallory’s right to possess a firearm had been restored, his
lawyer stipulated that he was ineligible to possess a firearm. He argues that, without his lawyer’s
stipulation, the prosecution would not have been able to convict him of either felon-in-possession
or felony-firearm because necessary elements of both charges would have been unsupported by
the evidence.
A person can be convicted of felon-in-possession under subsection (1) or subsection (2)
of MCL 750.224f. In both cases, the prosecution must prove beyond a reasonable doubt that the
defendant possessed a firearm. See MCL 750.224f(1) and (2). Under subsection (2), the
defendant must have been convicted of a “specified felony,” and, in order to have his or her right
to possess a firearm restored, the defendant must petition the circuit court for a restoration of his
or her right to possess a firearm. See MCL 750.224f(2)(b); MCL 28.424(1). However, under
MCL 750.224f(1)—the subsection Parkmallory was convicted under—the right to possess a
firearm is automatically restored when the statutory conditions are satisfied. In full, MCL
750.224f(1) provides:
(1) Except as provided in subsection (2), a person convicted of a felony
shall not possess, use, transport, sell, purchase, carry, ship, receive, or distribute a
firearm in this state until the expiration of 3 years after all of the following
circumstances exist:
(a) The person has paid all fines imposed for the violation.
(b) The person has served all terms of imprisonment imposed for the
violation.
(c) The person has successfully completed all conditions of probation or
parole imposed for the violation.
As explained by our Supreme Court in People v Perkins, 473 Mich. 626, 640; 703 NW2d 448
(2005), the defendant bears the burden of producing evidence that his right to possess a firearm
has been restored. See also MCL 776.20; People v Henderson, 391 Mich. 612, 616; 218 NW2d 2
(1974). In this case, rather than attempting to satisfy that burden, Parkmallory’s lawyer
stipulated that Parkmallory was, essentially, ineligible to possess a gun because he committed a
“felony.” As a result, the prosecution was not required to prove “the lack of restoration of
firearm rights beyond a reasonable doubt,” as it would have been obligated to do had the defense
satisfied its burden of production. Perkins, 473 Mich. at 640.
Parkmallory’s lawyer provided constitutionally ineffective assistance when he failed to
present existing evidence supporting a finding that Parkmallory’s right to possess a firearm had
been automatically restored under MCL 750.224f(1). An order of conviction and sentence was
entered on September 21, 2011. Based on our review of the order, three things are apparent: (1)
no attorney fees, court costs, restitution, crime victim fees, supervision fees, or state minimum
costs were imposed, (2) Parkmallory was sentenced to 110 days jail with credit for 110 days, and
(3) Parkmallory’s probation was “closed [without] Improvement.” In other words, the order
constitutes proof that as of September 21, 2011 Parkmallory did not have any outstanding fines
-3-
as a result of his June 2009 conviction of receiving and concealing a stolen motor vehicle,
thereby satisfying the requirement in MCL 750.224f(1)(a) (all fines imposed paid). It also
establishes that all terms of imprisonment imposed for the June 2009 conviction were served,
which satisfies the requirement in MCL 750.224f(1)(b) (all terms of imprisonment imposed
served). Finally, the order also suggests that the requirement in MCL 750.224f(1)(c) was
satisfied, i.e., that Parkmallory “has successfully completed all conditions of probation or parole
imposed for the violation” because after September 21, 2011 no conditions of probation or parole
remained for him to complete. Furthermore, because all three conditions appear to have been
satisfied by the September 21, 2011 order, and because more than 3 years elapsed between
September 21, 2011 and December 31, 2016, the order is sufficient to establish that when
Parkmallory committed the instant offense he was, in fact, eligible to possess a firearm because
his right to do so was automatically restored under MCL 750.224f(1).
Yet, the prosecution argues that the September 21, 2011 order is insufficient to establish
the requirement in MCL 750.224f(1)(c) because Parkmallory was essentially discharged from
probation without improvement. The prosecution argues that, as a result, Parkmallory did not
“successfully complete[] all conditions of probation or parole imposed for the violation.” See
MCL 750.224f(1)(c). We disagree.
Although this issue has not been addressed by this Court or by our Supreme Court in
binding precedent, we find persuasive Justice KELLY’S dissent from our Supreme Court’s order
in People v Sessions, 474 Mich. 1120 (2006). Justice KELLY reasoned:
The parties dispute the meaning of “successfully” in this statute. A
Webster’s dictionary defines the root word “success” as “the favorable or
prosperous termination of attempts or endeavors.” Random House Webster’s
College Dictionary (2001). Applying that definition, in order to be “successful,”
a defendant must achieve a favorable termination of all conditions of probation.
This is the only means of satisfying MCL 750.224f(1)(c).
In this case, defendant did achieve a favorable termination. His probation
conditions favorably terminated when the court unconditionally discharged him
from probation. The judge left no lingering probation requirement for defendant
to complete. He was free from court supervision without the obligation to report
to a probation officer. Therefore, he successfully completed all conditions of
probation.
* * *
“All” conditions means “the whole number of” or “every one” of the conditions.
Random House Webster’s College Dictionary (2001). Hence, a probationer must
complete every one of the conditions of probation before the three-year waiting
period for the restoration of the right to possess a firearm can begin to run. MCL
750.224f(1).
-4-
By using this phrasing, the Legislature indicated that substantial
completion of probation is insufficient to start the clock running toward
restoration. For instance, if the court released a probationer from all the
conditions of probation except one, that probationer would not have satisfied the
requirements of MCL 750.224f(1)(c). The probationer would satisfy that
subsection only by fulfilling the final condition of probation. Then, as required
by the Legislature, the probationer would have completed “all conditions of
probation.”
* * *
A felon successfully completes all conditions of probation for purposes of
MCL 750.224f(1)(c) when the court discharges the felon from probation. . . . As
a consequence, there exists no judicial determination that a judge is authorized to
include in an order discharging a probationer that the probation was
unsuccessfully completed. It is a concept beyond the ken of MCL 750.224f(1)(c).
[Sessions, 474 Mich. at 1121-1123 (KELLY, J. dissenting).]
Although not binding, we find Justice KELLY’S reasoning in Sessions to be persuasive and we
adopt it as our own.1
Here, like the defendant in Sessions, Parkmallory achieved a favorable termination of his
probation; he was unconditionally discharged, free from supervision, and had no lingering
probation requirements to complete. Accordingly, although the court order provides that
Parkmallory’s probation was “closed w/o Improvement,” that notation has no bearing on whether
he successfully completed all conditions of probation.
Furthermore, as recognized by Justice KELLY, “the Legislature chose to use
‘successfully,’ not ‘perfectly.’ ” Sessions, 474 Mich. at 1122 (KELLY, J., dissenting).
The root word of perfectly, “perfect,” can be defined as “conforming absolutely to
the description or definition of an ideal type. . . .” Random House Webster’s
College Dictionary (2001). The Court of Appeals would require a person on
1
In Sessions, the majority reversed and vacated the opinion of the Court of Appeals on alternate
grounds not raised by the parties. Sessions, 474 Mich. at 1120; Sessions, 474 Mich. at 1120
(MARKMAN, J., concurring) (noting that the resolution was on alternate grounds than those raised
by the parties). Further, in his concurring statement, Justice MARKMAN aptly noted:
I do not necessarily disagree with Justice KELLY’s substantive analysis and this
Court doubtlessly will have the opportunity to consider it in a future case. In the
meantime, the Court of Appeals opinion to which Justice KELLY takes such
objection has been vacated. As such, it has no precedential value and thus will
serve as no barrier to the adoption of Justice KELLY’s analysis in the proper case.
[Id.]
-5-
probation, in order to again be entitled to possess a firearm, to conform in
absolute terms to the conditions of probation.
But the Legislature chose to use “successfully,” not “perfectly.” Without
good cause to conclude otherwise, we must assume that it chose the word
purposely and intentionally. Detroit v Redford Twp, 253 Mich. 453, 456[; 235
N.W. 217] (1931). There is no reason to believe that the Legislature inadvertently
used “successfully,” intending another word. Therefore, “successfully” should
not be read as “perfectly.” [Id.]
Therefore, even to the extent that Parkmallory did not perfectly complete all conditions of his
probation—as evidenced by multiple probation violation hearings—that failure has no bearing
on whether he was nevertheless successful in completing all conditions of probation by virtue of
the fact that, after the discharge was entered by the trial court, no conditions of probation
remained for him to complete.
For the foregoing reasons, we conclude that Parkmallory has established that his lawyer’s
performance was deficient when he stipulated that Parkmallory was ineligible to possess a
firearm because of his 2009 conviction for receiving and concealing a stolen motor vehicle.2
Moreover, we conclude that, but for his lawyer’s deficient performance, there is a reasonable
probability that the outcome of the trial would have been different. See Gioglio (On Remand),
296 Mich. App. at 22. If his lawyer had presented the September 21, 2011 order and conviction,
the prosecution would have had to prove beyond a reasonable doubt that Parkmallory’s right to
possess a firearm had not been automatically restored under MCL 750.224f(1). See Perkins, 473
Mich. at 640. On the record presently before us, there is no evidence that the prosecution would
have been capable of satisfying that burden, which negates a necessary element for felon-in-
possession. See id. (requiring the prosecution to prove that the defendant’s right to possess a
firearm has not been restored if the defendant produces evidence showing that his right has, in
fact, been restored). And it also negates a necessary element for felony-firearm, which is reliant
on the conviction for felon-in-possession as a predicate felony before a defendant can be
convicted of felony-firearm. See MCL 750.227b(1) (requiring a defendant to carry or possess a
firearm when he commits or attempts to commit a felony).3 Stated differently, but for
Parkmallory’s lawyer’s deficient performance, there is a reasonable probability that Parkmallory
2
To the extent that Parkmallory’s lawyer was unaware that Parkmallory’s right to possess a
firearm was automatically restored, we note that the failure to adequately investigate can
constitute ineffective assistance “if it undermines confidence in the trial’s outcome.” People v
Grant, 470 Mich. 477, 493; 684 NW2d 686 (2004).
3
Nothing in our opinion should be construed as prohibiting the prosecution from coming
forward with evidence during a new trial showing that, for reasons not apparent on this record,
Parkmallory was ineligible to possess a firearm on January 1, 2016. Our holding is limited to
finding that the September 21, 2011 order of conviction and sentence is sufficient to establish—
on a prima facie basis—that the statutory requirements for restoration of Parkmallory’s right to
possess a firearm under MCL 750.224f(1).
-6-
would have been acquitted of both charges. Thus, he has satisfied his burden of establishing his
lawyer provided ineffective assistance during the proceedings below.
Reversed.
/s/ Michael J. Kelly
/s/ Brock A. Swartzle
/s/ Jonathan Tukel
-7-