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STATE OF MICHIGAN 

COURT OF APPEALS 

PEOPLE OF THE STATE OF MICHIGAN, 

 Plaintiff-Appellee, 

UNPUBLISHED 

January 26, 2017 

v No. 329071 

Wayne Circuit Court 

TROY NELL BRANDOM, LC No. 15-003073-01-FC 

 Defendant-Appellant. 

Before: BECKERING, P.J., and SAWYER and SAAD, JJ. 

PER CURIAM. 

 Defendant was convicted, following a jury trial, of receiving and concealing stolen 

property valued at $1,000 or more, but less than $20,000. MCL 750.535(3)(a). He was 

sentenced as a fourth habitual offender, MCL 769.12, to 46 months to 20 years in prison. He 

now appeals and we affirm. 

 Defendant challenges on appeal whether he was properly convicted under MCL 

750.535(a) because the prosecutor also charged him in the alternative under MCL 750.535(7), 

which provides in pertinent part as follows: 

A person who is charged with, convicted of, or punished for a violation of this 

subsection shall not be convicted of or punished for a violation of another 

provision of this section arising from the purchase, receipt, possession, 

concealment, or aiding in the concealment of the same motor vehicle. This 

subsection does not prohibit the person from being charged, convicted, or 

punished under any other applicable law. 

Defendant argues that because he was “charged with” a violation of MCL 750.535(7), he could 

not be convicted of a violation of MCL 750.535(3)(a) because both charges involved the same 

motor vehicle. The prosecutor argued, and the trial court agreed, that the above provision does 

not preclude charging the two offenses in the alternative. While we do not necessarily disagree 

with defendant’s interpretation of the statute, we conclude that, under the procedural posture of 

this case, he is not entitled to relief. 

 Defendant did not raise this issue in the trial court until after he was convicted, sentenced, 

and filed his claim of appeal. And then his motion sought to vacate his conviction under MCR 
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6.429. But that court rule does not provide for vacating a conviction; rather, it provides a 

mechanism for correcting an invalid sentence.1 Because this was not properly raised in the trial 

court, our review is limited to plain error affecting defendant’s substantial rights. People v 

Carines, 460 Mich 750, 763-764; 597 NW2d 130 (1999). Among other requirements, to 

establish plain error the defendant must establish prejudice. Id. Moreover, even when plain 

error is established, reversal is warranted only if the error resulted in the conviction of an 

actually innocent defendant or the error seriously affected the integrity, fairness or public 

reputation of the proceedings. Id. Defendant is unable to establish either of these requirements 

in this case. 

 Had defendant raised this issue in a timely manner, the issue could easily have been 

resolved by only allowing one of the two charges under MCL 750.535 to be submitted to the 

jury. That is, the only potential prejudice to defendant is caused by defendant’s failure to raise 

the issue in a timely manner. And, in our view, the only negative effect on the fairness, integrity 

or reputation of the proceedings would be to allow defendant to harbor the error as an appellate 

parachute to provide a mechanism to raise the issue after conviction in order to have his 

conviction set aside and, as defendant argues in a later issue, prevent his retrial under a doublejeopardy argument. 

 Defendant also argues that he was denied the effective assistance of counsel because of 

counsel’s failure to raise this issue at trial. Defendant’s argument in this respect is rather 

telling—he argues that trial counsel was ineffective for not raising the issue at sentencing. That 

is, defendant’s objection to counsel’s performance lies only in counsel not assisting in the 

creation of defendant’s appellate parachute. As noted above, had counsel raised the issue in a 

timely manner, only one charge would have been submitted to the jury and defendant would 

have been convicted of that charge.2

 Thus, under defendant’s reasoning, the only way for trial 

counsel to have been “effective” would have been to fail to raise the issue in a timely manner, to 

harbor error, and to pull the cord on defendant’s appellate parachute at sentencing. 

 In order to establish ineffective assistance of counsel, a defendant must show that 

counsel’s actions were objectively unreasonable or that, without counsel’s unprofessional errors, 

the outcome would likely have been different. People v Vaughn, 491 Mich 642, 674; 821 NW2d 

288 (2012). We are not persuaded that counsel’s failure to harbor error and then raise an issue in 

an untimely manner is either unreasonable or unprofessional. Indeed, intentionally harboring 

error and then raising it would be unreasonable and unprofessional. We can only fault counsel 

for not raising the issue in a timely manner, which should have resulted in only one count being 

 

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 It is not clear to us why defendant presented his motion under MCR 6.429. We suspect that 

perhaps it was because a motion to correct an invalid sentence is one which a trial court may 

entertain even after the claim of appeal has been filed. MCR 7.208(A) and (B). 

2

 Defendant makes no argument that the stolen property involved was a motor vehicle. Indeed, if 

there is any basis for the jury to conclude that the stolen property was anything other than a 

motor vehicle, then defendant’s entire argument that he could not be properly charged with both 

offenses must of necessity fail. 
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submitted to the jury. But that would, nevertheless have resulted in conviction; therefore, even 

without this error, the result would not have been different. 

 Because of our resolution of these issues, we need not address defendant’s argument that 

double jeopardy precludes retrial. 

 Affirmed. 

/s/ David H. Sawyer 

/s/ Henry William Saad