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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Plaintiff-Appellee, UNPUBLISHED January 26, 2017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: B ECKERING

, P.J., and S AWYER and S AAD

, JJ.

P ER C URIAM

.

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 mont hs to 20 years in prison. He now appeals and we affirm.

Defendant challenges on appeal whether he was properly convict ed under MCL 750.535(a) because the prosecutor also charged him in the alter native under MCL 750.535(7), which provides in pertinent part as follows:

A person who is charged with, convicted of, or punished for a v iolation of this subsection shall not be convicted of or punished for a violatio n of another provision of this section arisin g from the purchase, receipt, p ossession, concealment, or aiding in the concealment of the same motor veh icle. This subsection does not prohibit the person from being charged, con victed, 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 bo th charges involved the same motor vehicle. The prosecutor argued, and the trial court agre ed, that the above provision does not preclude charging the two offenses in the alternative. Whi le we do not necessarily disagree with defendant’s interpretation of the statute, we conclude tha t, under the procedural posture of this case, he is not entitled to relief.

Defendant did not rai se this issue in the t rial court until af ter he was convicted, sentenced, and filed his claim of appeal. And then his motion sought to v acate his conviction under MCR-2- 6.429. But that court rule does not provide for vacating a con viction; 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 requ irements, to establish plain error the defenda nt must establish prejudice. Id. Moreover, even when plain error is established, reversal is warranted only if the error r esulted 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 requirement s 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 ca used by defendant’s failure to raise the issue in a timely manner. And, in our view, the only negat ive effect on the fairness, integrity or reputation of the proceedings w ould be to allow defendant to harbor the error as an appellate parachute to provide a mechanism to raise the issue after convi ction in order to have his conviction set aside and, as defe ndant argues in a later issue, prevent his retrial under a doublejeopardy argument.

Defendant also argues that he was denied the effective assista nce of counsel because of
counsel’s failure to raise this issue at trial. Defendant’s ar gument in this respect is rather telling—he argues that trial counsel was ineffective for not ra ising 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 appellat e parachute. As noted above, h ad 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 rai se the issue in a timely manner, to harbor error, and to pull the co rd on defendant’s appellate par achute at sentencing.

In order to establish ineffective assistance of counsel, a def endant must show that counsel’s actions were objectiv ely unreasonable or that, withou t 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 t hat counsel’s failure to har bor error and then raise an issue in an untimely manner is either unreasonable or unprofessional. I ndeed, intentiona lly harboring error and then raising it would be unreasonable and unprofessio nal. We can only fault counsel for not raising the issue in a timely manner, which should have resulted in only one count being

1 It is not clear to us why defe ndant 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 cla im of appeal has been filed. MCR 7 .208(A) and (B).

2 Defendant makes no argument t hat the stolen property involved was a motor vehi cle. Indeed, if there is any basis for the jury to conclude that the stolen pro perty was anything other than a motor vehicle, then defendant’s entire argument that he could n ot be properly charged with both offenses must of necessity fail.-3- submitted to the jury. But that would, nevertheless have resul ted 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