PEOPLE v SMITH

Docket No. 160995. Decided July 21, 2020. 

 Derek J. Smith was convicted by a jury in the Wayne Circuit Court of two counts of 

assault with intent to do great bodily harm (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 being a felon 

in possession of a firearm (felon-in-possession), MCL 750.224f; and two counts of misdemeanor 

assault and battery, MCL 750.81. Smith was sentenced by the trial court to 71 months to 10 

years in prison for AWIGBH, 1 to 4 years for felonious assault, 1 to 5 years for felon-inpossession, and 93 days for assault and battery, to be served concurrently. The court also 

sentenced Smith to two years in prison for felony-firearm, to be served consecutively with and 

preceding the other felony sentences. On appeal, the Court of Appeals affirmed Smith’s 

convictions but determined that two offense variables had been incorrectly scored, and remanded 

for resentencing. On remand, the trial court, Kevin J. Cox, J., resentenced Smith to serve 3 to 10 

years in prison for AWIGBH, but left the other sentences unchanged. Smith filed an application 

for leave to appeal in the Court of Appeals, arguing that the trial court erred when it imposed the 

felony-firearm sentence consecutively with the AWIGBH sentences because the jury had not 

explicitly found that he possessed a firearm during the commission of the AWIGBH offenses. 

The Court of Appeals denied Smith’s application, and Smith sought leave to appeal in the 

Supreme Court. In lieu of granting leave to appeal, the Supreme Court remanded the case to the 

Court of Appeals for consideration as on leave granted. 503 Mich 884 (2018). On remand, the 

Court of Appeals, M. J. KELLY, P.J., and FORT HOOD and SWARTZLE, JJ., held in an unpublished 

per curiam opinion that the felony-firearm sentence could not be imposed consecutively with the 

AWIGBH sentences because the jury was not required to find that Smith possessed or used a 

firearm to commit AWIGBH, unlike the convictions for felonious assault and felon-inpossession. The Court of Appeals remanded the case to the trial court for it to determine whether 

felonious assault or felon-in-possession was the predicate felony for the felony-firearm 

conviction and to amend Smith’s judgment of sentence so that the felony-firearm sentence was 

consecutive only with the predicate offense. The prosecutor sought leave to appeal in the 

Supreme Court. 

 In a unanimous memorandum opinion, the Supreme Court, in lieu of granting leave to 

appeal and without hearing oral argument, held: 

 Michigan Supreme Court 

Lansing, Michigan

Syllabus Chief Justice: 

Bridget M. McCormack 

Chief Justice Pro Tem: 

David F. Viviano 

Justices: 

Stephen J. Markman 

Brian K. Zahra 

Richard H. Bernstein 

Elizabeth T. Clement 

Megan K. Cavanagh 

This syllabus constitutes no part of the opinion of the Court but has been 

prepared by the Reporter of Decisions for the convenience of the reader. 

Reporter of Decisions: 

Kathryn L. Loomis 
 1. The felony-firearm sentence cannot be consecutive with the two AWIGBH sentences 

because although AWIGBH was listed in the information as a predicate felony for felonyfirearm, the jury did not explicitly find that Smith possessed a firearm when the AWIGBH 

offenses were committed. 

 2. The felony-firearm sentence may be imposed consecutively with only one other felony 

sentence. The jury necessarily found that Smith possessed a firearm during the commission of 

the three counts of felonious assault and the one count of felon-in-possession. Therefore, the 

Court of Appeals appropriately remanded the case to the trial court to impose the two-year 

felony-firearm sentence to run consecutively with a single felony sentence. 

 Affirmed. 

©2020 State of Michigan 
 FILED July 21, 2020 

S T A T E O F M I C H I G A N 

SUPREME COURT 

PEOPLE OF THE STATE OF MICHIGAN, 

 Plaintiff-Appellant, 

v No. 160995 

DEREK JAMES SMITH, 

 Defendant-Appellee. 

BEFORE THE ENTIRE BENCH 

MEMORANDUM OPINION

A jury found defendant guilty of two counts of assault with intent to do great bodily 

harm (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 being a felon in 

possession of a firearm (felon-in-possession), MCL 750.224f; and two counts of 

Michigan Supreme Court 

Lansing, Michigan

OPINION Chief Justice: 

Bridget M. McCormack 

Chief Justice Pro Tem: 

David F. Viviano 

Justices: 

Stephen J. Markman 

Brian K. Zahra 

Richard H. Bernstein 

Elizabeth T. Clement 

Megan K. Cavanagh
2 

misdemeanor assault and battery, MCL 750.81.1

 The trial court sentenced him to 

concurrent prison terms of 71 months to 10 years for the AWIGBH convictions, 1 to 4 

years for the felonious-assault convictions, 1 to 5 years for the felon-in-possession 

conviction, and 93 days in jail for the assault-and-battery convictions. In addition, the trial 

court sentenced him to two years in prison for the felony-firearm conviction, to be served 

consecutively with and preceding the remaining felony sentences. 

Defendant appealed in the Court of Appeals, which affirmed his convictions but 

remanded to the trial court for resentencing on the basis that two offense variables had been 

incorrectly scored. People v Smith, unpublished per curiam opinion of the Court of 

Appeals, issued November 22, 2016 (Docket No. 328477). On remand, the trial court 

resentenced defendant to 3 to 10 years in prison for the AWIGBH convictions and 

maintained the original sentences for the remaining convictions. The felony-firearm 

sentence was again imposed to run consecutively with the remaining felony sentences. The 

trial court denied defendant’s motion to correct an invalid sentence or for a new trial. 

Defendant next filed an application for leave to appeal in the Court of Appeals 

arguing that the trial court erred by having imposed the felony-firearm sentence to run 

consecutively with the AWIGBH sentences when the jury had not explicitly found that he 

possessed a firearm during the commission of the AWIGBH offenses. The Court of 

Appeals denied his application “for lack of merit in the grounds presented.” People v 

Smith, unpublished order of the Court of Appeals, entered April 17, 2018 (Docket No. 

 

1

 The jury acquitted defendant of three counts of assault with intent to commit murder, 

MCL 750.83, finding him guilty of the lesser offense of AWIGBH on two counts and not 

guilty on the third count. 
3 

340991). Defendant then sought leave to appeal in this Court and, in lieu of granting leave 

to appeal, we remanded to the Court of Appeals for consideration as on leave granted. 

People v Smith, 503 Mich 884 (2018). On remand, the Court of Appeals agreed with 

defendant that the felony-firearm sentence could not be imposed to run consecutively with 

the AWIGBH sentences and accordingly remanded to the trial court for resentencing. 

People v Smith, unpublished opinion per curiam of the Court of Appeals, issued November 

19, 2019 (Docket No. 340991). The Court explained that “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.” Id. at 3. Therefore, the Court 

“remand[ed] to the trial court so it may determine which felony—felonious assault or felonin-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 . . . .” Id. The Court denied the prosecutor’s motion 

for reconsideration and defendant’s motion for immediate effect. People v Smith, 

unpublished order of the Court of Appeals, entered December 27, 2019 (Docket No. 

340991). The prosecutor now seeks leave to appeal in this Court, arguing that the felonyfirearm sentence should be consecutive with one of the AWIGBH sentences and that the 

Court of Appeals erred by ruling to the contrary. 

At the time relevant to this case,2

 the statute governing felony-firearm, MCL 

750.227b, provided in relevant part as follows: 

 

2

 Effective July 1, 2015, MCL 750.227b was amended by the Legislature. See 2015 PA 

26. Those amendments do not affect our analysis, but we apply the version of the statute 

in effect when defendant committed the instant offenses in February 2015. See MCL 

750.227b, as enacted by 1990 PA 321. 
4 

(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 imprisoned for two years. . . . 

(2) 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, 460-461; 619 NW2d 538 (2000), the defendant was

charged with 15 weapon-related offenses, including two counts of felony-firearm and two 

counts of possession of a bomb with unlawful intent, MCL 750.210. The information 

alleged that each possession-of-a-bomb-with-unlawful-intent felony constituted the 

predicate felony for purposes of the corresponding felony-firearm count. Id. at 461. The 

jury found the defendant guilty as charged, and the trial court provided in its sentence that 

the two felony-firearm sentences would be, as Clark stated, “consecutive to[3] all thirteen 

of the other [sentences].” Id. at 462. We remanded to the trial court for resentencing, 

agreeing with the defendant that his two felony-firearm sentences should be consecutive 

only with the two sentences for possession of a bomb with unlawful intent: 

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 2 clearly states 

that the felony-firearm sentence “shall be served consecutively with and 

 

3

 Referring to a felony-firearm sentence as “consecutive to” another felony sentence is 

imprecise because it suggests that the felony-firearm sentence is served after the sentence 

for the predicate felony. In fact, the felony-firearm sentence is served before the sentence 

for the predicate felony. MCL 750.227b(3) currently provides, and MCL 750.227b(2) 

previously provided, that “[a] term of imprisonment prescribed by this section . . . shall be 

served consecutively with and preceding any term of imprisonment imposed for the 

conviction of the felony or attempt to commit the felony.” (Emphasis added.) See MCL 

750.227b, as enacted by 1990 PA 321. 
5 

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. 

In this instance, the jury found that the defendant possessed a firearm 

while he possessed two bombs with unlawful intent. While it might appear 

obvious that the defendant also possessed a firearm while committing the 

other crimes of which he was convicted, neither a trial court nor an appellate 

court can supply its own findings with regard to the factual elements that 

have not been found by a jury. [Id. at 463-464.][4]

In a footnote to the final quoted sentence above, we further observed in dictum: 

At 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.] 

In the instant case, we agree with the Court of Appeals that the felony-firearm sentence 

cannot be consecutive with the two AWIGBH sentences because, although AWIGBH was 

listed in the information as a predicate felony for felony-firearm, the jury did not explicitly 

find that defendant possessed a firearm during the commission of the AWIGBH offenses. 

And because the jury did not explicitly make such a finding, “neither a trial court nor an 

appellate court can supply its own findings.” Id. at 464. Furthermore, we agree with the 

Court of Appeals that the felony-firearm sentence here may be imposed consecutively with 

only one other felony sentence. People v Coleman, 327 Mich App 430, 441; 937 NW2d 

372 (2019) (“A felony-firearm sentence must . . . be served consecutively with the 

sentence for the one predicate felony.”). Because the jury necessarily found that defendant 

 

4 Clark applied the same version of MCL 750.227b that we apply today. See Clark, 463 

Mich at 460 n 2. 
6 

possessed a firearm when committing multiple felonies, the three counts of felonious 

assault and the one count of felon-in-possession, the Court of Appeals employed the 

appropriate remedy by remanding the case to the trial court and ordering that the judgment 

of sentence be amended to indicate that the two-year sentence for felony-firearm is to be 

served consecutively with only a single felony sentence.5

Finally, we take this opportunity to clarify the import of footnote 11 in Clark. It is 

undoubtedly true that the complaint and the information may list multiple and alternate 

felonies as the predicate felony for a single felony-firearm count when the underlying facts 

of the case support such a charging decision.6

 However, in cases such as the instant case 

in which the prosecutor does so and the jury does not explicitly find that the defendant 

committed a particular predicate felony with a firearm, the felony-firearm sentence cannot 

be consecutive with that predicate felony sentence. Instead, in such cases, the prosecutor 

might be better advised to file multiple felony-firearm counts, each of which is predicated 

 

5

 We note that the Court of Appeals was perhaps imprecise in remanding 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 . . . .” Smith, unpub op at 3. This 

language could imply that the trial court possesses two alternatives for imposing a 

consecutive sentence, either felonious assault or felon-in-possession. However, given that 

the felony-firearm sentence may only be imposed consecutively with one predicate felony, 

the trial court actually possesses four alternatives for imposing a consecutive sentence, the 

three felonious-assault sentences and the one felon-in-possession sentence. 

6

 But we further agree with Coleman that footnote 11 merely “instructs that had the 

prosecution listed multiple predicate felonies in the felony information, there might have 

been options as to which felony would ultimately run consecutive to the felony-firearm 

sentence.” Coleman, 327 Mich App at 442. 
7 

upon a particular and unique felony.7

 In any event, we reiterate that when the finder of fact 

does not explicitly find that the defendant committed a particular predicate felony with a 

firearm, the felony-firearm sentence cannot be consecutive with the sentence for that 

predicate felony. Accordingly, we affirm the judgment of the Court of Appeals. 

 Bridget M. McCormack 

 Stephen J. Markman 

 Brian K. Zahra 

 David F. Viviano 

 Richard H. Bernstein 

 Elizabeth T. Clement 

 Megan K. Cavanagh 

 

7

 We note that the prosecutor represented at oral argument in the Court of Appeals that the 

Wayne County Prosecutor’s Office, following Coleman, “has begun to list . . . one felonyfirearm count per underlying predicate felony.”