PEOPLE v SMITH Docket No. 160995. Decided July 21, 2020. Derek J. Smith was convicted by a jury in the Wayne Circuit Co urt of two counts of assault with intent to do great bodily harm (AWIGBH), MCL 750.8 4; three counts of assault with a dangerous weapon (felonious assault), MCL 750.82; one co unt of possession of a firearm during the commission of a fel ony (felony-firearm), MCL 750.227 b; one count of being a felon in possession of a firearm (f elon-in-possession), MCL 750.224f; and two counts of misdemeanor assault and battery, MCL 750.81. Smith was sentenced by the tr ial 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 c oncurrently. The court also sentenced Smith to two years in prison for felony-firearm, to b e served consecutively with and preceding the other felony sentences. On appeal, the Court of Appeals affirmed Smith’s convictions but determined that t wo 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 l eft the other sentences unchan ged. Smith filed an application for leave to appeal in the Court of Appeals, arguing that the t rial 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 commiss ion of the AWIGBH offenses. The Court of Appeals denied Smith’s application, and Smith soug ht leave to appeal in the Supreme Court. In lieu of gran ting leave to appeal, the Suprem e Court remanded the case to the Court of Appeals for consideration as on leave granted. 503 Mi ch 884 (2018). On remand, the Court of Appeals, M. J. K ELLY , P.J., and F ORT H OOD and S WARTZLE , JJ., held in an unpublished per curiam opinion that the fel ony-firearm sentence could not b e imposed consecutively with the AWIGBH sentences because the jury was not required to find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 tria l court for it to determine whether felonious assault or felon-in-pos session was the predicate felo ny for the felony-firearm conviction and to amend Smith’s j udgment of sentence so that th e felony-firearm sentence was consecutive only with the predicate offense. The prosecutor so ught 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

C hief 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 b ut has been prepared by the Reporter of Decisi ons for the convenience of th e reader. Reporter of Decisions: Kathryn L. Loomis1. The felony-firearm sentence cannot be consecutive with the two AWIGBH sentences because although AWIGBH was listed in the information as a pred icate 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 w ith only one other felony sentence. The jury necessarily found that Smith possessed a fi rearm during the commission of the three counts of felonious assault and the one count of felo n-in-possession. Therefore, the Court of Appeals appropriately r emanded the case to the trial c ourt to impose the two-year felony-firearm sentence to run c onsecutively with a single felo ny sentence.

Affirmed.

©2020 State of MichiganFILED 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

M EMORANDUM O PINION A jury found defendant guilty of two counts of assault with int ent to do great bodily harm (AWIGBH), MCL 750.84; three counts of assault with a dange rous weapon (felonious assault), MCL 750.82; one count of possession of a f irearm during the commission of a felony (felony-firearm), MCL 750.227b; one coun t of being a felon in possession of a firearm (felon-in-possession), MCL 750.224f; an d two counts of Michigan Supreme Court Lansing, Michigan 

# OPINION Chief Justice: Bridget M. M cCormack

Chief Justice Pro Tem:

David F. Viviano Justices: Stephen J. Markman Brian K. Zahra Richard H. Bernstein Elizabeth T. Clement Megan K. Cavanagh2 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 t he felon-in-possession conviction, and 93 days in jail for the assault-and-battery con victions. In addition, the trial court sentenced him to two years in prison for the felony-firea rm 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, 201 6 (Docket No. 328477). On rema nd, 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 remain ing felony sentences. The

trial court denied defendant’s m otion to correct an invalid sen tence or for a new trial. Defendant next filed an application for leave to appeal in the Court of Appeals arguing that the trial court erre d by having imposed the felony -firearm sentence to run consecutively with the AWIGBH se ntences when the jury had not e xplicitly found that he possessed a firearm during the commission of the AWIGBH offense s. The Court of Appeals denied his application “for lack of merit in the ground s 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 i ntent 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 le ave to appeal in this Court a nd, in lieu of granting leave to appeal, we remanded to the Court of Appeals for consideratio n 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 cour t for resentencing. People v Smith , unpublished opinion per curiam of the Court of Appeals, issue d November 19, 2019 (Docket No. 340991). The Court explained that “unlike the convictions of felonious assault and felon-in-possession, the jury was not req uired 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 tha t Smith’s sentence for felony-fi rearm 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 prosecu tor now seeks leave to appeal in this Court, arguing that the felonyfirearm sentence should be consec utive with one of the AWIGBH s entences 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 re levant part as follows:

2 Effective July 1, 2015, MCL 750 .227b was amended by the Legisl ature. See 2015 PA 26. Those amendments do not affect our analysis, but we apply the version of the statute in effect when defendant committe d the instant offenses in Febr uary 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 fire arm when he or she commits or attempts to commit a felony . . . is guilt y of a felony, and shall be imprisone d for two years. . . . (2) A term of imprisonment prescribed by this section is in add ition to the sentence imposed for the co nviction of the felony or the at tempt to commit the felony, and shall be s erved consecutively with and p receding any term of imprisonment imposed fo r the conviction of the felony o r 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 o f felony-firearm and two counts of possession of a bomb w ith unlawful intent, MCL 750.21 0. The information alleged that each possession-of-a -bomb-with-unlawful-intent fel ony constituted the predicate felony for purposes of the corresponding felony-firea rm 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 sentenc es should be consecutive only with the two sentences for p ossession of a bomb with unlaw ful intent: From the plain language of the felony-firearm statute, it is ev ident that the Legislature intended that a felony-firearm sentence be cons ecutive 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 se ntence as “consecutive to” ano ther 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 7 50.227b(3) currently provides, and MCL 750.227b(2) previously provided, that “[a] t erm 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.” (Em phasis added.) See MCL 750.227b, as enacted by 1990 PA 321.5 preceding any term of imprisonmen t imposed for the conviction o f 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 mi ght appear obvious that the defendant also possessed a firearm while commi tting the other crimes of which he was convicted, neither a trial court n or an appellate court can supply its own findings with regard to the factual el ements that have not been found by a jury. [ Id . at 463-464.] [4]

In a footnote to the final quoted sentence above, we further ob served in dictum: At the discretion of the prosecu ting attorney, the complaint an d the information could have listed additional crimes as underlying o ffenses in the felony-firearm count, or the prosecutor could have filed more s eparate felony-firearm counts. [ Id . at 464 n 11.] In the instant case, we agree with the Court of Appeals that th e felony-firearm sentence cannot be consecutive with the two AWIGBH sentences because, al though AWIGBH was listed in the information as a p redicate felony for felony-fire arm, the jury did not explicitly find that defendant possessed a firearm during the commission o f the AWIGBH offenses. And because the jury did not e xplicitly make such a finding, “n either 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 i mposed consecutively with only one other felony sentence. People v Coleman , 327 Mich App 430, 441; 937 NW2d 372 (2019) (“A felony-firearm se ntence must . . . be served con secutively with the sentence for the one predicate felony.”). Because the jury nec essarily 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 thre e counts of felonious

assault and the one count of f elon-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 f or felony-firearm is to be served consecutively with only a single felony sentence. 5 Finally, we take this opportun ity to clarify the import of foot note 11 in Clark . It is undoubtedly true that the compla int and the information may lis t multiple and alternate felonies as the predicate felony for a single felony-firearm co unt 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 explicitl y find that the defendant committed a particular predicate f elony with a firearm, the fel ony-firearm sentence cannot be consecutive with that predicat e felony sentence. Instead, i n such cases, the prosecutor might be better advised to file m ultiple felony-firearm counts, each of which is predicated

5 We note that the Court of Appeals was perhaps imprecise in rem anding 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-poss ession. However, given that the felony-firearm sentence may on ly be imposed consecutively w ith 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-possessi on sentence.

6 But we further agree with Coleman that footnote 11 merely “instructs that had the prosecution listed multiple pre dicate felonies in the felony in formation, there might have been options as to which felony would ultimately run consecutiv e 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 particu lar predicate felony with a firearm, the felony-firearm sent ence cannot be c onsecutive with the sentence for that predicate felony. Accordingly, w e affirm the judgment of the C ourt 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 th e Court of Appeals that the Wayne County Prosecutor’s Office, following Coleman , “has begun to list . . . one felonyfirearm count per underlying predicate felony.”