Michigan Supreme Court 

# Order

Lansing, Michigan

April 4, 2008 Clifford W. Taylor,
Chief Justice

135576 Michael F. Cavanagh

Elizabeth A. Weaver Marilyn Kelly Maura D. Corrigan Robert P. Young, Jr. PEOPLE OF THE STATE OF MICHIGAN, Stephen J. Markman, Plaintiff-Appellant, Justices

v SC: 135576 COA: 271928 Wayne CC: 06-002943-01 JERRY LEE MOORE, Defendant-Appellee.

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On order of the Court, the application for leave to appeal the November 27, 2007 judgment of the Court of Appeals is consid ered and, pursuant to MCR 7.302(G)(1), in lieu of granting leave to appeal, we REVERSE that part the judgment of the Court of Appeals finding insufficient evidence that the defenda nt possessed a firearm and overturning his conviction for being a felon in possession of a firearm. The jury could reasonably infer that the defe ndant exercised control over the firearm by eluding the police until his passenger coul d dispose of the firearm. People v Hill , 433 Mich 464 (1989). We REMAND this cas e to the Court of Appeals for further proceedings not inconsistent with this order, including consideration of other issues raised by the defendant in his appeal of right. In all other respects, leave to appeal is DENIED, because we are not persuaded that the remain ing question presented should be reviewed by this Court.

C ORRIGAN , J., concurs in part, dissents in part, and states as follows:

I concur with the majority’s decision to reinstate defendant’s conviction of being a felon in possession of a firearm on the basis that the evidence wa s sufficient that defendant possessed a firearm. I dissent, howe ver, from the majority ’s decision to deny the part of the prosecution’s application for leave to appeal arguing that the Court of Appeals erred in remanding the case for resentencing.

Defendant was convicted of third-degree fleeing and eluding a police officer and felon in possession of a firearm. At sentencing, the trial cour t incorrectly stated that it had the power to impose cons ecutive sentences. Defendant did not object to this2

statement. Despite the trial court’s st atement, it nonethele ss imposed concurrent

sentences that were within the sentencing guidelines range. The Court of Appeals held that defendant was entitled to resentencing because his sentence was based on inaccurate information (i.e., the trial court’s mere belief that it coul d impose consecutive sentences). This case truly presents a text book example of harmless error.

In my opinion, the Court of Appeals inco rrectly held that defe ndant was entitled to resentencing because of inaccura te information. If a senten ce is within the appropriate guidelines range (as de fendant’s was), a defendant is precluded from raising on appeal an issue challenging the accuracy of the information relied upon in sentencing unless the issue was raised at sentencing, in a proper motion for resentencing, or in a proper motion to remand. MCL 769.34(10) 1 ; People v Francisco , 474 Mich 82, 88-89 (2006), citing People v Kimble , 470 Mich 305, 310-311 (2004). If the sentence is within the appropriate guidelines range and the defendant failed to previously raise the sentencing error, “the defendant cannot rai se the error on appeal except where otherwise appropriate,

as in a claim of ineffective assistance of counsel.” Francisco, supra at 90 n 8.

Defendant does not dispute that the tria l court sentenced d efendant within the appropriate guidelines range. Therefore, under MCL 769. 34(10), defendant could argue on appeal that his sentence was based on inaccurate information only if he properly preserved the issue by raising the issue at sentencing, in a proper motion for resentencing, or in a proper motion to remand filed in the C ourt of Appeals. Defendant failed to take the statutorily required steps to preserve this issue. Defendant did not object at sentencing to the trial court’ s statement that he was subject to consecutive sentencing. Although defendant raised the is sue in a motion for resentencing 2 in the trial court and a motion to remand in the Court of App eals, both motions were late. See MCR

1 MCL 769.34(10) provides:

If a minimum sentence is within the appropriate gui delines sentence range, the court of appeals shall affirm that sentence and shall not remand for resentencing absent an error in scor ing the sentencing guidelines or

inaccurate information relied upon in determining the defendant’s sentence. A party shall not raise on appeal an issue challenging the scoring of the sentencing guidelines or challenging the accuracy of information relied upon in determining a sentence that is within the appr opriate guidelines sentence range unless the party has rais ed the issue at sentencing, in a proper motion for resenten cing, or in a proper mo tion to remand filed in the court of appeals. [Emphasis added.]

2 Defendant actually wrote the trial judge a lett er, but the trial court treated the letter as a motion to correct the presente nce investigation report._______________________________________ __ 3

6.429(B)(2). 3 In fact, defendant filed these motions after he filed his claim of appeal in the Court of Appeals. Because the motions were untimely, defendant did not preserve the issue by raising it in a proper motion for resentencing or a proper motion to remand. See People v Walker , 428 Mich 261, 266 (1 987) (to preserve a scor ing issue for appeal, a

defendant’s motion to remand in the Court of Appeals must be timely). Thus, defendant is precluded under MCL 769.34(10) from cha llenging the accuracy of the information relied on in imposing his sentence. 4 I would reverse the Court of Appeals holding that defendant is entitled to resentencing.

K ELLY

, J., would deny leave to appeal.

3 MCR 6.429(B)(2) provides, “If a claim of appeal has been f iled, a motion to correct an invalid sentence may only be filed in accord ance with the procedure set forth in MCR 7.208(B) or the remand proce dure set forth in MCR 7.211(C )(1).” Both defendant’s motion for resentencing and motion for rem and were late under MCR 6.429(B)(2).

4 This case is distinguishable from Francisco . In Francisco, supra at 89, this Court considered the defendant’s challenge to the offense variables b ecause the defendant preserved the issue at senten cing. In the instant case, defendant did not preserve the sentencing issue. Further, in Francisco , this Court remanded for resentencing because the trial court’s scoring error affected the guide lines range. In the in stant case, the trial

court’s erroneous belief that defendant was subject to consecutiv e sentencing did not affect the guidelines range.

p0401 I, Corbin R. Davis, Clerk of the Mi chigan Supreme Cour t, certify that the foregoing is a true and complete copy of the order entered at the direction of the Court.

April 4, 2008

Clerk