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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Plaintiff-Appellee, UNPUBLISHED January 26, 2017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.

B ECKERING

, P.J., ( concurring ).

I agree with the majority opinion’s outcome, but write separat ely to offer an alternative analysis and address head on de fendant’s arguments on appeal.

Defendant was convicted by a jury of receiving or concealing s tolen property in violation of MCL 750.535(3)(a), which deals with property that has a valu e of $1,000 or more but less than $20,000. This case arises out of defendant’s involvement in the theft of Shaneka Cannon’s motor vehicle on February 19, 2015, after she walked into a gas station to pre-pay for gas while leaving the keys in the ignition with the motor running. The p rosecutor had charged defendant in the alternative of violating ei ther MCL 750.535(3)(a) or MCL 75 0.535(7), which deals with receiving or concealing a stolen motor vehicle. In light of th e language of set forth in MCL 750.535(7), a person charged with MCL 750.535(7) may not be con victed of or punished for a violation of another provision of MCL 750.535, including MCL 75 0.535(3)(a), when those offenses relate to the same motor vehicle. Because the prosecu tor had charged defendant with MCL 750.535(a)(7), defendant had a right to prohibit the trial court from submitting for the jury’s consideration a convict ion for MCL 750.535(3)(a). But d efendant waived that right when his counsel expressly approved the proposed jury instructions a nd verdict form that allowed the jury to convict defendant of either MCL 750.535(3)(a) or MCL 75 0.535(7), but not both. The jury picked MCL 750.535(3)(a), an d the trial court sentenced de fendant for that conviction, again without any objection from defendant’s counsel. Only later did defendant file a motion to vacate his conviction, which was denie d, and this appeal ensued.-2- I. STATUTORY INTERPRETATION OF MCL 750.535

As the majority opinion points out, defendant challenges whet her he was properly convicted under MCL 750.535(3)(a) in violation of MCL 750.535(7 ). The pertinent sections of

MCL 750.535 are as follows:

(1) A person shall not buy, rece ive, possess, conceal, or aid i n the concealment of stolen, embezzled, or converted money, goods, or property knowi ng, or having reason to know or reason to believe, that the money, goods, or property is stolen, embezzled, or converted.

***

(3) If any of the following apply, a person who violates subsec tion (1) is guilty of a felony punishable by imprisonment for not more than 5 years o r a fine of not more than $10,000.00 or 3 times the value of the property purch ased, received, possessed, or concealed, whicheve r is greater, or both imprison ment and a fine:

(a) The property purchased, rece ived, possessed, or concealed has a value of $1,000.00 or more but less than $20,000.00.

*** (7) A person shall not buy, rece ive, possess, conceal, or aid i n the concealment of a stolen motor vehicle knowing, or having reason to know or rea son to believe, that the motor vehicle is stolen, embezzled, or converted. Exc ept as provided in subsection (8), a person who violates this subsection is guilty of a felony punishable by imprisonment for not more than 5 years or a fine of not more than $10,000.00 or 3 times the value of the motor vehicle purchased, received, possessed, or concealed, whichever is greater, or both imprison ment and a fine. A person who is charged with, convicted of, or punished for a violation of this

subsection shall not be c onvicted of or punished fo r 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, con victed, or punished under any other appli cable law. [Emphasis added.]

Defendant argues that, as soon as he was “charged with” violat ing MCL 750.535(7), the statutory prohibition against being convicted under MCL 750.535 (3)(a) was triggered. The prosecution contends that, because defendant was charged in the alternative, he was never subject to being “charged with” MCL 750.535(7) and convicted of MCL 750.535(3)(a) because the jury had to choose one or the other, but not both. Therefo re, the exclusionary provision in MCL 750.535(7) was neither triggered nor violated.

Resolution of defendant’s challenge on appeal involves constru ing the meaning of the italicized portion of the statute in order “to determine and gi ve effect to the Legislature’s intent.” People v Lowe , 484 Mich 718, 721; 773 NW2d 1 (2009). A “statute’s words are the most

reliable indicator of the Legislature’s intent,” id . at 721-722, and our task is to give “plain-3- meaning to the words actually used in a statute rather than pre suming that the Legislature meant to say something entirely different,” People v Williams , 491 Mich 164, 175; 814 NW2d 270 (2012). Only where the statutory language is ambiguous may the Court look outside the statute to ascertain the Legislature’s intent. People v Rutledge , 250 Mich App 1, 5; 645 NW2d 333 (2002). “A provision is considered ambiguous when it is suscep tible to more than one reasonable interpretation.” Id . A statute’s definition of a term controls. People v Wiggins , 289 Mich App 126, 128; 795 NW2d 232 (2010). However, where a statu te fails to define a term, “we presume that the Legislature intended the word to have its ordi nary meaning,” People v March

, 499 Mich 389, 398; 886 NW2d 396 (2016) (quotation marks and cit ation omitted), and we consult a dictionary for that ordinary meaning, People v Tennyson , 487 Mich 730, 738; 790 NW2d 354 (2010). Penal statutes must “be construed according t o the fair import of their terms, to promote justice and to effect the objects of the law.” MCL 750.2.

MCL 750.535(7) does not define the phrase “charged with.” Whe n used in the context of criminal law, that phrase means “[t]o accuse (a person) of an o ffense.” Black’s Law Dictionary (10th ed), p 282. “ ‘Or’ . . . is a disjunctive [term], used to indicate a disunion, a separation, an

alternative.” People v Kowalski , 489 Mich 488, 499 n 11; 803 NW2d 200 (2011) (quotation marks and citation omitted). “Th e use of the word ‘shall’ indi cates a mandatory and imperative

directive.” People v Lown , 488 Mich 242, 279; 794 NW2d 9 (2011) (citation omitted). Accordingly, a defendant who is “charged with [or] convicted of [or] punished for” violating MCL 750.535(7) shall not be convicted of or punished for a violation of MCL 750.535(3)( a). Contrary to the prosecution’s contention, the plain and ordinar y language of the statute does not require that a defendant be subject to conviction of two separa te offenses, i.e., it does not require that a defendant be charged with and convicted of MCL 750.353(7) before the bar to conviction under another provision of MCL 750.535 is triggered. Therefore , once defendant was “charged with” violating MCL 750.535(7), under the clear and unambiguous language of the statute, he

could not be “convicte d of or punished for” vi olating any other section subsection MCL 750.353, including subsection (3)(a).

“It is not [this Court’s] role to rewrite the law or substitut e our own policy judgment in the face of the text of the statute, or ‘to create an ambiguity where none exists in order to reach a

desired result . . . .’ ” People v Harris , 499 Mich 332, 356; 885 NW2d 832 (2016), quoting People v McIntire , 461 Mich 147, 153; 599 NW2d 102 (1999). Certainly, a prosecu tor has great discretion in charging decisions and may charge a defendant und er alternative theories. See People v Venticinque , 459 Mich 90, 100; 586 NW2d 732 (1998) (reaffirming the prosec ution’s discretion in this area). More over, it is not illogical that t he Legislature intended the statute to function as the prosecution claims, i.e., to allow for alternat ive charging while preventing a defendant from being convicted under two subsections of the same statute for the same crimina l act. However, the plain and unambiguous text of the statute co ntains no reference to a prosecutor’s ability to charge i n the alternative without being subject to the exclusionary language of the statute. Thus, if the Legislature did not inte nd to limit the prosecutor’s ability to charge a defendant under MCL 750.535(7) in the al ternative, it could have easily indicated its-4- intent or it can amend the statute. See People v Babcock , 244 Mich App 64, 78; 624 NW2d 479 (2000). 1

In light of the clear and unambiguous language of MCL 750.535( 7), because the prosecution had charged defenda nt with violating MCL 750.535(7) , defendant was entitled to ask the trial court to dismiss the charge for violating MCL 750.535 (3)(a) before the parties finalized the jury instructions and the verdict form or submitted the cas e to the jury. However, by failing to make such a motion, and in fact by finding no fault in the v erdict form and expressly agreeing to the jury instructions regarding the alternative theories, de fendant waived his right to have the trial court dismiss the charge prior to submitting it to the ju ry, and this waiver extinguished any

error. See People v Riley , 465 Mich 442, 449; 636 NW2d 514 (2001).

II. INEFFECTIVE ASSISTANCE OF COUNSEL

Defendant argues that his trial counsel rendered ineffective a ssistance by failing to object to defendant being convicted or sentenced in violation of MCL 7 50.535(7), and therefore, he claims that his conviction under MCL 750.535(3)(a) must be vaca ted. To prevail on his claim of ineffective assistance of counsel, defendant must “show that (1 ) counsel’s performance was below an objective standard of reasonableness and (2) a reasona ble probability that the outcome of the proceeding would have bee n different but for trial couns el’s errors.” People v Ackerman

, 257 Mich App 434, 455; 669 NW2d 818 (2003).

By failing to move in a timely manner to prohibit the jury fro m being able to convict defendant of MCL 750.535(3) since he had been charged with viol ating MCL 750.535(7), trial counsel arguably performed below an objective standard of reaso nableness. However, even if counsel’s failure to take the charge of MCL 750.535(3)(a) away from the jury’s consideration satisfies the first prong of the ineffective assistance analysi s, defendant has not satisfied the second prong because he has not shown a reasonable probability that the outcome of the proceeding would have been different. Ackerman , 257 Mich App at 455.

Defendant assumes that, had defense counsel successfully moved for dismissal of MCL 750.535(3)(a) on defense counsel’s motion, the jury would not h ave convicted him of MCL 750.535(7). 2 The record does not support defendant’s assumption. As the m ajority opinion

1 The simple fix would be to eliminate the phrase “charged with” in the exclusionary language of MCL 750.535(7). That way, a person could be charged with viola ting MCL 750.535(7) while also being charged with violati ng another provision of MCL 750. 535, but he or she could not be convicted of or punished for vio lating another provision of MCL 750.535 (arising from the purchase, receipt, possession, concealment, or aiding in the co ncealment of the same motor vehicle) if he or she is convict ed of or punished for a violati on of MCL 750.535(7).

2 To the extent defendant argues that his counsel should have wa ited until sentencing to raise his right not to be convicted of or punished for a v iolation of MCL 750.535(3)(a)—so as to allow the jury to be presented with an im proper option subject to later i nvalidation—the majority is correct that a person may not purposefully harbor error as an appellate parachute, People v Riley , 465 Mich 442, 448; 636 NW2d 514 (2009) , nor will we countenance an argument that it is okay for a-5- points out, the evidence adduced at trial was sufficient for th e jury to find beyond a reasonable doubt that defendant had received, possessed, or concealed stol en property valued between $1,000 and $20,000, and it was undisputed that the property inv olved was a motor vehicle. Thus, the evidence supported a fi nding that defendant violated MCL 750.535(7). Therefore,

even if the trial court had di smissed MCL 750.535(3)(a), there is no reasonable probability that the jury would have acquitted defendant of receiving, possessin g, or concealing a stolen or converted motor vehicle, i.e., of MCL 750.535(7). Consequently , I would find that defendant’s

claim of ineffective assistance of counsel must fail because he has not made the necessary showing or prejudice resulting from his counsel’s deficient per formance.

/s/ Jane M. Beckering

defendant’s attorney to be ineff ective up to the point where er ror occurs and benefits the

defendant.