Michigan Supreme Court 

# Order
Lansing, Michigan

October 3, 2008 Clifford W. Taylor, Chief Justice
136517 Michael F. Cavanagh Elizabeth A. Weave r Marilyn Kell y Maura D. Corriga n Robert P. Young, Jr. PEOPLE OF THE STATE OF MICHIGAN, Stephen J. Markman, Plaintiff-Appellant, J ustices

v SC: 136517 COA: 277140 Wayne CC: 06-009624-01 JERRELL ANTH ONY FOX, Defendant-Appellee.

________________ _________________________/

On order of the Court, the applicati on for leave to appeal the May 13, 2008 judgment of the Court of Appeals is cons idered, and it is DENIED, because we are not persuaded that the question presented should be reviewed by this Court.

W EAVER , J., would grant leave to appeal.

C ORRIGAN , J. ( dissenting ).

I would grant leave to appeal. I questi on the Court of Appeals determination that the trial court’s error in convi cting defendant of the cognat e lesser offense of felonious assault, MCL 750.82, requires vacation of hi s convictions and sentences. The prosecutor argues convincingly that defense counsel at trial acquiesced in the consideration of the cognate offense, thereby exti nguishing the error. See People v Carter , 462 Mich 206, 215 (2000).

Defendant was charged with eight counts of assault with intent to commit murder, MCL 750.83. At defendant’s bench trial, the prosecutor c onceded that th e evidence did not show an intent to comm it murder and asked the court to consider the lesser offenses of assault with intent to do great bodily harm, MCL 750.84, and felonious assault. Defense counsel argued that the evidence did not show an intent to commit murder or to do great bodily harm and then stated, “I don’t really want to concede on the lesser of Felonious Assault. However, I think certainly there was no inte nt to do any great bodily harm to anyone by Mr. Fox.” Defense counsel then concluded, “I think that this is not a_______________________________________ __ 2

case of Assault With Intent to do—to Commit Murder or to do Great Bodily Harm. I would ask the court to find the approp riate sentence—appropriate verdict.”

The trial court found defen dant guilty of three counts of felonious assault. The Court of Appeals vacated the co nvictions on the ground that felonious assault is a cognate lesser offense of assault with intent to comm it murder. See People v Cornell , 466 Mich 335, 357 (2002) (holding that MCL 768.32(1) does not permit consideration of cognate lesser offenses), and People v Otterbridge , 477 Mich 875 (2006) (holding that felonious assault is a cognate lesser offense of assault with intent to commit murder).

Nevertheless, I agree with the prosecutor that defense counsel’s comments reflect his acquiescence in the considerati on of felonious assault. Counsel’s assertion that he did not “really want to concede on the lesser of Felonious Assault” was a declination to concede defendant’s guilt of that offense. Co unsel left open the possi bility that the court could consider a felonious assault conviction by stating, “I think that this is not a case of Assault with Intent to do—t o Commit Murder or to do Great Bodily Harm. I would ask the court to find the appropr iate sentence—appropriate verd ict.” By acquiescing in the consideration of felonious assault, defendant waived this issue, there by extinguishing the error. See Carter

, supra (explaining that waiver is th e intentional relinquishment or abandonment of a known right, a nd that it extinguishes any error).

Even if the error was not wa ived, defendant failed to obj ect to the consideration of felonious assault. In light of this forfeiture, defendant must establish a plain error that affected the outcome of the lower court proceedi ngs. He must show that he is actually innocent or that the error seri ously affected the fairness, integr ity, or public reputation of the proceedings. People v Carines , 460 Mich 750, 763-764 (1 999). Defendant has not met these requirements. “Neither defendant nor the majority has of fered any explanation regarding how the defense at trial would have been any different if he had been formally charged with feloni ous assault.” Otterbridge

, supra at 876 (Corrigan, J., dissenting).

For these reasons, I would grant leave to appeal to cons ider more fully the prosecutor’s arguments in this case.

l0930 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.

October 3, 2008
Clerk