                                                                                      Michigan Supreme Court
                                                                                            Lansing, Michigan




Syllabus
                                                             Chief Justice:               Justices:
                                                              Bridget M. McCormack        Stephen J. Markman
                                                                                          Brian K. Zahra
                                                             Chief Justice Pro Tem:
                                                                                          Richard H. Bernstein
                                                              David F. Viviano            Elizabeth T. Clement
                                                                                          Megan K. Cavanagh

This syllabus constitutes no part of the opinion of the Court but has been                Reporter of Decisions:
prepared by the Reporter of Decisions for the convenience of the reader.                  Kathryn L. Loomis



                                              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-in-
      possession, 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-in-
      possession. 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:
       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 felony-
firearm, 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
                                                                           Michigan Supreme Court
                                                                                 Lansing, Michigan



OPINION
                                                  Chief Justice:                 Justices:
                                                   Bridget M. McCormack          Stephen J. Markman
                                                                                 Brian K. Zahra
                                                  Chief Justice Pro Tem:         Richard H. Bernstein
                                                   David F. Viviano              Elizabeth T. Clement
                                                                                 Megan K. Cavanagh


                                                                   FILED July 21, 2020



                            STATE OF MICHIGAN

                                      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
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.


                                              2
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 felon-

in-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 felony-

firearm 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.


                                             3
              (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.


                                              4
       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.


                                              5
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.



                                             6
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 felony-
firearm count per underlying predicate felony.”


                                             7
