                         STATE OF MICHIGAN

                          COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                  UNPUBLISHED
                                                                  May 16, 2017
              Plaintiff-Appellee,

v                                                                 No. 331849
                                                                  Grand Traverse Circuit Court
BRANDON LAURENCE MILLER,                                          LC Nos. 2015-012097-FH;
                                                                          2015-012098-FH
              Defendant-Appellant.


Before: SAWYER, P.J., and MURRAY and GLEICHER, JJ.

PER CURIAM.

       In case no. 2015-012097-FH, defendant pleaded guilty to second-degree home invasion,
MCL 750.110a(3), and in case no. 2015-012098-FH, he pleaded guilty to breaking and entering a
building with intent to commit larceny, MCL 750.110, and possession of a firearm during the
commission of a felony (felony-firearm), MCL 750.227b. Defendant was sentenced to 60 to 180
months’ imprisonment for the second-degree home invasion, to 23 to 120 months’ imprisonment
for the breaking and entering, and to a consecutive two-year term for the felony-firearm.
Defendant appeals by leave granted. See People v Miller, unpublished order of the Court of
Appeals, entered July 20, 2016 (Docket No. 331849). We affirm defendant’s conviction and
sentence in case no. 2015-012097-FH, but remand for further proceedings in case no. 2015-
012098-FH.

        The home invasion charge in case no. 2015-012097-FH was based on defendant’s
breaking and entering of a home on August 4, 2014, and his theft of marijuana and money while
inside. The breaking and entering and felony-firearm charges in case no. 2015-012098-FH were
based on defendant’s breaking and entering of a gun shooting range on August 8, 2014, and his
theft of firearms that he found inside. According to the information, the breaking and entering
was charged as the predicate offense for the felony-firearm charge.

       At the plea-taking, defendant agreed with the court that he had broken into and entered a
gun shooting range. He explained that he and his codefendant broke a window in the building to
gain entry, and once inside they then took guns that were on racks on the wall and left.
Defendant agreed that he did not have permission to enter the building or take the guns.

       Defendant moved to withdraw his guilty pleas claiming that the factual basis for the
felony-firearm charge was inadequate. Defendant argued that, pursuant to People v Mitchell,
431 Mich 744; 432 NW2d 715 (1988), breaking and entering could not serve as a factual
                                              -1-
predicate for the felony-firearm charge where defendant was not armed when he committed the
breaking and entering and only secured a firearm after the breaking and entering was completed.
The trial court denied defendant’s motion.

        This Court reviews a trial court’s ruling on a motion to withdraw a guilty plea for an
abuse of discretion. People v Brown, 492 Mich 684, 688; 822 NW2d 208 (2012). An abuse of
discretion occurs when a trial court chooses an outcome outside the range of reasonable and
principled outcomes. People v Babcock, 469 Mich 247, 269; 666 NW2d 231 (2003). An abuse
necessarily occurs when a trial court makes a legal error. People v Waterstone, 296 Mich App
121, 132; 818 NW2d 432 (2012). To determine whether a factual basis is sufficient, “this Court
considers whether the fact-finder could have found the defendant guilty on the basis of the facts
elicited from the defendant at the plea proceeding.” People v Fonville, 291 Mich App 363, 377;
804 NW2d 878 (2011), citing People v Adkins, 272 Mich App 37, 38; 724 NW2d 710 (2006).

        In Mitchell, the defendant pleaded guilty to breaking and entering an occupied dwelling
with intent to commit larceny and felony-firearm. On appeal, he claimed that the factual basis to
support his plea was inadequate because his statements at the plea-taking showed only that he
picked up a gun on a table inside the home after he broke and entered and, therefore, the
breaking and entering was complete before he possessed any firearm. Mitchell, 431 Mich at 746.
The Supreme Court agreed with defendant, but with sparse reasoning.

       In People v Shipley, 256 Mich App 367; 662 NW2d 856 (2003), the Court endeavored to
explain the basis for Mitchell. In Shipley, the defendant came to possess a firearm during a home
invasion. This Court explained:

       Th[e felony-firearm] statute requires that a person carry or have in his possession
       a firearm when the person is committing or attempting to commit the underlying
       felony in order to commit felony-firearm based on the predicate felony.

               The breaking-and-entering statute, which was the predicate felony in
       Mitchell, provided, in pertinent part, “Any person who breaks and enters any
       occupied dwelling house, with intent to commit any felony or larceny therein,
       shall be guilty of a felony . . . .” MCL 750.110. Breaking and entering is not a
       continuing offense, but rather is completed once the offender has entered the
       building. People v Squires, 240 Mich App 454, 460; 613 NW2d 361 (2000).
       Therefore, the theft of the firearm in Mitchell could not support the defendant’s
       felony-firearm conviction, with the breaking and entering as the predicate felony,
       because the breaking and entering offense was completed with entry into the
       building. Thus, the ensuing firearm possession was not during the commission or
       attempted commission of breaking and entering.

               In contrast, . . . the plain language of [the first-degree home invasion
       statute, MCL 750.110a(2)(a),] indicates [that] first-degree home invasion is not
       necessarily completed at the time of entry into a dwelling, but rather can be
       completed by commission of the final element of the crime while the person is
       present in (or leaving) the dwelling. Thus, unlike in Mitchell, the theft of a
       firearm following a break-in at a residence can occur during the commission of

                                               -2-
       first-degree home invasion. As a result, first-degree home invasion, where there
       is a larceny of a firearm during a residential breaking and entering, can be the
       predicate felony for a felony-firearm conviction. [Shipley, 256 Mich App at 376-
       377.]


        Here, both the information filed in case no. 2015-012098-FH and defendant’s admissions
at the plea-taking indicate that the predicate felony for the felony-firearm charge was the
breaking and entering charge. Defendant’s admissions indicate that he came into the possession
of the firearms after he broke and entered the building. Accordingly, pursuant to Mitchell and
Shipley, defendant could not have been convicted of breaking and entering by a trier of fact
based upon the facts he admitted at the plea-taking. The trial court thus made a legal error when
it denied defendant’s motion to withdraw his guilty pleas and therefore abused its discretion.

       The prosecutor argues that a defendant does not have to be convicted of the predicate
felony in order for the felony-firearm conviction to be upheld, citing People v Lewis, 415 Mich
443, 453-454; 330 NW2d 16 (1982), and People v Davis, 196 Mich App 597; 493 NW2d 467
(1992), overruled in part on other grounds by People v Miles, 454 Mich 90, 95; 559 NW2d 299
(1997). But these cases dealt with inconsistent jury verdicts, not the factual predicate for a guilty
plea. In Lewis, a jury returned a verdict acquitting the defendant of the predicate felony (second-
degree murder), but convicting him of felony-firearm. The Supreme Court observed that “a
jury’s acquittal on one charge in a multi-count indictment signals no more than the jurors’
agreement not to convict on that charge for whatever reason satisfactory to them.” Lewis, 415
Mich at 450 (footnote omitted). It explained that the verdict was either lenient, in which case the
defendant was not prejudiced, or a compromise verdict, stating:

       If it compromised, there is the risk that some of the jurors who agreed to the
       compromise did not believe beyond a reasonable doubt that the defendant
       committed a felony, but nonetheless agreed to convict the defendant of felony-
       firearm (although commission of a felony is an element) in exchange for the
       agreement of other jurors to acquit the defendant of the underlying felony. If that
       is what occurred, then the jury was unable to reach a unanimous verdict on both
       charges. The remedy, where a jury is unable to agree on a unanimous verdict, is
       not dismissal of the charges, but the declaration of a mistrial, and the defendant
       can be required to stand trial again on the charges in respect to which the jurors
       are unable to agree.

              The defendants do not, however, seek new trials, but instead seek
       dismissal of the felony-firearm convictions. The defendants argue that a verdict
       of not guilty on the felony charge represents a finding by the jury that the
       defendant did not commit the felony, and since he did not commit the felony he
       cannot be guilty of felony-firearm. But that is to look at the matter from only one
       side. The conviction of felony-firearm may be read as an implicit finding that the
       defendant did commit the felony.

              Because we see no reason to regard differently for this purpose the express
       finding of not guilty of the underlying felony and the implicit finding of guilty of

                                                -3-
       the underlying felony, the defendants are not entitled to have their convictions of
       felony-firearm set aside on the premise that the acquittals of the felony charges
       were findings that they did not commit the underlying felonies inexorably
       requiring that the felony-firearm convictions be set aside.

               The jury, to repeat, either was lenient or compromised. If the former, the
       defendant has no cause for complaint. But if the jury compromised, the finding
       that the defendant did not commit the underlying felony was part and parcel of
       that jury compromise which, in convicting the defendant of felony-firearm,
       implicitly found that the defendant did commit the underlying felony. A
       compromise is indivisible. We cannot properly enforce only part of it. [Lewis,
       415 Mich at 450-453; footnote omitted.]

       The prosecutor focuses on the general language that a conviction for felony-firearm can
be sustained in the absence of a conviction for the predicate offense, but ignores that this was a
review of a jury’s verdict, not a guilty plea. As the Lewis Court further explained:

              It is contended that the language of the felony-firearm statute requires that
       sentencing for conviction of a felony is a prerequisite for imposition of the
       sentence for felony-firearm with the consequence that where, as here, the people
       have not secured a conviction for a felony no sentence can be imposed for felony-
       firearm.

              Although the Legislature no doubt contemplated that a person convicted of
       felony-firearm would also have been convicted of an underlying felony, it made
       commission or the attempt to commit a felony and not conviction of a felony an
       element of felony-firearm. . . .

               Having in mind the legislative purpose to provide separate punishment for
       carrying a firearm in the commission of or attempt to commit a felony, we are
       satisfied that it is both within the letter of the statute and the spirit of the
       legislative purpose to construe the statute as providing for the imposition of
       sentence in a case where the jury convicts of felony-firearm but acquits of the
       underlying felony. It would not be consistent with the legislative purpose in
       enacting the felony-firearm statute to conclude that it intended that a felony-
       firearm conviction be set aside and no punishment at all be imposed in a case
       where the jury, extending leniency or compromising, failed to convict of the
       underlying felony, but did convict of felony-firearm. [Lewis, 415 Mich at 453-
       454; footnotes omitted and emphasis supplied.]


        The Lewis Court’s discussion makes it clear that the holding only applied to cases
involving jury verdicts. It is only in such cases that a compromise verdict may be sustained. Our
system tolerates jury compromise, but does not extend the same tolerance to bench verdicts,
guilty pleas, or appellate court decisions. See People v Burgess, 419 Mich 305, 310-311; 353
NW2d 444 (1984). The Supreme Court’s subsequent decision in Mitchell demonstrates that the
Lewis holding does not apply to guilty pleas. Moreover, the Lewis decision does not provide a

                                               -4-
factual equivalent to this case. In Lewis, the defendant was not convicted of the predicate
offense; here, defendant admitted his guilt, and thus was convicted of the predicate offense; it is
simply the case that the predicate offense does not factually provide a basis for conviction of
felony-firearm.

        In Davis, this Court addressed whether a trial court could consider the mandatory
consecutive nature of the felony-firearm sentence in determining a proportionate sentence. In
passing, this Court remarked that “[a] felony-firearm conviction may not be had unless the
defendant committed or attempted to commit a felony, although it is not necessary that the
defendant be convicted of the underlying felony.” Davis, 196 Mich App at 601. However, this
was not the issue before the Court and therefore this statement was obiter dicta.1 Moreover, the
case cited for this proposition, Burgess, does not support the prosecutor’s argument. In Burgess,
the defendant was convicted of three felonies including felony-firearm. This Court reversed his
conviction for felonious assault (the predicate offense for the felony-firearm conviction), but
concluded that, based on Lewis, it could still affirm the felony-firearm conviction. Burgess, 419
Mich at 307-308. Our Supreme Court reversed and explained:

               The juries in Lewis reached inconsistent verdicts through compromise or
       leniency. We observed in People v Vaughn, 409 Mich 463, 466; 295 NW2d 354
       (1980), that juries “are not held to any rules of logic” and possess the “capacity
       for leniency”. We added, however, that “[t]hese considerations change when a
       case is tried by a judge sitting without a jury”. An appellate court likewise does
       not normally enjoy the freedom to be inconsistent or to compromise.

                                                 * * *

       Our explanation in Lewis that no conviction of the underlying felony need be had
       does not alter the requirement that the underlying felony must have been
       committed. As explained above, Lewis does not grant an appellate court the
       option of reaching an inconsistent result. . . .

                                                 * * *

               The jury in this case was improperly instructed on the underlying felony of
       assault with a dangerous weapon. The assault conviction has therefore been
       reversed. More importantly, the jury’s factual finding that the assault was
       committed may no longer be relied upon. Absent such a finding, the felony-
       firearm conviction must also be reversed. [Burgess, 419 Mich at 310-312
       (emphasis added).]



1
  People v Lown, 488 Mich 242, 267 n 46; 794 NW2d 9 (2011) (“Obiter dicta, or ‘dicta,’ are not
binding precedent. Rather, they are statements that are not essential to determination of the case
at hand and, therefore, ‘lack the force of an adjudication.’ ” Wold Architects & Engineers v
Strat, 474 Mich 223, 232 n 3; 713 NW2d 750 (2006) (citations and quotation marks omitted.”).


                                                -5-
        The prosecutor tries to avoid this conclusion by suggesting that defendant might have
been guilty of committing another felony while he was engaged in stealing the firearms.2 The
prosecutor suggests that defendant could have been convicted of violating MCL 750.535b for
transporting or receiving and concealing a stolen firearm. 3 While that assertion might be true in
the abstract,4 defendant never pleaded guilty to this offense – nor, more specifically, did the
prosecutor charge this offense as the predicate felony for the felony-firearm charge. There was
no basis upon which defendant could have been convicted of felony-firearm on the grounds that
he was also conceivably guilty of another felony (for which he did not admit guilt) at the time he
illegally possessed a firearm.5

        The remaining issue is what relief should be afforded to defendant. He asserts that he
must be allowed to withdraw his pleas in both cases. Defendant offers nothing – other than the
citation to Mitchell – to support his argument that the conviction for second-degree home
invasion must be set aside. “ ‘An appellant may not merely announce his position and leave it to
this Court to discover and rationalize the basis for his claims, nor may he give only cursory
treatment with little or no citation of supporting authority.’ ” People v Henry, 315 Mich App
130, 148; 889 NW2d 1 (2016), quoting People v Kelly, 231 Mich App 627, 640-641; 588 NW2d
480 (1998). Accordingly, we conclude that the second-degree home invasion conviction and
sentence in case no. 2015-012097-FH should be affirmed.

       With respect to the breaking and entering conviction and the felony-firearm conviction in
case no. 2015-012098-FH, the Mitchell decision suggests a remand to the trial court to give the
prosecutor an opportunity to supplement the evidence presented at the plea-taking, and that these


2
 The prosecutor cites for this proposition Wayne Co Prosecutor v Recorder’s Court Judge, 406
Mich 374; 280 NW2d 793 (1979). The prosecutor fails to cite a page in the decision for this
proposition and a cursory examination of the decision fails to disclose any citation to MCL
750.535b. The general holding of Wayne Co Prosecutor is simply that a defendant may be
convicted of both the predicate felony and felony-firearm without violating the prohibition
against double jeopardy because they are separate felony offenses.
3
  MCL 750.357b actually applies to a person who steals the firearm of another person. The
statute that criminalizes transportation, receiving, possessing, concealing, selling, etc. of a stolen
firearm is MCL 750.535b.
4
  Pursuant to People v Hastings, 422 Mich 267, 271-272; 373 NW2d 533 (1985), a thief may be
convicted of transporting or of receiving, concealing, storing, or disposing of the firearm he has
stolen.
5
  The prosecutor notes that defendant’s convictions resulted from a plea bargain that “he readily
entered,” and that he “was fully aware of the potential penalties before he pled.” These
observations are irrelevant to whether defendant was aware that, by pleading guilty to breaking
and entering and felony-firearm, he might be considered to be additionally pleading to an offense
that had presumably been dismissed, but that nevertheless could serve as a “substitute predicate
offense” in the event that the breaking and entering conviction proved unavailing.



                                                 -6-
convictions should only be set aside if the prosecutor is unable to present evidence showing that
defendant was armed at the time he broke and entered the shooting range. Mitchell, 431 Mich at
750. If the prosecutor is able to present such evidence, defendant should be given the
opportunity to present contrary evidence. If he fails to do so, his guilty plea should be affirmed.
If he does present contrary evidence, the court should treat the matter as a motion to withdraw
the guilty plea and exercise its discretion. Id.; MCR 6.310(C). If the prosecutor is unable to
present supplemental evidence, defendant’s pleas to breaking and entering and felony-firearm
must be set aside.6

        In case no. 2015-012098-FH, the factual basis supporting defendant’s guilty plea for the
felony-firearm charge was inadequate because defendant only admitted obtaining the firearms
after he completed the breaking and entering of the shooting range. The case is remanded for
further proceedings consistent with this opinion. The second-degree home invasion conviction
in case no. 2015-012097-FH is affirmed.

        Affirmed in case no. 2015-012097-FH, but case no. 2015-012098-FH is remanded for
further proceedings consistent with this opinion. We do not retain jurisdiction.



                                                            /s/ David H. Sawyer
                                                            /s/ Christopher M. Murray
                                                            /s/ Elizabeth L. Gleicher




6
  Although the Mitchell Court directed that both convictions be set aside, this remedy seems
inappropriate. Defendant has challenged the adequacy of his guilty plea to felony-firearm, not
the factual basis for his breaking and entering plea; the factual basis for that plea appears
adequate. Defendant voluntarily asked to plead guilty to both offenses. Should the felony-
firearm plea be set aside, defendant will receive the benefit of avoiding the mandatory two-year
consecutive sentence. It seems counter-intuitive that he should also be allowed to receive the
additional undeserved benefit of having his conviction and sentence for a separate offense – one
that he does not challenge and for which he voluntarily admitted his guilt – set aside.
Nevertheless, this Court is bound by the decision of our Supreme Court. People v Mitchell, 428
Mich 364, 369-370; 408 NW2d 798 (1987).


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