People of Michigan v. Troy Nell Brandom ( 2017 )

STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
January 26, 2017
Plaintiff-Appellee,
v No. 329071
Wayne Circuit Court
TROY NELL BRANDOM, LC No. 15-003073-01-FC
Defendant-Appellant.
Before: BECKERING, P.J., and SAWYER and SAAD, JJ.
PER CURIAM.
Defendant was convicted, following a jury trial, of receiving and concealing stolen
property valued at $1,000 or more, but less than $20,000. MCL 750.535(3)(a). He was
sentenced as a fourth habitual offender, MCL 769.12, to 46 months to 20 years in prison. He
now appeals and we affirm.
Defendant challenges on appeal whether he was properly convicted under MCL
750.535(a) because the prosecutor also charged him in the alternative under MCL 750.535(7),
which provides in pertinent part as follows:
A person who is charged with, convicted of, or punished for a violation of this
subsection shall not be convicted of or punished for 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, convicted, or
punished under any other applicable law.
Defendant argues that because he was “charged with” a violation of MCL 750.535(7), he could
not be convicted of a violation of MCL 750.535(3)(a) because both charges involved the same
motor vehicle. The prosecutor argued, and the trial court agreed, that the above provision does
not preclude charging the two offenses in the alternative. While we do not necessarily disagree
with defendant’s interpretation of the statute, we conclude that, under the procedural posture of
this case, he is not entitled to relief.
Defendant did not raise this issue in the trial court until after he was convicted, sentenced,
and filed his claim of appeal. And then his motion sought to vacate his conviction under MCR
-1-
6.429. But that court rule does not provide for vacating a conviction; rather, it provides a
mechanism for correcting an invalid sentence.1 Because this was not properly raised in the trial
court, our review is limited to plain error affecting defendant’s substantial rights. People v
Carines, 460 Mich. 750, 763-764; 597 NW2d 130 (1999). Among other requirements, to
establish plain error the defendant must establish prejudice. Id. Moreover, even when plain
error is established, reversal is warranted only if the error resulted in the conviction of an
actually innocent defendant or the error seriously affected the integrity, fairness or public
reputation of the proceedings. Id. Defendant is unable to establish either of these requirements
in this case.
Had defendant raised this issue in a timely manner, the issue could easily have been
resolved by only allowing one of the two charges under MCL 750.535 to be submitted to the
jury. That is, the only potential prejudice to defendant is caused by defendant’s failure to raise
the issue in a timely manner. And, in our view, the only negative effect on the fairness, integrity
or reputation of the proceedings would be to allow defendant to harbor the error as an appellate
parachute to provide a mechanism to raise the issue after conviction in order to have his
conviction set aside and, as defendant argues in a later issue, prevent his retrial under a double-
jeopardy argument.
Defendant also argues that he was denied the effective assistance of counsel because of
counsel’s failure to raise this issue at trial. Defendant’s argument in this respect is rather
telling—he argues that trial counsel was ineffective for not raising the issue at sentencing. That
is, defendant’s objection to counsel’s performance lies only in counsel not assisting in the
creation of defendant’s appellate parachute. As noted above, had counsel raised the issue in a
timely manner, only one charge would have been submitted to the jury and defendant would
have been convicted of that charge.2 Thus, under defendant’s reasoning, the only way for trial
counsel to have been “effective” would have been to fail to raise the issue in a timely manner, to
harbor error, and to pull the cord on defendant’s appellate parachute at sentencing.
In order to establish ineffective assistance of counsel, a defendant must show that
counsel’s actions were objectively unreasonable or that, without counsel’s unprofessional errors,
the outcome would likely have been different. People v Vaughn, 491 Mich. 642, 674; 821 NW2d
288 (2012). We are not persuaded that counsel’s failure to harbor error and then raise an issue in
an untimely manner is either unreasonable or unprofessional. Indeed, intentionally harboring
error and then raising it would be unreasonable and unprofessional. We can only fault counsel
for not raising the issue in a timely manner, which should have resulted in only one count being
1
It is not clear to us why defendant presented his motion under MCR 6.429. We suspect that
perhaps it was because a motion to correct an invalid sentence is one which a trial court may
entertain even after the claim of appeal has been filed. MCR 7.208(A) and (B).
2
Defendant makes no argument that the stolen property involved was a motor vehicle. Indeed, if
there is any basis for the jury to conclude that the stolen property was anything other than a
motor vehicle, then defendant’s entire argument that he could not be properly charged with both
offenses must of necessity fail.
-2-
submitted to the jury. But that would, nevertheless have resulted in conviction; therefore, even
without this error, the result would not have been different.
Because of our resolution of these issues, we need not address defendant’s argument that
double jeopardy precludes retrial.
Affirmed.
/s/ David H. Sawyer
/s/ Henry William Saad
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