People of Michigan v. Derek James Smith, 340991

Derek Smith pushed a property manager, punched a repairman, and shot at the property manager and two repairmen as they left in separate vehicles.
A jury convicted Smith of two counts of assault with intent to do great bodily harm less than murder (AWIGBH), three counts of felonious assault, one count of felony-firearm, one count of felon-in-possession, and two counts of assault and battery.
The trial court initially ordered the two-year felony-firearm sentence consecutive to all other felony sentences; those other felonies were ordered concurrent with each other.
On appeal this Court affirmed convictions but remanded for resentencing; Smith was resentenced and the trial court again ordered the felony-firearm term consecutive to his other felony terms (except the misdemeanor A&B sentences, which were concurrent).
Smith challenged the consecutive felony-firearm term, arguing AWIGBH (as charged) did not require a firearm finding and thus felony-firearm could not be made consecutive to AWIGBH.
The Court of Appeals found it unclear from the record which felony was the predicate for the felony-firearm conviction and held the felony-firearm term must be consecutive only to the one underlying predicate felony; remanded to identify the predicate and amend the judgment accordingly.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a felony-firearm sentence may be imposed consecutive to multiple felony convictions when the information listed several possible predicate felonies	The People defended the sentencing structure as imposed by the trial court	Smith argued felony-firearm must be tied to a single underlying felony and cannot be made consecutive to AWIGBH because AWIGBH did not require proof of firearm possession	The felony-firearm term must be consecutive only to the specific predicate felony; AWIGBH here cannot be the predicate because the jury was not required to find firearm possession
Remedy when record does not identify which felony was the predicate for felony-firearm	The People urged affirmance of the overall sentencing scheme	Smith requested remand to identify the predicate and correct the judgment	Court remanded for the trial court to determine whether felonious assault or felon-in-possession was the predicate and to amend the judgment so the felony-firearm term is consecutive only to that predicate and concurrent to the other felonies

People v. Clark, 463 Mich 459 (2000) (felony-firearm sentence must be consecutive only to the sentence for the specific underlying predicate felony)
People v. Gonzalez, 256 Mich App 212 (2003) (statutory-interpretation review is de novo)
People v. Sabin (On Second Remand), 242 Mich App 656 (2000) (sentencing issues reviewed for abuse of discretion)