People of Michigan v. Troy Nell Brandom
329071
| Mich. Ct. App. | Jan 26, 2017Background
- Defendant Troy Nell Brandom was tried for receiving or concealing stolen property; prosecution charged alternative theories under MCL 750.535(3)(a) (property value $1,000–$20,000) and MCL 750.535(7) (stolen motor vehicle).
- The underlying fact: a motor vehicle was taken when the owner left the running car with keys in the ignition; defendant participated in theft/possession.
- MCL 750.535(7) contains an exclusionary clause: a person "charged with, convicted of, or punished for" violating (7) shall not be convicted of or punished for another subsection of the same section arising from the same motor vehicle.
- At trial, the jury was instructed on both alternative theories and returned a verdict convicting defendant under MCL 750.535(3)(a); defense counsel approved the instructions and verdict form and raised no objection at sentencing.
- Defendant later moved to vacate the conviction on the ground that being charged under (7) barred conviction under (3)(a); motion was denied and defendant appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether being "charged with" MCL 750.535(7) bars conviction under another subsection (3)(a) when charged in the alternative | Prosecutor: alternative charging means defendant was never effectively "charged with" (7) in a way that triggers the exclusion; jury must pick one theory | Brandom: once charged in the alternative with (7), the (7) exclusionary language barred conviction under (3)(a) | The statute's plain language makes "charged with" sufficient to trigger the bar; but defendant waived relief by counsel's express approval of instructions/verdict form, so conviction stands |
| Whether defense counsel was ineffective for not objecting to conviction under (3)(a) after being charged (in the alternative) under (7) | Prosecution: counsel's performance need not be deficient because any error was waived; even if deficient, no prejudice | Brandom: counsel was ineffective for failing to preserve the statutory exclusion and object to the (3)(a) submission | Counsel arguably deficient on timing, but no prejudice shown because evidence supported conviction under (7); ineffective-assistance claim fails |
Key Cases Cited
- People v. Lowe, 484 Mich. 718 (statutory interpretation; give plain meaning to text)
- People v. Williams, 491 Mich. 164 (use plain meaning of statutory language)
- People v. Kowalski, 489 Mich. 488 (interpretation of disjunctive "or")
- People v. Venticinque, 459 Mich. 90 (prosecutorial charging discretion and alternative theories)
- People v. Riley, 465 Mich. 442 (may not harbor error as appellate parachute; waiver principles)
- People v. Ackerman, 257 Mich. App. 434 (ineffective-assistance two-prong test)