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 See People v Miller, unpublished order of the Court of Appeals, entered July 20, 2016 (Docket No. 331849).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 N.W.2d 715 (1988), breaking and entering could not serve as a factual 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 N.W.2d 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 N.W.2d 231 (2003). An abuse necessarily occurs when a trial court makes a legal error. People v Waterstone, 296 Mich.App. 121, 132; 818 N.W.2d 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 N.W.2d 878 (2011), citing People v Adkins, 272 Mich.App. 37, 38; 724 N.W.2d 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 N.W.2d 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:
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 N.W.2d 16 (1982), and People v Davis, 196 Mich.App. 597; 493 N.W.2d 467 (1992), overruled in part on other grounds by People v Miles, 454 Mich. 90, 95; 559 N.W.2d 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:
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:
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 N.W.2d 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 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.
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.
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 N.W.2d 1 (2016), quoting People v Kelly, 231 Mich.App. 627, 640-641; 588 N.W.2d 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 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.
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.