Motion for relief from judgment; MCR 6.508(D); Good cause or actual prejudice; Guidance on how to craft a sentence when a single count of felony-firearm had multiple options for the underlying felony; People v Smith; Application of the felony-firearm statute; MCL 750.227b; People v Clark; Retroactivity; People v Vansickle; People v Motten; Ineffective assistance of appellate counsel; People v Gardner

The court held that the trial court erred by denying defendant’s motion for relief from judgment. In 2013, he was convicted of AWIM, felonious assault, domestic violence, and felony-firearm. The trial court sentenced him to 280 to 560 months for each AWIM, 1 to 2 years for each felonious assault, 93 days for domestic violence, and 2 years for felony-firearm. His sentence for felony-firearm was to be served consecutive to each of the other 11 sentences. The trial court denied his motion for relief from judgment, and the court denied leave, but the Supreme Court remanded for the court “to ‘address whether the defendant’s felony-firearm sentence was improperly ordered to be served consecutive to all of his other felony conviction sentences.’” On remand, the court agreed with defendant that the trial court erred by ordering him to serve his sentence for felony-firearm consecutive to each of his felony convictions instead of a single predicate felony. As in Smith, because “the jury did ‘not explicitly find that’ defendant committed AWIM ‘with a firearm, the felony-firearm sentence cannot be consecutive with the sentence for’ AWIM.” As such, “the judgment of sentence must be amended to indicate that the sentence for felony-firearm is to be served consecutive to one of the five counts for felonious assault.” In addition, “the general rule of retroactive application does not help the prosecution because Smith did not create a new rule.” And because “there was no new rule, Smith applies retroactively.” Defendant was entitled to relief from judgment because (1) the “first prong of ineffective assistance [was] established because Clark was decided more than a decade before defendant’s initial appeal, and there was no valid strategic reason not to raise a meritorious appellate argument,” and (2) the “second prong of ineffective assistance [was] established because the failure to raise the issue resulted in this Court’s affirmance of an invalid sentence.” The fact that the sentence was “invalid also establishes actual prejudice pursuant to MCR 6.508(D)(3)(b)(iv).” Reversed and remanded.