Summary
holding that felonious assault is a cognate lesser offense of assault with intent to commit murder
Summary of this case from People v. FoxOpinion
No. 130798.
September 29, 2006.
Appeal from the Court of Appeals No. 256739.
Summary Dispositions September 29, 2006.
Pursuant to MCR 7.302(G)(1), in lieu of granting leave to appeal, we reverse in part the judgment of the Court of Appeals and vacate only the defendant's conviction and sentence for felonious assault. We agree with the Court of Appeals that the Kent Circuit Court erred by convicting the defendant of felonious assault. As the appeals court stated, felonious assault is a cognate lesser offense of the charged offense of which the defendant was acquitted, assault with intent to murder, and not a lesser-included offense of the charged offense. See People v Cornell, 466 Mich 335, 353-359 (2002). However, unlike the Court of Appeals, we conclude that the defendant has satisfied his burden under People v Cannes, 460 Mich 750 (1999), to establish that this unpreserved error amounts to plain error. Under the circumstances of this case, the defendant could not lawfully be convicted of the crime of felonious assault; such an error seriously affects the fairness, integrity, or public reputation of the judicial proceedings. Id. at 763. The defendant's conviction for felonious assault, and the sentence imposed for that conviction, must be vacated.
I dissent and would deny leave to appeal. I would not peremptorily reverse because defendant has suffered no prejudice.
I respectfully dissent from the majority's peremptory order vacating defendant's conviction and sentence for felonious assault, MCL 750.82.
The majority is correct that the trial court erred in considering felonious assault at defendant's bench trial. People v Cornell, 466 Mich 335 (2002), and its progeny establish that a trier of fact may not consider uncharged cognate offenses. The prosecutor here charged defendant with assault with intent to commit murder not with felonious assault. Thus, because felonious assault is a cognate lesser offense of assault with intent to commit murder, the court should not have considered this uncharged offense at trial.
Defendant, however, failed to object to the error at trial, and the Court of Appeals correctly determined that he has not satisfied the plain-error standard that must be met to avoid forfeiture of unpreserved errors, as set forth in People v Carines, 460 Mich 750 (1999). In particular, defendant has not demonstrated that he was prejudiced by the error.
The evidence at trial reflected that defendant pointed a gun at the victim and demanded money. After he shot the victim, defendant fled while still pointing the gun at the victim. Defendant denied that he committed the offense. The trial court found that defendant lacked the specific intent to kill, but otherwise found that defendant used a weapon, as reflected by his convictions of armed robbery, MCL 750.529; possession of a firearm during the commission of a felony, MCL 750.227b; and being a felon in possession of a firearm, MCL 750.224f. The presence and use of a weapon was at issue at all points of the trial.
In light of these facts, I am not certain how or why the majority has concluded that defendant was prejudiced. Neither defendant nor the majority has offered any explanation regarding how the defense at trial would have been any different if he had been formally charged with felonious assault.
Moreover, defendant's sentence for armed robbery is 14½ to 30 years, which is longer than his concurrent sentence of two to eight years for felonious assault. This fact reinforces the conclusion that the Cornell error has not prejudiced defendant.
For these reasons, I conclude that the Court of Appeals did not err in its application of the Carines standard, and I would deny leave to appeal.