PEOPLE OF MI V MARIO COMB
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
September 20, 2002
Plaintiff-Appellee,
v
No. 228139
Wayne Circuit Court
LC No. 99-009189
MARIO COMBS,
Defendant-Appellant.
Before: Whitbeck, C.J., and Wilder and Zahra, JJ.
PER CURIAM.
Defendant appeals as of right his conviction, following a bench trial, of carrying a
concealed weapon in a motor vehicle (CCW-MV), MCL 750.227. Defendant was sentenced to
two to five years in prison on the CCW-MV conviction. We reverse.
Defendant was charged with felonious assault, MCL 750.82, and felony firearm, MCL
750.227b, arising out of an altercation between the defendant and the complainant precipitated
by a near automobile collision. Defendant allegedly pointed a firearm at the complainant during
a heated verbal exchange. After hearing the testimony, rather than convicting the defendant of
felony firearm, the trial court found defendant guilty of CCW-MV, an offense which had not
been charged by the prosecutor.1
Defendant moved to set aside the CCW-MV conviction first on the basis that CCW-MV
is not a lesser included offense of the felony firearm charge, and second on the basis that
because the prosecutor had not alternatively charged defendant with CCW-MV, defendant’s
conviction of an offense that he had no notice he would face violated his rights under the Sixth
Amendment of the United States Constitution. In particular, defendant noted that while he had
been charged by the prosecutor with a two-year felony, he had been convicted by the trial court
of a five-year felony.
1
Defendant was also convicted of intentionally aiming a firearm without malice, MCL 750.233,
rather than felonious assault, and received a thirty-day suspended sentence on this conviction.
Defendant does not appeal this conviction or sentence.
-1-
During a hearing on defendant’s motion to set aside the CCW-MV conviction, the trial
court acknowledged that defendant’s argument opposing his conviction for CCW-MV may be
technically correct but, nevertheless, denied the motion and explained the rationale for its
findings as follows:
Now, in this particular case this gentleman was charged with Felony
Firearm, which is a mandatory two-year consecutive offense. And he was
charged with Felonious Assault, which would be consecutive to the Felony
Firearm.
So, this Court, trying to give him a break and not send him to prison,
depending on the Presentence Report, found him guilty of an offense which is
probationary, and which is not consecutive. So, I gave him . . . misdemeanor, so
I wouldn’t have to send him to prison. . . . I tried to help him out. And I think that
I can. I think the fact finder can do whatever the fact finder wants to do. And I
was the fact finder.”
The trial court’s finding that as the fact finder it could do whatever it wanted was in error.
In People v Pasha, 466 Mich 378, 383-384; 645 NW2d 275 (2002), our Supreme Court
expressly renounced the exact practice employed in this case by the trial court:
Moreover, we express our disapproval of the practice employed by the
trial court in this case. The prosecutor charged defendant with felony-firearm,
MCL 750.227b. The trial court did not explain why defendant was not guilty of
that offense. Instead, it convicted defendant of CCW, an offense that the
prosecutor did not charge. It is doubtful that CCW was truly a “cognate” offense
of felony-firemarm, so the trial court probably lacked authority to convict the
defendant of that offense even under this Court’s pre - People v Cornell 466 Mich
335; 646 NW2d 127 (2002), jurisprudence.
The Supreme Court found that because the defendant in Pasha was actually innocent of
the crime he was convicted of, his conviction was required to be reversed, and a verdict of
acquittal was to be entered. Id. at 384. We are compelled by Pasha to reach the same result here.
The trial court clearly lacked the authority to convict defendant of CCW-MV, whether applying
Cornell or pre-Cornell jurisprudence to the facts of this case. Accordingly, defendant’s
conviction must be reversed and an order of acquittal entered on the felony-firearm charge.
Reversed and remanded for entry of an order of acquittal. We do not retain jurisdiction.
/s/ William C. Whitbeck
/s/ Kurtis T. Wilder
/s/ Brian K. Zahra
-2-
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