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People v. Parkmallory

Court of Appeals of Michigan

May 16, 2019

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee,
v.
MICHAEL ROY PARKMALLORY, Defendant-Appellant.

          Saginaw Circuit Court LC No. 17-044076-FH

          Before: Swartzle, P.J., and M. J. Kelly and Tukel, JJ.

          M. J. Kelly, J.

         Defendant, Michael Parkmallory, appeals as of right his jury-trial convictions of felon in possession of a firearm (felon-in-possession), MCL 750.224f(1), and possession of a firearm during the commission of a felony, second offense (felony-firearm), MCL 750.227b(1). For the reasons stated in this opinion, we reverse.

         I. BASIC FACTS

         Parkmallory was charged with felon-in-possession and second-offense felony-firearm following an incident on New Year's Eve, December 31, 2016, in which Parkmallory and his girlfriend took turns firing a gun into the air. Before the trial began, Parkmallory's lawyer stipulated that Parkmallory had a prior conviction of receiving and concealing a stolen motor vehicle, which rendered Parkmallory "ineligible to possess the firearm." At trial, Parkmallory's lawyer argued that Parkmallory never possessed the gun because he only touched it briefly when his girlfriend tossed it to him "in a panic." The jury convicted Parkmallory as charged.

         II. INEFFECTIVE ASSISTANCE

         A. STANDARD OF REVIEW

         Parkmallory argues that his convictions should be reversed because his lawyer provided constitutionally ineffective assistance by stipulating that he was ineligible to possess a gun because of a June 2009 conviction of receiving and concealing a stolen motor vehicle. He did not, however, preserve the issue by filing a motion for a new trial or for an evidentiary hearing. See People v Johnson, 144 Mich.App. 125, 129; 373 N.W.2d 263 (1985). Because no evidentiary hearing was conducted, "our review of [his] claim of ineffective assistance of counsel is limited to mistakes that are apparent on the record." People v Mack, 265 Mich.App. 122, 125; 695 N.W.2d 342 (2005).

         Although our review is limited to mistakes apparent on the record, Parkmallory has only supported his claim with documentary evidence that is not in the record. Therefore, the first question we must answer is whether the documents appended to Parkmallory's appeal may be considered by this Court. As a general rule, "[a]ppeals to the Court of Appeals are heard on the original record," MCR 7.210(A), and the parties may not expand the record on appeal, People v Nix, 301 Mich.App. 195, 203; 836 N.W.2d 224 (2013). However, MCR 7.216(A)(4) provides a mechanism for this Court to permit additions to the record. That court rule explains:

(A) Relief Obtainable. The Court of Appeals may, at any time, in addition to its general powers, in its discretion, and on the terms it deems just:
(4) permit amendments, corrections, or additions to the transcript or record. [MCR 7.216(A)(4).]

         Here, we discern no reason to deny the expansion of the record. The records provided by Parkmallory are copies of court orders signed by the judge presiding over the 2009 case. On appeal, the prosecution argues that the records were not included in the proceedings before the trial court in this case, but does not otherwise challenge their accuracy or completeness. Moreover, we note that the documents appended to Parkmallory's appeal contain the type of facts that a court may, generally speaking, take judicial notice of. See MRE 201(b) ("A judicially noticed fact must be one not subject to reasonable dispute in that it is . . . capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned."). Accordingly, under the present circumstances we deem it just to allow the expansion of the record to include the following ...


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