People v. Lopez

DONOFRIO, P.J.

Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, Kym L. Worthy, Prosecuting Attorney, Timothy A. Baughman, Chief of Research, Training, and Appeals, and Valerie M. Steer, Assistant Prosecuting Attorney, for the people.

Jorge Lopez, in propria persona, and Daniel J. Rust, for defendant.

Before: DONOFRIO, P.J., and GLEICHER and M.J. KELLY, JJ.

Opinion Following his jury trial, defendant was convicted of all five crimes charged: Count I—armed robbery, in violation of MCL 750.529 ; Count II—assault with intent to rob while armed, in violation of MCL 750.89 ; Count III—possession of a firearm during the commission of a felony (felony-firearm), in violation of MCL 750.227b ; Count IV—unlawful possession of a firearm by a felon, in violation of MCL 750.224f ; and Count V—carrying a concealed weapon, in violation of MCL 750.227. The court sentenced defendant as a fourth-offense habitual offender, MCL 769.12, to concurrent terms of 35 to 55 years in prison for Counts I, II, IV, and V, plus a consecutive term of 2 additional years for Count III.

On appeal, defendant challenges the sentencing court's failure to individually score the sentencing guidelines, MCL 777.1 et seq. , for each of his convictions and its failure to sentence him in accordance with the guidelines range applicable to each conviction. Defendant also filed a brief under Standard 4 of Supreme Court Administrative Order No. 2004–6, asserting that he is entitled to a new trial because the jury's verdict was against the great weight of the evidence and that both his trial and appellate counsel provided him ineffective legal assistance. Finding no merit to any of these arguments, we affirm.

I. THE SENTENCING GUIDELINES AND LOWER–CRIME–CLASS FELONIES

Defendant argues that the sentencing court erred when it sentenced him on all his felonies in accordance with the sentencing guidelines for the most serious conviction. He reasons that scoring and calculating the guidelines for the other convictions would have resulted in a lower guidelines range for those convictions, which results in his imposed sentences being illegal because the court did not justify any upward departure. We disagree.

The standard of review for sentencing decisions was set forth in People v. Babcock, 469 Mich. 247, 264–265, 666 N.W.2d 231 (2003) :

[T]he existence or nonexistence of a particular factor is a factual determination for the sentencing court to determine, and should therefore be reviewed by an appellate court for clear error. The determination that a particular factor is objective and verifiable should be reviewed by the appellate court as a matter of law. A trial court's determination that the objective and verifiable factors present in a particular case constitute substantial and compelling reasons to depart from the statutory minimum sentence shall be reviewed for abuse of discretion. [Quotation marks omitted.]

Michigan's sentencing guidelines calculations only affect a defendant's minimum sentence, while a defendant's maximum sentence is limited by statute. People v. McCuller, 479 Mich. 672, 677, 739 N.W.2d 563 (2007) ; People v. Drohan, 475 Mich. 140, 164, 715 N.W.2d 778 (2006). The sentencing court must sentence the defendant to a minimum sentence within the guidelines class offenses, and there would be no tangible reason or benefit in establishing guidelines ranges for the lower-crime-class offenses. Therefore, because the sentences for defendant's lower-crime-class offenses were to be served concurrently with the highest-class-felony sentence, the Class E guidelines did not need to be scored and there was no departure.

We caution sentencing courts, when imposing concurrent sentences, to remain cognizant of any statutory maximums for each conviction and to ensure that each individual sentence, irrespective of any guidelines calculations used, does not exceed its statutory maximum. In this case, defendant's maximum sentences of 55 years in prison for his Class E felony convictions did not exceed the statutory maximum. Normally, the statutory maximum for these offenses is five years. MCL 750.224f(5) ; MCL 750.227(3). However, defendant was sentenced as a fourth-offense habitual offender, MCL 769.12, which elevated those statutory five-year maximums to life. Specifically, MCL 769.12(1)(b) provides that if the base offense normally is punishable by a maximum term of five years or more, then “the court ... may sentence the person to imprisonment for life or for a lesser term.” Therefore, the imposed sentences did not run afoul of any legislative maximum.

Further, we also question, like the Mack Court did, “whether a sentence for a conviction of the lesser class felony that is not scored under the guidelines pursuant to [MCL 771.14(2)(e)(ii ) and (iii ) ] could permissibly exceed the sentence imposed on the highest crime class felony and remain proportional.” Mack, 265 Mich.App. at 129, 695 N.W.2d 342. But because defendant's sentences for his lower-crime-class felonies did not exceed those imposed for his highest-crime-class felonies, we need not decide that question. See id. II. INEFFECTIVE ASSISTANCE OF COUNSEL

In his Standard 4 brief, defendant claims that he received ineffective assistance of trial and appellate counsel. We initially note that defendant's challenge to his trial counsel was not preserved because he did not move for a new trial or for a Ginther hearing. See People v. Wilson, 242 Mich.App. 350, 352, 619 N.W.2d 413 (2000). He did preserve his challenge to the effectiveness of his appellate counsel by raising it in his Standard 4 brief.

Whether a person has been denied effective assistance of counsel is a mixed question of fact and constitutional law. The trial court must first find the facts and then decide whether those facts constitute a violation of the defendant's constitutional right to effective assistance of counsel. The trial court's factual findings are reviewed for clear error, while its constitutional determinations are reviewed de novo. Where claims of ineffective assistance of counsel have not been preserved, our review is limited to errors apparent on the record. [ People v. Matuszak, 263 Mich.App. 42, 48, 687 N.W.2d 342 (2004) (citations and quotation marks omitted).]
A finding is clearly erroneous if “the reviewing court is left with a definite and firm conviction that a mistake has been made.” People v. Johnson, 466 Mich. 491, 497–498, 647 N.W.2d 480 (2002).

The Court uses the same legal standard for ineffective assistance of counsel when scrutinizing the performance of burden in establishing “that counsel's performance was deficient and that he was prejudiced by the deficiency.” People v. Meissner, 294 Mich.App. 438, 458, 812 N.W.2d 37 (2011). The crux of this test is to determine whether any mistakes effectively deprived defendant of the right to a fair trial. Id. at 459, 812 N.W.2d 37.

The United States Supreme Court has set forth a two-prong test to determine whether counsel was ineffective in a given case. First, defendant must prove that his trial counsel failed to meet an objective standard of reasonableness based on “prevailing professional norms.” Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Second, defendant must establish prejudice, which is “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052.

Defendant argues that his appellate counsel was ineffective, but defendant fails to meet the heavy burden of establishing the claim. Defendant does not identify any specific legal issue that his appellate counsel failed to raise on appeal. Defendant's failure to properly argue the merits of the issue results in it being abandoned. People v. King, 297 Mich.App. 465, 474, 824 N.W.2d 258 (2012). Moreover, to the extent that defendant argues that appellate counsel should have raised the issue of trial counsel being ineffective, because defendant raises this issue in his Standard 4 brief, any possible error committed by his appellate counsel was cured.

Our review of defendant's challenge to the effectiveness of his trial counsel is limited to mistakes apparent on the record. Matuszak, 263 Mich.App. at 48, 687 N.W.2d 342. It appears that defendant is arguing that his attorney erred by failing to investigate how the police learned of his whereabouts before his arrest, asserting that the anonymous informant had an improper motive to lead the police to his location. But defendant does not establish how this purported evidence would have affected the outcome of the trial. How the police came to arrest and charge defendant is irrelevant to defendant's guilt or innocence. Because defendant failed to establish the relevance of this matter, he has not established how his attorney's conduct was objectively unreasonable. Moreover, defendant cannot show prejudice from this purported error because the most compelling evidence was the eyewitness testimony, which would not have been affected or impeached by evidence relating to how the police ultimately located defendant.

III. GREAT WEIGHT OF THE EVIDENCE

Defendant finally claims in his Standard 4 brief that the jury's verdict was against the great weight of the evidence. Because defendant did not move for a new trial before filing the appeal, this argument is unpreserved for appellate review. People v. Musser, 259 Mich.App. 215, 218, 673 N.W.2d 800 (2003). Unpreserved challenges to the great weight of the evidence are reviewed for plain error affecting the defendant's substantial rights. Id.

At trial and during a police lineup, the two complaining eyewitnesses, Sharon Fritz and Amber Sebastiani, clearly identified defendant as the individual who entered the bar and robbed them that night. stop him from shooting them, and that defendant shoved Fritz down onto stairs during the fray. They claimed that defendant stole Fritz's gun by taking it with him when he fled the bar. Both Fritz and Sebastiani testified consistently with each other, and defendant did not offer any evidence that impeached their credibility or established inconsistencies. At the end of the trial, the parties stipulated that defendant was not allowed to be in possession of a firearm because of his status as a convicted felon.

“The test to determine whether a verdict is against the great weight of the evidence is whether the evidence preponderates so heavily against the verdict that it would be a miscarriage of justice to allow the verdict to stand.” Id. at 218–219, 673 N.W.2d 800. In light of the evidence just discussed, the evidence did not heavily preponderate against the verdict, and defendant has failed to demonstrate any plain error. The evidence at trial universally weighed in favor of defendant's guilt for all of the offenses. Accordingly, defendant's claim fails.

Affirmed.

M.J. KELLY, J., concurred with DONOFRIO, P.J.

GLEICHER, J. (concurring in part and dissenting in part).

I concur with the majority's resolution of defendant's great weight of the evidence and ineffective assistance of counsel challenges, but respectfully dissent from the majority's conclusion that defendant need not be separately sentenced for all convictions. In my view, MCL 777.21(2) compels the trial court to score the sentencing guidelines applicable to each conviction: “If the defendant was convicted of multiple offenses, subject to [MCL 771.14 ], score each offense as provided in this part.” (Emphasis added.)The majority rests its holding on MCL 771.14(2)(e)(ii ) and (iii ), which fall within the “probation” chapter of the Code of Criminal Procedure. These subparagraphs set forth the sentencing duties assigned to the probation department, not the sentencing court.

Regardless of the probation department's responsibility to prepare presentence investigation reports and to score sentencing guidelines, the sentencing court bears an independent obligation to pass sentence in accordance with the statutory sentencing guidelines. See MCR 6.425(D) and (E). “A court may depart from the appropriate sentence range established under the sentencing guidelines set forth in chapter XVII if the court has a substantial and compelling reason for that departure and states on the record the reasons for departure.” MCL 769.34(3). As Justice Markman's dissenting statements in People v. Warren, 485 Mich. 970, 774 N.W.2d 697 (2009), and People v. Stone, 495 Mich. 984, 844 N.W.2d 121 (2014), highlight, withholding separate scoring for each conviction means that by default, defendants may receive inadvertent departure sentences. I would remand for guidelines calculation and separate sentencing for each conviction.