Opinion
365205
06-06-2024
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. RASHED AM BROWN, Defendant-Appellant.
UNPUBLISHED
Oakland Circuit Court LC No. 2016-259631-FC
Before: GARRETT, P.J., and SERVITTO and REDFORD, JJ.
PER CURIAM.
Defendant appeals, by delayed leave granted, the trial court order denying his motion for relief from judgment. Defendant seeks relief from his June 2017 convictions of: second-degree murder, MCL 750.317; first-degree fleeing and eluding police resulting in the death of another individual, MCL 257.602a(5), and; second-degree fleeing and eluding police resulting in serious impairment of a body function, MCL 750.479a(4). Alternatively, defendant seeks relief from his sentence, as a fourth habitual offender, MCL 769.12, to concurrent terms of 100 to 150 years' imprisonment for second-degree murder, and 19 to 60 years' imprisonment for each of the fleeing and eluding convictions. We affirm.
People v Brown, unpublished order of the Court of Appeals, entered August 24, 2023 (Docket No. 365205).
I. BACKGROUND FACTS AND PROCEDURAL HISTORY
This Court summarized the facts of this case in defendant's previous appeal as of right:
Defendant's convictions arise from a car collision that occurred while defendant was fleeing from police. On July 7, 2016, defendant was driving a stolen Suburban SUV with four passengers in his vehicle . . . . Defendant drove to a Walgreen's pharmacy where [one of the passengers] filled a prescription for cough syrup. Defendant then drove to a nearby CVS pharmacy, where [another
passenger,] Lee went inside and attempted to fill a fraudulent prescription. . . . When Lee returned to the pharmacy to pick up the prescription, police arrived to arrest Lee for prescription fraud. Defendant, waiting for Lee in the stolen Suburban in the pharmacy parking lot, saw the police officers arrive and drove away at high speed, attracting the attention of the officers.
Deputy Frank McSpadin of the Oakland County Sheriffs Department testified that he saw defendant drive away at an extremely high speed, and therefore followed defendant in a marked police car, activating the car's lights and sirens. Defendant's passengers in the Suburban testified that defendant was driving very fast and ran two stoplights, while they screamed and pleaded with him to stop. Defendant continued to flee from the officer at speeds of 85 to 95 miles per hour. Most of the roads they traveled during the chase had speed limits of 40 or 45 miles per hour. During the chase, defendant repeatedly crossed the center line and passed other vehicles despite a solid, yellow center line. A second police car attempted to block the road in front of the Suburban, but defendant swerved around the police car. As the traffic increased, defendant drove onto the shoulder of the road to pass another vehicle on the right. Defendant then ran a third red light, and in doing so collided with a van driven by Reo Dockter. The dash cam video of the police car recorded the entire pursuit, and the recording was later played for the jury.
Dockter, age 75, was transported to the hospital, but died shortly thereafter as a result of multiple injuries caused by the collision. The collision also resulted in serious bodily injury to one of the passengers in defendant's vehicle . . ., who suffered a broken hip requiring surgery, and a broken wrist. [People v Brown, unpublished per curiam opinion of the Court of Appeals, issued July 23, 2019 (Docket No. 340069), pp 1-2.]
After a jury trial, defendant was found guilty of all charges, and the trial court sentenced defendant, as a fourth habitual offender, MCL 769.12, to concurrent terms of 100 to 150 years' imprisonment for his second-degree murder conviction, and 19 to 60 years' imprisonment for each of his two fleeing and eluding convictions.
Defendant appealed his convictions and sentences to this Court, and this Court affirmed. Brown, unpub op at 1. Thereafter, defendant moved in the trial court for relief from judgment. First, defendant argued he was denied a fair sentencing hearing because his trial counsel pleaded guilty to federal charges on the same date as his sentencing, resulting in his suspension from the practice of law. Defendant also argued that trial counsel's failure to inform defendant or the trial court of his federal indictment created a conflict of interest. Finally, defendant argued his 100-year minimum sentence "excessively exceeded" the sentencing guidelines range, which the trial court failed to adequately justify. In seeking relief from judgment, defendant asserted his appellate counsel was ineffective in failing to raise these issues on direct appeal, which constituted good cause to raise these arguments in a motion for relief from judgment, and he suffered actual prejudice by a miscarriage of justice. The trial court denied the motion and this court granted defendant's delayed application for leave to appeal. People v Brown, unpublished order of the Court of Appeals, entered August 24, 2023 (Docket No. 365205).
We review "a trial court's decision on a motion for relief from judgment for an abuse of discretion and its findings of facts supporting its decision for clear error." People v Swain, 288 Mich.App. 609, 628; 794 N.W.2d 92 (2010). "A trial court abuses its discretion when its decision falls outside the range of reasonable and principled outcomes or makes an error of law." Id. at 628-629. A trial court's finding is clearly erroneous when, although there is evidence to support it, this Court on the whole record, is left with a definite and firm conviction a mistake was made. People v Dendel, 481 Mich. 114, 130; 748 N.W.2d 859 (2008), amended 481 Mich. 1201 (2008).
II. INEFFECTIVE ASSISTANCE
Before delving into defendant's argument, we first note that on direct appeal, defendant previously raised the issue of ineffective assistance of defense counsel, albeit not for the specific reasons now claimed here. Brown, unpub op at 5-8. Under MCR 6.508(D), a defendant bears the burden of establishing entitlement to relief from judgment, and relief is precluded if the motion "alleges grounds for relief, other than jurisdictional defects, which could have been raised on appeal from the conviction and sentence or in a prior motion under this subchapter," unless the defendant demonstrates both (1) good cause for failing to raise the issue previously and (2) actual prejudice. MCR 6.508(D)(3)(a) and (b). Because defendant could have raised all of his ineffective assistance of defense counsel claims in his appeal as of right, he must first demonstrate good cause for failing to do so in order to establishment entitlement to relief from judgment.
Ineffective assistance of appellate counsel can constitute good cause for failing to raise an issue previously. People v Gardner, 482 Mich. 41, 50 n 11; 753 N.W.2d 78 (2008). Defendant asserts that his appellate counsel was ineffective for failing to raise the specific claims of ineffective assistance of defense counsel now brought before this Court.
In addressing MCR 6.508(D)(3)(a), "the proper test for assessing whether a defendant has established "cause" excusing a procedural default in postconviction proceedings" is not whether appellate counsel failed to raise an arguable claim. People v Reed, 449 Mich. 375, 379; 535 N.W.2d 496 (1995) (Boyle, J.). "[Requiring appellate counsel to raise every arguably meritorious issue would undermine the strategic and discretionary decisions that are the essence of skillful lawyering." Id. at 387. Instead, a defendant seeking relief from judgment must "overcome the presumption that counsel functioned as a reasonable appellate attorney in selecting the issues presented" in his direct appeal. See id. at 391. Because whether defendant is entitled to relief from judgment is largely dependent on whether appellate counsel could be deemed ineffective for failing to raise the present arguments on direct appeal, we now turn to the specific arguments raised to make that assessment.
Defendant bases his ineffective assistance of defense counsel claim on two assertions. First, defendant claims that defense counsel had been indicted for federal wire fraud during his trial court proceedings and was suspended from the practice of law almost immediately after defendant's sentencing hearing. Second, defendant avers defense counsel operated under a conflict of interest due to his federal indictment. Neither of these assertions have merit.
Generally, the determination whether a defendant was deprived of the effective assistance of counsel presents a mixed question of fact and constitutional law. See People v Trakhtenberg, 493 Mich. 38, 47; 826 N.W.2d 136 (2012). Appellate courts review the trial court's factual findings for clear error, and review questions of constitutional law de novo. Id.
The constitutional right to counsel is the right to the effective assistance of counsel. U.S. Const, Ams VI and XIV; Strickland v Washington, c; 104 S.Ct. 2052; 80 L.Ed.2d 674 (1984); see also People v Vaughn, 491 Mich. 642, 669; 821 N.W.2d 288 (2012). The right to counsel applies to all critical stages of the proceedings if counsel's absence might deprive defendant of a fair trial. See People v Buie, 298 Mich.App. 50, 61-62; 825 N.W.2d 361 (2012); see also People v Pubrat, 451 Mich. 589, 594; 548 N.W.2d 595 (1996) (identifying the plea and sentencing stages as critical stages).
The right to counsel is one of reasonably effective assistance; to that end, a defendant who claims ineffective assistance "must show that counsel's representation fell below an objective standard of reasonableness" "under prevailing professional norms." Strickland, 466 U.S. at 688. Thus, a defendant must first "identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment." Id. at 690. "The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance." Id.
A defendant is not, however, automatically entitled to a new trial even if his or her counsel did not provide competent assistance: "An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment." Id. at 691. It is also "not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding" because nearly "every act or omission of counsel would meet that test." Id. at 693. Rather, defendant "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id
The cumulative effect of several minor errors involving defense counsel's performance can warrant reversal even when the individual errors would not. People v Unger, 278 Mich.App. 210, 258; 749 N.W.2d 272 (2008). Moreover, certain circumstances involving the assistance of counsel are so likely to prejudice a defendant, actual prejudice need not be demonstrated. These include when counsel was totally absent during a critical stage of the proceedings, Vaughn, 491 Mich. at 671, or when counsel was burdened by an actual conflict of interest, Strickland, 466 U.S. at 692.
In this matter, defendant takes no issue with the manner in which defense counsel represented him and identifies no acts or omissions in counsel's representation that he alleges prejudiced him. Rather, the sole focus of defendant's ineffective assistance claim, rests on the fact that in February 2017, amid defendant's trial court proceedings, defense counsel was indicted in the United States District Court for Eastern Michigan on conspiracy to commit wire fraud charges, 18 USC 371. Defense counsel pleaded guilty to this charge at a hearing five hours after defendant's sentencing hearing, and defense counsel's plea was entered two weeks later. But merely putting forth the facts of defense counsel's indictment and plea does not state a claim for ineffective assistance of counsel. Caselaw has long been clear that to properly assert a claim of ineffective assistance of counsel, a defendant must first "identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment." Strickland, 466 US at 690. Defendant's failure to identify a single act or omission by defense counsel in his representation of defendant that fell below professional norms makes this Court's denial of his claim of ineffective assistance of counsel short work.
While defendant asserts defense counsel was ineffective because he was suspended from the practice of law during representation of defendant, that is not borne out by the record. MCR 9.120(B)(1), dealing with criminal convictions of licensed attorneys, states:
On conviction of a felony, an attorney is automatically suspended until the effective date of an order filed by a hearing panel under MCR 9.115(J). A conviction occurs upon the return of a verdict of guilty or upon the acceptance of a plea of guilty or nolo contendere. The board may, on the attorney's motion, set aside the automatic suspension when it appears consistent with the maintenance of the integrity and honor of the profession, the protection of the public, and the interests of justice. The board must set aside the automatic suspension if the felony conviction is vacated, reversed, or otherwise set aside for any reason by the trial court or an appellate court.
Thus, it is only upon conviction that an attorney's license is suspended. There has been no evidence presented that defense counsel's license to practice law was suspended at any time during his representation of defendant. Defendant was sentenced prior to his defense counsel's plea hearing in federal court (although they occurred on the same date), and defense counsel's plea was not actually entered until two weeks later.
Moreover, in Pubrat, 451 Mich. at 596 our Supreme Court "decline[d] to hold that representation by a suspended attorney alone create[d] a reasonable probability of ineffective assistance." The Court reasoned:
A suspended attorney is an attorney who has been suspended from the practice of law, but is still an attorney. A person who becomes an attorney remains an attorney until formally disbarred or otherwise permanently separated from the bar. A suspension does not alter the formal status as an attorney.
The suspension of an attorney reflects a decision that the attorney is not permitted to practice law during the period of the suspension, rather than a statement that the attorney is not competent to practice law. [Pubrat, 451 Mich. at 594-595, 597.]
This is because the focus in assessing a claim of ineffective assistance should be on the "actual assistance received." Id. at 596. As such, an attorney's suspension cannot independently establish a claim for ineffective assistance, and a defendant must independently establish the representation fell below the objective standard of reasonableness. Id. at 600.
The principle from Pubrat is directly applicable to this case. Even if defense counsel was suspended during his representation of defendant, defendant still carries the burden of establishing error that constituted defective representation, and that the error effected the outcome of the proceeding. Strickland, 466 U.S. at 688, 694. Defendant's failure to establish either of the above is fatal to his claim of ineffective assistance of counsel.
Turning to the conflict of interest argument, defense attorneys owe their clients a duty of loyalty, including the duty to avoid conflicts of interest. Strickland, 466 U.S. at 688, citing Cuyler v Sullivan, 446 U.S. 335, 346; 100 S.Ct. 1708; 64 L.Ed.2d 333 (1980). The Michigan Rules of Professional Conduct also preclude an attorney from representing a client if the representation may be materially limited by the lawyer's own interests, unless the lawyer reasonably believes the representation will not be adversely affected. MRPC 1.7(b)(1). However, "there is no automatic correlation between an attorney's theoretical self-interest and an ability to loyally serve a defendant." People v Smith, 456 Mich. 543, 557; 581 N.W.2d 654 (1998). When claiming ineffective assistance premised on defense counsel's conflict of interest, a defendant must establish that an actual conflict of interest adversely affected his lawyer's representation. Cuyler, 446 U.S. at 350; see also Smith, 456 Mich. at 557. A "mere possibility of a conflict of interest" "is insufficient to impugn a criminal conviction." Cuyler, 446 U.S. at 345, 348, 350. When counsel is burdened by an actual conflict of interest, prejudice to the defendant is presumed. Strickland, 466 U.S. at 692; Cuyler, 446 U.S. at 345-350.
To avail himself of the presumption of prejudice he seeks, defendant must support his argument of defense counsel's conflict of interest by establishing the alleged conflict "adversely affected his lawyer's representation." Cuyler, 446 U.S. at 350. Defendant fails to go beyond the contemporaneousness of defendant's trial and sentencing and defense counsel's indictment and plea hearing, arguing counsel's self-interest could have lessened his defense.
In Smith, 456 Mich. at 556, the defendant argued he was entitled to reversal of his conviction because his attorney was charged with a felony, which remained pending during his representation of defendant, in the same county where defendant's case was heard, which caused a conflict of interest. Our Supreme Court denied the defendant's request for a new trial, finding, "defendant has cited no evidence to suggest that defense counsel actively lessened his defense as a result of his pending felony charge, nor do we find evidence of an actual conflict of interest on the record." Id. at 558. Comparing this case to Smith, there is even less reason to presume a conflict existed here, when the court systems involved were separate.
In sum, defendant has not established the defense counsel was ineffective simply because he had been federally indicted during his representation of defendant. Defendant has similarly not established that defense counsel's indictment created a conflict of interest. Defendant is thus not entitled to postconviction relief on the basis of ineffective assistance of defense counsel. That being true, appellate counsel was not ineffective for failing to raise the instant arguments concerning ineffective assistance of counsel on direct appeal. Reed, 449 Mich. at 402 ("[Defendant's counsel on direct appeal did not render ineffective assistance by failing to raise meritless claims.")]. Defendant is therefore not entitled to postconviction relief for the additional reason that he cannot establish good cause for not raising, on direct appeal, the arguments raised here concerning defense counsel's alleged ineffective assistance. MCR 6.508(D)(3)(a).
A defendant must establish both "good cause" and "actual prejudice" to obtain postconviction relief. See MCR 6.508(D)(3)(a) and (b). Defendant having not shown the "good cause" requirement set in MCR 6.508(D)(3)(a), we need not address whether "actual prejudice" was shown as required in MCR 6.508(D)(3)(b).
IV. SENTENCING
Defendant contends that not only did the trial court ignore the rehabilitative goal of sentencing when imposing his 100 to 150-year sentence, his sentence constitutes cruel and unusual punishment in violation of Article 1, § 16 of the Michigan Constitution. Defendant also asserts that his sentence is not proportionate and further argues, as he did with his ineffective assistance of counsel claims, that appellate counsel was ineffective for failing to raise all of his sentencing issues on direct appeal. We disagree in all instances.
We review de novo constitutional challenges to sentencing. See People v Skinner, 502 Mich. 89, 99; 917 N.W.2d 292 (2018). However, where, as here, a defendant did not challenge the constitutionality of his sentence in the trial court, the issue is unpreserved. We review unpreserved constitutional claims for plain error affecting a defendant's substantial rights. People v Jarrell, 344 Mich.App. 464, 481; 1 NW3d 359 (2022). Additionally, we review whether a trial court properly imposed a sentence that was proportionate to the offender and offense for an abuse of discretion. See People v Steanhouse, 500 Mich. 453, 459-460; 902 N.W.2d 327 (2017). "At its core, an abuse of discretion standard acknowledges that there will be circumstances in which there will be no single correct outcome; rather, there will be more than one reasonable and principled outcome." People v Babcock, 469 Mich. 247, 269; 666 N.W.2d 231 (2003).
Our Supreme Court has held that unusually excessive imprisonment is forbidden by Article 1, § 16 of the Michigan Constitution. People v Parks, 510 Mich. 225, 241; 987 N.W.2d 161 (2022). Our Supreme Court has further held "that our Constitution requires that sentencing decisions be proportional." Id. In our Supreme Court's seminal opinion on the principle of proportionality, People v Bullock, 440 Mich. 15, 485 N.W.2d 866 (1992),
we noted that Michigan courts, in evaluating the proportionality of sentences under the "cruel or unusual punishment" clause, are required to consider: (1) the severity of the sentence relative to the gravity of the offense; (2) sentences imposed in the same jurisdiction for other offenses; (3) sentences imposed in other jurisdictions for the same offense; and (4) the goal of rehabilitation, which is a criterion specifically "rooted in Michigan's legal traditions ...." Id. at 33-34. [Parks, 510 Mich. at 242]
Proportionality is relevant, however, even when a sentence is challenged on other grounds. Our Supreme Court has made clear that all sentences imposed by the trial court must be proportionate to the seriousness of the circumstances surrounding the offense and the offender. Steanhouse, 500 Mich. at 474, citing People v Milbourn, 435 Mich. 630, 636; 461 N.W.2d 1 (1990).
Our Supreme Court has recognized four important interests of sentencing: rehabilitation, deterrence, punishment, and protection of society. People v Broden, 428 Mich. 343, 350; 408 N.W.2d 789 (1987). Consideration of these policy factors may, however, sometimes oppose each other:
The rehabilitative function of sentences, with an eye towards returning the offender to society at a future time, is not present in nonparolable life sentences. However, this does not mean that a mandatory life sentence, even if nonparolable, must fail. Other policies, such as deterrence of others, deterrence of the offender, or punishment of the offender, may suffice to deflect a cruel and unusual punishment challenge. [People v Fernandez, 427 Mich. 321, 339; 398 N.W.2d 311 (1986).]
Our Supreme Court has found "a trial court has been given broad discretion, within limits fixed by law, to tailor a sentence to the circumstances of each case and each offender in an effort to balance society's need for protection against its interest in rehabilitation of the offender." People v Sabin (On Second Remand), 242 Mich.App. 656, 661; 620 N.W.2d 19 (2000). The imposition of the maximum possible minimum sentence without regard to mitigating circumstances can amount to an abdication of discretion. Milbourn, 435 Mich. at 653.
We first note that defendant's sentence was within the guidelines range for his offense. This Court has long held that a sentence that is within the guidelines range is presumptively proportionate, and a sentence that is proportionate is not cruel or unusual punishment. People v Powell, 278 Mich.App. 318, 323; 750 N.W.2d 607 (2008). Thus, defendant is not entitled to relief on his constitutional claim on that basis alone.
Addressing defendant's arguments in any event, defendant next argues that consideration of (1) the mitigating effect of youth on culpability, (2) the greater capacity of the youthful for rehabilitation, and (3) sentencing practices for adolescents in and out of Michigan, indicates his sentences constitute cruel or unusual punishment prohibited by the Michigan Constitution. Const 1963, art 1, § 16. However, appellate counsel's arguments in this regard, indeed the majority of his sentencing arguments, are predicated on the significant factual error that defendant was 20 years old at the time of the offenses. Because the record is clear that defendant was 30 years old at the time of the offenses, we do not address his arguments concerning youth and adolescent sentencing.
Next, looking at the factors stated in Bullock, 440 Mich. at 33-34, we do not find that defendant's sentence amounts to cruel or unusual punishment. First, the severity of defendant's sentence is not unduly harsh considering the gravity of the offense. Defendant drove a stolen car, with passengers in it, at speeds exceeding 95 per hour while fleeing the police. Defendant sped through red lights in highly trafficked areas, placing a multitude of drivers in danger, before finally crashing into another vehicle, killing the driver of that vehicle, and seriously injuring a passenger in the stolen car. Second-degree murder is one of the most serious offenses that can be committed and the sentence in this case is not unduly harsh considering the severity of that offense.
Second, Michigan permits life sentences for offenses that could be viewed as less serious than second-degree murder. For example, first-degree criminal sexual conduct carries a possible life sentence in some cases (MCL 750.520b(2)(a) and (b)), and a mandatory life sentence without the possibility of parole in some instances (MCL 750.520b(2)(c)). Certain controlled substance violations also carry the possibility of a life sentence. See MCL 333.7401(2)(a)(i).
Third, Michigan is not alone in imposing a life sentence, effectively without the possibility of parole, for a second-degree murder conviction. Federal law allows for the imposition of a life sentence for a second-degree murder conviction, 18 USC 1111(b), and other states allow for life sentences without the possibility of parole for convictions of murder in circumstances similar to what Michigan classifies as second-degree. See, e.g., Colo Rev Stat Ann 18-3-102(d), 18-1.3-401; Ga Code Ann 16-5-1(e)(1).
Lastly, while the goal of rehabilitation is rooted in Michigan's legal traditions Bullock, 440 Mich. 15 at 34, defendant has had many opportunities to show his rehabilitative potential. Defendant, at 30 years old, had six prior felonies and four prior misdemeanors on his record when he committed the instant offenses. Indeed, according to his presentence investigation report, defendant had been discharged from parole only the year prior to committing the instant offenses. As this Court aptly stated in People v Poole, 218 Mich.App. 702, 716; 555 N.W.2d 485 (1996), defendant "could have realized he had made a gross mistake and have reformed himself after committing his first offense." Defendant's opportunity to rehabilitate began immediately after he committed his first offense, and renewed itself after he committed each of his subsequent offenses.
Having not shown that application of the Bullock factors supports his argument, defendant nevertheless argues his sentence is cruel or unusual because it greatly exceeds his life expectancy. Defendant's argument is based, however, on the flawed premise that he, or any defendant, is entitled to an opportunity to be paroled. This premise has been squarely rejected by our Supreme Court. In People v Merriweather, 447 Mich. 799; 527 N.W.2d 460 (1994), for example, the defendant challenged his 60 to 120-year sentence for first-degree criminal sexual conduct claiming that is was not proportional and effectively denied him any chance of ever being paroled. In upholding the sentence, the Court stated, "[w]e find no basis [] to conclude that the Legislature intended that all defendants, or even simply this defendant, must be eligible for parole." Id. at 809.
This Court also rejected a claim that a 100-year minimum sentence for second-degree murder was cruel or unusual punishment. In People v Bowling, 299 Mich.App. 552; 830 N.W.2d 800 (2013), this Court found:
Defendant contends that his sentences are cruel or unusual because of his age, 49 years old, which effectively means he will spend the remainder of his life in jail. Yet, defendant incorrectly assumes that he is entitled to parole. That assumption is not supported by Michigan law. . . . [Id. at 558]
Thus, defendant's 100- to 150-year sentence is not invalid just because it exceeds his life expectancy. The fact that the sentencing guidelines allow for a minimum term of imprisonment of 100 years is indicative of legislative intent for a term of years sentence that eliminates the possibility of parole, and all defendants need not be eligible for parole. Merriweather, 447 Mich. at 809.
As previously indicated, while ineffective assistance of appellate counsel can constitute good cause for failing to raise an issue previously, Gardner, 482 Mich. at 50 n 11, defendant's argument that his sentence was cruel or unusual has no merit. Defendant's appellate counsel did not render ineffective assistance on direct appeal by failing to raise this meritless claim. Reed, 449 Mich. at 402.
Moving on from his constitutional argument, defendant next contends that his sentence is not proportionate. Notably, at the time defendant's case was pending on direct appeal, MCL 769.34(10) precluded any review of the proportionality or reasonableness of a sentence that, like defendant's, was within his or her calculated guidelines range. MCL 769.34(10) stated, in relevant part:
If a minimum sentence is within the appropriate guidelines sentence range, the court of appeals shall affirm that sentence and shall not remand for resentencing absent an error in scoring the sentencing guidelines or inaccurate information relied upon in determining the defendant's sentence.
However, in People v Posey, 512 Mich. 317, 326; 1 NW3d 101 (2023), our Supreme Court held MCL 769.34(10) was unconstitutional insofar as it precluded proportionality review of within-guidelines sentences. Now, under Posey, within-guidelines sentences are reviewable to determine whether the sentence is proportionate to the seriousness of the circumstances surrounding the offense and to the offender (i.e., reasonable). Posey, 512 Mich. at 356, quoting Milbourn, 435 Mich. at 636. However, proportionality is presumed in these situations, and a defendant bears the burden of demonstrating otherwise. Posey, 512 Mich. at 357.
Controlling law at the time of defendant's direct appeal having precluded a challenge to the proportionality of defendant's sentence, defendant's appellate counsel cannot be deemed ineffective for failing to have raised such a challenge. Moreover, defendant's direct appeal was concluded, and his conviction became final, on February 4, 2020, before Posey was decided in 2023. While judicial decisions are generally to be given complete retroactive effect, when a decision announces a new rule, retroactive application does not extend to cases which have already become final, because, "at some point, the rights of the parties should be considered frozen and a conviction ... final." People v Barnes, 502 Mich. 265, 268; 917 N.W.2d 577 (2018) (citation omitted).
The date our Supreme Court denied leave to appeal. People v Brown, 505 Mich. 976 (2020).
While defendant has not provided this Court with any authority indicating why we should not consider Posey to have adopted a "new rule," thus rendering a proportionality review to his within-guidelines sentences unavailable to him, both parties have proceeded as though Posey does apply retroactively to this matter. This Court will thus do the same, assuming, without deciding, that defendant is entitled to a review of his sentence under a Posey presumption of proportionality.
Defendant concedes that the trial court took into consideration the seriousness of the circumstances surrounding the offense when imposing his sentence. Milbourn, 435 Mich. at 636. He further concedes that his was a very serious offense. Defendant argues, however, that the trial court did not consider defendant's background.
Notably, while sentencing courts must justify the sentence imposed in order to facilitate appellate review, there is no requirement that a sentencing court "give a detailed on-the-record explanation of one or more specific factors." People v Boykin, 510 Mich. 171, 192; 987 N.W.2d 58 (2022). At defendant's sentencing hearing, the trial court stated that defendant had six prior felonies and four prior misdemeanors on his record. The trial court also recognized that defendant had previously been in jail and on probation, and had twice been in prison. On the positive side, the trial court noted that defendant had enrolled in community college in 2013. Defense counsel also pointed out that defendant had family support.
The trial court also indicated that it had reviewed the presentence investigation report, although defendant had chosen not to participate with probation in preparing the report. Even though not specifically mentioned by the trial court, other facts appearing in the report included that defendant was unemployed at the time of the instant offenses, and had a multitude of driving offenses on his record. The specific background facts recognized by the trial court, in addition to the facts stated in the presentence investigation report, are sufficient for the trial court to have found defendant's sentence to be proportional to defendant, and defendant has failed to overcome the presumption that the sentence imposed was proportional. Posey, 512 Mich. at 357. As a result, defendant cannot show that he was prejudiced by appellate counsel's failure to raise this argument on direct appeal. MCR 6.508(D)(3).
A defendant must establish both "good cause" and "actual prejudice" to obtain postconviction relief. See MCR 6.508(D)(3)(a) and (b). Defendant having not shown the "actual prejudice" requirement in MCR 6.508(D)(3)(b), we need not address whether "good cause" was shown as required in MCR 6.508(D)(3)(a).
In sum, defendant's sentence does not constitute cruel or unusual punishment. His sentence is also proportionate such that the trial court did not abuse its discretion in imposing the sentence it did, and appellate counsel was not ineffective in failing to challenge the constitutional, proportionate sentence, particularly when binding authority held that defendant's within-guidelines sentence was not appealable at the time defendant's appeal as of right was filed. Finally, given the above, there was no plain error affecting defendant's substantial rights. With every argument for relief from judgment unsustainable, the trial court was proper in denying relief from judgment.
Defendant additionally briefly argues the trial court sentenced him according to an impermissible "local policy." Our Supreme Court has stated a judge may not impose a sentence solely to implement a "local policy" of sentencing. People v Chapa, 407 Mich. 309, 311; 284 N.W.2d 340 (1979). However, defendant has provided no support for his argument. It is not sufficient for a party to simply assert an error and then leave it up to this Court to discover and rationalize the basis for his claims. Wilson v Taylor, 457 Mich. 232, 243; 577 N.W.2d 100 (1998).
Affirmed.
Kristina Robinson Garrett, P.J. (concurring in part and dissenting in part).
I concur in the majority's conclusion that defendant, Rashed Am Brown, is not entitled to relief from judgment based on the allegedly ineffective assistance of his appointed trial counsel or his counsel on direct appeal. I write separately because I believe Brown's 100-year sentence could be disproportional to the offense and the offender, an issue that must be decided by the trial court in the first instance.
I. STANDARD FOR RELIEF FROM JUDGMENT
This appeal is before us following the denial of a motion for relief from judgment under MCR 6.508. MCR 6.508(D)(3) provides that a court may not grant relief if the defendant's motion:
alleges grounds for relief, other than jurisdictional defects, which could have been raised on appeal from the conviction and sentence or in a prior motion under this subchapter, unless the defendant demonstrates
(a) good cause for failure to raise such grounds on appeal or in the prior motion, and
(b) actual prejudice from the alleged irregularities that support the claim for relief. . . .
At the time of Brown's trial and sentencing, a within-guidelines sentence was presumptively proportional and MCL 769.34(10) precluded appellate review absent an error in scoring or the court's reliance on inaccurate information at sentencing. See People v Schrauben, 314 Mich.App. 181, 196; 886 N.W.2d 173 (2016). The Michigan Supreme Court held this provision of MCL 769.34(10) unconstitutional in People v Posey, 512 Mich. 317; 1 NW3d 101 (2023), opening the door for proportionality challenges to within-guidelines sentences. Brown's challenge to the proportionality of his sentence could have been raised earlier, but the courts would have affirmed Brown's sentence under the existing law. Accordingly, trial counsel and Brown's original appellate counsel had good cause for failing to raise this issue at sentencing and on direct appeal. Prejudice can be found "in the case of a challenge to" a criminal sentence, when "the sentence is invalid." MCR 6.508(D)(3)(b)(iv). Accordingly, relief can be granted on a motion for relief from judgment for a sentence that is disproportional.
II. PROPORTIONALITY OF SENTENCE
Brown was 30 years old when he fled from police officers while driving passengers to pharmacies to fill fraudulent prescriptions. As he weaved through traffic at high speeds, Brown ignored three red lights. When he ran the third, he collided with a van, killing the driver. One of Brown's passengers was severely injured in the collision as well. A jury convicted Brown of second-degree murder, first-degree fleeing and eluding resulting in death, and second-degree fleeing and eluding resulting in serious impairment of a body function. People v Brown, unpublished per curiam opinion of the Court of Appeals, issued July 23, 2019 (Docket No. 340069), pp 1-2.
When calculating Brown's offense variable (OV) and prior record variable (PRV) scores, the Department of Corrections considered Brown's prior criminal history, which included delivering marijuana, two counts of marijuana possession, driving with a suspended license, operating a vehicle under the influence, resisting arrest, and possession of a short-barreled shotgun during an act of second-degree home invasion. Because of these prior convictions, Brown was sentenced as a fourth offense habitual offender. Brown's recommended minimum sentencing guidelines for second-degree murder was 365 months to 1,200 months or life. The court imposed a minimum sentence of 100 years for Brown's second-degree murder conviction.
Brown will have to reach the impossible age of 130 before he is eligible for parole consideration. Had the trial court selected the alternate sentence of life imprisonment, Brown would be eligible for parole consideration after only 15 years. MCL 791.234(7)(a). A sentence of life for second-degree murder comes with the possibility of parole, unlike a conviction for first-degree murder. See MCL 791.234(6) (providing an exclusive list of offenses subject to the penalty of life without the possibility of parole). This is a significant difference: Brown could have been sentenced to life and considered for parole after 15 years, but instead was sentenced to a term of years with his first parole eligibility after 100 years. The court did not consider whether it was proportional to the offense and the offender to impose a determinate sentence which was effectively life without the possibility of parole.
Brown focuses his argument on his age at the time of parole eligibility. I do not contend that the age of a defendant, standing alone, automatically renders even the lengthiest sentence disproportional. Brown's voluntary actions on the day in question led to the worst of consequences-the death of an innocent bystander. However, following the directive in Posey that even within-guideline sentences must be analyzed for proportionality, I believe this matter must be remanded to the trial court for reconsideration. In undertaking its analysis, the trial court should take into account not only Brown's age, but also the egregiousness of Brown's offenses and Brown's criminal history to ensure his sentence was proportional.
I would vacate the denial of Brown's motion for relief from judgment and remand for reconsideration of the proportionality of the sentence imposed.
James Robert Redford, J. (concurring).
I fully concur with the lead opinion in this case that defendant cannot demonstrate a successful claim of ineffective assistance of counsel based on the facts of this case and the law that was applicable at the time of his case. Defendant received a within-guidelines sentence, lawfully imposed. He is, therefore, entitled to no relief.
I write separately because I respectfully disagree with my partially concurring and partially dissenting colleague that we should vacate the denial of defendant's motion for relief from judgment and remand for reconsideration of the proportionality of the sentence imposed. I believe we should hold that the decision in People v Posey, 512 Mich. 317, 355-356; 1 N.W.2d 101 (2023), that within-guidelines sentences are subject to proportionality review, does not apply retroactively to any case in which the direct appeal was completed at the time Posey was decided.
ANALYSIS
The sentencing guidelines are advisory. People v Lockridge, 498 Mich. 358; 870 N.W.2d 502 (2015). Before Posey, this Court was required under MCL 769.34(10) to affirm within-guidelines sentences absent an error scoring the guidelines or evidence that the trial court relied on inaccurate information when sentencing a defendant. In 2023, our Supreme Court held that this requirement was unconstitutional because it conflicted with Lockridge's mandate that the sentencing guidelines are advisory. Posey, 512 Mich. at 354. Instead, a within-guidelines sentence is now subject to proportionality review. Id. at 355-356.
Generally, "judicial decisions are to be given complete retroactive effect." People v Barnes, 502 Mich. 265, 268; 917 N.W.2d 577 (2018) (quotation marks and citation omitted). However, when a judicial decision announces a new rule, retroactive application of that rule does not extend to cases which have already become final, because, "at some point, the rights of the parties should be considered frozen and a conviction . . . final." Id. (quotation marks and citation omitted; ellipses in original). Certain exceptions, however, permit retroactive application on collateral review. Id.
Both federal and state standards govern the retroactivity of new legal principles to criminal cases that have become final and are subject to collateral review. Id. at 268-269. The federal standard was laid out in the plurality opinion in Teague v Lane, 489 U.S. 288; 109 S.Ct. 1060; 103 L.Ed.2d 334 (1989). "Under Teague, a new constitutional rule of criminal procedure does not apply, as a general matter, to convictions that were final when the new rule was announced." Montgomery v Louisiana, 577 U.S. 190, 198; 136 S.Ct. 718; 193 L.Ed.2d 599 (2016). However, Teague recognized an exception to the general bar against retroactivity for new substantive rules of law, which are defined as "rules forbidding criminal punishment of certain primary conduct" and "rules prohibiting a certain category of punishment for a class of defendants because of their status or offense." Id. (quotation marks and citation omitted); Teague, 489 U.S. at 307.
Teague addressed an additional exception to the rule against retroactivity for watershed rules of criminal procedure, which were defined as rules "implicating the fundamental fairness and accuracy of the criminal proceeding." Montgomery, 577 U.S. at 198 (quotation marks and citation omitted). The United States Supreme Court later explained that no new rules of criminal procedure can meet this exception. Edwards v Vannoy, 593 U.S. 255, 271; 141 S.Ct. 1547; 209 L.Ed.2d 651 (2021). Accordingly, I do not address this exception.
The first question under the federal framework is whether the rule announced in Posey constitutes a new rule. See Barnes, 502 Mich. at 269. A new rule "breaks new ground or imposes a new obligation on the States or the Federal Government." Id. (quotation marks and citation omitted). When deciding whether a rule is new, a reviewing court must determine "whether a state court considering [the defendant's] claim at the time his conviction became final would have felt compelled by existing precedent to conclude that the rule [he] seeks was required by the Constitution." Id. at 270 (quotation marks and citation omitted; alterations in original).
In Posey, our Supreme Court announced that within-guidelines sentences must be reviewed for reasonableness on appeal. Posey, 512 Mich. at 355-356. In announcing this holding, the Supreme Court overruled the portion of People v Schrauben, 314 Mich.App. 181; 886 N.W.2d 173 (2016), that required the Court of Appeals to affirm a sentence if the defendant's minimum sentence was within the recommended guidelines minimum sentence range. Posey, 512 Mich. at 349. The Court also struck the portion of MCL 769.34(10) which required the affirmation of within-guidelines sentences on appeal absent an error scoring the guidelines or evidence that the trial court relied on inaccurate information when sentencing a defendant as unconstitutional. Id. By overturning existing precedent, Posey announced a new rule. See Barnes, 502 Mich. at 269.
The second question under the federal framework is whether the new rule is a substantive rule of constitutional law. In Barnes, our Supreme Court concluded that the holding in Lockridge, 498 Mich. at 391, that Michigan's previously mandatory sentencing guidelines were only advisory, was not retroactive. Barnes, 502 Mich. at 268. The Court explained that Lockridge did not announce a substantive rule because "it applies neither to primary conduct nor to a particular class of defendants but rather adjusts how the sentencing process functions once any defendant is convicted of a crime." Id. at 271. Like Lockridge, Posey only concerns the sentencing process once a defendant is convicted of a crime. Consequently, Posey did not create a new substantive rule of constitutional law. Therefore, Posey is not retroactively applicable to cases on collateral review under the federal framework.
Application of our state retroactivity test leads to the same conclusion. Under our state retroactivity test, we consider the following three factors:
The state-law test was derived from the preTeague federal retroactivity test in Linkletter v Walker, 381 U.S. 618; 85 S.Ct. 1731; 14 L.Ed.2d 601 (1965), which was subsequently disavowed as the federal standard in Griffith v Kentucky, 479 U.S. 314; 107 S.Ct. 708; 93 L.Ed.2d 649 (1987); however, it remains viable as the state-specific standard. Barnes, 502 Mich. at 273 n 5.
(1) the purpose of the new rule; (2) the general reliance on the old rule; and (3) the effect on the administration of justice. [Barnes, 502 Mich. at 273 (quotation marks and citation omitted).]
Under the first factor, a new rule is amenable to prospective application when the purpose of the new rule "is not relevant to the ascertainment of guilt or innocence and does not implicate the integrity of the fact-finding process." Id. (quotation marks and citation omitted). "[T]he first factor must be afforded more weight than either of the other two factors when the first factor does 'clearly favor' retroactivity or prospectivity." People v Carp, 496 Mich. 440, 502; 852 N.W.2d 801 (2014), cert gtd and opinion vacated sub nom on other grounds by Davis v Michigan, 577 U.S. 1186; 136 S.Ct. 1356; 194 L.Ed.2d 339 (2016). The second and third factor may be considered together "because the amount of past reliance will often have a profound effect upon the administration of justice." Barnes, 502 Mich. at 273 n 6 (quotation marks and citation omitted).
Under the first factor, retroactive application is favored when the new rule is relevant to ascertainment of guilt or innocence or implicates the integrity of the fact-finding process. Id. at 273. Posey's holding that within-guidelines sentences are subject to proportionality review does not concern the ascertainment of guilt or innocence. Instead, Posey concerns the imposition of a sentence after a defendant has been found guilty. Likewise, Posey does not implicate the integrity of the fact-finding process. In Carp, our Supreme Court rejected the idea that the integrity of the fact-finding process was implicated by the fact that a sentencing court may make factual findings during sentencing. Carp, 496 Mich. at 498-499. The Court explained that in previous applications of the state retroactivity test, the Supreme Court only referred to the integrity of the fact-finding process in the context of ascertaining a defendant's guilt or innocence and declined to accept the argument that the fact-finding process extended through sentencing. Id. at 499-500. Accordingly, Posey also does not implicate the integrity of the fact-finding process. The first factor counsels against retroactive application of Posey to cases on collateral review.
As noted earlier, the first factor is afforded heightened weight over the second and third factor when it clearly favors retroactivity or prospectivity. Carp, 496 Mich. at 502. Accordingly, the second and third factor would need to strongly favor retroactivity to overcome the first factor. Id. In this case, the second and third factor also counsel against retroactive application of Posey to cases on collateral review.
Both the second factor, the general reliance on the old rule, and third factor, the effect on the administration of justice, favor prospective application. Apparent from legislative mandate, there was widespread reliance by the bench and the bar on the requirement that appellate courts affirm within-guidelines sentences absent an error in scoring the sentencing guidelines or inaccurate information relied on in determining a defendant's sentence. MCL 769.34(10) was enacted in 1994 with an effective date in December 1998, 1994 PA 445, and held unconstitutional in 2023, Posey, 512 Mich. at 349. The decision in Lockridge cast doubt on the constitutionality of this statute, but this Court interpreted Lockridge to have kept MCL 769.34(10) intact in 2016. Schrauben, 314 Mich.App. at 196 n 1. Between that 25-year period, myriad defendants were sentenced within the guidelines. Consideration of the defendants sentenced to within-guidelines between the decisions in Schrauben and Posey alone is substantial. Because of the general reliance on the old rule, retroactive application of Posey would be disruptive to the administration of justice. Potentially every criminal defendant sentenced within-guidelines during these timeframes would be eligible for relief. Consequently, the second and third factors also favor prospective application on collateral review.
Therefore, I would conclude that retroactive application of Posey to final convictions on collateral review is not warranted under either the federal or Michigan frameworks. A conviction becomes final when the availability of direct review is exhausted and the time to seek a writ of certiorari has expired. People v Gomez, 295 Mich.App. 411, 414-415; 820 N.W.2d 217 (2012). Defendant's crimes took place on July 7, 2016. He was tried by a jury, convicted, and subsequently sentenced on July 25, 2017. The State Supreme Court declined review of this Court's judgment affirming defendant's conviction on February 4, 2020. Defendant had 90 days from entry of the State Supreme Court's order to seek a writ of certiorari in the United States Supreme Court and failed to do so. 28 USC 2101(d); U.S. Sup Ct R 13.1. Posey was decided on July 31, 2023, three years after defendant's conviction became final. As a result, defendant is not now entitled to a remand on proportionality.
As a result, I respectfully disagree with my partially concurring/dissenting colleague, who would vacate the denial of defendant's motion for relief from judgment and remand for reconsideration of the proportionality of the sentence imposed. I conclude there is no lawful basis, for this defendant to challenge the lawful, within-guidelines sentence imposed by the trial court because the time for a direct appeal expired before Posey was decided.