Opinion
355506
01-27-2022
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. ERIC WAYNE DECKER, Defendant-Appellant.
UNPUBLISHED
Allegan Circuit Court LC No. 17-020978-FH
Before: Cameron, P.J., and M. J. Kelly and Shapiro, JJ.PER CURIAM
Defendant, Eric Decker, pleaded guilty to operating while intoxicated, third offense (OWI-III), MCL 257.625(1); MCL 257.625(9)(c), and he was sentenced to 365 days in jail and 36 months of probation. Subsequently, Decker pleaded guilty to three probation violations. The trial court, therefore, revoked his probation and sentenced him as a second-offense habitual offender, MCL 769.10, to 30 to 90 months' incarceration for the OWI-III conviction. Decker appeals now by delayed leave granted. Because Decker was discharged from parole, we dismiss this appeal as moot.
People v Decker, unpublished order of the Court of Appeals, entered January 8, 2021 (Docket No. 3555065).
I. BASIC FACTS
At approximately 12:23 a.m. on June 25, 2017, Decker was driving on U.S. 131 when he was stopped by a police officer because he had been repeatedly veering from the highway onto the rumble strips. He advised the officer that he did not have a license because he was behind on fees. The officer observed that Decker's eyes were bloodshot and that he emitted a strong odor of intoxicants, so he asked how much alcohol Decker had consumed. Decker initially stated that he had one beer at a restaurant. The officer then administered a number of sobriety tests, which Decker failed. At that time, Decker stated that he had consumed "two beers three hours ago."
The officer asked Decker to submit to a preliminary breath test (PBT), but Decker refused even after he was informed that, if he did not submit, he would receive a citation for the refusal. Thereafter, the officer arrested Decker, read him his chemical-test rights, and asked him to take a chemical breath test. Decker again refused, even after he was advised that the consequence of his refusal was that his license would be suspended. Eventually, the officer obtained a search warrant for a blood draw. Decker complied with the warrant and allowed his blood to be drawn. The subsequent analysis of his blood sample revealed that he had a blood alcohol content of "0.081 grams alcohol per 100 milliliters blood."
As noted above, Decker pleaded guilty to OWI-III, admitting that he had consumed "craft beer" prior to driving. Relevant to the issue raised on appeal, at sentencing, he challenged the score assessed for offense variable (OV) 19, arguing that his decision to refuse the PBT and the chemical breath test did not constitute interference with the administration of justice. The trial court disagreed and scored OV 19 at ten points. After Decker's probation was revoked and he was sentenced to 30 to 90 months' incarceration, Decker moved for resentencing or to withdraw his plea. He again asserted that OV 19 had been improperly scored because he had not hampered a "judicial process," and because his refusal to submit to the breath tests was protected by the Fourth Amendment to the United States Constitution. He also likened his refusal to submit to the breath tests as the equivalent of exercising his constitutional right against self-incrimination. Following a hearing, the trial court determined that OV 19 was properly scored on the basis of Decker's refusal to submit to the breath tests. This appeal by delayed leave granted follows.
II. MOOTNESS
Decker argues that this appeal is not moot. He was paroled in January 2021, but remained under the supervision of the Department of Corrections until January 5, 2022. See People v Holder, 483 Mich. 168, 173; 767 N.W.2d 423 (2009) (noting that a parolee remains in the legal custody and under the control of the Department of Corrections while he or she is on parole). However, a final order of discharge entered by the parole board "is a remission of the remaining portion of [a parolee's] sentence." Id. at 174 (quotation marks and citation omitted). Thus, the remainder of a prisoner's sentence is discharged if the "parolee faithfully perform[s] all the conditions of parole for the period fixed in the parole order and obey[s] all the rules and regulations adopted by the Parole Board as a condition precedent to the Parole Board's authority to enter a final order of discharge. Wayne Co Prosecutor v Dep't of Corrections, 242 Mich.App. 148, 156-157; 617 N.W.2d 921 (2000); MCL 791.242. As a result, as of January 5, 2022, the remainder of Decker's sentence was discharged, thereby rendering moot his challenge to the scoring of OV 19.
"An issue is deemed moot when an event occurs that renders it impossible for a reviewing court to grant relief." B P 7 v Bureau of State Lottery, 231 Mich.App. 356, 359; 586 N.W.2d 117 (1998). Generally, this Court will not review a moot issue. Id. However, this Court can review moot issues if they are "publicly significant, likely to recur, and yet likely to evade judicial review." Barrow v Detroit Election Comm, 305 Mich.App. 649, 660; 854 N.W.2d 489 (2014) (quotation marks and citation omitted). Here, although the current issue was certainly significant to Decker, it is not significant to the public in general. Moreover, although the issue may recur, it is not likely to evade judicial review. OV 19 is only one variable used in calculating a defendant's minimum sentence guidelines range. And, given that it is scored for all offenses, it is likely that it will be scored for the same or similar conduct in a future case, thereby permitting judicial review under circumstances where the issue is not moot. As a result, we decline to review this moot issue.
Dismissed as moot.
Shapiro, J. (concurring).
I agree that this case is moot as defendant has been discharged from custody. However, I would nevertheless address the issue raised as it is likely to evade judicial review given that the sentence for this offense is in many cases shorter than the time it takes to process an appeal- particularly where the conviction is plea based and therefore can only be appealed by leave. See In re Tchakarova, 328 Mich.App. 172, 180; 936 N.W.2d 863 (2019).
MCL 257.625a contemplates a driver refusing to submit to a preliminary breath test (PBT), but imposes consequences on the driver for doing so. Refusal to submit to a PBT makes the driver of a personal vehicle "responsible for a civil infraction," MCL 257.625a(2)(d). With regard to a chemical breath test, if the driver refuses, then the test may not be given without a court order. MCL 257.625a(6)(b)(iv). But the refusal of the chemical breath test will result in the driver's license being suspended and six points on the person's driving record. MCL 257.625a(6)(b)(v). MCL 257.625a(9) also acknowledges that a person can refuse to submit to a chemical breath test and provides limitations on how to instruct a jury regarding the refusal. Taken as a whole, it seems clear that a defendant may refuse a PBT and/or a chemical breath test, but that there are defined consequences for doing so. The statute requires that the defendant be advised of those consequences. Nothing is said regarding whether a consequence of the refusal includes that it will be used to score OV 19.
If the driver was operating a commercial motor vehicle, then the refusal is a misdemeanor. MCL 257.625a(5).
The statute gives the driver a choice. Take the tests or suffer the consequences set forth in the statute. Because the statute allows the defendant to elect between those two options, the defendant's decision to refuse is not an interference with the administration of justice. See People v Stricklin, 327 Mich.App. 592; 935 N.W.2d 59 (2019). As a result, in the event that we were to address the merits, I would conclude that the trial court erred by scoring OV 19 at ten points.
Finally, the prosecution argues that defendant's false statements regarding how much he had to drink forms a basis for scoring OV 19 in this case. I would reject that conclusion. I do not believe that OV 19 was intended to increase punishment-in some cases substantially-on the grounds that a defendant refused to admit that he is guilty of the suspected offense or failed to voluntarily provide inculpatory evidence in response to a police question.