Opinion
No. 352007
05-20-2021
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. MARTWAN DEAIRE JOHNSON, Defendant-Appellant.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Genesee Circuit Court
LC No. 14-035440-FC Before: CAMERON, P.J., and BORRELLO and REDFORD, JJ. PER CURIAM.
Following his trial, the jury convicted defendant of armed robbery, MCL 750.529, first-degree home invasion, MCL 750.110a(2), felon in possession of a firearm (felon-in-possession), MCL 750.224f, felonious assault, MCL 750.82, and felony-firearm, MCL 750.227b. The trial court sentenced defendant as a third-offense habitual offender to serve 10 to 20 years' imprisonment for armed robbery and a consecutive term of 7 to 20 years' imprisonment for first-degree home invasion, concurrent terms of 18 months to 5 years' imprisonment for felon-in-possession, 14 months to 4 years' imprisonment for felonious assault, as well as a consecutive two-year term of imprisonment for felony-firearm. Defendant previously appealed and this Court affirmed defendant's convictions but remanded for the trial court to articulate its rationale for imposing the consecutive sentence for defendant's first-degree home invasion conviction. On remand, the trial court imposed the same sentences. Defendant again appeals as of right. We affirm.
People v Johnson, unpublished per curiam opinion of the Court of Appeals, issued September 14, 2017 (Docket No. 329134).
I. FACTS AND PROCEDURAL HISTORY
This Court summarized the facts of this case in its previous opinion as follows:
Defendant's convictions arise from a home invasion and armed robbery on April 6, 2014. The prosecutor's principal witness was Christopher Williams, who lived in a house in Flint with his father, Rodrick Williams. According to Christopher, on the date in question, three armed men—defendant, co-defendant, and someone named "Trell"—entered his home and robbed him at gunpoint. Defendant in particular put a gun to Christopher's head and grabbed him by the neck. Trell stole about $470 from Christopher's pocket and grabbed an electronic tablet off the table. The robbers also stole a jar of marijuana from the basement. Christopher personally knew defendant, co-defendant, and Trell, and he was able to identify them as the intruders. Christopher described defendant and co-defendants as his long-term friends, while Trell was a more recent acquaintance, whose last name Christopher did not know.
Rodrick was also in the house at the time of the robbery. He testified that he entered the kitchen after hearing a loud noise, and that he found a man with a gun holding Christopher in a chokehold. Christopher's girlfriend, Lashera Hearns, was in the basement when the robbers entered the house. She heard "tussling" from upstairs, and she testified that co-defendant came downstairs with a gun and took a jar of marijuana from a table. Christopher's cousin, Shawn Dixon, opened the front door, but did not admit anyone into the house. She was in the basement when she heard a lot of noise from upstairs, like "wrestling." Two or three men then came downstairs to the basement and "rambl[ed] for stuff."
Defendant and co-defendant were tried together before the same jury. Both defendant and co-defendant denied being at Christopher's house or taking part in the robbery. They each presented separate alibi defenses. Defendant testified that, on the day of the home invasion, he was home "all day" with his girlfriend, though there were discrepancies in defendant's alibi insofar as he previously filed an alibi notice with a different address than the one he provided at the time of trial. Defendant also did not call any witnesses to support his alibi. In comparison, co-defendant testified that he spent the day moving to a new apartment. A neighbor confirmed at trial that, in the timeframe when the robbery was committed, she saw co-defendant and another man unloading several car loads of items over the course of several hours and that co-defendant borrowed a screwdriver from her during that time. The jury found co-defendant not guilty of all charges. In contrast, the jury convicted defendant as noted above. [People v Johnson, unpublished per curiam opinion of the Court of Appeals, issued September 14, 2017 (Docket No. 329134).]
Defendant argues in this appeal that the trial court abused its discretion by imposing a consecutive sentence for his home invasion conviction, erred by assessing 25 points for Offense Variable (OV) 13, and violated his due-process rights by failing to obtain an updated presentence investigation report (PSIR) for his resentencing. We disagree.
II. ANALYSIS
A. CONSECUTIVE SENTENCE
Defendant first argues that the trial court abused its discretion by imposing a consecutive sentence violating his right to a proportionate sentence. We disagree.
We review a trial court's decision to impose a discretionary consecutive sentence for an abuse of discretion. People v Norfleet, 317 Mich App 649, 664; 897 NW2d 195 (2016) (Norfleet I). A trial court abuses its discretion when its decision falls outside the range of principled outcomes. Id.
A reasonable sentence adheres to the principle of proportionality articulated in People v Milbourn, 435 Mich 630, 636; 461 NW2d 1 (1990). The principle of proportionality "requires sentences imposed by the trial court to be proportionate to the seriousness of the circumstances surrounding the offense and the offender." Id.
"[C]oncurrent sentencing is the norm, and a consecutive sentence may be imposed only if specifically authorized by statute." People v Baskerville, ___ Mich App ___, ___; ___ NW2d ___ (2020) (Docket No. 345403), slip op at 6 (quoting People v Ryan, 295 Mich App 388, 401; 819 NW2d 55 (2012)). This Court has stated that "the [i]mposition of a consecutive sentence is strong medicine." Norfleet I, 317 Mich App at 665 (alteration in original, quotation marks and citation omitted). Consecutive sentences are authorized for first-degree home invasion under MCL 750.110a(8), which provides, "The court may order a term of imprisonment imposed for home invasion in the first degree to be served consecutively to any term of imprisonment imposed for any other criminal offense arising from the same transaction." Trial courts are required to "articulate their rationale for the imposition of each consecutive sentence so as to allow appellate review." Norfleet I, 317 Mich App at 665. To sufficiently articulate its rationale, a trial court must "give particularized reasons—with reference to the specific offenses and the defendant . . . ." Id. at 666.
Defendant argues that the trial court failed to adequately articulate its reasons for imposing a consecutive sentence. In Norfleet I, 317 Mich App at 666, this Court held that the trial court did not satisfy the requirement that it sufficiently articulate its reasons for imposing a consecutive sentence when it only provided generalized statements and remanded for the trial court to do so. On remand the trial court further articulated its reasons for imposing a consecutive sentence. In People v Norfleet (After Remand), 321 Mich App 68, 73; 908 NW2d 316 (2017) (Norfleet II), this Court concluded that the trial court had sufficiently articulated its rationale for imposing a consecutive sentence. This Court noted that during resentencing, the trial court stated,
"[S]ome of the considerations for consecutive sentencing are the defendant's extensive criminal history which we reviewed, his extremely violent criminal history which we reviewed, his failure to be rehabilitated, his failure to be gainfully employed, . . . his use and manipulation of addicts to sell heroin, his use and manipulation of his 18 year old girlfriend to sell heroin, the length and extensiveness of his heroin dealing, the amount of money he gained from his heroin
dealing and the fact that consecutive sentences deter others from committing similar crimes." [Id. at 72.]This Court found the trial court's rationale explained the grounds for imposing consecutive sentences and sufficed to overcome the heavy presumption in favor of concurrent sentences. Id. at 73.
In this case, the trial court discussed its reasons for imposing a consecutive sentence at length. Like the trial court in Norfleet II, 317 Mich App at 72-73, it identified several specific reasons to impose consecutive sentencing based on defendant and defendant's offenses. It stated:
True enough, these folks were known to each other. There is some indication in the record they were known to each other. We also have both, I believe, a son and a father that were victimized in the case, and indeed there were threats made to the father about the well-being of the son or vice versa, to the son about the well-being of the father.Defendant contends that the trial court's specific reasons were "counter-intuitive, if not illogical." However, defendant has not established that any of the reasons articulated by the trial court were improper and he has not supported his contentions with authority. See People v Kevorkian, 248 Mich App 373, 389; 639 NW2d 291 (2001).
The father was certainly handicap challenged in some way. He had a stroke. He was 60 plus years old and was not in a position to do much in the way of defending himself. The crime occurred on two levels of the home and was anything but momentary. It seemed to carry on for a period of time.
* * *
This home invasion was particularly egregious by what happened albeit in the course of the armed robbery. If it were otherwise, I would be put upon to evaluate precisely how the home invasion itself was committed. And given that the home invasion can be committed either by entering without permission, breaking or entering, or entering without breaking I believe is the third way. In any event there are three ways, none of which require violence, although you could say a breaking and entering might require some sort of violence, but a breaking and entering could mean simply a movement of an open door.
Further, although the trial court also noted that home invasions generally involve additional harm and that a concurrent sentence would mean the home invasion was "subsumed into the armed robbery sentence," a trial court is not prohibited from discussing general reasons for imposing a consecutive sentence. In Norfleet II, 321 Mich App at 72, the trial court listed specific reasons for imposing a consecutive sentence but also noted "that consecutive sentences deter others from committing similar crimes." The trial court identified a number of particularized reasons for imposing defendant's home invasion sentence as a consecutive sentence, which constituted a sufficient articulation of its rationale, regardless of the fact that it also made some generalized statements. See id. at 72-73. The trial court, therefore, did not abuse its discretion by imposing a consecutive sentence for defendant's home invasion conviction.
Defendant also argues that the trial court relied on unfair and unreasonable sentencing analysis because it did not consider mitigating factors like defendant's youth, the fact that he did not have a prior prison commitment, that the violence did not result in physical injury, or defendant's mental health issues. However, the majority of those facts were included in defendant's PSIR which the trial court considered and the record reflects that defense counsel noted at resentencing that no one had been hurt. The trial court was not required to expressly or explicitly consider mitigating factors at defendant's resentencing and because the trial court considered the contents of the PSIR defendant cannot establish that the trial court failed to take into account such things as part of his resentencing. See People v Bailey, 330 Mich App 41, 63-64; 944 NW2d 370 (2019).
Defendant further contends that this Court should consider that defendant's total maximum term would be 40 years with the consecutive sentence for home invasion. We do not consider the proportionality of the cumulative effect of consecutive sentences, but consider the proportionality of the individual sentences. People v Kennebrew, 220 Mich App 601, 609; 560 NW2d 354 (1996). The cumulative effect of the trial court's decision to impose a consecutive sentence for home invasion is irrelevant to proportionality analysis.
Notably, defendant does not challenge the proportionality of the individual sentences for armed robbery or first-degree home invasion. Indeed, defendant concedes that the trial court sentenced him within the sentencing guidelines range for each conviction. --------
B. OV 13
Defendant argues that the trial court erred by assessing 25 points for OV 13 because no continuing pattern of felonious activity existed. We disagree.
We review de novo whether the trial court properly interpreted and applied the legislative sentencing guidelines. People v Sours, 315 Mich App 346, 348; 890 NW2d 401 (2016). On appeal, the trial court's "factual determinations are reviewed for clear error and must be supported by a preponderance of the evidence." Id. (quotation marks and citation omitted). Clear error occurs "when the reviewing court is left with a definite and firm conviction that an error occurred." People v McChester, 310 Mich App 354, 358; 873 NW2d 646 (2015) (quotation marks and citation omitted). A court may consider "all record evidence, including the contents of a PSIR, plea admissions, and testimony presented at a preliminary examination," when calculating the sentencing guidelines. Id.
OV 13 addresses a "continuing pattern of criminal behavior." MCL 777.43(1). Twenty-five points must be assessed under OV 13 when "[t]he offense was part of a pattern of felonious criminal activity involving 3 or more crimes against a person . . . ." MCL 777.43(1)(c). To determine the amount of points to assess for OV 13, "all crimes within a 5-year period, including the sentencing offense, shall be counted regardless of whether the offense resulted in a conviction." MCL 777.43(2)(a). Zero points should be assessed for OV 13 if no pattern of felonious criminal activity existed. MCL 777.43(1)(g).
Defendant argues that no pattern of continuing criminal activity existed because his convictions for armed robbery, home invasion, and felonious assault arose from a single incident. This Court has explained that "a single felonious act cannot constitute a pattern" and that "the statute contemplates that there must be more than one felonious event." People v Carll, 322 Mich App 690, 704; 915 NW2d 387 (2018). Nevertheless, in People v Gibbs, 299 Mich App 473, 488; 830 NW2d 821 (2013), this Court clarified that multiple convictions that arise from a single criminal episode can be considered for OV 13 scoring and that MCL 777.43(1)(c) contains no limitation in that regard. In this case, all three convictions arose out of a single criminal episode, but defendant committed three felonious acts by entering Christopher's house without permission, robbing him at gunpoint, and committing felonious assault by pointing a gun at Rodrick and threatening Christopher's life. Accordingly, a continuing pattern of felonious activity existed in this case because defendant committed three distinct crimes that arose out of three separate felonious acts. See Gibbs, 299 Mich App at 488. Therefore, the trial court did not err by assessing defendant 25 points for OV 13.
C. UPDATED PSIR
Defendant argues further that the trial court violated his due-process rights by failing to obtain an updated PSIR for his resentencing. We disagree.
We review de novo whether defendant was denied due process. People v Smith, 319 Mich App 1, 5; 900 NW2d 108 (2017). A criminal defendant has a due-process right "to be sentenced on the basis of accurate information." People v Eason, 435 Mich 228, 239; 458 NW2d 17 (1990). In addition, a PSIR must be prepared before a trial court sentences a defendant who is charged with a felony. MCL 771.14(1). The PSIR is required to be "complete, accurate, and reliable." People v Triplett, 407 Mich 510, 515; 287 NW2d 165 (1980). At a resentencing, the trial court is required to use a "reasonably updated presentence investigation report." People v Hemphill, 439 Mich 576, 578-579; 487 NW2d 152 (1992). A defendant cannot waive his or her right to the preparation of a PSIR. Id. at 579. However, a defendant "may waive the right to a reasonably updated presentence report at resentencing where [he or she] believes the previously prepared report is accurate," unless the previous PSIR is "manifestly outdated" which means that it contained stale information. Id. at 582.
In this case, this Court remanded for the trial court to articulate its reasons for imposing a consecutive sentence for defendant's home invasion conviction. Johnson, unpub op at 1. The record does not indicate that the Department of Corrections prepared an updated PSIR for defendant's resentencing and there is no indication that defendant waived his right to an updated PSIR. Defendant, however, has not shown that he suffered any prejudice by the lack of an updated PSIR. Defendant has not identified any new information or change of circumstances that should have been included in an updated PSIR. Further, the record reflects that defendant had ample opportunity at resentencing to provide relevant information related to the trial court's resentencing decision. As this Court has recognized, "it is not particularly important how the information gets before the trial court; rather, it is important that the trial court have the relevant information available for sentencing." People v Odom, 327 Mich App 297, 313; 933 NW2d 719 (2019). Defendant has not established that reversal on this issue is warranted when the trial court gave him the opportunity to provide relevant updated information at resentencing and he has failed to provide any specific example of how the PSIR suffered from staleness.
Affirmed.
/s/ Thomas C. Cameron
/s/ Stephen L. Borrello
/s/ James Robert Redford