Opinion
No. 338891
10-29-2020
PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Terreik Jaylel LATHAM, Defendant-Appellant.
Dana Nessel, Attorney General, Fadwa A. Hammoud, Solicitor General, Kym L. Worthy, Prosecuting Attorney, Jason W. Williams, Chief of Research, Training, and Appeals, and Daniel E. Hebel, Assistant Prosecuting Attorney, for the people. State Appellate Defender (by Christine A. Pagac ) for defendant.
Dana Nessel, Attorney General, Fadwa A. Hammoud, Solicitor General, Kym L. Worthy, Prosecuting Attorney, Jason W. Williams, Chief of Research, Training, and Appeals, and Daniel E. Hebel, Assistant Prosecuting Attorney, for the people.
State Appellate Defender (by Christine A. Pagac ) for defendant.
Before: Riordan, P.J., and Sawyer and Jansen, JJ.
ON RECONSIDERATION
Riordan, P.J. Defendant appeals as of right his bench-trial conviction of first-degree criminal sexual conduct (CSC-I), MCL 750.520b (multiple variables). Defendant was sentenced to 4 to 10 years of imprisonment for CSC-I. We affirm.
I. FACTS & PROCEDURAL HISTORY
Defendant contacted the victim, a prostitute who advertised her services online, and after agreeing on a price and specific services, they met up at a gas station and walked together to a nearby abandoned house. Before engaging in any sexual acts, the victim asked to be paid. Defendant refused to pay, held a sharp object to the victim's throat, and forced her to engage in oral and vaginal sex.
Defendant was found guilty of CSC-I. He was assigned 10 points for Offense Variable (OV) 1, 5 points for OV 2, 10 points for OV 4, and 25 points for OV 11. In total, defendant was assigned 50 OV points, which equated to an OV Level III. The sentencing guidelines recommended a minimum prison sentence of 51 to 85 months. The court sentenced defendant to 4 to 10 years of imprisonment. Defendant then filed a motion to correct an invalid sentence in the trial court and argued that he was entitled to resentencing because the trial court incorrectly assigned 25 points for OV 11 when, he said, the trial court should have assigned zero points pursuant to MCL 777.41(2)(c). Defendant asserted that if OV 11 had been properly scored, he would have been sentenced at OV Level II, not OV Level III. He contended that the recommended sentencing guidelines range would have been 42 to 70 months, rather than the 51 to 85 months that was used at sentencing. Therefore, defendant argued, he was entitled to resentencing. The prosecution responded that OV 11 was properly scored and that, even if the guidelines were initially improperly scored, defendant's sentence should not be altered because defendant's sentence was below the original recommended sentencing guidelines range and was tailored to defendant.
The trial court granted defendant's motion to rescore OV 11 at zero points but denied defendant's motion for resentencing. The trial court corrected defendant's original sentencing information report, and the recommended minimum sentencing guidelines range was lowered to 42 to 70 months. The trial court's order states that resentencing was not required because defendant's original sentence of 48 to 120 months of imprisonment is within the recalculated recommended minimum sentencing guidelines range. Defendant now appeals.
II. ANALYSIS
Defendant argues that he is entitled to resentencing pursuant to People v. Francisco , 474 Mich. 82, 88, 711 N.W.2d 44 (2006), because he was sentenced on the basis of inaccurate information and an inaccurate guidelines range. We disagree. The issue whether defendant is entitled to resentencing is a legal question that we review de novo. Id. at 85, 711 N.W.2d 44.
In Francisco , 474 Mich. at 88-92, 711 N.W.2d 44, our Supreme Court held that the defendant was entitled to resentencing when the trial court erred in scoring the sentencing guidelines even though the original sentence was within the appropriate, rescored guidelines range. The Supreme Court remanded that case for resentencing because an appellate court cannot know whether the trial court would have imposed the same sentence if the guidelines had been accurately scored. Id. at 91-92, 711 N.W.2d 44. The Supreme Court reasoned that "appellate correction of an erroneously calculated guidelines range will always present this dilemma, i.e., the defendant will have been given a sentence which stands differently in relationship to the correct guidelines range than may have been the trial court's intention." Id. . "Thus, requiring resentencing in such circumstances not only respects the defendant's right to be sentenced on the basis of the law, but it also respects the trial court's interest in having defendant serve the sentence that it truly intends." Id. at 92, 711 N.W.2d 44.
The matter before us presents us with circumstances that are unlike those described in Francisco . We know the trial court would impose the same sentence for defendant under the now accurately scored guidelines range. The trial court's order states that resentencing was not required because defendant's original sentence of 48 to 120 months of imprisonment is within the recalculated recommended minimum sentencing guidelines range. The trial court had the opportunity to resentence defendant, and it expressly declined to do so. After rescoring OV 11 and recalculating the correct guidelines range, the trial court decided to maintain defendant's original sentence. Thus, the trial court's explanation in its order and its familiarity with this matter—particularly in light of the procedural posture and its ultimate disposition of the case—demonstrates the trial court's intent to maintain the same sentence, regardless of the prior scoring error. Thus, "[r]esentencing is ... not required [because] the trial court has clearly indicated that it would have imposed the same sentence regardless of the scoring error and the sentence falls within the appropriate guidelines range." Id. at 89 n. 8, 711 N.W.2d 44, citing People v. Mutchie , 468 Mich. 50, 51, 658 N.W.2d 154 (2003). Therefore, resentencing also is not required in the matter before us. III. CONCLUSION
Defendant raised for the first time at oral argument the claim that the trial court violated his due-process right to be sentenced on the basis of accurate information. He did not raise this issue in his written brief on appeal, nor did he provide any supplemental briefing on it. He cited only Francisco , 474 Mich. at 88-89, 89 n. 6, 711 N.W.2d 44, for the proposition that "[a] defendant is entitled to be sentenced by a trial court on the basis of accurate information." However, Francisco considers only the issue of resentencing pursuant to MCL 769.34(10) and MCR 2.613(A) ; its analysis does not consider any due-process implications. Although this issue presents a purely legal question, we nonetheless decline to consider it further because it was not properly raised by defendant, nor was it briefed by the parties. See Paschke v. Retool Indus (On Rehearing) , 198 Mich. App. 702, 705, 499 N.W.2d 453 (1993) ("The court is obligated only to review issues that are properly raised and preserved; the court is empowered , however, to go beyond the issues raised and address any issue that, in the court's opinion, justice requires be considered and resolved."), rev'd on other grounds 445 Mich. 502, 519 N.W.2d 441 (1994). Because the issue is insufficiently briefed, we now decline to craft defendant's argument for him. See People v. Van Tubbergen , 249 Mich. App. 354, 365, 642 N.W.2d 368 (2002) ; People v. Watson , 245 Mich. App. 572, 587, 629 N.W.2d 411 (2001).
We are not confronted with a Francisco error. There was no remand to the trial court for resentencing. Here, the trial court only decided a posttrial motion, corrected the applicable guidelines range, and then maintained defendant's original sentence.
Affirmed.
Sawyer, J., concurred with Riordan, P.J.
Jansen, J. (dissenting).
I would conclude that the trial court erroneously denied defendant's motion for resentencing because defendant is entitled to be resentenced on the basis of accurate information under People v. Francisco , 474 Mich. 82, 88, 711 N.W.2d 44 (2006). Therefore, I respectfully dissent.
I. RELEVANT FACTUAL BACKGROUND
On September 5, 2016, between 4:00 a.m. and 4:30 a.m., defendant contacted the victim, a prostitute who advertised her services on Backpage.com. Defendant agreed to pay $60 for vaginal and oral sex with the victim. Defendant and the victim met at a Citgo gas station located on Patton Street and Seven Mile Road in Detroit. When the victim asked to be paid, defendant held a sharp object to her throat and forced her to have vaginal sex.
Defendant was found guilty of first-degree criminal sexual conduct. Defendant was assigned 10 points for Offense Variable (OV) 1, 5 points for OV 2, 10 points for OV 4, and 25 points for OV 11. Defendant was assigned a total of 50 OV points, which equated to an OV level III. Defendant's recommended minimum prison sentence under the guidelines was 51 to 85 months. The court sentenced defendant to 4 to 10 years’ imprisonment.
On November 27, 2017, defendant filed in the trial court a motion to correct an invalid sentence and argued that he was entitled to resentencing because the trial court incorrectly assigned 25 points for OV 11. Defendant argued that the trial court should have assigned zero points for OV 11 in accordance with MCL 777.41(2)(c). Defendant asserted that if OV 11 had been properly scored, his minimum sentencing guidelines range would have been reduced from 51 to 85 months to 42 to 70 months, which would have placed him on the sentencing grid at OV Level II, rather than OV Level III. Thus, defendant argued, he was entitled to be resentenced based on accurate information.
The trial court granted defendant's motion in part, agreeing that OV 11 was incorrectly scored. The trial court ordered that OV 11 be assigned zero points, thus reducing the minimum sentencing guidelines range to 42 to 70 months. However, the trial court denied defendant's motion for resentencing. The trial court stated in its order that defendant's "original sentence of 48 to 120 months falls within the guidelines of the advisory guideline minimum range." This appeal followed.
II. MOTION FOR RESENTENCING
Defendant argues that the trial court erroneously denied his motion for resentencing because he is entitled to be resentenced on the basis of accurate information under Francisco , 474 Mich. at 88, 711 N.W.2d 44. I agree.
The issue whether defendant is entitled to resentencing is a legal question which this Court reviews de novo. Francisco , 474 Mich. at 85, 711 N.W.2d 44.
Under MCL 769.34(10), "[i]f 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." Moreover, in Francisco , our Supreme Court concluded that it would be "in derogation of the law, and fundamentally unfair, to deny a defendant ... the opportunity to be resentenced on the basis of accurate information." Francisco , 474 Mich. at 89-90, 711 N.W.2d 44. This Court continues to affirm the legal principle that regardless of whether a defendant's sentence falls within the minimum sentencing guidelines range, a defendant is entitled to resentencing when the sentence was calculated from erroneously scored guidelines or the trial court relied on inaccurate information when sentencing a defendant. See People v. Schrauben , 314 Mich. App. 181, 196, 886 N.W.2d 173 (2016) ; People v. Sours , 315 Mich. App. 346, 350-351, 890 N.W.2d 401 (2016) ; People v. Carpenter , 322 Mich. App. 523, 532, 912 N.W.2d 579 (2018).
This Court explicitly held in People v. Schrauben , 314 Mich. App. 181, n. 1, 886 N.W.2d 173 (2016), that MCL 769.34(10) was not altered or diminished by the Michigan Supreme Court's decision in People v. Lockridge , 498 Mich. 358, 870 N.W.2d 502 (2015) (holding that the guidelines are only advisory).
A small caveat does exist, as outlined in People v. Mutchie , 468 Mich. 50, 658 N.W.2d 154 (2003). If a trial court indicates that "it would have imposed the same sentence[ ] regardless of the scoring [error]," resentencing is not required. Id. at 51, 658 N.W.2d 154 (quotation marks and citation omitted). However, I would conclude that this caveat does not apply here, because the trial court did not indicate in its order that it would have imposed the same sentence. Rather, in its order denying defendant's motion for resentencing, the trial court stated that it was denying defendant's motion because the "original sentence" imposed "falls within the guidelines of the advisory guideline minimum range." I would conclude that this reasoning is legally deficient. I believe defendant's original sentence is invalid because it was based on inaccurate information, i.e., the incorrect scoring of OV 11. Francisco , 474 Mich. at 89, 711 N.W.2d 44. Because defendant is constitutionally entitled to be sentenced on accurate information, I would conclude that a remand for resentencing is required.