Opinion
No. 351295
03-11-2021
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. KEVIN MICHAEL MAXAM, 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 UNPUBLISHED Cass Circuit Court
LC No. 18-010034-FH Before: REDFORD, P.J., and SAWYER and BOONSTRA, JJ. PER CURIAM.
Defendant appeals by right his jury-trial convictions of receiving and concealing a stolen motor vehicle, MCL 750.535(7), and unlawful use of a license plate, MCL 257.256. The trial court sentenced defendant as a fourth-offense habitual offender, MCL 769.12, to a prison term of 3 to 20 years for the receiving and concealing a stolen motor vehicle conviction and to 90 days in jail for the unlawful use of a license plate conviction, with credit for 163 days jail time. We affirm defendant's convictions and sentences, but remand for the ministerial task of correcting the presentence investigation report (PSIR).
Defendant was acquitted of unlawfully driving away a motor vehicle, MCL 750.413.
I. PERTINENT FACTS AND PROCEDURAL HISTORY
On either the night of January 13, 2018 or the early morning hours of the following day, a 1996 Dodge Ram was stolen from a car dealership, Image Motors, located in Elkhart, Indiana. When John Massa (Massa), the assistant manager of Image Motors, learned that the truck had been stolen, he tracked the location of the truck using a GPS device that had been installed on it. The truck was ultimately located in the driveway of defendant's house in Cassopolis, Michigan. Massa and the owner of Image Motors, Dale Stringfellow (Stringfellow), drove to defendant's house to recover the truck. When they arrived, they noticed that the rear window of the truck had been broken and replaced with a pizza box. Additionally, the plow blade that was on the front of the truck had been removed, the truck had been spray painted black, the tool boxes that were mounted in the bed of the truck had been removed, the plastic around the steering column had been removed, and the ignition switch had been replaced. The truck did not have a license plate affixed to it when it was at the dealership, but now bore a Michigan license plate. Massa and Stringfellow contacted the police.
Dowagiac Police Officer Thorn Lewis arrived on the scene and spoke with defendant. Defendant told Officer Lewis that he had received the truck from a friend named Shannon so that he could fix a headlight. Defendant could not provide Officer Lewis with Shannon's last name, address, or telephone number and stated that he did not know how the truck had been damaged. Defendant admitted that he had placed his own license plate on the truck because he did not feel comfortable driving it without a license plate. Officer Lewis searched defendant's garage with defendant's consent, but did not locate the plow blade or tool boxes. The truck was removed from defendant's driveway and returned to Image Motors.
Defendant was charged as described. At trial, defendant testified that he neither stole nor drove the truck, stating that Shannon and her friend Faye had dropped the truck off at his house so that he could fix a broken headlight. Defendant stated that he did not know how Shannon or Faye had received the truck. Defendant testified that Shannon and Faye were supposed to pick the truck up later that day, but that the police had seized the truck before that could occur. Defendant admitted that he had placed his own license plate on the truck despite the fact that the license plate was not registered to the truck, but denied knowing how the truck had been damaged.
Shannon and Faye's last names were not used at trial and do not appear in the lower court record.
Defendant was convicted and sentenced as described. After filing his claim of appeal, defendant filed a motion for remand with this Court, seeking a remand to the trial court to file a motion for a new trial or a Ginther hearing on the issue of his counsel's effectiveness. This Court denied defendant's motion without prejudice.
People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
People v Maxam, unpublished order of the Court of Appeals, entered June 2, 2020 (Docket No. 351295). --------
II. CORRECTION OF PSIR
Defendant argues that he is entitled to a remand because the trial court failed to address his objection to the accuracy of a sentence contained within the PSIR and failed to strike the sentence in question. Specifically, defense counsel objected at sentencing to a sentence contained within the agent's description of the offense stating that Massa had told Officer Lewis that "he observed a short white male driving the vehicle." Defense counsel argued that no evidence was presented at trial to support this sentence, and pointed out that defendant was found not guilty of unlawfully driving away an automobile. Defense counsel requested that the trial court strike the sentence from the PSIR. The prosecution did not respond to the objection. The trial court did not rule on defendant's objection. Rather, the prosecution and trial court simply addressed defense counsel's other challenges to the PSIR.
On appeal, defendant requests that we remand this matter to the trial court so that it may correct the PSIR and send a corrected PSIR to the Michigan Department of Corrections (MDOC). The prosecution does not object to such a remand. It further points out that the PSIR, as written, could leave the impression that defendant was in fact guilty of unlawfully driving away a motor vehicle, notwithstanding his acquittal on that charge.
" 'This Court reviews a trial court's response to a defendant's challenge to the accuracy of a PSIR for an abuse of discretion.' " People v Maben, 313 Mich App 545, 552; 884 NW2d 314 (2015), quoting People v Uphaus (On Remand), 278 Mich App 174, 181; 748 NW2d 899 (2008). "A trial court abuses its discretion when it selects an outcome outside the range of reasonable and principled outcomes." Maben, 313 Mich App at 552 (quotation marks and citations omitted).
At sentencing, either party may challenge the accuracy of any information contained in the PSIR. MCL 771.14(6); MCR 6.425(D)(2)(a); People v Lloyd, 284 Mich App 703; 705-706; 774 NW2d 347 (2009). MCR 6.425(D)(2)(a) governs challenges and corrections to a PSIR and provides in relevant part that "[i]f any information in the PSIR is challenged, the court must allow the parties to be heard regarding the challenge, and the court must make a finding with respect to the challenge or determine that a finding is unnecessary because it will not take the challenged information into account in sentencing." "If the court finds merit in the challenge, determines that it will not take the challenged information into account in sentencing, or otherwise determines that the report should be corrected, it must order the probation officer to correct the report." MCR 6.425(D)(2)(a); Maben, 313 Mich App at 553. After the probation officer corrects the report, the corrected report must be provided to defense counsel for review before it is sent to the Department of Corrections. MCR 6.425(D)(2)(a); Maben, 313 Mich App at 553. This is because the PSIR "follows the defendant to prison; it may have ramifications for the purposes of security classification or parole consideration when appropriate." Maben, 313 Mich App at 553 (quotation marks and citations omitted).
We agree with defendant and the prosecution that the trial court failed to address defendant's objection to the PSIR and that a remand is necessary for the trial court to address defendant's objection. We particularly note the concern that the uncorrected PSIR might lead the reader to conclude that defendant in fact committed the offense of unlawful driving away of a motor vehicle, despite the fact that no evidence was presented at trial to support that charge. However, we see no evidence on the record that the trial court relied on the challenged portion of the PSIR in sentencing defendant. Consequently, resentencing is not required. See Id. at 555-556. Rather, as requested by defendant and as agreed to by the prosecution, we merely remand for the limited ministerial task of correcting the PSIR and sending a corrected PSIR to the MDOC. People v Harmon, 248 Mich App 522, 534; 640 NW2d 314 (2001).
III. HABITUAL OFFENDER NOTICE
Defendant also argues that he is entitled to resentencing because the prosecution failed to file a written proof of service indicating that it had served him with a notice of the prosecution's intent to seek an enhanced sentence, asserting further that he was never served with such a notice of intent. We disagree.
We review the issue of whether the habitual-offender notice requirements were met "de novo as a question of law because it involves the interpretation and application of statutory provisions and court rules." People v Head, 323 Mich App 526, 542; 917 NW2d 752 (2018).
MCL 769.13 governs the process by which the prosecution may seek to enhance a defendant's sentence and provides, in relevant part:
(1) In a criminal action, the prosecuting attorney may seek to enhance the sentence of the defendant as provided under [MCL 769.10, MCL 769.11, or MCL 769.12], by filing a written notice of his or her intent to do so within 21 days after the defendant's arraignment on the information charging the underlying offense or, if arraignment is waived, within 21 days after the filing of the information charging the underlying offense.
(2) A notice of intent to seek an enhanced sentence filed under subsection (1) shall list the prior conviction or convictions that will or may be relied upon for purposes of sentence enhancement. The notice shall be filed with the court and served upon the defendant or his or her attorney within the time provided in subsection (1). The notice may be personally served upon the defendant or his or her attorney at the arraignment on the information charging the underlying offense, or may be served in the manner provided by law or court rule for service of written pleadings. The prosecuting attorney shall file a written proof of service with the clerk of the court.
The purpose of MCL 769.13 is to ensure that a defendant receives notice, at an early stage in the proceedings, that he could be sentenced as a habitual offender. Head, 323 Mich App at 543. "The failure to file a proof of service of the notice of intent to enhance the defendant's sentence may be harmless if the defendant received the notice of the prosecutor's intent to seek an enhanced sentence and the defendant was not prejudiced in his ability to respond to the habitual-offender notification." Id. at 544-545, citing People v Walker, 234 Mich App 299, 314-315; 593 NW2d 673 (1999) (holding that the prosecutor's failure to file a proof of service of the intent to seek an enhanced habitual-offender sentence with the clerk of the court was harmless and did not require resentencing because defendant had received actual notice of the enhancement). To determine whether the defendant received notice of the prosecutor's intent to seek an enhanced sentence, this Court may consider whether the defendant received actual notice of the enhancement at the preliminary examination, arraignment, or sentencing, and whether he had access to the charging documents throughout the proceeding. Head, 323 Mich App at 544-545.
Although the lower court record does not indicate that the prosecution filed a separate proof of service regarding the habitual offender notice, it does reflect that a fourth-offense habitual offender notice was included with the felony information. The notice listed each conviction upon which the prosecution intended to rely to support the enhancement. On January 31, 2019, a preliminary examination and arraignment were held, and defendant acknowledged, on the record, as he was waiving a formal reading of the felony information as permitted by MCR 6.113(B), that he had received the felony information. In light of this acknowledgment by defendant, any error by the prosecution was harmless. Id.
IV. COURT COSTS
Defendant also argues that the trial court imposed excessive court costs upon him without explanation, and that the court costs imposed were unrelated to the circumstances of the case. We disagree.
A defendant must object to the trial court's imposition of court costs in the trial court to preserve a challenge to the costs which the trial court imposed. People v Posey, ___ Mich App ___, ___; ___ NW2d ___ (2020) (Docket Nos. 345491, 346039, and 351834); slip op at 12. Defendant did not object to the imposition of court costs in the trial court. Therefore, this issue is unpreserved. We review unpreserved claims for plain error. Id. To avoid forfeiture under the plain error test, the defendant must demonstrate that " '1) error must have occurred, 2) the error was plain i.e., clear or obvious, 3) and the plain error affected substantial rights.' " People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999); see also People v Moorer, 262 Mich App 64, 66-67; 683 NW2d 736 (2004).
MCL 769.1k governs a trial court's authority to impose costs and provides, in relevant part, that the trial court may impose "any cost reasonably related to the actual costs incurred by the trial court without separately calculating those costs involved in the particular case." MCL 769.1k(1)(b)(iii); Posey, ___ Mich App at___; slip op at 12. Those costs may include, but are not limited to, the "salaries and benefits for relevant court personnel," "goods and services necessary for the operation of the court," and "necessary expenses for the operation and maintenance of the court buildings and facilities." MCL 769.1k(1)(b)(iii)(A)-(C). The trial court is not required to separately calculate court costs in each case, but must " 'establish a factual basis' from which this Court can 'determine whether the costs imposed were reasonably related to the actual costs incurred by the trial court.' " People v Stevens, 318 Mich App 115, 121; 896 NW2d 815 (2016), quoting People v Konopka (On Remand), 309 Mich App 345, 359-360; 869 NW2d 651 (2015).
In this case, the trial court explained that it was imposing $500 in court costs "based on the average cost of prosecuting a case here in the court." Imposing court costs on the basis of the average cost of a criminal case in the county where the case was prosecuted is a permissible factual basis for imposing court costs. Posey, ___ Mich App at ___; slip op at 12. Therefore, defendant's argument is without merit. MCL 769.1k(1)(b)(iii) (emphasis added); Posey, ___ Mich App at ___; slip op at 12.
V. INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant also argues that he was denied the effective assistance of counsel because his trial counsel failed to strike a particular juror and failed to call a "list of witnesses" that defendant had provided to his trial counsel. We disagree.
Whether a defendant has been denied the effective assistance of counsel is a mixed question of law and fact. People v Miller, 326 Mich App 719, 726; 929 NW2d 821 (2019). This Court reviews questions of law de novo and a trial court's findings of fact for clear error. Id. "Clear error exists when the reviewing court is left with the definite and firm conviction that a mistake has been made." People v Thompson, 314 Mich App 703, 720; 887 NW2d 650 (2016). Because no Ginther hearing was held, our review is limited to errors apparent on the record. People v Matuszak, 263 Mich App 42, 48; 687 NW2d 342 (2004).
"In order to obtain a new trial, a defendant must show (1) counsel's performance fell below an objective standard of reasonableness and (2) but for counsel's deficient performance, there is a reasonable probability that the outcome would have been different." People v Trakhtenberg, 493 Mich 38, 51-52; 826 NW2d 136 (2012). The effective assistance of counsel is presumed, and a defendant bears the burden to overcome the "strong presumption that the assistance of his counsel was sound trial strategy." People v Rosa, 322 Mich App 726, 741; 913 NW2d 392 (2018). However, "a court cannot insulate the review of counsel's performance by calling it trial strategy." Trakhtenberg, 493 Mich at 53. When reviewing counsel's performance, we are to "ensure that counsel's actions provided the defendant with the modicum of representation" that is constitutionally required, but "must not evaluate counsel's decisions with the benefit of hindsight." People v Grant, 470 Mich 477, 485; 684 NW2d 686 (2004).
Defendant first argues that defense counsel was ineffective for failing to strike juror number eight. Defendant claims that he told his attorney to strike juror number eight because they used to "get high" together, had previously argued, and were not on good terms. Defendant provides no support for his claims, and there is no support for these claims in the record. A defendant bears the burden of establishing the factual predicate for his claim. People v Hieu Van Hoang, 328 Mich App 45, 64; 935 NW2d 396 (2019).
Additionally, "an attorney's decisions relating to the selection of jurors generally involve matters of trial strategy." People v Johnson, 245 Mich App 243, 259; 631 NW2d 1 (2001). This Court has stated that it is generally "disinclined to find ineffective assistance of counsel on the basis of an attorney's failure to challenge a juror." People v Unger, 278 Mich App 210, 258; 749 NW2d 272 (2008). This is because a reviewing court cannot see the jurors or listen to their answers to voir dire questions and "[p]erhaps the most important criteria in selecting a jury include a potential juror's facial expressions, body language, and manner of answering questions." Id. (quotation marks and citations omitted).
The record shows that the trial court asked the prospective jurors, including juror number eight, if they knew defendant or any of the parties in this case. In response, under oath, juror number eight said nothing to indicate that he knew defendant or that there was any information that the parties and the court should know that would impact his ability to sit as in impartial juror. Further, juror number eight agreed that he could listen to the evidence with an open mind and be fair and impartial to both sides. Defendant never stated on the record that he knew juror number eight or that he had asked his trial counsel to strike the juror. On the basis of trial counsel's experience and the juror's responses, counsel could have reasonably believed that he had attained a "reasonable, fair, and honest jury." Id. Therefore, defendant fails to overcome the presumption that his trial counsel's decision not to strike juror number eight constituted sound trial strategy and this Court will not substitute its judgement for that of trial counsel. Id.
Defendant also argues that his trial counsel was ineffective for failing to subpoena a "list of witnesses" that he provided to his counsel before trial. Decisions regarding what evidence to present and whether to call or question witnesses are considered to be matters of trial strategy that, again, this Court "will not second-guess with the benefit of hindsight." People v Dixon, 263 Mich App 393, 398; 688 NW2d 308 (2004). Defendant offers no evidence that his trial counsel failed to engage in proper pretrial investigation. Defendant does not identify who was on the "list of witnesses," and makes no offer of proof regarding the substance of the testimony that those witnesses would have provided. Nor does defendant specifically explain how the absence of those witnesses affected the outcome of trial. Defendant has not established the factual predicate for his ineffective assistance of counsel claim. Hieu Van Hoang, 328 Mich App at 64.
Affirmed with regard to defendant's convictions and sentences, but remanded for the ministerial task of correcting the PSIR. Harmon, 248 Mich App at 534. We do not retain jurisdiction.
/s/ James Robert Redford
/s/ David H. Sawyer
/s/ Mark T. Boonstra