Opinion
No. 341824
02-12-2019
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. RICHARD WAYNE SHERWOOD, 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 UNPUBLISHED Kalkaska Circuit Court
LC No. 17-004014-FH Before: SWARTZLE, P.J., and MARKEY and RONAYNE KRAUSE, JJ. PER CURIAM.
Defendant, Richard Wayne Sherwood, pleaded guilty to delivery of less than 50 grams of a controlled substance, MCL 333.7401(2)(a)(iv), second or subsequent offense, MCL 333.7413(1). The trial court sentenced defendant, as a second-offense habitual offender, MCL 769.10, to serve 71 months to 30 years in prison, with credit for 197 days served. Defendant appeals by leave granted. We vacate defendant's sentence and remand for resentencing.
Formerly MCL 333.7413(2). See 2017 PA 266, effective March 28, 2018.
I. BACKGROUND
On December 20, 2016, a confidential informant executed a controlled drug purchase from Ryan Hart. The informant ordered four "fifty packs" of heroin. After Hart obtained the required money from the informant, Hart and another individual, Nathan Headapohl, drove to defendant's residence to purchase the heroin. Hart explained to the informant that defendant was his supplier. After police arrested Headapohl and Hart, Headapohl informed police that he and Hart had an understanding under which Headapohl assisted Hart in his drug deliveries in exchange for heroin. He explained that Hart purchased heroin from defendant and subsequently sold this heroin to others. Headapohl estimated that he had driven Hart to defendant's residence approximately 50 to 100 times between September and December 2016 and sometimes as often as three times in one day. Finally, he explained that the drug transactions took place in defendant's garage.
The following day, police executed a search warrant at defendant's residence and arrested him. The search unearthed a .22 caliber handgun and ammunition in the garage. Heroin and needles were found inside the house, as well as marked bills used by the informant the previous day. Defendant admitted to police that he was addicted to heroin and that he sold heroin to other addicted persons to "help them out." Defendant also reportedly told police that he had been worried about the supply of heroin in the area after the arrest of an individual nicknamed "Red" and, consequently, he "decided to keep what Red had established going."
Defendant pleaded guilty to delivery of less than 50 grams of a controlled substance, MCL 333.7401(2)(a)(iv), second or subsequent offense, MCL 333.7413(1). Several additional charges, including conspiracy to deliver controlled substances, maintaining a drug house, and firearm offenses, were dismissed. At sentencing, defense counsel objected to the scoring of Offense Variables (OV) 2 and OV 14. The trial court disagreed with defendant's arguments and assessed five points for OV 2 and 10 points for OV 14. Defendant, through appellate counsel, subsequently filed a motion for resentencing, challenging the scoring of OV 2, OV 12, OV 14, and OV 15. After holding a hearing on the motion for resentencing, the trial court found that all OVs had been scored properly and denied the motion.
II. ANALYSIS
A. STANDARD OF REVIEW
A trial court's findings regarding OV scoring are reviewed for clear error and must be supported by a preponderance of the evidence. People v Hardy, 494 Mich 430, 438; 835 NW2d 340 (2013). "Whether the facts, as found, are adequate to satisfy the scoring conditions prescribed by statute, i.e., the application of the facts to the law, is a question of statutory interpretation, which an appellate court reviews de novo." Id.
B. OV 2
Defendant first asserts that the trial court improperly assessed five points for OV 2. We disagree.
OV 2 addresses the "lethal potential of the weapon possessed or used." MCL 777.32(1). A trial court must assign five points to OV 2 if the defendant "possessed or used a pistol, rifle, shotgun, or knife or other cutting or stabbing weapon." MCL 777.32(1)(d). "Offense variables must be scored giving consideration to the sentencing offense alone, unless otherwise provided in the particular variable." People v McGraw, 484 Mich 120, 133; 771 NW2d 655 (2009).
Possession may be either actual or constructive. People v Minch, 493 Mich 87, 91; 825 NW2d 560 (2012). A person has constructive possession of a weapon when "the totality of the circumstances indicates a sufficient nexus between defendant and the contraband." Id. at 91-92 (cleaned up). Constructive possession may be proven by circumstantial evidence. People v Burgenmeyer, 461 Mich 431, 437; 606 NW2d 645 (2000). Constructive possession of a firearm occurs when there is proximity to the firearm together with indicia of control. Id. at 438. "A defendant may have constructive possession of a firearm if its location is known to the defendant and if it is reasonably accessible to him." Id. at 437 (cleaned up).
Defendant argues that the evidence failed to show that he ever possessed the handgun at the time of the December 20, 2016 drug transaction. Defendant acknowledges that the search revealed the handgun's existence in his garage. He contends, however, that because the search occurred the day after the drug transaction, he could not have possessed it during the transaction. Defendant's argument mistakenly equates the search with the presence of the handgun during the transaction. The two are entirely separate. Although it is true that the search occurred the day after the transaction, this has no bearing on whether the handgun was present the day before the search.
See Burgenmeyer, 461 Mich at 438-439 (distinguishing between possession of a firearm at the time the person committed a felony and possession of a firearm "when the police locate proof that a person has committed a felony").
A preponderance of the evidence supported the trial court's finding that the handgun was in the garage during the drug transaction and that defendant constructively possessed it. Headapohl told police that the drug transactions occurred in defendant's garage, and the presentence investigation report (PSIR) indicates that the December 20th transaction also occurred in the garage. The handgun was discovered in this same garage, and defendant acknowledged to police that he knew about the handgun and its location.
Therefore, we hold that the trial court did not clearly err in finding that defendant constructively possessed the handgun during the commission of the sentencing offense. The trial court's assessment of five points for OV 2 was not erroneous.
C. OV 12
Next, defendant asserts that the trial court improperly assessed 10 points for OV 12. We disagree.
OV 12 addresses "contemporaneous felonious criminal acts." MCL 777.42(1). The trial court must assign 10 points to OV 12 if "[t]hree or more contemporaneous felonious criminal acts involving other crimes were committed." MCL 777.42(1)(c). To constitute a contemporaneous felonious act, the act must have "occurred within 24 hours of the sentencing offense," MCL 777.42(2)(a)(i), and "has not and will not result in a separate conviction," MCL 777.42(2)(a)(ii). The trial court found that defendant committed three contemporaneous felonious acts: conspiracy, maintaining a drug house, and felon-in-possession of a firearm. On appeal, defendant disputes only the use of conspiracy in scoring OV 12; he does not dispute the other two felonious acts. Therefore, we restrict our analysis to the trial court's finding of conspiracy.
Conspiracy is "a partnership in criminal purposes." People v Justice (After Remand), 454 Mich 334, 345; 562 NW2d 652 (1997) (cleaned up). "Under such a partnership, two or more individuals must have voluntarily agreed to effectuate the commission of a criminal offense" and "specifically intended to combine to pursue the criminal objective of their agreement." Id. (cleaned up). The crime of conspiracy is complete when the agreement is first formed. Id. at 345-346. Indeed, "the gist of a conspiracy is the unlawful agreement," and "the purpose of the conspiracy need not be accomplished." People v Mass, 464 Mich 615, 632; 628 NW2d 540 (2001).
In the present case, defendant does not appear to argue that there was no conspiracy; rather, he argues that, to the extent that any conspiracy existed, the conspiracy was "subsumed" by the sentencing offense. "[C]onspiracy is separate and distinct from the substantive crime that is its object." Id. Defendant cites no authority directly supporting his assertion that conspiracy is subsumed by the substantive offense. Although defendant does cite this Court's decision People v Light, 290 Mich App 717; 803 NW2d 720 (2010), this decision does not support his argument. Light held that larceny from a person, being a "necessarily included lesser offense of robbery," was subsumed by the sentencing offense of robbery and could not qualify as a contemporaneous felonious act for purposes of scoring OV 12. Id. at 725-726. This holding is inapposite because "conspiracy is separate and distinct from the substantive crime that is its object," and, therefore, is not a lesser-included offense of delivery of less than 50 grams of a controlled substance. Mass, 464 Mich at 632.
Additionally, a conspiracy may be "ongoing" when it is made up of "smaller conspiracies constituting parts of a single scheme or plan." Justice, 454 Mich at 352 (cleaned up). Here, the trial court reasonably found that the conspiracy was ongoing, based on Headapohl's statement to police that, in the span of only a few months, he had driven Hart to defendant's residence approximately 50 to 100 times, and sometimes as often as three times per day, to obtain heroin. The sheer number of visits to defendant's residence indicated that there was a prior agreement or understanding between Hart and defendant in which Hart regularly purchased heroin from defendant. In fact, Headapohl stated that, since the summer, Hart received his heroin exclusively from defendant. Furthermore, the PSIR referred to defendant as Hart's supplier, and defendant told police that he had taken over "Red's" drug activities after "Red" was arrested.
We hold, therefore, that the trial court did not clearly err in finding that defendant conspired to distribute heroin. The trial court's assessment of 10 points for OV 12 was not erroneous.
D. OV 14
Defendant also asserts that the trial court erred in assessing 10 points for OV 14. Defendant maintains that a preponderance of the evidence did not support the trial court's finding that he was a leader in the commission of the sentencing offense. We disagree.
OV 14 addresses "the offender's role." MCL 777.44(1). A trial court must assign 10 points to OV 14 if a defendant is "a leader in a multiple offender situation." MCL 777.44(1)(a). If not, then no points are assessed. MCL 777.44(1)(b). When assigning points to OV 14, the trial court should consider the "entire criminal transaction," MCL 777.44(2)(a), and if there were three or more offenders involved, "more than 1 offender may be determined to have been a leader," MCL 777.44(2)(b).
Because Hart and Headapohl were separately convicted for drug offenses arising from this incident, there is no dispute that multiple offenders were involved in this criminal transaction.
According to Random House Webster's College Dictionary (2001), a 'leader' is defined in relevant part as 'a person or thing that leads' or 'a guiding or directing head, as of an army or political group.' To 'lead' is defined in relevant part as, in general, guiding, preceding, showing the way, directing, or conducting. [People v Rhodes (On Remand), 305 Mich App 85, 90; 849 NW2d 417 (2014).]In People v Dickinson, 321 Mich App 1; 909 NW2d 24 (2017), this Court considered the scoring of OV 14 in the context of a heroin transaction. In that case, the defendant smuggled heroin to a prisoner in a correctional facility. Id. at 5. Upon the defendant's conviction for delivery of a controlled substance less than 50 grams, MCL 333.7401(2)(a)(iv), the trial court assessed 10 points for OV 14, concluding that the defendant's conduct in sourcing, acquiring, and delivering the heroin to the prisoner was indicative of a leadership role in the drug transaction. Id. at 8. On appeal, this Court noted that, "for purposes of an OV 14 analysis, a trial court should consider whether the defendant acted first or gave directions or was otherwise a primary causal or coordinating agent." Id. at 22 (cleaned up). This Court further held that the trial court did not clearly err in finding that the defendant "exercised independent leadership to procure the heroin from someone else outside the prison, transported it independently to the prison, and smuggled it inside before transferring it" to the prisoner. Id. at 23. With these factual findings in mind, this Court held that the trial court correctly scored OV 14 at 10 points for the defendant's role in the criminal transaction. Id.
The facts of this case are similar to those in Dickinson. In this case, defendant exercised independent leadership to procure the heroin from someone else and transported it to his garage, where he readied it for sale and met with potential buyers. In addition, the facts of this case showed that defendant traveled to another county to purchase heroin for distribution, and he told police that he decided to take over the distribution of heroin in the area after another individual was arrested and removed from the distribution chain. On these facts, the trial court correctly concluded that defendant exercised a leadership role, and correctly scored OV 14 at 10 points for defendant's role in the criminal transaction.
E. OV 15
Finally, defendant asserts that the trial court improperly assessed 10 points for OV 15. We agree.
OV 15 addresses "aggravated controlled substance offenses." MCL 777.45(1). The trial court must score OV 15 "by determining which of the following apply and by assigning the number of points attributable to the one that has the highest number of points." Id. Relevant to this appeal is MCL 777.45(1)(g), under which 10 points are to be assessed if:
The offense is a violation of section 7401(2)(a)(i) to (iii) pertaining to a controlled substance classified in schedule 1 or 2 that is a narcotic drug or a drug described in section 7214(a)(iv) and was committed in a minor's abode, settled home, or domicile, regardless of whether the minor was present.MCL 777.45(1)(g) thus applies only if the sentencing offense is "a violation of section 7401(2)(a)(i) to (iii)." As defendant notes in his Standard 4 brief, he was not convicted under MCL 333.7401(2)(a)(i), (ii), or (iii); rather, he was convicted under MCL 333.7401(2)(a)(iv). Because defendant was not convicted under one of the enumerated statutes, MCL 777.45(1)(g) was inapplicable. Therefore, we hold that the trial court erred in assessing 10 points for OV 15.
A Standard 4 brief is a brief filed pursuant to Michigan Supreme Court Administrative Order 2004-6, Standard 4.
III. CONCLUSION
A defendant is entitled to resentencing when a trial court commits an error in scoring the sentencing guidelines and when this error "altered the appropriate guidelines range." People v Francisco, 474 Mich 82, 88-91; 711 NW2d 44 (2006). Without the 10 points assessed for OV 15, defendant's total OV points would have been 25, rather than 35, placing him in sentencing grid E-III, rather than E-IV. See MCL 777.65. Therefore, defendant is entitled to resentencing. In light of our conclusions regarding defendant's sentencing, we need not address his arguments regarding whether his trial counsel was ineffective for failing to challenge the scoring of OV 12 and OV 15.
We vacate defendant's sentence and remand for resentencing. We do not retain jurisdiction.
/s/ Brock A. Swartzle
/s/ Jane E. Markey
/s/ Amy Ronayne Krause