Opinion
No. 348677
11-24-2020
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. ANTHONY BROWN, 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 UNPUBLISHED Montcalm Circuit Court
LC No. 18-024129-FH Before: SAWYER, P.J., and M. J. KELLY and SWARTZLE, JJ. PER CURIAM.
Defendant appeals as of right his jury trial conviction of assault of a prison employee, MCL 750.197c. The trial court sentenced defendant as a fourth-offense habitual offender, MCL 769.12, to 10 to 25 years' imprisonment to be served consecutively to any sentence he was currently serving. We affirm.
This case arose from an incident when defendant assaulted a prison employee. During trial, defendant admitted that he intentionally assaulted a prison employee by throwing a rock at her face. From the outset of the proceedings, defendant requested to represent himself. However, defendant elected to keep his appointed defense counsel as standby counsel to answer questions and help him with paperwork. Before the trial, defendant indicated that he wanted to continue representing himself with the assistance of standby counsel. During voir dire, defendant exercised three peremptory challenges. However, before the selected jurors were sworn in, defendant informed the trial court that he was not aware of his ability to exercise more peremptory challenges because standby counsel only informed him that he could exercise three.
Standby counsel admitted that he misspoke by only informing defendant that he could exercise three peremptory challenges. Defendant stated that he may have excused additional jurors if he had known that he had more than three peremptory challenges available. In light of this information, the trial court decided to order a new trial date so that defendant could properly exercise his peremptory challenges. At the rescheduled trial, defendant indicated that he desired to continue representing himself and exercised 10 peremptory challenges during voir dire. At the close of all evidence and arguments, the jury convicted defendant of assaulting a prison employee.
At the sentencing hearing, defendant stated that he reviewed his presentence investigation report (PSIR) and that the information contained in the PSIR appeared to be accurate. Defendant's minimum sentencing guidelines range was 22 to 76 months' imprisonment. However, the trial court sentenced defendant above his guidelines range to 10 to 25 years' imprisonment. The trial court reasoned as follows:
[W]hat I'm left with here is a guy that stands before me with eight prior felonies, and two prior misdemeanors. And what is most relevant to the Court though, as it relates to all of this, is your prison conduct. It screams volumes, and you've referenced a lot of . . . it this morning. . . . Since '89, you've got over 70 misconducts as well as two assaults on staff . . . causing serious physical injury. That was in 2007 and . . . this one. You've also received 12 misconducts for threatening behavior. . . . One for attempted assault on another prisoner. . . . Four for fighting. Three for sexual misconduct, exposure . . . and on[e] for sexual misconduct, sexual words or acts. . . . So—and you've referenced it this morning yourself. . . . So, what I have here though, is somebody whose record is atrocious, for lack of a better term. And some of that, I recognize you think is [sic] hoisted upon you, you reacting to what's happening to you. But I think another way to spin this is that you're a guy that simply doesn't follow the rules, either outside society or inside society . . . to the extent that this is troublesome. . . . So as a sentence though, sir, I don't believe that the guidelines adequately reflect what occurred here. . . . I do know, having listened to the trial, that what happened here was planned. There's no doubt about it. You admit yourself. It was purposeful. . . . It took some gathering of, in your planning, to procure the rock, to wait in the line. We all saw the video. . . . It caused very serious injury. . . . I also recognize, throughout the trial, you're a person that understands the nature and seriousness of your action. . . . And you chose to make those actions, and therefore, I don't believe the guidelines begin to adequately contemplate all of that. . . . Nor do they contemplate, and you're not allowed to be scored anywhere as far as your prison conduct. Those are not scored in your [prior record variables (PRVs)]. They're not really accounted for in the [offense variables (OVs)] either. . . . Therefore, I don't think that these guidelines are adequate.
Defendant argues on appeal that he was denied the effective assistance of counsel through standby counsel's defective performance. We disagree.
Generally, a defendant's claim of ineffective assistance of counsel is a "mixed question of fact and constitutional law." People v LeBlanc, 465 Mich 575, 579; 640 NW2d 246 (2002). However, because defendant failed to preserve this issue by moving for a new trial or a Ginther hearing, this Court's review is limited to mistakes apparent on the lower court record. See People v Sabin (On Second Remand), 242 Mich App 656, 658-659; 620 NW2d 19 (2000); People v Payne, 285 Mich App 181, 188; 774 NW2d 714 (2009).
The Michigan Supreme Court has determined that "a defendant has a constitutional entitlement to represent himself or to be represented by counsel—but not both." People v Dennany, 445 Mich 412, 442; 519 NW2d 128 (1994). In order to invoke the right to self-representation:
(1) a defendant must make an unequivocal request to represent himself, (2) the trial court must determine that the choice to proceed without counsel is knowing, intelligent, and voluntary, and (3) the trial court must determine that the defendant's acting as his own counsel will not disrupt, unduly inconvenience and burden the court and the administration of the court's business. [People v Dunigan, 299 Mich App 579, 587; 831 NW2d 243 (2013) (quotation marks and citations omitted).]A defendant's decision is knowing, intelligent, and voluntary if the defendant is fully apprised of the potential risks associated with self-representation and chooses to accept them. People v Williams, 470 Mich 634, 642, 645; 683 NW2d 597 (2004). In addition, MCR 6.005(D) requires the trial court to offer the defendant the opportunity to consult with an attorney and to advise "the defendant of the charge, the maximum possible prison sentence for the offense, [and] any mandatory minimum sentence required by law" before allowing the defendant to proceed without representation. MCR 6.005(D). The trial court "must substantially comply with the aforementioned substantive requirements . . . ." People v Russell, 471 Mich 182, 191; 684 NW2d 745 (2004).
In this case, defendant requested to represent himself at his arraignment when he stated that he "would like to sever [the] relationship between [himself] and [counsel]." When questioned about his request, defendant maintained his desire to represent himself. It was not until after the trial court suggested that standby counsel remain available to defendant to help prepare documents and answer questions that defendant agreed to allow standby counsel to assist in his self-representation. Moreover, before the failed voir dire and at the beginning of his jury trial, defendant continued to express the desire to represent himself. On the basis of the record, defendant expressed an unequivocal desire to represent himself throughout the proceedings. See Dunigan, 299 Mich App at 587. Additionally, the trial court informed defendant regarding the potential risks of self-representation, including the disadvantages he may face, and defendant stated that he understood. Therefore, defendant's decision to represent himself was knowing, intelligent, and voluntary because defendant continued to express a desire to represent himself after acknowledging the potential risks associated with self-representation. See Williams, 470 Mich at 642, 645; Dunigan, 299 Mich App at 587.
The trial court also informed defendant of the charge against him, and the maximum sentence associated with that charge before confirming that defendant wanted to represent himself. See MCR 6.005(D)(1). Specifically, the trial court informed defendant that he was charged with assaulting a prison employee as a fourth-offense habitual offender, which carried a maximum sentence of life imprisonment. Moreover, the record reflects that defendant was given the opportunity to consult with standby counsel before requesting to sever their relationship. MCR 6.005(D)(2). Therefore, the trial court also satisfied the requirements under MCR 6.005(D). Because defendant substantially complied with the substantive requirements to ensure that defendant properly invoked his right to self-representation, we find that defendant properly waived his right to the assistance of counsel. See MCR 6.005(D); Russell, 471 Mich at 191; Williams, 470 Mich at 642, 645; Dunigan, 299 Mich App at 587.
Defendant argues that he did not unequivocally waive his right to counsel; rather, he agreed to represent himself with the assistance of standby counsel. However, defendant's argument improperly conflates defendant's constitutional rights because defendant does not have a right to simultaneously represent himself and be represented by counsel. See Dennany, 445 Mich at 442. Although a trial court may appoint standby counsel to aid a defendant who elects to represent himself, a defendant does not have a constitutional right to the assistance of standby counsel. Id. at 443. Moreover, standby counsel does not represent defendant because "standby counsel cannot substantially interfere with any significant tactical decisions, cannot control the questioning of witnesses, and cannot speak in place of the defendant on any matter of importance." People v Willing, 267 Mich App 208, 227-228; 704 NW2d 472 (2005) (quotation marks and citation omitted). Therefore, standby counsel "cannot be held to the standards of effective assistance required of trial counsel." People v Kevorkian, 248 Mich App 373, 427; 639 NW2d 291 (2001).
In this case, defendant invoked his right to represent himself and proceeded to conduct voir dire, make opening and closing statements, and question witnesses. Therefore, the record demonstrated that defendant exercised control over his defense, and standby counsel's role was primarily advisory. See Willing, 267 Mich App at 228. Because defendant elected to represent himself, he "may not now assign blame for [his] conviction to standby counsel." Kevorkian, 248 Mich App at 427. Consequently, defendant cannot make an ineffective assistance of counsel claim on appeal because he waived his right to the assistance of counsel by choosing to represent himself, and standby counsel was not required to meet the standards of effective assistance because he was not acting as trial counsel. See Dennany, 445 Mich at 442; Willing, 267 Mich App at 227-228; Kevorkian, 248 Mich App at 427.
However, even if standby counsel exceeded his role as standby counsel and acted as defendant's defense counsel, defendant's claim that the continued use of standby counsel deprived him of his right to the ineffective assistance of counsel still fails. In order to establish ineffective assistance of counsel, defendant bears the burden to show "(1) that the attorney's performance was objectively unreasonable in light of prevailing professional norms and (2) that, but for the attorney's error or errors, a different outcome reasonably would have resulted." People v Harmon, 248 Mich App 522, 531; 640 NW2d 314 (2001). In this case, although defense counsel admitted that he mistakenly informed defendant that he could only exercise three peremptory challenges, any prejudice stemming from this error was alleviated when the trial court dismissed the jury that was selected while defendant was under the erroneous belief that he could only exercise three peremptory challenges and conducted a second voir dire after defendant was informed that he could exercise up to 12 peremptory challenges. Because defendant failed to demonstrate how he was prejudiced by the mistaken peremptory challenge information and failed to allege any other errors that would render standby counsel's performance objectively unreasonable, defendant's ineffective assistance of counsel claim must fail. See Harmon, 248 Mich App at 531.
Next, defendant argues that the upward departure sentence imposed by the trial court was unreasonable and disproportionate. We disagree.
We review an upward departure from the sentencing guidelines range for reasonableness. People v Lockridge, 498 Mich 358, 392; 870 NW2d 502 (2015). The standard of review for the reasonableness of a sentence is "whether the trial court abused its discretion by violating the principle of proportionality . . . ." People v Steanhouse, 500 Mich 453, 477; 902 NW2d 327 (2017). A trial court abuses its discretion when it imposes a sentence that falls outside the range of principled outcomes. People v Babcock, 469 Mich 247, 269; 666 NW2d 231 (2003).
A trial court does not abuse its discretion in sentencing a defendant outside the scored minimum guidelines range as long as the sentence is "proportionate to the seriousness of the circumstances surrounding the offense and the offender." Steanhouse, 500 Mich at 474 (quotation marks and citations omitted). However, although the sentencing guidelines are now only advisory, trial courts must continue to consider the guidelines when imposing a sentence and adequately "justify the sentence imposed in order to facilitate appellate review," Lockridge, 498 Mich at 392, including an explanation of "why the sentence imposed is more proportionate than a sentence within the guidelines recommendation would have been." People v Smith, 482 Mich 292, 304; 754 NW2d 284 (2008). "[I]f it is unclear why the trial court made a particular departure, an appellate court cannot substitute its own judgment about why the departure was justified." Id.
When a trial court relies solely on factors that are not "unique to defendant's crime, nor supported by the record," the court fails to provide an adequate justification for its departure sentence. People v Dixon-Bey, 321 Mich App 490, 529; 909 NW2d 458 (2017). A trial court may adequately justify an upward departure by relying on "specific characteristics of an offense and an offender that strongly presage future criminal acts" if those characteristics "are objective and verifiable, and if they are not already adequately contemplated by the guidelines." People v Horn, 279 Mich App 31, 45; 755 NW2d 212 (2008). For example, a defendant's "reoccurring and escalating acts of violence" or the planning and deliberation that went into the commission of an offense can constitute objective and verifiable reasons for a departure sentence. Id. at 46; People v Anderson, 298 Mich App 178, 186; 825 NW2d 678 (2012). "A trial court's reason for departure is objective and verifiable when it relies on the PSIR or testimony on the record." Anderson, 298 Mich App at 185.
In this case, the trial court cited several factors to justify its 44-month upward departure sentence. Specifically, the trial court noted that the sentencing offense was planned and purposeful by defendant's own admission. Because none of defendant's scored OVs accounted for the planning and deliberation that defendant put into committing the assault, the trial court could properly consider this factor to justify its departure. See id. at 186. Additionally, the trial court emphasized defendant's "atrocious" prison conduct in support of its upward departure. Although one of defendant's prison misconducts resulted in a felony conviction that was accounted for in the scoring of defendant's PRVs, defendant received 69 other misconducts that were not contemplated by his guidelines. See Horn, 279 Mich App at 45-46. Moreover, the trial court pointed out that the instant offense was not the first time that defendant assaulted and caused serious injury to prison staff, and at least 20 of defendant's prison misconducts resulted from threatening or assaultive behavior. Defendant argues that there was not sufficient evidence in the record to support the trial court's reliance on defendant's prison conduct. However, because the information regarding defendant's prison conduct was contained in the PSIR and defendant confirmed the accuracy of that information, the trial court's reliance on defendant's prison conduct when imposing the upward departure sentence was proper. See Anderson, 298 Mich App at 185.
We find that the trial court provided adequate justification for its sentence by explaining why the upward departure was more proportionate to defendant and his offense than a sentence within defendant's sentencing guidelines would have been on the basis of factors not considered by the guidelines. See Steanhouse, 500 Mich at 474; Smith, 482 Mich at 304; Dixon-Bey, 321 Mich App at 529. Defendant's reoccurring and escalating violent behavior, as well as the planning and deliberation that he put into committing the sentencing offense, were appropriate and adequate factors for the trial court to rely on when imposing defendant's upward departure sentence because they were unique to defendant, supported by the record, and not already accounted for by the guidelines. See Dixon-Bey, 321 Mich App at 529; Anderson, 298 Mich App at 185; Horn, 279 Mich App at 45-46. Therefore, the trial court did not abuse its discretion by imposing a 44-month upward departure sentence. See Steanhouse, 500 Mich at 477.
Affirmed.
/s/ David H. Sawyer
/s/ Michael J. Kelly
/s/ Brock A. Swartzle
People v Ginther, 390 Mich 436, 443; 212 NW2d 922 (1973).