Opinion
No. 349870
02-25-2020
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. TRAVIS JOSEPH CALLOWAY, 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 UNPUBLISHED Lenawee Circuit Court
LC No. 18-018798-FH Before: RONAYNE KRAUSE, P.J., and K. F. KELLY and TUKEL, JJ. PER CURIAM.
Defendant was convicted by the trial court, pursuant to his pleas of guilty, of three counts of delivery of less than 50 grams of heroin, MCL 333.7401(2)(a)(iv). The trial court sentenced defendant to 5 to 20 years' imprisonment for each conviction, his sentences to be served consecutively. Defendant appeals by delayed leave granted, primarily contending that the trial court failed to advise him of his maximum possible sentence, thereby entitling him to withdraw his pleas. Defendant also argues that the trial court mis-scored his sentencing guidelines and imposed an unreasonable sentence. We affirm defendant's convictions, but we vacate his sentences and remand for resentencing.
People v Calloway, unpublished order of the Court of Appeals, Docket No. 349870, entered August 30, 2019.
I. BACKGROUND
Defendant's convictions arise out of seven controlled purchases of heroin from defendant by an undercover investigator for the Lenawee County Sheriff's Department. Each exchange proceeded similarly: the investigator would contact defendant asking to purchase heroin, defendant would agree, and then defendant would instruct the investigator where to meet. When the investigator would arrive, defendant would enter the investigator's undercover squad car to complete the sale. After the first purchase, the investigator conducted a field test on the heroin and it tested positive for fentanyl. Due to department policy for officer safety regarding fentanyl, none of the other purchases were field-tested, and they were instead sent to a lab for testing. On two occasions, defendant was driven to the purchase location by other people; defendant came alone to the other purchases. Defendant was arrested three days after the seventh purchase.
One of the drivers was eventually charged with one count of possession with intent to deliver heroin, and it is unclear whether the other driver was ever identified.
Defendant was bound over on seven counts of delivering or manufacturing less than 50 grams of a controlled substance, MCL 333.7401(2)(a)(iv), three of the counts for heroin and the remaining counts for heroin and/or fentanyl. On the first day scheduled for defendant's trial, he agreed to plead guilty to the three heroin counts, maintaining that he did not know there was fentanyl in any of the drugs he sold. In exchange, the fentanyl charges, a habitual offender notice, and a "backup" charge of maintaining a drug house were dismissed.
At the plea, the prosecutor stated that each of the three charges carried a maximum penalty of twenty years' imprisonment with the potential for consecutive sentencing; defendant's attorney stated that his "client was aware of all that." The trial court expressly discussed with defendant that defendant was hoping for his sentences to be concurrent instead of consecutive, but he knew the trial court "had that option." The trial court also confirmed that defendant knew each count had the potential for up to twenty years in prison. However, defendant also indicated that his attorney "told [him] at the most [he] could be looking at six years," although he acknowledged that the court could sentence defendant "to the maximum if [the court] felt it was appropriate." The prosecutor then clarified that he and defendant's attorney believed, at the time, that defendant's guidelines range was 5 to 23 months, so "if you stacked 'em all, the worst it could get would be 3 times 23, but obviously you could exceed the guidelines, and there's other things that this Court is capable of doing, and [defendant] understands that." Defendant confirmed that to be his understanding.
At sentencing, the prosecutor and defense counsel clarified that their previous guidelines range calculation of 5 to 23 months was based on concurrent sentencing. They agreed that the guidelines would actually be 0 to 17 months if the trial court imposed consecutive sentences. Defendant argued that the guidelines range should be lower because two offense variables (OVs) were mis-scored, and he urged the trial court to impose concurrent sentences. Defendant addressed the court and reiterated that he did not know there was fentanyl in the heroin he sold. The prosecution asked the trial court to depart upward from the sentencing guidelines and impose three consecutive terms of 60 to 240 months' (5 to 20 years') imprisonment. The trial court imposed that sentence, as described above.
II. PLEA WITHDRAWAL
Defendant first argues that he is entitled to an automatic withdrawal of his plea because the trial court failed to advise him of his maximum possible sentence before entering his plea. We disagree.
"A trial court's decision on a motion to withdraw a plea is reviewed for an abuse of discretion." People v Cole, 491 Mich 325, 329; 817 NW2d 497 (2012). The trial court's interpretation and application of the court rules is reviewed de novo. People v Dixon-Bey, 321 Mich App 490, 496; 909 NW2d 458 (2017). "There is no absolute right to withdraw a guilty plea once the trial court has accepted it." People v Patmore, 264 Mich App 139, 149; 693 NW2d 385 (2004). However, a defendant may seek to have his plea set aside if there was a defect in the plea-taking process. People v Al-Shara, 311 Mich App 560, 567; 876 NW2d 826 (2015). "A defendant pleading guilty must enter an understanding, voluntary, and accurate plea." People v Brown, 492 Mich 684, 688-689; 822 NW2d 208 (2012); MCR 6.302(A).
For a plea to be understanding, voluntary, and accurate, the defendant must be aware of the direct consequences of his or her plea, including the maximum possible prison sentence for the principal offense. Brown, 492 Mich at 693-694. Thus, if the defendant is not informed of the maximum sentence which could be imposed before he or she pleads guilty, the plea is "defective." People v Brinkley, 327 Mich App 94, 98-99; 932 NW2d 232 (2019); MCR 6.302(B)(2). A defendant is entitled to withdraw a defective plea. People v Pointer-Bey, 321 Mich App 609, 615-617; 909 NW2d 523 (2017).
As set forth above, before he entered his plea, defendant explicitly confirmed that he understood he was facing the potential for three consecutive sentences with a maximum term of 20 years each. Defendant's attorney also confirmed that defendant was "aware of all that" at sentencing. At one point during the plea hearing, defendant referred to his belief that he was facing at most six years, or three times 23 months. Taken out of context, this reference would be highly concerning. However, after reading the transcript as a whole, it is clear that defendant understood his minimum sentence term under the sentencing guidelines could be as high as six years. It is also clear that defendant understood that the trial court could depart upward from the guidelines. Defendant was hopeful that the trial court would not impose consecutive sentences, but he accurately understood the maximum sentence to which he could, potentially, be subjected. Therefore, defendant understood the consequences of his plea, and his plea is not "defective." Defendant is not entitled to withdraw his plea.
III. OFFENSE VARIABLES SCORING
Defendant next argues that the trial court erred when it concluded that defendant was a leader in a multiple offender situation and assigned 10 points to OV 14. Defendant also argues that the trial court erred by assigning 10 points to OV 15 for the sale of heroin in a minor's home. We agree with both arguments.
This Court reviews "for clear error the trial court's factual determinations used for sentencing under the sentencing guidelines, facts that must be supported by the preponderance of the evidence." People v Dickinson, 321 Mich App 1, 20-21; 909 NW2d 24 (2017). The trial court's factual determinations are clearly erroneous if this Court is left with a definite and firm conviction that a mistake was made by the trial court. Id. at 21. This Court reviews de novo the trial court's interpretation and application of the sentencing guidelines. People v Morson, 471 Mich 248, 255; 685 NW2d 203 (2004).
"When calculating the sentencing guidelines, a court may consider all record evidence, including the contents of a PSIR [presentence investigation report], plea admissions, and testimony presented at a preliminary examination." People v McChester, 310 Mich App 354, 358; 873 NW2d 646 (2015). The facts that the sentencing court relies on when scoring the guidelines must be supported by the preponderance of the evidence. Dickinson, 321 Mich App at 20-21. In general, "[o]ffense variables must be scored giving consideration to the sentencing offense alone, unless otherwise provided in the particular statute." People v McGraw, 484 Mich 120, 133; 771 NW2d 655 (2009). Because MCL 777.44(2)(a) expressly requires "[t]he entire criminal transaction [to] be considered," OV 14 is an exception to the McGraw rule. McGraw, 484 Mich at 127. In contrast, MCL 777.45 includes no such language, so OV 15 may not be scored on the basis of conduct or evidence beyond the actual sentencing offense. People v Gray, 297 Mich App 22, 28-34; 824 NW2d 213 (2012).
A. OV 14
MCL 777.44(1)(a) requires the assessment of 10 points under OV 14 when "[t]he offender was a leader in a multiple offender situation." "[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), quoting Random House Webster's College Dictionary (2011). A defendant is a leader if he "acted first or gave directions or was otherwise a primary causal or coordinating agent." Dickinson, 321 Mich App at 22 (quotation omitted). A " 'multiple offender situation' as used in OV 14 is a situation consisting of more than one person violating the law while part of a group." People v Jones, 299 Mich App 284, 287; 829 NW2d 350 (2013), vacated in part on other grounds 494 Mich 880 (2013). A "multiple offender situation" can exist with only one other person present, even if that other person is not charged with any offenses arising out of the same event or transaction. See id. at 287-288.
The evidence in the record supports the conclusion that the "entire criminal transaction" was a multiple offender situation. One of defendant's drivers was charged with a drug offense, and it is fair to infer that both drivers were in some way involved in defendant's drug sales. Defendant further contended that he sold heroin on behalf of, and at the direction of, the people with whom he was living, in exchange for a place to sleep and cocaine for defendant's own drug addiction. However, defendant contends that he was not a leader. We agree with defendant that there is no evidence he displayed any leadership. Although defendant directed the investigator where to meet him, the investigator always contacted defendant first. There is no evidence tending to explain whether defendant's drivers acted at his direction, or whether they were merely assisting defendant carry out their own directives to defendant. It was established that the vehicle in which defendant was driven did not belong to defendant. Arranging where to meet a buyer who made the initial contact does not demonstrate that defendant had any actual or implicit authority over anyone else involved in the criminal transaction. At the most, the evidence indicated that defendant acted as some form of independent contractor. Furthermore, "some evidence of leadership . . . does not meet the preponderance of the evidence standard." Rhodes, 305 Mich App at 90 (emphasis in original). The trial court erred in inferring that defendant had a leadership role, so it erred in scoring OV 14 at 10 points.
In Jones, the defendant was found to be a "leader" because he and his companion both escalated a confrontation and drew guns to commence a shooting. Jones, 299 Mich App at 287-288. Importantly, however, the defendant in Jones never challenged whether he was a leader, but only whether the shooting was a multiple offender situation. Id. at 285-286, 288 n 1. --------
B. OV 15
MCL 777.45(1) requires the assessment of 10 points under OV 15 under either of two situations: the offense involved a significant amount of marijuana, MCL 777.45(1)(f), or the offense "was committed in a minor's abode, settled home, or domicile, regardless of whether the minor was present," MCL 777.45(1)(g). The first scenario is clearly irrelevant in this matter. The evidence in the record suggested that a child may have resided at the same house where defendant lived. However, as discussed above, OV 15 must be scored only on the basis of the sentencing offense, which in this case was delivering heroin. MCL 333.7401(2)(a)(iv). None of the deliveries occurred in any abode, home, or domicile; rather, they all occurred in the investigator's car, which was in a parking lot. The trial court's ruling as to OV 15 includes a "reference to a child being present," but the trial court inexplicably and inappropriately believed 10 points were appropriate because some of the heroin contained fentanyl. The record establishes that no permissible basis for scoring OV 15 at 10 points exists, so the trial court erred in scoring OV 15 at 10 points. Because, as discussed below, we are remanding for resentencing in any event, we need not consider whether resentencing would be required solely on the basis of correcting defendant's guidelines scores. Nevertheless, we direct that the trial court shall correct defendant's guidelines scores on remand.
V. SENTENCE REASONABLENESS
Defendant argues that the trial court insufficiently justified sentencing him to three consecutive sentences of 5 to 20 years' imprisonment. We agree.
A. DEPARTURE SENTENCE
This Court reviews departure sentences for reasonableness. People v Lockridge, 498 Mich 358, 392; 870 NW2d 502 (2015). This Court reviews a trial court's determination that a particular sentence is reasonable for an abuse of discretion. People v Steanhouse, 500 Mich 453, 471; 902 NW2d 327 (2017). A trial court abuses its discretion by imposing a departure sentence when it violates the principle of proportionality. Id. The principle of proportionality requires that the defendant's sentence must "be proportionate to the seriousness of the circumstances surrounding the offense and the offender." People v Lampe, 327 Mich App 104, 125; 933 NW2d 314 (2019), quoting People v Milbourn, 435 Mich 630, 636; 461 NW2d 1 (1990). The trial court must explain "why the sentence imposed is more proportionate to the offense and the offender than a different sentence would have been." People v Smith, 482 Mich 292, 311; 754 NW2d 284 (2008); see also Steanhouse, 500 Mich at 474. Thus, a trial court imposing a departure sentence must explain how that sentence is individualized to the specific defendant and to the circumstances surrounding the specific offense.
The trial court's departure sentence in this matter was apparently based on the facts (1) that defendant was from Detroit; (2) that fentanyl is an exceptionally dangerous substance even within the context of controlled substances; and (3) that defendant either must have known the heroin he sold contained fentanyl, or defendant should have known the heroin he sold contained fentanyl. The trial court also believed that "a message needs to be sent and that if you sell drugs in Lenawee County, we are going to take an approach that is harsh." The fact that defendant was from Detroit is apparently accurate, but it is an impermissible basis for a departure sentence and a very disturbing statement by the trial court. The fact that fentanyl is extremely dangerous is undoubtedly true, and the record discloses no reason to second-guess the trial court's finding that defendant was less ignorant of the contents of his drugs than he claimed. Finally, deterrence is one of the many roles criminal sentences play.
However, the trial court's reasoning for its departure essentially set forth the court's pronouncement that it was enacting a new class of crime with an across-the-board enhanced penalty specifically for fentanyl. Courts are not legislatures. In any event, simply imposing the trial court's own idea of an appropriate punishment for a class of crimes violates the requirement that departure sentences must be individualized to the circumstances and characteristics unique to the specific crime and the specific offender. Deterrence is also not the only role criminal sentences play. We do not hold that the trial court may not take into consideration the dangers of fentanyl, but the trial court erred by imposing a departure sentence based solely on the fact that defendant sold fentanyl.
B. CONSECUTIVE SENTENCE
This Court reviews a trial court's decision to impose a discretionary consecutive sentence for an abuse of discretion. People v Norfleet (Norfleet I), 317 Mich App 649, 663-664; 897 NW2d 195 (2016). An abuse of discretion occurs when the trial court's decision was outside of the range of reasonable and principled outcomes. Id. Our Supreme Court has articulated a "clear preference for concurrent sentencing." People v Chambers, 430 Mich 217, 229; 421 NW2d 903 (1988). Consecutive sentencing must therefore be "reserved for those situations in which so drastic a deviation from the norm is justified." Norfleet I, 317 Mich App at 665. When imposing a discretionary consecutive sentence, the trial court must articulate its rationale for each consecutive sentence it imposes. Id. at 664-666. The trial court's justification for imposing of consecutive sentences was essentially indistinguishable from its upward departure from the sentencing guidelines. Again, the trial court may not impose consecutive sentences for a particular defendant simply because defendant's offenses are of a kind that the trial court finds particularly egregious. The trial court failed to describe any particularly specific or unique aspects of defendant or of the crime to justify its consecutive sentences. Cf. People v Norfleet (Norfleet II), 321 Mich App 68, 72-73; 908 NW2d 316 (2017). The trial court erred by imposing consecutive sentences based solely on the fact that defendant sold fentanyl.
VI. CONCLUSION
We affirm defendant's convictions, because no error occurred in defendant's plea. We vacate the trial court's sentences for the reasons discussed above, and we remand for resentencing. On remand, the trial court shall correct the scoring of defendant's sentencing guidelines as also discussed above. We do not hold that the trial court is necessarily precluded from again imposing a departure sentence or consecutive sentences. We also do not hold that the dangers of fentanyl and the presence of fentanyl in the heroin sold by defendant are improper considerations. However, the trial court must explain why a departure or consecutive sentences are appropriate to defendant and his offenses specifically.
Defendant's convictions are affirmed, defendant's sentences are vacated, and we remand for resentencing consistent with this opinion. We retain jurisdiction.
/s/ Amy Ronayne Krause
/s/ Kirsten Frank Kelly
/s/ Jonathan Tukel
ORDER
Amy Ronayne Krause Presiding Judge Kirsten Frank Kelly Jonathan Tukel Judges
Pursuant to the opinion issued concurrently with this order, this case is REMANDED for further proceedings consistent with the opinion of this Court. We retain jurisdiction.
Proceedings on remand in this matter shall commence within 28 days of the Clerk's certification of this order, and they shall be given priority on remand until they are concluded. As stated in the accompanying opinion, defendant's convictons are affirmed, defendant's sentences are vacated and we remand for resentencing consistent with the opinion. The proceedings on remand are limited to this issue.
The parties shall promptly file with this Court a copy of all papers filed on remand. Within seven days after entry, appellant shall file with this Court copies of all orders entered on remand.
The transcript of all proceedings on remand shall be prepared and filed within 21 days after completion of the proceedings.
/s/ Amy Ronayne Krause
A true copy entered and certified by Jerome W. Zimmer Jr., Chief Clerk, on
February 25, 2020
Date
/s/_________
Chief Clerk