Opinion
No. 341052
07-24-2018
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. JOHN BUCHAN CRAWFORD, II, Defendant-Appellant.
UNPUBLISHED Eaton Circuit Court
LC No. 2016-020143-FH Before: RONAYNE KRAUSE, P.J., and GLEICHER and LETICA, JJ. PER CURIAM.
Defendant, John Buchan Crawford, II, appeals by right the October 19, 2017, judgment of sentence imposed after he pleaded guilty to violating terms of his probation. Defendant previously appealed as of right the July 19, 2016, convictions by a jury that resulted in the trial court imposing his probation sentence. The probation violations that ultimately gave rise to the instant appeal occurred while defendant's prior appeal was pending. Defendant properly does not seek to appeal the finding that he violated his probation. MCR 7.203(A)(1)(b). Because the only issues defendant raises in this appeal concern his original sentence, which defendant could have challenged in his prior appeal but did not, we conclude that the issues were waived previously and may not be brought now. Therefore, we affirm.
See People v Crawford, II, unpublished per curiam opinion of the Court of Appeals, issued January 9, 2018 (Docket No. 335147). --------
On July 19, 2016, defendant was convicted by a jury of resisting or obstructing a police officer, MCL 750.81d(1), and disturbing the peace, MCL 750.170. The circumstances leading to these convictions were recited in our opinion in defendant's prior appeal:
On February 14, 2016, defendant walked into the Lansing Mall wearing full black body armor and carrying what appeared to be a rifle on his shoulder, a pistol on his hip, and a collapsible police baton. The firearms turned out to be airsoft guns, but the orange tips that generally identify them as such had been concealed with black paint. Defendant's appearance frightened several mall patrons who called 911 and informed a security officer of defendant's presence. The mall security
officer approached defendant and asked him to leave in accordance with the mall's no-firearm policy. Defendant left the mall, and then three police officers confronted him. Defendant informed the officers that the firearms were airsoft guns. Officers informed defendant that he was not under arrest, but that they needed to detain him to search him for weapons. Despite this explanation, defendant was hesitant to follow the instructions to place his hands on his head. Defendant became agitated and tensed his body and pulled his arms inward. When officers attempted to handcuff defendant, defendant forcefully resisted. Ultimately, the officers performed a takedown maneuver to gain more control over defendant. Still, even after he was brought to the ground, defendant continued to resist by kicking and grabbing one officer's leg. [People v John Buchan Crawford, II, unpublished per curiam opinion of the Court of Appeals, issued January 9, 2018 (Docket No. 335147), p 1.].On August 26, 2016, the trial court sentenced defendant to 30 days in jail on each count, to be served on weekends, and to a probationary term of 18 months. Conditions of defendant's probation included that he was not to use or possess a weapon and that he was to report contact with police within 24 hours.
Defendant appealed as of right from his August 2016 judgment of sentence, raising the following issues: (1) prosecutorial misconduct, (2) ineffective assistance of counsel, and (3) erroneous jury instructions. This Court affirmed. People v Crawford, II, unpublished per curiam opinion of the Court of Appeals, issued January 9, 2018 (Docket No. 335147), p 1. As noted, defendant's prior appeal did not address his sentence.
Meanwhile, in September 2017, following a traffic stop and the discovery of weapons in defendant's vehicle, defendant was charged with violating his probation. In October 2017, defendant pleaded guilty to violating his probation by possessing weapons and failing to report his contact with police within 24 hours. On October 19, 2017, the trial court sentenced defendant to nine months' imprisonment and extended his probationary term to three years.
Initially, the prosecution challenges this Court's jurisdiction to hear defendant's claim of appeal by right. We are required to entertain a challenge to subject-matter jurisdiction. See O'Connell v Director of Elections, 316 Mich App 91, 100; 891 NW2d 240 (2016). Defendant's underlying convictions occurred as a result of a trial, and the trial court sentenced defendant to a period of incarceration. Consequently, notwithstanding his entry of a plea to his probation violations, defendant had a right to appeal his October 19, 2017, sentences. MCR 6.445(H)(1)(a).
In this appeal, defendant argues that the trial court erred in rejecting his challenges to the scoring of offense variables (OVs) 2, 9, and 12 at his August 25, 2016, sentencing hearing. Defendant also argues that court costs of $500 were improperly assessed in his August 2016 judgment of sentence. Defendant argues that these issues affect the sentences he presently appeals, but the alleged errors would have occurred at his original sentencing.
Defendant was required to raise these issues in his appeal from his original convictions and sentences. As our Supreme Court explained in People v Kaczmarek, 464 Mich 478, 482-483; 628 NW2d 484 (2001):
[V]iolation of probation is not a crime, and a ruling that probation has been violated is not a new conviction . . . "If a judge finds that a probationer violated his probation by committing an offense, the probationer is neither burdened with a new conviction nor exposed to punishment other than that to which he was already exposed . . . " [Citation omitted.]Accordingly, an appeal from a trial court's determination that a defendant violated his or her probation "encompasses only those issues that [defendant] could not have raised in an appeal from [the underlying] conviction." Id. at 485. See also People v Pickett, 391 Mich 305, 316; 215 NW2d 695 (1974), superseded on other grounds by constitutional amendment as stated in Kaczmarek, 464 Mich at 482 (holding that an appeal "following determination of probation violation and sentence must necessarily be limited to those matters relating to the probation violation and the hearing thereon").
Defendant raises no claim of error arising specifically from the October 2017 sentencing; rather, the challenges now raised by defendant arise from decisions that were made at the time of his original sentence on the basis of information before the court at that time. Accordingly, defendant waived for appellate consideration any issues pertaining to the 2016 judgment of sentence when he failed to raise them as questions on appeal in his prior appeal. See People v Mackle, 241 Mich App 583, 604 n 4; 617 NW2d 339 (2000); see also MCR 7.212(C)(5). Because defendant could have challenged his guidelines scores and the trial court's imposition of court costs in the appeal from his underlying convictions, but instead waived them for appellate review, he cannot now raise these issues in his appeal from the judgment of sentence imposed following this probation violation. Kaczmarek, 464 Mich at 485; Pickett, 391 Mich at 316. The procedurally proper way for defendant to challenge the guidelines score and imposed costs from his 2016 judgment of sentence would be a request for post-appeal relief in accordance with MCR 6.502 and MCR 6.508. See People v Reed, 449 Mich 375, 388-390; 535 NW2d 496 (1995). We express no opinion about the merits of such a request.
Affirmed.
/s/ Amy Ronayne Krause
/s/ Elizabeth L. Gleicher
/s/ Anica Letica