Opinion
360067 3600701[1]
05-18-2023
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. KEYSHON DEGON DOTSON also known as KEYSHON BRANCH, Defendant-Appellant.
UNPUBLISHED
Wayne Circuit Court LC No. 18-006607-01-FC; 18-007215-01-FC
Before: PATEL, P.J., and CAVANAGH and REDFORD, JJ.
PER CURIAM
After remand for resentencing, in Docket No. 360067, defendant appeals as of right his December 2021 resentencing for his bench trial convictions of two counts of armed robbery, MCL 750.529, and two counts of possession of a firearm in the commission of a felony (felony-firearm), MCL 750.227b. The trial court originally sentenced defendant in July 2019 as a fourth-offense habitual offender, MCL 769.12, to 35 to 70 years' imprisonment for each of his armed robbery convictions, and two years' imprisonment for each felony-firearm conviction. At resentencing, the trial court again sentenced defendant as a fourth-offense habitual offender to 25 to 50 years' imprisonment for each armed robbery conviction and two years' imprisonment for each felonyfirearm conviction with 1,243 days credit for time served.
People v Dotson, unpublished per curiam opinion of the Court of Appeals, issued February 18, 2021 (Docket Nos. 349971; 349973) In March 2019, the trial court held another pretrial hearing to schedule defendant's bench trial after he waived his right to a jury trial. The prosecutor informed the trial court that new information existed making it possible that defendant could be charged with additional crimes. The prosecutor changed the plea offer to 11 to 20 years' imprisonment for the armed robbery charges, and two years' imprisonment for the felony-firearm charges in lower court number 18-006607-01-FC, and the charges in 18-007215-01-FC would be dismissed in exchange for defendant's guilty plea. No expiration date for the plea offer was indicated, and the trial court noted that the offered sentence provided for a minimum sentence below the recommended sentencing guidelines range.
In Docket No. 360070, defendant appeals as of right his December 2021 resentencing of his bench trial convictions of one count each of armed robbery and felony-firearm. The trial court originally sentenced defendant as a fourth-offense habitual offender in July 2019 to 35 to 70 years' imprisonment for the armed robbery conviction, and two years' imprisonment for felony-firearm. The trial court resentenced defendant as a fourth-offense habitual offender to 25 to 50 years' imprisonment for his armed robbery conviction and two years' imprisonment for his felonyfirearm conviction with 1,243 days credit for time served. We affirm.
I. BACKGROUND
The factual background for these cases was summarized by this Court in defendant's initial appeal:
Both cases arise from defendant's practice of pretending, on Facebook, to have a car for sale in order to lure prospective victims into bringing cash to a location of defendant's choosing, ostensibly to show them the car and complete the purchase. When his plan succeeded, he robbed the victims at gunpoint. In lower court number 18-006607-01-FC, a friend drove the intended victim to the assigned location, where they waited for defendant for some time before he arrived and robbed them both. In lower court number 18-007215-01-FC, the single victim did not have a means of transportation, so defendant sent his girlfriend to the victim's apartment and she drove the victim to a vacant house, where defendant robbed him. Defendant used the name "East Warren Berry" on his Facebook page. With information subpoenaed from Facebook, the investigating officers were able to link the page to defendant's e-mail account and phone. All three victims identified him from a photo array. Once in jail, defendant asked his girlfriend in a monitored phone call to erase his e-mail address information, but the police had already obtained the above-described information as well as other evidence needed to prove defendant's guilt. [Dotson, unpub op at 1-2.]
Defendant was arrested and bound over on two counts of armed robbery as a fourth-offense habitual offender in lower court number 18-006607-01-FC, and one count of armed robbery and one count of felony-firearm in lower court number 18-007215-01-FC. In December 2018, the trial court held a pretrial hearing to review a possible plea offer that, in exchange for the defendant's guilty plea in lower court number 18-006607-01-FC to one count of armed robbery, there would be a sentencing agreement of 11 to 20 years' imprisonment, the other counts and the fourth-offense habitual offender charge would be dismissed, and the entirety of lower court number 18-007215-01-FC would also be dismissed. Defendant declined the plea offer in lieu of a jury trial. The prosecutor indicated the plea offer would remain open until a hearing for a pending motion was held.
The trial court found defendant guilty of three counts of armed robbery and three counts of felony-firearm. During defendant's first sentencing hearing, the trial court read into the record the victim impact statements, conducted a combined review of the sentencing guidelines scoring, and increased the recommended sentencing guidelines range to 225 to 750 months. At the continuation of the sentencing hearing, the trial court scored the two cases separately, changed defendant's offense variable (OV) scores, and reviewed the victim impact statements, noting that defendant's actions had a profoundly negative impact on the three victims. In determining defendant's sentence, the trial court expressly considered defendant's young age, likelihood of rehabilitation, and role in the crimes. The trial court sentenced defendant to 35 to 70 years' imprisonment for each of the three counts of armed robbery and 2 years' imprisonment for each of the three counts of felony-firearm.
In July 2019, defendant appealed his sentences claiming that the trial court erred in determining the OV scores, and that the trial court's sentences were unreasonable and disproportionate. This Court found that the trial court incorrectly scored OV 10 and remanded the case for the limited purpose of resentencing, and for the trial court to make ministerial corrections to the judgments of sentence to add defendant's status as a fourth-offense habitual offender. Dotson, unpub op, 2-3. This Court declined to review defendant's sentences for reasonableness because the minimum sentences fell within the sentencing guidelines range and therefore was presumptively proportionate defendant failed to establish unusual circumstances sufficient to overcome the presumption. Id. at 5-6.
On remand, the trial court resentenced defendant in accordance with this Court's order. The trial court considered the principles of proportionality established under People v Milbourn, 435 Mich. 630, 636; 461 N.W.2d 1 (1990), and incorporated its findings from defendant's initial sentencing. These findings included defendant's role in the crimes, his young age, status as a fourth-offense habitual offender, and defendant's newly expressed remorse for his crimes. The trial court reduced defendant's sentences to 25 to 50 years' imprisonment for each of his three armed robbery convictions and two years' imprisonment for each of his three felony-firearm convictions, and awarded him 1,243 days credit for time served. Defendant again appealed.
While defendant's appeal pended before this Court, defendant moved for resentencing for specific performance of the plea offer, claiming his trial counsel told him not to accept the plea offer because a more favorable offer would be available closer to trial, which did not happen. In support of his claim, defendant attached a purported affidavit from his mother, Waukesha Branch. Defendant argued he was entitled to a Ginther hearing to determine the veracity of his assertions. Defendant also filed his own affidavit to supplement his motion.
People v Ginther, 390 Mich. 436; 212 N.W.2d 922 (1973).
The trial court denied defendant's motion for resentencing, finding it actually a motion for relief from judgment, and defendant was only entitled to seek relief under MCR 6.500 et seq. Because defendant's motion did not conform to the requirements in MCR 6.500 et seq., defendant was not entitled to relief. Further, the trial court found even if defendant had properly filed his motion, his ineffective assistance of counsel claim lacked merit because: (1) the prosecution stated that a possibility of additional charges existed; (2) another offer was unlikely because the plea offer fell below the sentencing guidelines; and (3) defendant could have accepted the plea offer before the first witness was sworn at trial, but he did not do so.
II. INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant argues his trial counsel denied him effective assistance by advising him against taking a plea offer that was more favorable than his sentence at trial.
A. STANDARD OF REVIEW AND PRINCIPLES OF LAW
Defendants are entitled to the effective assistance of counsel when considering or negotiating a plea agreement. People v Douglas, 496 Mich. 557, 591-592; 852 N.W.2d 587 (2014). Defense counsel's obligation was to properly advise defendant regarding "the nature of the charges or the consequences of the guilty plea" and the "possible defenses to the charges to which the defendant is pleading guilty," so defendant has "the ability to make an intelligent and informed choice from among his alternative courses of action." People v Corteway, 212 Mich.App. 442, 445; 538 N.W.2d 60 (1995). The proper remedy for ineffective assistance of counsel during plea negotiations will depend on the circumstances of the case, but it could potentially entail resentencing or requiring a rejected plea to be reoffered. Lafler v Cooper, 566 U.S. 156, 171; 132 S.Ct. 1376; 182 L.Ed.2d 398 (2012).
As with any other claim of ineffective assistance, "[t]he defendant has the burden of establishing the factual predicate of his ineffective assistance claim." Douglas, 496 Mich. at 592. "In the context of pleas a defendant must show the outcome of the plea process would have been different with competent advice." Lafler, 566 U.S. at 163. Thus,
[a] defendant seeking relief for ineffective assistance in this context must meet Strickland [v Washington, 466 U.S. 668, 690; 104 S.Ct. 2052; 80 L.Ed.2d 674 (1984)]'s familiar two-pronged standard by showing: (1) "that counsel's representation fell below an objective standard of reasonableness," and (2) "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." [Douglas, 496 Mich. at 592, quoting Lafler, 566 U.S. at 163.]Lafler did not create a new rule of law but rather only established how the familiar Strickland test applied to plea negotiations. People v Walker, 328 Mich.App. 429, 448; 938 N.W.2d 31 (2019). Counsel's performance is strongly presumed to have been "born from a sound trial strategy." People v Trakhtenberg, 493 Mich. 38, 52; 826 N.W.2d 136 (2012). This Court should not "substitute our judgment for that of counsel" or "use the benefit of hindsight when assessing counsel's competence." People v Unger, 278 Mich.App. 210, 242-243; 749 N.W.2d 272 (2008). A trial strategy is not ineffective simply because it ultimately does not succeed. People v Kevorkian, 248 Mich.App. 373, 414-415; 639 N.W.2d 291 (2001). A strategy is also not ineffective because it entails taking calculated risks, especially if the range of available options for the defense is meager. People v Pickens, 446 Mich. 298, 324-325; 521 N.W.2d 797 (1994).
When a defendant claims to be prejudiced by rejecting a plea offer on the basis of ineffective assistance of counsel, the defendant must show (1) "that but for the ineffective advice of counsel there is a reasonable probability that the plea offer would have been presented to the court (i.e., that the defendant would have accepted the plea and the prosecution would not have withdrawn it in light of intervening circumstances)"; (2) "that the court would have accepted its terms"; and (3) "that the conviction or sentence, or both, under the offer's terms would have been less severe than under the judgment and sentence that in fact were imposed." Lafler, 566 U.S. at 163-164, 132 S.Ct. 1376. "Whether a person has been denied effective assistance of counsel is a mixed question of fact and constitutional law." People v LeBlanc, 465 Mich. 575, 579; 640 N.W.2d 246 (2002). This Court reviews for clear error a trial court's findings of fact and reviews de novo questions of constitutional law. Id. This Court defers to the trial court's superior position to evaluate the credibility of witnesses who testified before it. People v Johnson, 502 Mich. 541, 565; 918 N.W.2d 676 (2018). [People v White, 331 Mich.App. 144, 148-150; 951 N.W.2d 106 (2020) (alterations in original).]
B. ANALYSIS
"[W]here an appellate court remands for some limited purpose following an appeal as of right in a criminal case, a second appeal as of right, limited to the scope of the remand, lies from the decision on remand." People v Kincade, 206 Mich.App. 477, 481; 522 N.W.2d 880 (1994). In his initial appeal, defendant did not argue that his trial counsel provided him ineffective assistance of counsel. Defendant only claimed the assignment of points for various OVs were incorrect, and that his sentences were unreasonable and disproportionate. In the opinion concerning defendant's initial appeals in Docket Nos. 349971 and 349973, this Court held that defendant's sentences were reasonable and remanded the matter to the trial court only for the limited purpose of correcting defendant's OV 10 score, and for the ministerial correction of adding defendant's status as a fourthoffense habitual offender to the judgments of sentence. Dotson, unpub op at 4-5. Thus, under Kincade, the current appeal is limited to the scope of the matters remanded. In asking us to vacate his sentences, overturn his convictions underlying his appeal in Docket No. 360070, and allow him to participate in an evidentiary hearing to determine whether he was denied the effective assistance of counsel, defendant is far exceeding the scope of this Court's remand. Because defendant failed to raise ineffective assistance of counsel during his initial appeals, it is now improperly raised and we decline to address the issue.
III. DISPROPORTIONATE SENTENCE
Defendant argues that he must be resentenced because the sentences imposed by the trial court are disproportionate and unreasonable considering the nature of the offenses and defendant's youth at the time he committed the crimes. Defendant also argues that this Court should overturn its decision in People v Schrauben, 314 Mich.App. 181, 196; 886 N.W.2d 173 (2016), and find MCL 769.34(10) violates the Sixth Amendment. We disagree.
A. STANDARDS OF REVIEW
"[T]he proper inquiry when reviewing a sentence for reasonableness is whether the trial court abused its discretion by violating the 'principle of proportionality' . . . which requires sentences imposed by the trial court to be proportionate to the seriousness of the circumstances surrounding the offense and the offender." People v Posey, 334 Mich.App. 338, 354-355; 964 N.W.2d 862 (2020) (quotation marks and citations omitted, alteration in original). "[T]his Court is required to review for reasonableness only those sentences that depart from the range recommended by the statutory guidelines." People v Anderson, 322 Mich.App. 622, 636; 912 N.W.2d 607 (2018) (citation omitted). "When a trial court does not depart from the recommended minimum sentencing range, the minimum sentence must be affirmed unless there was an error in scoring or the trial court relied on inaccurate information." Schrauben, 314 Mich.App. at 196, citing MCL 769.34(10). We review de novo constitutional challenges to sentencing decisions. Posey, 334 Mich.App. at 355 (citation omitted).
Our Supreme Court has granted leave to appeal this Court's decision in Posey. People v Posey, 508 Mich. 940 (2021).
B. ANALYSIS
Sentences that deviate from the sentencing guidelines are evaluated for reasonableness under the principle of proportionality. Milbourn, 435 Mich. 630 at 636. A sentence imposed by a trial court must "be proportionate to the seriousness of the circumstances surrounding the offense and the offender." People v Steanhouse, 500 Mich. 453, 472; 902 N.W.2d 327 (2017). Thus, "a sentence within the Legislature's guidelines range is presumptively proportionate[,]" People v Odom, 327 Mich.App. 297, 315; 933 N.W.2d 719 (2019), and "[a]ccording to People v Lockridge, [498 Mich. 358; 870 N.W.2d 502 (2015)] this Court is required to review for reasonableness only those sentences that depart from the range recommended by the statutory guidelines." Anderson, 322 Mich.App. at 636. "If a minimum sentence is within the appropriate guidelines sentence range, the court of appeals shall affirm that sentence and shall not remand for resentencing absent an error in scoring the sentencing guidelines or inaccurate information relied upon in determining the defendant's sentence." MCL 769.34(10).
Defendant does not claim that his sentence is outside the sentencing guidelines range, that an error in scoring occurred, or that the trial court relied on inaccurate information in determining his sentences. Rather, defendant claims his sentences were disproportionate because the trial court failed to consider defendant's youth and rehabilitative potential when imposing his sentences. But because the sentences imposed were within the guidelines, we must affirm defendant's sentences. MCL 769.34(10). Although the trial court was not required to expressly consider mitigating factors during resentencing, People v Bailey, 330 Mich.App. 41, 63; 944 N.W.2d 370 (2019), it did consider defendant's age during resentencing, stating: "I would also underscore that Mr. Dotson-Branch was 22 years of age; was already charged as a fourth habitual offender and prior attempts of rehabilitation through jail terms and prison terms had failed and he was back in court." Further, the trial court incorporated in its opinion the reasoning from defendant's initial sentencing, which also included consideration of defendant's age and rehabilitative potential. Thus, defendant's claim lacks merit.
Defendant also argues that this Court should overturn its decision in Schrauben, and rule that MCL 769.34(10) violates the Sixth Amendment by prohibiting appellate courts from reviewing a trial court's sentencing discretion, regardless of whether the sentence is reasonable or proportionate. This Court addressed this argument in Posey, declining to "declare a conflict with Schrauben," and finding MCL 769.34(10) was not "unassailable absent a scoring error or inaccurate information" because "MCL 769.34(10) does not and cannot preclude constitutional appellate challenges to a sentence." Posey, 334 Mich.App. at 357-359. Although our Supreme Court has scheduled oral argument on the defendant's application for leave to appeal this Court's judgment in Posey, because Posey remains binding precedent under MCR 7.215(J)(1), we must follow and apply the holding of Posey to this case. See People v Danto, 294 Mich.App. 596, 613; 822 N.W.2d 600 (2011). Under Posey, MCL 769.34(10) is not unconstitutional and defendant can only overcome the presumption of proportionality by showing that there are unusual circumstances rendering his sentences disproportionate. Defendant, however, does not claim his sentences constituted cruel and unusual punishment in violation of his constitutional rights, or that any unusual circumstances existed that would render his sentences disproportionate. Rather, defendant merely contends that his sentences are disproportionate and unreasonable by claiming that the trial court failed to adequately consider defendant's age and rehabilitative potential. As explained previously, the trial court in fact made abundantly clear that it considered both and articulated its reasons for imposing the sentences. Therefore, defendant's claim fails, and his sentences must be affirmed.
Posey, 508 Mich. 940 (2021).
We affirm.