Opinion
No. 346847
11-24-2020
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. JORGE GABIEL ESPINOZA-VALLECIL, 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 UNPUBLISHED Wayne Circuit Court
LC No. 18-000825-01-FH Before: GLEICHER, P.J., and K. F. KELLY and SHAPIRO, JJ. PER CURIAM.
Defendant appeals his jury-trial convictions of reckless driving causing death, MCL 257.626(4), and failure to stop at the scene of an accident resulting in serious impairment or death, MCL 257.617(2). Defendant was sentenced to 10 to 15 years' imprisonment for reckless driving causing death and a concurrent term of 1 to 5 years for failure to stop at the scene of an accident resulting in serious impairment or death. We affirm defendant's convictions but remand for resentencing.
I. BACKGROUND
This case stems from a hit-and-run accident resulting in the death of a pedestrian. The accident occurred on August 6, 2007, near the intersection of Junction Street and Federal Street in Detroit. A witness to the accident was able to identify the vehicle that struck the victim as a light-colored SUV. The same evening, outdoor surveillance cameras at the El Durango Bar recorded a light-colored SUV with a beige strip near the bottom of the vehicle pulling into the bar's parking lot. The SUV had damage to the windshield and front quarter panel on the passenger side, and the passenger-side headlight was not working.
Kenneth Day testified that he went to the El Durango Bar on August 6, 2017, where he met and interacted with defendant. In the surveillance recordings, Day and defendant could be seen leaving the bar for a short period in Day's vehicle. According to Day, he drove defendant to a nearby residence; defendant entered the residence to get money before returning to the bar with Day. Day recalled the directions to defendant's residence and, with police assistance, was able to identify its address on Vinewood Street.
Equipped with the address of the suspected perpetrator of the hit-and-run accident, the police learned defendant's name and discovered that he had a white 2005 Buick Rendezvous, an SUV, registered in his name. The police located the Buick behind defendant's home while executing a search warrant on August 11, 2017. The windshield had been removed and it was missing the passenger-side headlight assembly. Sergeant Paul Warner, an expert in crash reconstruction and crash data recording, extracted information from an event data recorder in the Buick's airbag control module. According to Sergeant Warner, the data he retrieved was consistent with the Buick having been in a pedestrian accident around the time of the subject accident.
II. JURY INSTRUCTIONS
On appeal, defendant first argues that the trial court erroneously instructed the jury that it would not be able to review testimony during its deliberations. We agree with defendant that the trial court's instruction constituted plain error, but under the circumstances of this case, defendant does not show prejudice requiring reversal.
Defendant did not object to the instruction he challenges on appeal, so our review is for plain error affecting substantial rights. People v Head, 323 Mich App 526, 537; 917 NW2d 752 (2018). "An error has affected a defendant's substantial rights when there is a showing of prejudice, i.e., that the error affected the outcome of the lower court proceedings." People v Walker, 504 Mich 267, 276; 934 NW2d 727 (2019) (quotation marks and citation omitted).
"If, after beginning deliberation, the jury requests a review of certain testimony or evidence . . . , the court must exercise its discretion to ensure fairness and to refuse unreasonable requests, but it may not refuse a reasonable request." MCR 2.513(P). Thus, a trial court is not permitted to instruct the jury in a manner that completely precludes the possibility of reviewing testimony during deliberations. See People v Carter, 462 Mich 206, 213 n 10, 218; 612 NW2d 144 (2000) (construing MCR 2.513(P)'s predecessor court rule).
During its preliminary instructions to the jury, the trial court observed that jurors commonly ask for "a read back of certain testimony." It then explained:
You're not gonna be able to do that. Okay? So, you're gonna have to rely on your collective memory, as well as your notes, during your deliberations. And another reason why it's important for you to stay awake during the trial, because you're not gonna be able to have any read backs. Okay?The trial court's preliminary instruction only barred "read backs," without direct reference to the possibility of obtaining transcripts if necessary. However, the court's subsequent statement that the jurors would have to rely on their collective memories implied that the jurors would have no way to review testimony should their collective memories prove inadequate to resolve a disagreement or memory lapse. We therefore agree with defendant that this instruction constituted plain error.
Nonetheless, we conclude that reversal is not required because defendant has not established that he was prejudiced by the court's instruction. The mere fact that the jury did not ask for a read-back or transcript of testimony is not dispositive because the jury might not have asked simply due to the trial court's admonition in the preliminary instructions. Thus, the erroneous instruction given by the trial court cannot be deemed harmless solely on the basis of the jury not making a request to review testimony. However, in this case, the jury was released for deliberations at 2:57 p.m. and reached its verdict by 3:30 p.m. Given the brevity of the deliberations, it is highly improbable that the jurors were faced with the sort of confusion regarding the substance of the evidence that would support a reasonable request to review the testimony in that time frame. Under those circumstances, defendant has not demonstrated plain error affecting his substantial rights.
III. WAIVER OF RIGHT TO COUNSEL
Defendant next argues that he is entitled to a new trial because the trial court did not obtain a valid waiver of his right to counsel. We conclude that his waiver was valid.
A criminal defendant may waive his constitutional right to counsel and choose to represent himself. People v Williams, 470 Mich 634, 641; 683 NW2d 597 (2004). Pursuant to citing People v Anderson, 398 Mich 361, 367-368; 247 NW2d 857 (1976), before granting a defendant's initial request to waive his or her right to counsel the court must determine that "(1) the defendant's request is unequivocal, (2) the defendant is asserting the right knowingly, intelligently, and voluntarily after being informed of the dangers and disadvantages of self-representation, and (3) the defendant's self-representation will not disrupt, unduly inconvenience, and burden the court and the administration of the court's business." People v Willing, 267 Mich App 208, 220; 704 NW2d 472 (2005). In addition, MCR 6.005 requires the court to advise the defendant "of the charge[s], the maximum possible prison sentence for the offense, any mandatory minimum sentence required by law, and the risk involved in self-representation . . . ." MCR 6.005(D)(1). The court must also offer the defendant the opportunity to consult with a lawyer. MCR 6.005(D)(2). The trial court must substantially comply with MCR 6.005(D) and the requirements adopted in Anderson. People v Russell, 471 Mich 182, 191; 684 NW2d 745 (2004).
Defendant had appointed counsel up to a pretrial hearing about two months before trial. At that hearing, defendant was represented by Sanford Schulman, but he was given permission to address the court directly. Defendant complained about past adjournments of his trial date and Schulman's inability to satisfy defendant's request for transcripts of earlier proceedings. After the trial court explained that there was no reason to order additional transcripts at that time, defendant indicated that he wanted to represent himself at trial. The court questioned defendant about his request, asking whether he understood that he would have to conduct himself in the same manner as would an attorney, which included complying with procedural and evidentiary court rules. The court further advised defendant that he would be treated as a lawyer and warned that he would not be permitted to disrupt or unduly inconvenience the trial proceedings. The court then confirmed that defendant understood the charges against him, the maximum penalties, and that there was no mandatory minimum sentence. The court reiterated the risks involved with self-representation, including that the court would not be able to help defendant with the rules of evidence or questions of law that may arise. Defendant repeatedly confirmed that he understood what the court was telling him, and each time that he provided an answer that was not directly responsive to the court's inquiry, the court repeated or expanded upon its question.
The trial court concluded that defendant understood the "potential pitfalls and potential disadvantages to representing himself" and that he voluntarily and knowingly waived his right to counsel. The court also ordered that Schulman act as advisory counsel and answer any questions defendant may have about the proceedings. Defendant proceeded to represent himself through the first three days of trial. On the fourth and last day, the trial court ordered Schulman to represent defendant for the remainder of the proceedings because of repeated misrepresentations defendant made before the jury.
On appeal, defendant does not argue that the trial court failed to comply with MCR 6.005(D). And while he claims that he did not knowingly and understandingly waive his right to counsel, he fails to support that assertion with any argument. See People v Kevorkian, 248 Mich App 373, 389; 639 NW2d 291 (2001) ("It is not enough for an appellant in his brief simply to announce a position or assert an error and then leave it up to this Court to discover and rationalize the basis for his claims, or unravel and elaborate for him his arguments.").
Defendant primarily argues that the trial court erred by allowing him to represent himself because it should have been obvious to the court that defendant would not be able to refrain from disrupting the proceedings. We will review the record as it existed at the time the trial court granted the waiver of counsel, i.e., we will not judge the trial court's decision in hindsight based on defendant's behavior at trial. Given that, we see no basis to conclude that the trial court erred by allowing defendant to represent himself. At the pretrial hearing, the court repeatedly informed defendant that he would be bound by the rules of evidence and other procedural requirements in the same manner as an experienced attorney. It also warned defendant that disruptive dilatory behavior would not be tolerated, despite defendant's lack of trial experience or legal education. Defendant confirmed that he understood and would abide by the procedures required by the court. While defendant suggests that the court should have known that he would not follow the court's rulings based on his behavior at other pretrial proceedings, he fails to support that position with any record citation.
In sum, the trial court satisfied the requirements outlined by Anderson by assuring that defendant's waiver was unequivocal, knowing, intelligent, voluntary, and made with the understanding that he would not be permitted to disrupt, inconvenience, or burden the proceedings. The trial court's inquiries and decision also complied with MCR 6.005(D). Accordingly, defendant has not established that his waiver of counsel was invalid, and he is not entitled to a new trial on that basis.
IV. SUFFICIENCY OF THE EVIDENCE
Defendant also argues that there was insufficient evidence to support his convictions. After review of the record, however, we conclude that there was more than adequate evidence for the jury to find defendant guilty beyond a reasonable doubt.
Challenges to the sufficiency of the evidence are reviewed de novo. People v Miller, 326 Mich App 719, 735; 929 NW2d 821 (2019). "In evaluating defendant's claim regarding the sufficiency of the evidence, this Court reviews the evidence in a light most favorable to the prosecutor to determine whether any trier of fact could find the essential elements of the crime were proven beyond a reasonable doubt." People v Robinson, 475 Mich 1, 5; 715 NW2d 44 (2006).
In challenging the sufficiency of the evidence regarding his convictions for reckless driving causing death and failure to stop at the scene of an accident resulting in serious impairment or death, defendant does not challenge any offense-specific element of either crime. Instead, he argues only that there was insufficient evidence that he was the person who struck the victim with a vehicle. In every criminal proceeding, the prosecution's burden of proof includes proving the identity of the person who committed the charged offense. People v Savage, 327 Mich App 604, 614; 935 NW2d 69 (2019).
Defendant's focus on the absence of direct evidence establishing his identity ignores the well-settled rule that circumstantial evidence, and inferences arising from that evidence, can be sufficient proof of the elements of a crime. People v Nowack, 462 Mich 392, 400; 614 NW2d 78 (2000). In this case, there was overwhelming circumstantial evidence from which the jury could infer that defendant committed the charged offenses.
Eduardo Vargas-Nava testified that he was in the area of Junction Street and Federal Street in Detroit on the night of August 6, 2017. As he was stopped on the side of the road, he saw a man walking or limping across Junction Street under a viaduct. Vargas-Nava suddenly heard a "big sound." In his driver's side mirror, Vargas-Nava saw a light-color SUV strike the pedestrian. The pedestrian flipped over in the air once or twice, hit a steel beam under the viaduct, and fell on the sidewalk. The SUV did not stop.
Outdoor surveillance cameras at the El Durango Bar, which is situated a mere two or three blocks away from the scene of the accident, recorded an SUV pulling into the bar parking lot the same evening. The SUV was a light color with a beige strip near the bottom and it had damage to the passenger-side headlight and windshield. When the driver got out of the vehicle, he walked to the front passenger side and remained there for approximately 30 seconds. The jury could infer from this action that the driver was examining the front-end damage, which in turn suggests that it was recently inflicted. The driver then walked to Junction Street and looked north, i.e., the direction where the accident occurred.
Although the driver's face is not clear in the surveillance video, Day was at the El Durango Bar on the night in question and he can be seen in the video interacting with the driver of the light-colored SUV. After the footage was made public, Day came forward and explained to the police that he gave the driver of the SUV a ride to a nearby residence and then back to the bar. Day was eventually able to confirm the address of the residence, and he identified defendant in a photograph lineup as the person that he gave a ride to.
While executing a search warrant at defendant's residence five days after the accident, the police discovered a white Buick Rendezvous parked behind the house. Like the vehicle seen in the surveillance footage, the Buick had a beige strip near the bottom of the vehicle and damage on the passenger side. The Buick was missing the front passenger-side headlight assembly, and the windshield had been removed. There were glass shards on the dashboard. According to a detective involved in the investigation, the presence of the glass shards was consistent with the windshield having been removed after an accident. The Buick was parked in the backyard, close to the house, with another vehicle behind it when the police discovered it. The windshield area was covered by a wooden board and a small plastic swimming pool.
Sergeant Warner extracted a report from the event data recorder in the airbag control module, which indicated that an impact was registered by the recorder, even though the airbags were not deployed. The report data showed that the Buick was traveling at a high rate of speed shortly before the event, braking only in the last second before the impact. Although the report did not identify the date or time of the impact, it indicated that the Buick's engine had been started only 15 times since the event occurred, and Sergeant Warner explained that one of those engine cycles occurred when he started the vehicle to download the report from the event data recorder. As an expert in crash data recording, Sergeant Warner opined that it would be reasonable to infer that the event occurred within the last five days. He also opined that the damage to the vehicle was consistent with the damage that occurs when a vehicle hits a pedestrian.
In sum, defendant's white Buick Rendezvous matched the description of the vehicle that hit and killed the pedestrian. Based on Day's identification, surveillance footage shows defendant exiting the Buick a few blocks away from the accident, examining the damaged area of his vehicle, and then peering down the street toward the location of the accident. Police later found the Buick in a secluded location behind defendant's house and the jury could reasonably infer that defendant disposed of the damaged parts in an effort to avoid being connected to the accident. Viewed in a light most favorable to the prosecution, there was sufficient evidence for the jury to determine that defendant was the driver of the vehicle that struck the victim and, thus, that he committed reckless driving causing death and failure to stop at the scene of an accident resulting in serious impairment or death.
V. SENTENCING
A. OFFENSE VARIABLE (OV) 3
Defendant next argues that the trial court erred by assessing 50 points for OV 3. Defendant waived this claim of error when his counsel expressed affirmative satisfaction with the guidelines scoring. People v Kowalski, 489 Mich 488, 503; 803 NW2d 200 (2011). Regardless, we conclude that there was sufficient evidence to support the trial court's scoring.
"[T]he circuit court's factual determinations 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).
OV 3 addresses physical injury to a victim. If homicide is not the sentencing offense, 50 points are assessed for OV 3 when a victim was killed and the death resulted from an offense involving a motor vehicle and any of the following apply:
(i) The offender was under the influence of or visibly impaired by the use of alcoholic liquor, a controlled substance, or a combination of alcoholic liquor and a controlled substance.
(ii) The offender had an alcohol content of 0.08 grams or more per 100 milliliters of blood, per 210 liters of breath, or per 67 milliliters of urine . . . .
(iii) The offender's body contained any amount of a controlled substance listed in schedule 1 under section 7212 of the public health code, 1978 PA 368, MCL 333.7212, or a rule promulgated under that section, or a controlled substance described in section 7214(a)(iv) of the public health code, 1978 PA 368, MCL 333.7214. [MCL 777.33(2)(c).]
Defendant argues that there was no evidence that the offense involved the impaired operation of a vehicle. However, Day, the only witness to communicate with defendant on the night in question, testified that defendant was slurring his words, stumbling, and seemed inebriated. Day's assessment of defendant's demeanor is also consistent with the surveillance footage. Even before defendant entered the bar for the first time, he can be seen stumbling in the parking lot and walking with an unsteady gait. Defendant's vehicle had already sustained damage to the front passenger side when he pulled into the bar parking lot, and Sergeant Warner indicated that the damage was consistent with a pedestrian accident, i.e., the accident had already occurred. Considering this evidence, the trial court did not err by assessing 50 points because a preponderance of the evidence suggested that defendant was "under the influence of or visibly impaired by the use of alcoholic liquor, a controlled substance, or a combination of alcoholic liquor and a controlled substance" at the time of the offense. MCL 777.33(2)(c)(i).
B. REASONABLENESS OF DEPARTURE SENTENCE
Defendant also argues that his 10-year minimum sentence for the reckless driving causing death conviction—an upward departure from the 43- to 86-month minimum sentence recommended by the sentencing guidelines, and the highest minimum allowed by statute—was unreasonable and contrary to the principle of proportionality. We agree.
In People v Tanner, 387 Mich 683, 690; 199 NW2d 202 (1972), the Supreme Court held that "that any sentence which provides for a minimum exceeding two-thirds of the maximum is improper as failing to comply with the indeterminate sentence act." That holding was later codified in MCL 769.34(2)(b).
"A sentence that departs from the applicable guidelines range will be reviewed by an appellate court for reasonableness." People v Dixon-Bey, 321 Mich App 490, 520; 909 NW2d 458 (2017) (quotation marks and citation omitted). This Court reviews the reasonableness of a sentence for an abuse of discretion. Id. "A sentence is unreasonable—and therefore an abuse of discretion—if the trial court failed to adhere to the principle of proportionality in imposing its sentence on a defendant." People v Lampe, 327 Mich App 104, 125; 933 NW2d 314 (2019).
The principle of proportionality "requires sentences imposed by the trial court to be proportionate to the seriousness of the circumstances surrounding the offense and the offender." People v Walden, 319 Mich App 344, 351-352; 901 NW2d 142 (2017) (quotation marks and citation omitted). A sentence within the sentencing guidelines range is presumptively proportionate. People v Armisted, 295 Mich App 32, 51; 811 NW2d 47 (2011). If the trial court finds that a guideline sentence is not proportional, the court must "justify the sentence imposed in order to facilitate appellate review." People v Steanhouse, 500 Mich 453, 470; 902 NW2d 327 (2017) (quotation marks and citation omitted). In doing so, the trial court may consider: "(1) whether the guidelines accurately reflect the seriousness of the crime, (2) factors not considered by the guidelines; and (3) factors considered by the guidelines but given inadequate weight." People v Dixon-Bey, 321 Mich App 490, 525; 909 NW2d 458 (2017) (citations omitted).
Defendant first argues that the trial court's stated reasons for imposing an upward departure sentence were insufficient because two of the factors it cited, defendant's criminal history and the nature of the offense, were already contemplated within the guidelines. For instance, the court explicitly cited defendant's three prior felony convictions, but these felonies formed the basis for assessing 20 points under prior record variable (PRV) 2. The court said nothing to suggest that there was anything about those offenses that made them particularly noteworthy or inadequately addressed by PRV 2. Similarly, the trial court referred to the "specific facts of this case, driving, killing an individual," but it did not explain how defendant's action were not accounted for by the OVs. In addition to OV 3, 10 points was scored for OV 17 (wanton or reckless disregard for life of another person), MCL 777.47(1)(a). Although the trial court was not prohibited from considering factors accounted for in the sentencing variables, it should generally do so only when the guidelines inadequately accounted for the pertinent factor. See People v Lampe, 327 Mich App 104, 128-129; 933 NW2d 314 (2019) (accepting trial court's conclusion that points assessed for predatory conduct under OV 10 did not sufficiently address particularly egregious grooming by sex offender); Dixon-Bey, 321 Mich App at 526-527 (criticizing trial court's failure to explain why factors contemplated by OVs were not given sufficient weight by the guidelines). Accordingly, the court's review of facts accounted for by the guidelines did not provide a sufficient basis to depart from the recommended sentencing range.
The trial court also based defendant's sentence on what the court viewed as a lack of remorse. The trial court may consider a defendant's lack of remorse when imposing a sentence. People v Carlson, ___ Mich App ___, ___; ___ NW2d ___ (2020) (Docket No. 344674); slip op at 6. However, "[a] court cannot base its sentence even in part on a defendant's refusal to admit guilt." People v Pennington, 323 Mich App 452, 467; 917 NW2d 720 (2018) (quotation marks and citations omitted).
While it can be difficult to determine whether a defendant is being punished for a lack of remorse or a denial of guilt, it is clear that what the trial court referred to as a lack of remorse was, at least in part, a reference to defendant's continued assertion of innocence. The trial court stated, "[Defendant] committed a crime. He killed a person. And he doesn't show any remorse, as far as this Court can see, during the time." But given that defendant denied knowledge of the crime, the only remorse that he could show was to express sympathy to the victim's family members. It is clear, however, that the court was not solely concerned with defendant's lack of remorse but also his insistence at sentencing that he was innocent. The court left no room for doubt on that matter when it expressly based the sentence not only on defendant's "complete lack of remorse" but also on "killing an individual based on his actions and then not taking any responsibility for it." Yet defendant could not "take responsibility" for the victim's death without effectively admitting that he committed the crime. Thus, the court's reliance on defendant's failure to take responsibility establishes that his sentence was partly based on his continued assertion of innocence.
Though adamant in his denials of guilt, defendant stated that he wished he had words to console the family members of the decedent and that he prayed for the members of the family.
Courts generally consider three factors to determine whether a sentence was improperly influenced by the defendant's failure to admit guilt: "(1) the defendant's maintenance of innocence after conviction; (2) the judge's attempt to get the defendant to admit guilt; and (3) the appearance that had the defendant affirmatively admitted guilt, his sentence would not have been so severe." People v Dobek, 274 Mich App 58, 104; 732 NW2d 546 (2007) (quotation marks and citation omitted). In this case, however, the trial court expressly relied on defendant's failure to take responsibility as a reason for the imposed sentence and so consideration of these factors is unnecessary.
The trial court also identified the false statements made by defendant to the jury, both when he was representing himself and under oath as a witness, as a reason for the departure sentence. Defendant's behavior at trial was an appropriate consideration, but the fact remains that his sentence was impermissibly based, in part, on his assertion of innocence. Further, "even in cases in which reasons exist to justify a departure sentence, the trial court's articulation of the reasons for imposing a departure sentence must explain how the extent of the departure is proportionate to the seriousness of the circumstances surrounding the offense and the offender." People v Steanhouse, 322 Mich App 233, 239; 911 NW2d 253 (2017), vacated in part on other grounds 504 Mich 969 (2019) (emphasis added). Defendant's statements and testimony at trial do not justify a nearly 40 percent departure from the top of the guidelines.
In sum, the trial court properly considered defendant's criminal history and the circumstances of his offense. But the court failed to explain how the sentencing guidelines failed to adequately account for those matters. The court further erred by basing defendant's sentence on his denial of guilt, i.e., his failure to take responsibility for his actions. While the court was not precluded from considering defendant's behavior at trial, that alone does not justify the substantial departure sentence in this case. For these reasons, we remand for resentencing.
C. COURT COSTS
Lastly, defendant argues that he is entitled to a remand because the trial court ordered him to pay $1,300 in court costs without articulating any reason for imposing such a substantial amount of costs. We disagree.
Defendant failed to preserve this issue for review by raising an objection at the trial court level. People v Konopka (On Remand), 309 Mich App 345, 356; 869 NW2d 651 (2015). We review unpreserved issues for plain error affecting substantial rights. Head, 323 Mich App at 537.
MCL 769.1k(1)(b)(iii) permits a trial court to impose "any cost reasonably related to the actual costs incurred by the trial court without separately calculating those costs involved in the particular case[.]" Those costs may include, but are not limited to, "compensation of court personnel and the recovery of necessary operational expenses." People v Cameron, 319 Mich App 215, 223; 900 NW2d 658 (2017), citing MCL 769.1k(1)(b)(iii)(A)-(C). In order to facilitate appellate review, this Court has directed trial courts to establish a factual basis for the costs imposed. People v Konopka (On Remand), 309 Mich App 345, 359-360; 869 NW2d 651 (2015) ("[W]ithout a factual basis for the costs imposed, [this Court] cannot determine whether the costs imposed were reasonably related to the actual costs incurred by the trial court, as required by MCL 769.1k(1)(b)(iii).").
The trial court ordered defendant to pay court costs in the amount of $1,300 without providing any explanation for how it reached that figure. As we observed in Konopka, the trial court's failure to articulate a factual basis for the court costs imposed leaves us without an adequate record to consider whether the costs imposed were appropriate under MCL 769.1k(1)(b)(iii). Id. However, it does not necessarily follow that the costs imposed were not reasonably related to the actual costs incurred by the trial court. Under plain-error review, it is the defendant who bears the burden of establishing that a clear or obvious error occurred, People v Jones, 468 Mich 345, 355; 662 NW2d 376 (2003), and defendant has not carried that burden in this instance. Defendant argues that, as a matter of minimum due process requirements, he is entitled to "an opportunity to be heard regarding the amount of court costs imposed and the factors or method involved in calculating those costs." But defendant was given an opportunity to be heard when the trial court imposed the costs at sentencing. He could have objected to the costs or asked the trial court to explain how the $1,300 figure was reached. He simply failed to do so. Defendant essentially asks this Court to presume that an error occurred, contrary to the plain-error standard of review this Court applies to unpreserved claims of error. Because defendant has not established that an error occurred, he is not entitled to relief.
Affirmed in part, reversed in part, and remanded for resentencing consistent with this opinion. We do not retain jurisdiction.
/s/ Elizabeth L. Gleicher
/s/ Kirsten Frank Kelly
/s/ Douglas B. Shapiro