Opinion
363093
11-30-2023
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. MICHAEL JAMES HILTON, Defendant-Appellant.
UNPUBLISHED
Tuscola Circuit Court LC No. 21-015399-FC
Before: RIORDAN, P.J., and CAVANAGH and GARRETT, JJ.
PER CURIAM.
Defendant appeals by leave granted his guilty-plea convictions of carjacking, MCL 750.529a; armed robbery, MCL 750.529; and assault with a dangerous weapon (felonious assault), MCL 750.82. Defendant was sentenced as a fourth-offense habitual offender, MCL 769.12, to concurrent terms of 12 to 25 years' imprisonment for each of his carjacking and armed robbery convictions, and 10 to 15 years' imprisonment for his conviction of felonious assault. We vacate his carjacking sentence and remand to the trial court for resentencing on this matter.
People v Hilton, unpublished order of the Court of Appeals, entered January 10, 2023 (Docket No. 363093).
I. BACKGROUND FACTS AND PROCEDURAL HISTORY
In February 2021, defendant asked the victim for a ride. After a short drive, defendant showed the victim a tire iron in a threatening manner and demanded that he exit the car. Defendant then drove away. He pleaded guilty and was sentenced as noted. Defendant subsequently moved for resentencing, arguing that the trial court improperly scored offense variables (OVs) 4, 12, and 13; sentenced him on inaccurate information; and trial counsel was ineffective for failing to object to these errors at sentencing.
As part of his plea agreement, the trial court dismissed a charge of unlawful driving away of an automobile (UDAA), MCL 750.413.
The trial court found that OV 4 was improperly scored. The trial court amended OV 4 from 10 points to zero points but left the remaining OVs unchanged, finding that they were properly scored. The trial court also disagreed that defendant was sentenced on incorrect information or provided ineffective assistance of counsel. Because the trial court determined that the 10-point reduction in defendant's OV score did not alter the minimum sentence guidelines range, the motion for resentencing was denied. This appeal followed.
During the hearing, the prosecution informed the trial court that resentencing was not required because "[w]ith the new OV score, that would now be 27 points. And under the A grid, that would still remain level 2. So, the range would still remain 108 to 360."
II. DISCUSSION
Defendant argues that (1) the sentencing guidelines were incorrectly scored; (2) his sentence was based on inaccurate information, which violated his due-process rights; and (3) trial counsel was ineffective by failing to object to these errors at sentencing. We disagree with those specific arguments. However, during the post-sentencing motion hearing, the trial court committed clear error when it did not adjust his sentencing guidelines for carjacking.
A. STANDARD OF REVIEW
Under the sentencing guidelines, the circuit court's factual determinations are reviewed for clear error and must be supported by a preponderance of the evidence. Whether the facts, as found, are adequate to satisfy the scoring conditions prescribed by statute, i.e., the application of the facts to the law, is a question of statutory interpretation, which an appellate court reviews de novo. [People v Hardy, 494 Mich. 430, 438; 835 N.W.2d 340 (2013) (footnotes omitted), superseded in part by statute as stated in People v Rodriguez, 327 Mich.App. 573, 579 n 3; 935 N.W.2d 51 (2019).]
"When reviewing an ineffective assistance of counsel claim, this Court reviews for clear error the trial court's findings of fact and reviews de novo questions of law." People v Shaw, 315 Mich.App. 668, 671-672; 892 N.W.2d 15 (2016). However, because there was no evidentiary hearing, our review is limited to errors apparent on the record. People v Crews, 299 Mich.App. 381, 400; 829 N.W.2d 898 (2013).
B. LAW AND ANALYSIS
A defendant is entitled to be resentenced if "there has been a scoring error or inaccurate information has been relied upon." People v Francisco, 474 Mich. 82, 88; 711 N.W.2d 44 (2006). Before reaching the merits of defendant's arguments, we address a separate issue which neither party expressly identified, but which entitles defendant to resentencing on one of his convictions. There were two sentencing information reports (SIRs) generated for sentencing in this case, one each for defendant's carjacking and armed-robbery convictions. These are both Class A felonies. MCL 777.16y. The prior record variable (PRV) scores were calculated identically for each crime, have not been disputed on appeal, and correspond to PRV Level E. See MCL 777.62. The SIR for the carjacking conviction reflected a total OV score of 42 points, which corresponded to OV Level III, placing him in Cell E-III of the guidelines. See id. This caused the guidelines range for the carjacking conviction to be 126 to 420 months' imprisonment. Id. See also MCL 777.21(3)(c). The SIR for the armed robbery conviction reflected a total OV score of 37 points, which corresponded to OV Level II, placing him in Cell E-II of the guidelines. See MCL 777.62. This caused the guidelines range for the armed-robbery conviction to be 108 to 360 months' imprisonment. Id. See also MCL 777.21(3)(c). The difference in scoring occurred because defendant's use of a tire iron as a weapon warranted assignment of five points under OV 1 for the carjacking conviction, MCL 777.31(1)(e) (requiring the assessment of five points when "[a] weapon was displayed or implied"), but the same could not be considered for the armed-robbery conviction, MCL 777.31(2)(e) ("Do not score 5 points if the conviction offense is a violation of . . . MCL 750.529."). When defendant was sentenced, the trial court acknowledged these differing guidelines ranges before imposing the sentences noted above.
Ordinarily, "the trial court [is] not required to independently score the guidelines for and sentence the defendant on each of his concurrent convictions if the court properly scored and sentenced the defendant on the conviction with the highest crime classification." People v Lopez, 305 Mich.App. 686, 690; 854 N.W.2d 205 (2014). "The rationale for this legislative scheme is fairly clear because, except in possibly an extreme and tortured case, the guidelines range for the conviction with the highest crime classification will be greater than the guidelines range for any other offense." Id. at 691. "However, when there are multiple convictions of the same crime class and that shared crime class is the highest crime class, each of those convictions must be scored." People v Reynolds, 508 Mich. 388, 393; 975 N.W.2d 821 (2021) (quotation marks and citations omitted). Here, because both carjacking and armed robbery are Class A felonies, see MCL 777.16y, two SIRs were necessary.
At the post-sentencing motion hearing, the trial court found that OV 4 was improperly assessed 10 points and corrected the score to zero points. The trial court apparently was unaware that there was more than one SIR, so it only addressed the one related to the armed-robbery conviction. Changing OV 4 to zero points does not affect the OV level for armed robbery because the range of OV scores for OV Level II is 20 to 39 points. MCL 777.62. Thus, a reduction from 37 points to 27 points did not result in a cell change for that conviction. See id. It does, however, move defendant from OV Level III to OV Level II for the carjacking conviction. Id. This is because the range of OV scores corresponding with OV Level III is 40 to 59 points, which means that a reduction from 42 points to 32 points does move the cell. Once the trial court amended defendant's OV score by reducing it by 10 points, the guidelines range for defendant's carjacking conviction was changed to 108 to 360 months' imprisonment. Id. See also MCL 777.21(3)(c). Defendant originally was sentenced on the basis of a guidelines range of 126 to 420 months' imprisonment for the carjacking conviction. Thus, defendant is entitled to be resentenced for his carjacking conviction. See People v Reynolds, 508 Mich. 388, 396; 975 N.W.2d 821 (2021) ("[W]hen two or more offenses fall within the same crime class and it is the highest applicable crime class, then not only must each offense be scored, but the defendant must also be sentenced based on the respective minimum sentencing guidelines ranges for each offense.").
Turning to the merits of this appeal, defendant argues that OVs 12 and 13 were erroneously scored. We disagree.
"Offense variable 13 is continuing pattern of criminal behavior." MCL 777.43(1). An assessment of 25 points is warranted when "[t]he offense was part of a pattern of felonious criminal activity involving 3 or more crimes against a person." MCL 777.43(1)(c).
"If no pattern of felonious criminal activity existed, the trial court must score OV 13 at zero points." People v Carll, 322 Mich.App. 690, 704; 915 N.W.2d 387 (2018). Further, when "determining the appropriate points under this variable, all crimes within a 5-year period, including the sentencing offense, shall be counted regardless of whether the offense resulted in a conviction." Id. (quotation marks and citations omitted).
Defendant argues that his offenses were not a pattern of felonious criminal activity because they occurred contemporaneously during the same overall criminal activity, the car theft. However, we have held that separate crimes occurring at the same time may constitute a pattern of criminal activity. In People v Gibbs, 299 Mich.App. 473, 488; 830 N.W.2d 821 (2013), we explained that the defendant committed "three separate acts against each of the three victims[,] and these three distinct crimes constituted a pattern of criminal activity." We reasoned that "because multiple concurrent offenses arising from the same incident are properly used in scoring OV 13, the trial court did not err by assessing 25 points for that variable." Id.
In this case, defendant pleaded guilty to three crimes: carjacking, armed robbery, and felonious assault. The offenses are separate felonious acts, distinguishable from each other because their respective criminal elements are different. In addition, the crimes were committed against the same victim, a person. Because defendant's sentencing offenses were a part of a pattern of criminal activity occurring within a five-year period, the trial court correctly assigned 25 points for OV 13, and defendant is not entitled to resentencing on this ground.
Next, defendant argues that OV 12 was improperly scored because the dismissed count of UDAA and the sentencing offense of carjacking are the same crime.
"[OV] 12 is contemporaneous felonious criminal acts." MCL 777.42(1). An assessment of one point is warranted when "[o]ne contemporaneous felonious criminal act involving any other crime was committed." MCL 777.42(1)(f). When scoring OV 12, "[a] felonious criminal act is contemporaneous if . . . [t]he act occurred within 24 hours of the sentencing offense . . . [and] the act has not and will not result in a separate conviction." MCL 777.42(2)(a). Our Supreme Court has defined the "sentencing offense in the context of OVs as the crime of which the defendant has been convicted and for which he or she is being sentenced." People v Carter, 503 Mich. 221, 227; 931 N.W.2d 566 (2019) (quotation marks and citation omitted). "Therefore, when scoring OV 12, a court must look beyond the sentencing offense and consider only those separate acts or behavior that did not establish the sentencing offense." People v Light, 290 Mich.App. 717, 723; 803 N.W.2d 720 (2010).
As noted above, defendant pleaded guilty to one count of carjacking, and the UDAA charge was dismissed as part of his plea agreement. In addition to carjacking, defendant pleaded guilty to two other offenses, armed robbery and felonious assault, meaning that those offenses resulted in separate convictions. Consequently, armed robbery and felonious assault do not factor into the scoring of OV 12 when addressing the carjacking conviction. See id. At issue is whether the dismissed UDAA charge is a contemporaneous felonious criminal act distinct from the sentencing crime. If it is, the trial court was correct in assessing one point for OV 12. See MCL 777.42(1)(e).
Although UDAA and carjacking are similar offenses, they are not the same. Our Supreme Court has held that "UDAA requires proof that defendant moved the vehicle, which carjacking does not, and carjacking requires proof of the use of force or violence, or the threat thereof, which UDAA does not." People v Cain, 495 Mich. 874, 875 (2013). Accordingly, defendant committed UDAA as a separate act within the same 24-hour period as the carjacking. Further, because the UDAA charge was dismissed, it did not result in a separate conviction, even though it is a separate crime. This satisfies both prongs of OV 12. Therefore, the trial court correctly scored OV 12, and defendant is not entitled to resentencing on this ground.
Next, defendant argues that inaccurate information was relied upon by the trial court during sentencing. In this regard, in a victim-impact statement, the victim's sister stated that doctors attributed an aneurysm suffered by the victim to the stress caused by the incident. At sentencing, the prosecution mentioned the aneurysm during its argument. Defendant requests that we vacate his sentences and remand to the trial court for resentencing because there was no evidence that the victim's aneurysm was caused by the trauma of these crimes. Defendant further implies that the trial court might have relied upon this inaccurate information during sentencing.
A defendant is entitled to be sentenced "on the basis of accurate information." People v McGraw, 484 Mich. 120, 131; 771 N.W.2d 655 (2009). "When the defendant's sentence is based . . . on inaccurate information, a remand for resentencing is required." People v Jackson, 487 Mich. 783, 792; 790 N.W.2d 340 (2010) (emphasis omitted). "[S]entences based on inaccurate information are invalid." People v Miles, 454 Mich. 90, 96; 559 N.W.2d 299 (1997). Importantly, however, inaccurate information invalidates a sentence only if the trial court relied on it or, stated otherwise, the sentences were "based on" the inaccurate information or belief. Id. In this case, the record does not suggest that the trial court relied upon the aneurysm when sentencing defendant. To the contrary, the trial court assessed zero points for OV 3, which corresponds to "[n]o physical injury occurred to a victim." MCL 777.33(1)(f). An aneurysm certainly would be such a physical injury, yet it was not factored into OV 3. This suggests that the trial court did not rely on the aneurysm when sentencing defendant. Further, as noted, while the aneurysm might have originally been considered as the basis for scoring OV 4, that offense variable was ultimately scored at zero points.
Absent use of the aneurysm when calculating the OV scores, defendant contends that the trial court might have generally relied upon the information when deciding his sentences. Defendant argues that his due-process rights were violated because the judge who heard his motion for resentencing did not wait to ask the sentencing judge if she relied on the aneurysm when sentencing defendant. This reasoning misses the mark. Defendant has the burden of proving that there was inaccurate information on which the trial court relied during sentencing. People v Odom, 327 Mich.App. 297, 314; 933 N.W.2d 719 (2019). Defendant did not provide the trial court with any evidence that the victim did not have an aneurysm or that it potentially was caused by the crime. Instead, defendant merely identifies the lack of medical records supporting the claim, then declares that it must be false. This simply is not enough to determine that the statement by the victim's sister was false, let alone that the trial court improperly relied on it. Thus, the trial court properly denied defendant's motion for resentencing in this regard. Id. In other words, because defendant did not satisfy his burden of proving that the trial court relied on inaccurate information, his claim must fail. Id.
Defendant finally argues that trial counsel was ineffective for not objecting to the scoring of OVs 12 and 13 or inaccurate information about the aneurysm. "[I]neffective assistance requires a defendant to show (1) that trial counsel's performance was objectively deficient, and (2) that the deficiencies prejudiced the defendant." People v Randolph, 502 Mich. 1, 9; 917 N.W.2d 249 (2018). "Effective assistance of counsel is presumed, and a defendant bears a heavy burden to prove otherwise." People v Swain, 288 Mich.App. 609, 643; 794 N.W.2d 92 (2010). Further, "[f]ailing to advance a meritless argument or raise a futile objection does not constitute ineffective assistance of counsel." People v Ericksen, 288 Mich.App. 192, 201; 793 N.W.2d 120 (2010).
Defendant claims that trial counsel was ineffective for failing to object or raise the issues discussed above at sentencing. However, as explained, defendant's specific challenges to the trial court's decisions lacked merit. Consequently, an objection by trial counsel on those grounds would have been futile. Thus, defendant is not entitled to relief for ineffective assistance of counsel. Id.
III. CONCLUSION
For the reasons discussed above, we vacate defendant's carjacking sentence and remand to the trial court for resentencing on that offense. We do not retain jurisdiction.
We do not preclude the trial court, on remand, from resentencing defendant on all three convictions. However, because the minimum sentencing guidelines range for the armed-robbery conviction remains unchanged, resentencing is not absolutely required on that matter. See Reynolds, 508 Mich. at 396.
KRISTINA ROBINSON GARRETT, J. (concurring).
Because I am bound by People v Gibbs, 299 Mich.App. 473, 487-488; 830 N.W.2d 821 (2013), I agree with the majority opinion that the trial court did not err by scoring offense variable (OV) 13 at 25 points. I write separately to question whether Gibbs' interpretation of OV 13 is consistent with the relevant statutory language.
I also agree with the rest of the majority opinion.
OV 13 involves a "continuing pattern of criminal behavior." MCL 777.43(1) (emphasis added). 25 points are assessed when the defendant engaged in "a pattern of felonious criminal activity involving 3 of more crimes against a person." MCL 777.43(1)(c). The Legislature instructed sentencing courts that when scoring OV 13, "all crimes within a 5-year period, including the sentencing offense, shall be counted regardless of whether the offense resulted in a conviction." MCL 777.43(2)(a).
Gibbs involved a defendant convicted of three counts of robbery that arose out of a single criminal episode. Gibbs, 299 Mich.App. at 487. Rejecting the defendant's challenge to the assessment of 25 points for OV 13, this Court held that "there is nothing in the language of MCL 777.43(1)(c) to support [the] argument that multiple convictions arising from the same incident cannot be considered for scoring OV 13." Id. I disagree.
The Legislature did not define "pattern of felonious criminal activity," MCL 777.43(1)(c), nor "continuing pattern of criminal behavior," MCL 777.43(1). But as we noted in People v Carll, 322 Mich.App. 690, 704-705; 915 N.W.2d 387 (2018),
[t]he word "continuing" clearly refers to an event or process that takes place over time. Merriam-Webster's Collegiate Dictionary (11th ed.) defines "continuing" as "to keep going or add to." It defines "pattern" as "a reliable sample of traits, acts, tendencies, or other observable characteristics of a person ...."
We held in Carll that a single felonious act, even one that harms multiple victims, does not constitute a pattern that justifies scoring 25 points for OV 13. Id. at 704. Similarly, three felonious acts committed at nearly the same time does not necessarily constitute a "continuing pattern." Indeed, the Legislature's intention that all crimes within a five-year period be counted for OV 13 reflects its understanding that a "continuing pattern" generally requires the passage of time. Three felonious acts committed moments apart, however, is neither a pattern, nor one that is continuing.
In this case, defendant's three convictions rested on three separate felonious acts: being armed with a dangerous weapon; assaulting the victim with that weapon; and taking the victim's car. Under Gibbs, those three contemporaneous acts, arising out of a single criminal episode, constitute "a pattern of felonious criminal activity." I therefore agree that the trial court's assessment of 25 points for OV 13 must be affirmed.