Opinion
No. 352393
02-18-2021
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. HENRY EARL LOWE, 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 UNPUBLISHED Genesee Circuit Court
LC No. 17-041369-FH Before: SWARTZLE, P.J., and MARKEY and TUKEL, JJ. PER CURIAM.
On appeal after a remand for resentencing, defendant challenges his within-guidelines sentences as unreasonable and disproportionate to the offense and the offender. In his Standard 4 brief, defendant further argues that the sentences imposed by the trial court amount to cruel or unusual punishment. Because defendant has not identified any errors in the trial court's scoring of the sentencing guidelines or inaccurate information on which the trial court relied, and because he has not identified any circumstances sufficient to render his sentences disproportionate, we affirm.
I. BACKGROUND
The factual summary of this case was set forth in this Court's previous opinion in People v Lowe, unpublished per curiam opinion of the Court of Appeals, issued April 18, 2019 (Docket No. 342841), pp 1-2:
On March 24, 2017, Andrea Lowe contacted 911, reporting that defendant, her ex-husband, had physically assaulted her. Lowe had been living with defendant for a couple of weeks when defendant arrived home intoxicated and "belligerent." Defendant started an argument with Lowe and slapped her across the face. She grabbed a butcher knife from the kitchen to protect herself. It is unclear whether Lowe voluntarily ran to the basement to hide or whether defendant chased her there, but defendant blocked her exit. Lowe told the 911 operator that she heard defendant racking a shotgun. Defendant then burst into the basement carrying the weapon. The pair wrestled for the phone and defendant won. Lowe escaped and ran out of
the house and down the street. When the police arrived on the scene, defendant appeared to be intoxicated and was "standing in the middle of the street screaming and yelling obscenities." Lowe was "crying and very, very upset." She told the officers that defendant hit her twice and threatened to kill her while pointing a shotgun at her.
A jury convicted defendant of domestic violence, MCL 750.81(2); assault with a dangerous weapon (felonious assault), MCL 750.82; interference with electronic communications, MCL 750.540(1); being a felon in possession of a firearm, MCL 750.224f(1); being a felon in possession of ammunition, MCL 750.224f(6); and three counts of possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b(1).
The trial court originally sentenced defendant to serve 93 days in jail for his domestic-violence conviction; concurrent terms of 6 to 15 years in prison for his convictions of felon in possession of a firearm, felonious assault, interference with electronic communications, and felon in possession of ammunition; and three concurrent terms of two years in prison for his three felony-firearm convictions, to be served consecutively to the other sentences. In defendant's prior appeal, this Court affirmed defendant's convictions, but vacated his sentences and remanded for resentencing on the basis that offense variable (OV) 4 and OV 20 were improperly scored. People v Lowe, unpublished per curiam opinion of the Court of Appeals, issued April 18, 2019 (Docket No. 342841), pp 3-5.
At resentencing, the trial court did not assess points for OV 4 and OV 20, which changed the applicable guidelines range to 14 to 58 months. The trial court resentenced defendant to serve 91 days in jail for his domestic-violence conviction; concurrent terms of 42 to 180 months in prison for his convictions of felonious assault, interference with electronic communications, felon in possession of a firearm, and felon in possession of ammunition; and three concurrent terms of two years in prison for his three felony-firearm convictions, to be served consecutively to the other sentences. Therefore, the trial court imposed sentences that were within the guidelines.
Defendant now appeals of right, arguing that the within-guidelines sentences are unreasonable and disproportionate and that they are excessive and amount to cruel or unusual punishment.
II. ANALYSIS
A. REASONABLENESS AND PROPORTIONALITY OF SENTENCES
Defendant argues that his sentences are unreasonable and disproportionate because he does not have a "significant" criminal history, he has a "stellar" prison history; he was 68 years old at the time of resentencing; he has numerous health conditions; and the victim wrote a letter to the trial court asking for leniency. Defendant also argues that he is entitled to resentencing because the trial court did not articulate any reasons for the sentences it imposed and did not state that its sentences were fair and proportional.
This Court is required to affirm a sentence that is within the guidelines range "absent an error in scoring the sentencing guidelines or inaccurate information relied upon in determining the defendant's sentence." MCL 769.34(10). When a defendant's sentence is within the applicable guidelines range, we need not consider whether the defendant's sentences were reasonable. People v Anderson, 322 Mich App 622, 636; 912 NW2d 607 (2018).
The Supreme Court's decision in People v Lockridge, 498 Mich 358; 870 NW2d 502 (2015), "did not alter or diminish MCL 769.34(10)." People v Schrauben, 314 Mich App 181, 196 n 1; 886 NW2d 173 (2016). --------
In this case, defendant's sentences fall within the applicable guidelines range of 14 to 58 months. Defendant does not argue that the trial court committed error in scoring the guidelines or that the trial court relied on inaccurate information when it determined defendant's sentences. Sentences within the applicable sentencing guidelines are presumptively proportionate. People v Odom, 327 Mich App 297, 315; 933 NW2d 719 (2019). "In order to overcome the presumption that the sentence is proportionate, a defendant must present unusual circumstances that would render the presumptively proportionate sentence disproportionate." People v Lee, 243 Mich App 163, 187; 622 NW2d 71 (2000).
Defendant has not identified any unusual circumstances that are sufficient to render his sentences disproportionate. He first argues that his sentence is unreasonable because he does not have a "significant" criminal history, except for "several" driving offenses. Although defendant's criminal history is actually substantial, even a complete lack of a criminal history is not an unusual circumstance sufficient to overcome the presumption of proportionality. People v Daniel, 207 Mich App 47, 54; 523 NW2d 830 (1994). Defendant notes that he is of advanced age and has numerous medical conditions. Defendant's age is insufficient to overcome the presumption of proportionality of his within-guidelines sentence. See People v Bowling, 299 Mich App 552, 558-559; 830 NW2d 800 (2013). Furthermore, defendant has not shown that his medical conditions are unusual, and has not cited any authority to support his argument that experiencing health issues is an unusual circumstance sufficient to overcome the presumption of proportionality. Although defendant also argues that his sentences were unreasonable because the victim asked the trial court for leniency, he has provided no authority that a victim's call for leniency is an unusual circumstance.
Defendant also argues that he is entitled to resentencing because the trial court did not articulate any reasons for his sentences and did not state that his sentences were proportionate and consistent with the factors set forth in People v Milbourn, 435 Mich 630; 461 NW2d 1 (1990). The trial court "was not required to articulate why the sentence was proportionate because it was within the guidelines range and was therefore presumptively proportionate." People v Johnson, 309 Mich App 22, 34; 866 NW2d 883 (2015), rev'd in part on other grounds 497 Mich 1042 (2015).
B. CRUEL OR UNUSUAL PUNISHMENT
In his Standard 4 brief, defendant argues that his sentences are excessive and amount to cruel or unusual punishment. Generally, we review de novo constitutional questions. People v Fonville, 291 Mich App 363, 376; 804 NW2d 878 (2011). Because defendant did not raise this issue before the trial court, however, it is unpreserved for appellate review. Bowling, 299 Mich App at 557. We review an unpreserved claim that a sentence is unconstitutionally cruel or unusual for plain error affecting a defendant's substantial rights. Id.
The Michigan Constitution prohibits "cruel or unusual punishment." Const 1963, art 1, § 16. The Eighth Amendment to the federal Constitution prohibits "cruel and unusual punishments." US Const, Am VIII. If a punishment does not violate the Michigan Constitution, "then it necessarily passes muster under the federal constitution." Bowling, 299 Mich App at 557 n 3 (cleaned up). Our Court has held that a sentence that is within the guidelines is "presumptively proportionate, and a proportionate sentence is not cruel or unusual." People v McFarlane, 325 Mich App 507, 538; 926 NW2d 339 (2018) (cleaned up). Because defendant's sentences were within the applicable guidelines range, he has failed to establish that his sentences are cruel or unusual.
Defendant also argues that his sentencing was unfair because of defense counsel's failure to object when the prosecutor suppressed information concerning the conditions of the correctional facilities and personnel competence, and that defense counsel was ineffective because he failed to "object and challenge the element of criminal intent" and did not provide rebuttal evidence or lay a proper foundation as required by MRE 202. To the extent that these issues relate to trial proceedings, they are outside the scope of this appeal and are not properly before this Court. Moreover, defendant has waived review of these issues because he did not identify them in his statement of questions presented in his Standard 4 brief. Fonville, 291 Mich App at 383. Finally, because defendant has failed to brief these issues adequately, they are abandoned. See People v Harris, 261 Mich App 44, 50; 680 NW2d 17 (2004).
Affirmed.
/s/ Brock A. Swartzle
/s/ Jane E. Markey
/s/ Jonathan Tukel