Opinion
367914
05-14-2024
PEOPLE OF MICHIGAN v. MARTIN GARCIA MARTINEZ JR
LC No. 17-010813-02-FC
Anica Letica Presiding Judge, Noah P. Hood, Adrienne N. Young Judges
ORDER
The motion to waive fees is GRANTED for this case only.
Pursuant to MCR 7.205(E)(2), the trial court's March 24, 2023 order is VACATED, and the matter REMANDED for reconsideration of the motion.
Regarding defendant's claims that trial counsel was ineffective, the trial court concluded that these claims were raised on direct appeal and decided against defendant, and thus, MCR 6.508(D)(2) barred relief. Review of the motion and of this Court's decision on direct appeal shows that none of the claims were raised previously. And, "[a]s this Court has explained in other orders, the fact that a defendant raises one claim of ineffective assistance of counsel on direct appeal does not mean that the defendant can never raise any other, distinct claims of ineffective assistance of counsel in a motion for relief from judgment." People v Jones, unpublished order of the Court of Appeals, entered February 1, 2024) (Docket No. 368006) (collecting orders). It also appears that the trial court held that various claims of ineffective assistance of appellate counsel were raised on direct appeal and decided against defendant; however, our review of the record shows that no such issues were raised on direct appeal. In the future, the trial court should carefully examine claims raised in motions for relief from judgment to determine whether the particular claims at issue were actually raised previously before relying on MCR 6.508(D)(2).
To the extent the trial court's analysis addresses claims that appellate counsel was ineffective, the trial court's analysis does not relate to the specific claims defendant raised in the first issue of his motion. On remand, the trial court must address the specific claims of ineffective assistance of appellate counsel raised by defendant and provide an analysis that is sufficient to permit appellate review. See MCR 6.504(B)(2); People v Finnie, 504 Mich. 968 (2019).
Regarding defendant's challenges to the offense variables (OVs), defendant's motion challenges the scoring of OVs 5 and 10. The trial court's analysis regarding OV 5, MCL 777.35, is based on an incorrect standard of proof. The trial court cited to the "any evidence" standard, which was overruled in People v Hardy, 494 Mich. 430; 835 N.W.2d 340 (2013). See also People v Ziegler, 343 Mich.App. 406, 410; 997 N.W.2d 493 (2022) (the "any evidence" standard "is not the correct standard"). Under Hardy, a circuit court's factual findings underlying its scoring of the OVs must be "supported by a preponderance of the evidence." Id. at 438. On remand, the trial court must apply this standard. We also direct the trial court to People v Calloway, 500 Mich. 180; 895 N.W.2d 165 (2017), and People v Bailey, 330 Mich.App. 41; 944 N.W.2d 370 (2019), which provide guidance regarding the proof required to assign 15 points for OV 5.
Regarding OV 10, MCL 777.40, the trial court's analysis failed to recognize that MCL 777.40(2) specifically defines "predatory conduct" as "preoffense conduct directed at a victim . . . for the primary purpose of victimization." MCL 777.40(2) (emphasis added). And, "preoffense conduct" "does not encompass any 'preoffense conduct,' but rather only those forms of 'preoffense conduct' that are commonly understood as being 'predatory' in nature, e.g., lying in wait and stalking, as opposed to purely opportunistic criminal conduct or 'preoffense conduct involving nothing more than run-of-the-mill planning to effect a crime or subsequent escape without detection.'" People v Huston, 489 Mich. 451, 461; 802 N.W.2d 261 (2011) (citation omitted). Review of the record reveals that the conduct the trial court discussed as being "predatory" in this case was the conduct of the offense itself, not preoffense conduct. On remand, the trial court must consider whether OV 10 was properly scored in light of MCL 777.40(2) and Huston.
If the trial court determines that one or both variables were improperly scored, the trial court must also determine whether defendant has established actual prejudice, MCR 6.508(D)(3)(b). We note that unless the scoring errors affect a defendant's sentencing guidelines range, he is not be entitled to resentencing. People v Francisco, 474 Mich. 82, 89 n 8; 711 N.W.2d 44 (2006). Furthermore, if defendant has established actual prejudice, the trial court must also determine whether defendant has established good cause under MCR 6.508(D)(3)(a).
The motion to remand is DENIED, but without prejudice to the trial court directing that an evidentiary hearing be held should it determine that one is needed to resolve defendant's motion. MCR 6.508(C).
This order is to have immediate effect. MCR 7.215(F)(2). We do not retain jurisdiction.