Opinion
354611
05-19-2022
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. AARON JAMES MILLER, Defendant-Appellant.
UNPUBLISHED
Gratiot Circuit Court LC No. 2017-007600-FH
Before: Gadola, P.J., and Servitto and Redford, JJ.
PER CURIAM.
Defendant appeals as of right his resentencing as a fourth-offense felony offender, MCL 769.12(1)(c), to a prison term of 34 months to 15 years for aggravated indecent exposure, MCL 750.335a(2)(b), following his previous appeal in which this Court affirmed defendant's conviction. We affirm.
See People v Miller, unpublished per curiam opinion of the Court of Appeals, issued September 5, 2019 (Docket No. 340175). The factual background and procedural history summarized in this Court's previous opinion are incorporated herein by reference. Id., unpub op at 1-4.
I. APPEAL OF ISSUES OUTSIDE THE SCOPE OF REMAND
Defendant first argues that his trial counsel denied him the effective assistance of counsel by failing to obtain electronic communications and documents from the Department of Corrections that he alleges were crucial to his defense. He also argues that his appellate counsel's failure to raise this claim in defendant's first appeal denied him effective assistance. Defendant also argues that the prosecution violated its duty under Brady v Maryland, 373 U.S. 83; 83 S.Ct. 1194; 10 L.Ed.2d 215 (1963), to disclose to defendant favorable evidence within its control, that his trial counsel provided ineffective assistance by failing to raise this claim in the trial court, and that his appellate counsel provided ineffective assistance by failing to raise this claim in defendant's initial appeal.
"An appeal from a resentencing is limited to the resentencing proceeding." People v Gauntlett, 152 Mich.App. 397, 400; 394 N.W.2d 437 (1986), citing People v Jones, 394 Mich. 434, 435-436; 231 N.W.2d 649 (1975). Defendant failed to raise the claims related to ineffective assistance of trial counsel and the Brady violation during his first appeal. Defendant cannot raise these issues in his appeal as of right from resentencing. Such claims are beyond the scope of his second appeal as of right. To hold otherwise would in effect afford defendant two appeals as of right from his original conviction, see People v Pickett, 391 Mich. 305, 316-317; 215 N.W.2d 695 (1974), and criminal defendants are entitled to only one appeal as of right from any given final judgment, People v Jackson, 465 Mich. 390, 396-397; 633 N.W.2d 825 (2001); see also MCR 7.205(A)(5). Respecting defendant's claims related to ineffective assistance of appellate counsel, if an attorney missed a meritorious claim on direct appeal, the remedy for that constitutional violation is to allow defendant to raise the claim in a motion for relief from judgment under MCR 6.502. See People v Reed, 449 Mich. 375, 378; 535 N.W.2d 496 (1995) (noting that in seeking relief from judgment, one way a defendant can show good cause for failing to bring a claim on direct appeal is if the appellate counsel should have raised it but did not). Accordingly, this appeal is limited to the resentencing proceeding. Because defendant's claims are outside the scope of this appeal, they are not reviewable by this Court.
Postappeal relief may be sought as provided under MCR 6.500 et seq.
II. APPEAL OF ISSUES DIRECTED IN REMAND REGARDING DEFENDANT'S SENTENCE
Defendant also argues that the trial court abused its discretion by sentencing him within the enhanced guidelines range to the statutory maximum sentence of 15 years under MCL 769.12(1)(c), on the ground that his criminal history does not demonstrate an inability to conform his conduct to the laws of society. He additionally argues that a 15-year maximum sentence is not proportionate to his circumstances. We review for an abuse of discretion the reasonableness of a trial court's sentence determination. People v Walden, 319 Mich.App. 344, 351; 901 N.W.2d 142 (2017). "A trial court abuses its discretion when its decision falls outside the range of reasonable and principled outcomes" or "when it makes an error of law." People v Duncan, 494 Mich. 713, 722-723; 835 N.W.2d 399 (2013).
A. DEFENDANT'S MINIMUM SENTENCE
The minimum sentence calculated under the sentencing guidelines resulted in a range of 2 to 34 months. The trial court sentenced defendant to a minimum term of 34 months. Because defendant did not receive a sentence that exceeded the advisory sentencing guidelines range, his sentence may not be reviewed for reasonableness. "[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). If a trial court does not depart from the recommended minimum sentence range, this Court need not evaluate the defendant's sentence for reasonableness and must affirm unless an error in scoring the guidelines occurred or the trial court relied on inaccurate information. Id. at 636-637 (citations omitted); MCL 769.34(10) ("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."); see also People v Schrauben, 314 Mich.App. 181, 196; 886 N.W.2d 173 (2016). Defendant does not assert that the trial court erred in the calculation of his sentencing guidelines range, or that the trial court relied on inaccurate information. Because the trial court did not depart from the recommended minimum sentencing range, his minimum sentence must be affirmed. Id.
B. DEFENDANT'S MAXIMUM SENTENCE
Defendant contends that the statutory 15-year maximum sentence is disproportionately long because his prior criminal record is not recent or serious enough to show that he has the inability to conform his conduct to the law and warrant a maximum sentence. "If an habitual offender's underlying felony and criminal history demonstrate that he is unable to conform his conduct to the law, a sentence within the statutory limit is proportionate." People v Compeau, 244 Mich.App. 595, 599; 625 N.W.2d 120 (2001), citing People v Hansford (After Remand), 454 Mich. 320, 326; 562 N.W.2d 460 (1997).
Defendant has three prior felonies consisting of two third-degree criminal sexual conduct convictions, MCL 750.520d(1)(a) (victim at least 13 years of age and under 16 years of age) in 2005, and one conviction of resisting and obstructing a police officer, MCL 750.81d(1), in 2010. He committed the offense of resisting and obstructing while on parole. He also committed the offense in the present case while on parole. Defendant's maximum sentence is within the statutory maximum. Aggravated indecent exposure is punishable by imprisonment for not more than two years. MCL 750.335a(2)(b). However, MCL 769.12(1)(c) allows the court to sentence a fourth-offense habitual offender who has committed a less-than-five-year felony to a maximum of up to 15 years. The maximum sentence of 15 years falls within this statutory limit. The trial court based the sentence, in part, on defendant's prior criminal record. Defendant's crime was of a serious nature, and revealed an inability to conform his behavior to the law. The trial court, therefore, did not abuse its discretion by sentencing defendant to the statutory maximum term of 15 years.
Defendant also argues that the 15-year maximum sentence is unreasonable given his individual circumstances. 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 Steanhouse, 500 Mich. 453, 459-460, 471-475; 902 N.W.2d 327 (2017), quoting People v Milbourn, 435 Mich. 630, 636; 461 N.W.2d 1 (1990). A trial court abuses its discretion when it imposes a sentence that is disproportionate to the seriousness of the circumstances involving the offense and the offender. Milbourn, 435 Mich. at 636. However, a sentence that falls within the sentencing guidelines is presumptively proportionate. People v Odom, 327 Mich.App. 297, 315; 933 N.W.2d 719 (2019). This Court must affirm defendant's presumptively proportionate sentence unless defendant demonstrates unusual circumstances that render his sentence disproportionate. People v Posey, 334 Mich.App. 338, 358; 964 N.W.2d 862 (2020); People v Bowling, 299 Mich.App. 552, 558; 830 N.W.2d 800 (2013).
Defendant argues that the maximum term of his indeterminate sentence is disproportionate because the sentence did not consider his "exigent need for mental health treatment that cannot be provided in prison" and his traumatic brain injury that he suffered at age 13. Defendant has not provided any authority suggesting that the factor on which he relies in contending that the maximum sentence is disproportionate to his circumstances-his need for mental health treatment-rises to the level of "unusual circumstances" that would render his presumptively proportionate sentence disproportionate. The record reflects that the trial court carefully considered defendant's traumatic brain injury and mental condition in determining his sentence. The court considered all of the evidence and based its sentence, as required, on the seriousness of the offense and the offender. Even though the court imposed the statutory maximum allowable sentence, defendant will have an opportunity to obtain parole. Defendant, therefore, has failed to overcome the presumption that his sentence is proportionate.
Affirmed.