Opinion
No. 317800
11-13-2014
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. SHAQUILLE JOEL SHERMAN, Defendant-Appellant.
UNPUBLISHED Wayne Circuit Court
LC No. 13-000288-FC
Before: WHITBECK, P.J., and FITZGERALD and MURRAY, JJ. PER CURIAM.
Defendant Shaquille Joel Sherman was convicted by a jury of armed robbery, MCL 750.529; carjacking, MCL 750.529a; unlawfully driving away an automobile (UDAA), MCL 750.413; receiving and concealing stolen property, MCL 750.535(7); and possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b. The trial court sentenced defendant to 120 to 240 months' imprisonment for the armed robbery conviction; 120 months to 240 months' imprisonment for the carjacking conviction; 24 to 60 months' imprisonment for the UDAA conviction; 24 to 60 months' imprisonment for the receiving and concealing stolen property conviction; and two years' imprisonment for the felony-firearm conviction. Pursuant to MCL 750.529a(3), the trial court also determined that defendant's armed robbery and carjacking convictions were to run consecutively. Defendant appeals as of right. We affirm.
Defendant's first contention is that the prosecution presented insufficient evidence to establish his identity in support of all convictions except receiving and concealing stolen property. We review challenges to the sufficiency of the evidence de novo. People v Ericksen, 288 Mich App 192, 195; 793 NW2d 120 (2010). Viewing the evidence in a light most favorable to the prosecution, we must determine whether the evidence was sufficient to justify the jury's finding that the essential elements of the crime were proven beyond a reasonable doubt. People v Harverson, 291 Mich App 171, 175; 804 NW2d 757 (2010). All conflicts in the evidence must be resolved in favor of the prosecution. People v Wolfe, 440 Mich 508, 514-515; 489 NW2d 748 (1992), amended 441 Mich 1201 (1992). Circumstantial evidence and all reasonable inferences drawn therefrom constitute satisfactory proof of the crime. People v Carines, 460 Mich 750, 757; 597 NW2d 130 (1999).
"[I]dentity is an element of every offense." People v Yost, 278 Mich App 341, 356; 749 NW2d 753 (2008). Moreover, "positive identification [of the defendant] by witnesses may be sufficient to support a conviction of a crime." People v Davis, 241 Mich App 697, 699; 617 NW2d 381 (2000). Any credibility issues regarding identification testimony are questions for the trier of fact, and we will not resolve such disputes. Id. at 700.
Here, the victim testified that she had a "clear view" of defendant as he approached her with a gun at a gas station and demanded the keys to her vehicle. Although defendant wore a hooded sweatshirt, the victim testified that she could clearly see his face. The evidence at trial showed that the victim also correctly identified defendant in a lineup 11 days later. The victim testified that she identified defendant immediately and was confident in her selection. Viewing this evidence in a light most favorable to the prosecution, Harverson, 291 Mich App at 175, we conclude that sufficient evidence was presented at trial to establish defendant's identity as the perpetrator of the charged crimes beyond a reasonable doubt.
Defendant next argues that his consecutive sentences for armed robbery and carjacking violate the principle of proportionality. We review a trial court's imposed sentence for an abuse of discretion. People v Conley, 270 Mich App 301, 312; 715 NW2d 377 (2006). An abuse of discretion occurs when the trial court's decision falls outside the range of reasonable and principled outcomes. People v Babcock, 469 Mich 247, 269; 666 NW2d 231 (2003).
A sentencing court may impose a consecutive sentence if authorized by statute. People v Daniel, 207 Mich App 47, 54; 523 NW2d 830 (1994). Here, defendant concedes that the carjacking statute allowed the trial court to sentence defendant consecutively. See MCL 750.529a(3). Although defendant contends that because the crimes occurred as a part of a single act, his consecutive sentences violate the principle of proportionately, the statute specifically allows a trial court to sentence a defendant consecutively when the defendant's convictions "arise[] out of the same transaction." MCL 750.529a(3). Therefore, the trial court properly imposed a consecutive sentence.
We likewise disagree with defendant's argument that his consecutive sentences are disproportionate. The principle of proportionality assures that a defendant's sentence is proportionate in light of the defendant's criminal history and the nature of the offense involved. People v Milbourn, 435 Mich 630, 651; 461 NW2d 1 (1990). A presumption of proportionality arises when a defendant is sentenced within the guidelines range. People v Broden, 428 Mich 343, 354-355; 408 NW2d 789 (1987).
Here, we cannot presume proportionality because the trial court sentenced defendant to a minimum sentence below the appropriate guidelines range. Id. at 354-355. However, because defendant's minimum sentence was below the recommended minimum sentence range under the legislative guidelines, we reject defendant's argument that his sentence was disproportionately high. Defendant, nevertheless, asks this Court to view the length of his consecutively sentences cumulatively. We will not do so. In determining the proportionality of a sentence, we are "not required to consider the cumulative length of consecutive sentences." People v St John, 230 Mich App 644, 649; 585 NW2d 849 (1998). Instead, we consider whether each sentence, individually, violates the principle of proportionality. People v Warner, 190 Mich App 734, 736; 476 NW2d 660 (1991). Because both sentences, individually, were below the guidelines range, we find that defendant's sentences do not violate the principle of proportionality.
Neither party challenged the downward departure in the trial court or on appeal.
Defendant also argues that his combined sentences for armed robbery and carjacking constituted cruel and unusual punishment. We generally review questions of constitutional law de novo. People v Dipiazza, 286 Mich App 137, 144; 778 NW2d 264 (2009). However, defendant failed to preserve this issue by advancing it before the trial court. People v Bowling, 299 Mich App 552, 557; 830 NW2d 800 (2013). Thus, our review is limited to plain error affecting defendant's substantial rights. Carines, 460 Mich at 763.
The trial court did not plainly err, and defendant's sentence does not constitute cruel and unusual punishment under the federal and state constitutions. See US Const, Am VIII; Const 1963, art 1, § 16. Because "a sentence that is proportionate is not cruel and unusual punishment," People v Powell, 278 Mich App 318, 323; 750 NW2d 607 (2008), a sentence below the guidelines range is also not normally cruel and unusual.
Defendant also filed a Standard 4 brief. In his Standard 4 brief, defendant raises three issues.
First, defendant contends that his convictions for carjacking and UDAA constitute the "same offense" and, thus, violate the double jeopardy clauses of the United States and Michigan constitutions. US Const, Am V; Const 1963, art 1, § 15. We review double jeopardy challenges de novo. People v Herron, 464 Mich 593, 599; 628 NW2d 528 (2001). We addressed this issue in People v Cain, 299 Mich App 27, 44; 829 NW2d 37 (2012), aff'd in part and rev'd in part on other grounds 495 Mich 874 (2013). Using the Blockburger "same-elements" test, we held that the UDAA statute requires a completed larceny, while the carjacking statute does not. Id.; see also MCL 750.413; MCL 750.529a. Accordingly, we held that the defendant's convictions for carjacking and UDAA did not violate double jeopardy. Cain, 299 Mich App at 44. Our Supreme Court affirmed this holding. People v Cain, 495 Mich 874, 874-875; 838 NW2d 150 (2013). Our decision in Cain is binding, MCR 7.215(J)(1), and defendant's double jeopardy argument is without merit.
Blockburger v United States, 284 US 299, 304; 52 S Ct 180; 76 L Ed 306 (1932).
Second, defendant contends that the prosecutor committed misconduct denying him a fair and impartial trial. We generally review challenges of prosecutorial misconduct de novo. People v Akins, 259 Mich App 545, 562; 675 NW2d 863 (2003). Defendant, however, failed to support his argument with any relevant case law, instead citing judicial misconduct authority. "An appellant may not . . . give only cursory treatment [to his claims] with little nor citation of supporting authority." People v Kelly, 231 Mich App 627, 640-641; 588 NW2d 480 (1998). Therefore, the issue is not properly presented. Id. at 640. Regardless, we have reviewed defendant's argument and find that defendant is not entitled to any relief.
Defendant's third argument in his Standard 4 brief appears to be that the search warrant affidavit was insufficient to support a finding of probable cause because the victim was incorrectly named. Because defendant failed to raise this issue below, we review for plain error affecting substantial rights. Carines, 460 Mich at 763.
In reviewing the sufficiency of a search warrant affidavit, we "need only ask whether a reasonably cautious person could have concluded that there was a substantial basis for the finding of probable cause." People v Mullen, 282 Mich App 14, 21; 762 NW2d 170 (2008), quoting People v Martin, 271 Mich App 280, 297; 721 NW2d 815 (2006) (quotations omitted). Defendant must show that any false statement in the affidavit was made intentionally, knowingly, or with reckless disregard, and that the false information was necessary to a finding of probable cause. People v Stumpf, 196 Mich App 218, 224; 492 NW2d 795 (1992).
Here, the officer who prepared the search warrant affidavit testified at trial as to why he misnamed the victim. Nothing in the record suggests that the officer acted dishonestly or recklessly in preparing the search warrant affidavit. See Id. at 224. Nor was the name of the victim necessary to a finding of probable cause. See Mullen, 282 Mich App at 27, quoting People v Brzezinski, 243 Mich App 431, 433; 622 NW2d 528 (2000) (quotations omitted). Thus, defendant is not entitled to relief on this claim.
Affirmed.
/s/ William C. Whitbeck
/s/ E. Thomas Fitzgerald
/s/ Christopher M. Murray