Opinion
No. 347012
04-23-2020
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. MARLON DEANDRE STEPHENS, 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 UNPUBLISHED Jackson Circuit Court
LC No. 17-005655-FC Before: CAVANAGH, P.J., and BECKERING and GLEICHER, JJ. PER CURIAM.
A jury convicted defendant, Marlon Deandre Stephens, of armed robbery, MCL 750.529. The trial court sentenced defendant to 25 to 50 years' imprisonment, as a fourth-offense habitual offender pursuant to MCL 769.12, with credit for 350 days served. Defendant appeals as of right his sentence, arguing that he received constitutionally ineffective assistance when his attorney agreed that the trial court should assess 15 points for offense variable (OV) 8 (asportation). Because defendant has failed to establish his claim for ineffective assistance of counsel, we affirm his conviction and sentence.
I. RELEVANT FACTS
This case arose from defendant's armed robbery of Buddy's Gas Station. At trial, the victim, an employee of the gas station, testified that he was taking a cigarette break outside the store, near the front entrance, when a man whose entire face was covered with a black mask approached him. The victim stated that the man pulled something that appeared to be a weapon partially out of his pocket. He then grabbed the victim's jacket and pushed and pulled the victim inside the store and behind the counter to the cash register. The victim testified that he opened the cash register at the man's command, whereupon the man took all of the money from the register and then grabbed the victim and pulled him back toward the front door, but did not pull him outside of the store. The man then fled. Defendant was arrested and charged for the incident.
As indicated, a jury found defendant guilty of armed robbery, and the trial court sentenced him to 25 to 50 years' imprisonment. At the sentencing hearing, the prosecutor and defense counsel agreed on changes to certain OV scores. They agreed that the trial court should assess zero points for OV 4 (psychological injury to victim) and OV 13 (continuing pattern of criminal behavior), rather than at 10 points and 25 points, respectively, as had been suggested by the probation department. However, the prosecutor observed that the probation department assessed zero points for OV 8, but it should be scored at 15 points "for a victim asportation as the testimony came out that the victim was taken back into the store." Defense counsel agreed.
II. ANALYSIS
Defendant claims on appeal that defense counsel rendered ineffective assistance by agreeing that the trial court should score OV 8 at 15 points when it should have been scored at zero points. We disagree. Defendant preserved his claim of ineffective assistance of counsel for appellate review by filing in this Court a motion to remand to the trial court for a Ginther hearing. See People v Sabin (On Second Remand), 242 Mich App 656, 658-659; 620 NW2d 19 (2000). We denied defendant's motion; therefore, our review is limited to the facts on the record. See People v Wilson, 242 Mich App 350, 352; 619 NW2d 413 (2000); Sabin, 242 Mich App at 658-659.
People v Ginther, 390 Mich 436, 443; 212 NW2d 922 (1973).
People v Stephens, unpublished order of the Court of Appeals, entered June 19, 2019 (Docket No. 347012). --------
A defendant's claim of ineffective assistance of counsel is a "mixed question of fact and constitutional law." People v LeBlanc, 465 Mich 575, 579; 640 NW2d 246 (2002). This Court "reviews for clear error the trial court's findings of fact and reviews de novo questions of law." People v Lane, 308 Mich App 38, 68; 862 NW2d 446 (2014). In order to establish ineffective assistance of counsel, defendant bears the burden to show "(1) that the attorney's performance was objectively unreasonable in light of prevailing professional norms and (2) that, but for the attorney's error or errors, a different outcome reasonably would have resulted." People v Harmon, 248 Mich App 522, 531; 640 NW2d 314 (2001). Defense counsel cannot be ineffective for "failing to make a futile objection." People v Crews, 299 Mich App 381, 401; 829 NW2d 898 (2013).
A trial court may assess 15 points for OV 8 if the victim is asported or held captive during the sentencing offense. MCL 777.38(1)(a). Asportation occurs when a victim is "carried away or removed 'to another place of greater danger or to a situation of greater danger.' " People v Barrera, 500 Mich 14, 21; 892 NW2d 789 (2017), quoting MCL 777.38(1)(a). The movement may be deliberate or incidental to the offense, including moving the victim to a location where he or she is less likely to be discovered. Id. at 21-22. Similarly, a defendant's conduct that occurs during the offense or as a part of the offense can satisfy the captivity requirement if the defendant held the victim for longer than the time necessary to commit the underlying offense. People v Chelmicki, 305 Mich App 58, 70; 850 NW2d 612 (2014). A victim is sufficiently held captive for purposes of OV 8 when a defendant continues to hold the victim after the elements of an armed robbery have been completed. "The elements of armed robbery are: (1) an assault and (2) a felonious taking of property from the victim's presence or person (3) while the defendant is armed with a weapon." People v Smith, 478 Mich 292, 319; 733 NW2d 351 (2007).
In this case, it is undisputed that the victim was standing outside the front door of Buddy's when defendant forced him into the store to open the cash register. When defendant brought the victim from outside the store, where he could have run away or called for help, to inside the store, where they were sheltered from the public eye and there were limited means of escape, defendant asported the victim "to another place of greater danger or to a situation of greater danger." MCL 777.38(1)(a); see also Barrera, 500 Mich at 21-22. Therefore, OV 8 was properly assessed at 15 points for defendant's asportation of the victim during the armed robbery. See id.
The trial court's scoring of 15 points for OV 8 is arguably also supported by evidence that defendant continued to hold and keep the victim in his captive control even after he completed the elements of the armed robbery. See MCL 777.38(1)(a); Chelmicki, 305 Mich App at 70. The armed robbery was completed after defendant showed the victim something that appeared to be a weapon, assaulted the victim by grabbing him and forcing him inside the store, and took the money from the cash register in the victim's presence. See Smith, 478 Mich at 319. However, the victim also testified that, after defendant took the money from the cash register, defendant grabbed the victim again and pulled him back toward the front of the store, as if to pull him back outside the store with him, which ended after defendant began dropping the money that was in his hands.
We conclude that the trial court properly scored 15 points for OV 8 because there was evidence that defendant asported the victim and held him captive during the armed robbery. See MCL 777.38(1)(a); Chelmicki, 305 Mich App at 70. Therefore, defense counsel was not ineffective for conceding the issue and failing to make a futile objection. See Crews, 299 Mich App at 401; Harmon, 248 Mich App at 531.
Affirmed.
/s/ Mark J. Cavanagh
/s/ Jane M. Beckering
/s/ Elizabeth L. Gleicher