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People v. Warner

STATE OF MICHIGAN COURT OF APPEALS
Jan 19, 2017
No. 330039 (Mich. Ct. App. Jan. 19, 2017)

Opinion

No. 330039

01-19-2017

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. AARON BRUCE WARNER, Defendant-Appellant.


UNPUBLISHED Grand Traverse Circuit Court
LC No. 2015-012199-FH Before: M. J. KELLY, P.J., and STEPHENS and O'BRIEN, JJ. PER CURIAM.

Defendant Aaron Warner appeals by leave granted from his plea-based conviction of delivery of heroin, MCL 333.7401(2)(b)(ii), second violation, MCL 333.7413(2). The trial court departed from the guidelines minimum sentence range of 5 to 23 months and sentenced Warner to 54 months' to 14 years' imprisonment. Because the trial court did not err in sentencing Warner, we affirm.

People v Warner, unpublished order of the Court of Appeals, entered December 18, 2015 (Docket No. 330039).

I. BASIC FACTS

In June 2015, Warner was charged with child sexually abusive activity, MCL 750.145c(2), third-degree criminal sexual conduct (CSC-III), MCL 750.520d(1)(a) (victim at least 13 years old but under 16 years old), possessing child sexually abusive material, MCL 750.145c(4), using a computer to commit a crime, MCL 752.796 and 752.797(3)(e), delivering less than 50 grams of heroin, MCL 333.7401(2)(a)(iv), and possessing less than 25 grams of heroin, MCL 333.7403(2)(a)(v). The prosecution offered Warner a plea agreement whereby Warner would plead guilty to an added count of delivering heroin, second offense, and would testify truthfully as an informant in an unrelated case, and in return the prosecution would dismiss all of the original charges with prejudice. On August 12, 2015, Warner accepted the plea agreement and pleaded guilty to the delivery of heroin charge. To establish a factual basis for his plea, Warner admitted that on April 2, 2015, he delivered heroin to a female, thereby putting her in possession of the drug.

According to the presentence report, the female that Warner shared heroin with was a 15-year-old girl that he had met on the internet. Warner was arrested after a hotel manager saw Warner, a man who looked to be in his 30s, with a female who appeared to be a teenager. The manager called the police based on the perceived age difference and because Warner and the girl seemed to be under the influence of drugs. When the police knocked on the hotel door, the girl opened it. While the officer was talking with her, he observed Warner, who appeared to have a syringe in his pocket. According to the officer, Warner ran for the bathroom and attempted to keep the officer out. The officer followed him and prevented him from flushing a small bag of powered substance down the toilet. The contents of the bag tested positive for heroin.

In addition to the details relating to heroin, the presentence report also contained information relating to the original charges, which included CSC-III. First, an officer observed what she described as multiple nude images of the 15-year-old girl on Warner's cell phone, including photographs that were sexually explicit. Second, during a police interview, Warner reportedly stated he had sex with the girl from the hotel, but that he believed she was 17-years-old. The girl was also interviewed. She denied having a sexual relationship with Warner and denied sending nude photographs of herself to Warner. She also stated that Warner had found out that she was 15-years-old a couple days before he was arrested. Warner and the girl were at the hotel for two days before his arrest.

Over Warner's objection, the trial court considered all the information in the presentence report when fashioning Warner's sentence. As noted above, the court departed from the sentencing guidelines range and sentenced Warner to 54 months' to 14 years' imprisonment. This appeal follows.

II. SENTENCING

A. STANDARD OF REVIEW

Warner argues that the trial court violated his constitutional right to a jury trial under the Sixth and Fourteenth Amendments to the United States Constitution when it imposed a departure sentence based on judicial fact-finding relating to a dismissed CSC-III charge. We review de novo a challenge to the constitutionality of a defendant's sentence. People v Lockridge, 498 Mich 358, 373; 870 NW2d 502 (2015). Further,

Under the sentencing guidelines, the circuit court's factual determinations are reviewed for clear error and must be supported by a preponderance of the evidence. Whether the facts, as found, are adequate to satisfy the scoring conditions prescribed by statute, i.e., the application of the facts to the law, is a question of statutory interpretation, which an appellate court reviews de novo. [People v Hardy, 494 Mich 430, 438; 835 NW2d 340 (2013).]

B. ANALYSIS

1. JUDICIAL FACT-FINDING

Warner suggests that Lockridge prohibits a trial court from engaging in any judicial fact-finding. We disagree. In Lockridge, our Supreme Court held that Michigan's legislative sentencing guidelines violated a defendant's right to a jury trial under the Sixth and Fourteenth Amendments to the United States Constitution to the extent that they "require judicial fact-finding beyond facts admitted by the defendant or found by the jury to score offense variables (OVs) that mandatorily increase the floor of the guidelines minimum sentence ranges . . . ." Lockridge, 498 Mich at 364 (emphasis in original). Stated otherwise, there is no constitutional prohibition on the use of judicial fact-finding. There is only a constitutional prohibition on the use of judicial fact-finding that mandatorily increases the floor of a defendant's guidelines minimum sentence range.

In order to remedy the constitutional deficiency arising from the mandatory application of sentencing guidelines calculated using judicial fact-finding, the Lockridge Court struck down the statutory provisions that mandated a sentencing court sentence a defendant on the basis of judicially found facts. Id. at 364-365, 391-392. Thus, if judicial fact-finding is used to score an OV, the sentencing guidelines are only advisory, whereas if no judicial fact-finding is used, the sentencing court must sentence the defendant in accordance with the legislative sentencing guidelines range or articulate substantial and compelling reasons for its departure. Id. at 365, 391-392. Further, in order to preserve as much of the legislative intent behind the sentencing guidelines as possible, the Lockridge Court held that a sentencing court must still "consult the applicable guidelines range and take it into account when imposing a sentence." Id. at 365, 392.

The use of the phrase "to the extent" indicates that the Lockridge Court did not intend to strike down the mandatory application of the sentencing guidelines in cases where the sentencing court did not engaged in judicial fact-finding. See Lockridge, 498 Mich at 391-392.

In this case, Warner was convicted of a class E felony, MCL 777.13m, which required the trial court to score OVs 1, 2, 3, 12, 13, 14, 15, 19, and 20. MCL 777.22(3). The sentencing court assessed points for OVs 12 and 19. Warner pleaded guilty to delivery of heroin. In doing so, he did not formally admit any facts that would allow the sentencing court to assess points for OV 12 (contemporaneous felonious criminal acts) or OV 19 (interference with the administration of justice). Accordingly, the sentencing court was required to engage in judicial fact-finding to score both OVs, which means that in this case the application of the legislative sentencing guidelines was advisory only. Moreover, because the sentencing court was aware that the sentencing guidelines were not binding on it because of its use of judicial fact-finding, we discern no constitutional error in the court's use of judicial fact-finding in this case.

The phrase "admitted by the defendant" means "formally admitted by the defendant to the court, in a plea or in testimony or by stipulation or by some similar analogous route." People v Garnes, ___ Mich App ___, ___; ___ NW2d ___ (2016) (Docket No. 324035); slip op at 3 (emphasis in original).

2. PRESENTENCE REPORT

Warner also argues that it was improper for the sentencing court to use hearsay in the presentence report to find that he had committed the crime of CSC-III. Information contained in a presentence report is presumed to be accurate. People v Grant, 455 Mich 221, 233-234; 565 NW2d 389 (1997). "A sentencing court is allowed to consider the facts underlying uncharged offenses, pending charges, and acquittals." People v Coulter (After Remand), 205 Mich App 453, 456; 517 NW2d 827 (1994). The court must, however, afford the defendant the opportunity to challenge the facts relied upon, and, if challenged, those facts must be substantiated by a preponderance of the evidence. People v Golba, 273 Mich App 603, 614; 729 NW2d 916 (2007). Thus, it is plain that contrary to Warner's assertions, a trial court may generally make findings based on information contained within the presentence report so long as the defendant is given the opportunity to challenge those facts.

Warner argues that he was never given the opportunity to challenge the facts set forth in the presentence report. Review of the sentencing transcript, however, shows that his lawyer directed the sentencing court to the specific parts of the presentence report that he objected to and believed should not be considered because the information was not found "beyond a reasonable doubt" or, at the very least, because there was no "mechanism to determine that it actually occurred." The court responded that a sentencing hearing is just the forum for such a determination. Warner's lawyer then asked if he would "have the right to confront the hearsay" contained in the presentence report, and the court expressly stated that he could present evidence, including hearsay evidence, contradicting the information in the presentence report.

In challenging the information in the presentence report, Warner's lawyer represented to the court that he had not finished his investigation when the plea agreement was reached. However, he noted that through discovery, he had access to the photographs recovered from Warner's cell phone. He represented to the court that there were two females depicted in the photographs, the 15-year-old girl and a 26-year-old woman. He stated that the woman looked "remarkably similar" to the girl. He also asserted that, had the case proceeded to trial, he would have argued that the photographs could not have been sent by the girl because they were sent before Warner began a relationship with the girl. He acknowledged, however, that because they reached a plea before his investigation was complete, he had no evidence that the photographs were actually of the woman, not the girl. The trial court concluded that Warner had failed to present any evidence that the sexually explicit photographs were someone other than the girl, whereas the prosecution had presented evidence that the photographs did depict the girl. As a result, the court refused to strike all references to the sexually explicit photographs. Given Warner's failure to present contrary evidence, we discern no error in that decision.

The sentencing court also rejected Warner's argument that the references to a sexual relationship between him and the girl should be deleted from the presentence report. Again, although he was given the opportunity to challenge the information, Warner did not present any evidence beyond that already in the report to suggest that there was no sexual relationship between him and the girl. As such, the trial court was entitled to consider those facts when making its sentencing decision. See Coulter (After Remand), 205 Mich App at 456.

The presentence report indicates that the girl admitted spending two days at a hotel with Warner. Although she denied engaging in a sexual relationship with Warner, Warner admitted to the police that he engaged in a sexual relationship with her. We note that if this information were false, Warner could have testified at the sentencing hearing (or at a later scheduled evidentiary hearing) to the reasons it was false. He did not, however, make any such offer of proof.

Finally, we note that at a later point during the sentencing hearing, the court expressly asked Warner's lawyer if he wanted to set the matter for another day. Warner's lawyer, however, stated that he would "go forward" with sentencing at that time. Thus, the record indicates that the court did, in fact, provide Warner with an opportunity to challenge the information underlying the dismissed sexual misconduct charges.

3. OVS

With regard to the OVs, Warner first argues that the court improperly considered both the facts underlying the dismissed offenses and the sentencing grid applicable to the dismissed CSC-III charge. Although the court referenced what Warner's minimum sentence would have been had he been convicted of CSC-III, the court clearly used the correct sentencing grid to calculate Warner's guidelines minimum sentence range. The court merely considered the CSC-III sentencing grid for purposes of determining a proportional sentence under the circumstances, having already determined it would consider the underlying facts of the dismissed sexual misconduct charges in imposing sentence. Because there was no error in considering and making findings based on the information in the presentence report, the trial court did not err in using that information to determine a proportionate sentence.

Next, Warner argues that the sentencing court used improper judicial fact-finding when scoring OVs 8, 10, and 19. The sentencing information report, however, shows that the only OVs that the sentencing court assessed points for were OVs 12 and 19. Thus, the court did not actually score OVs 8 or 10, so there is no error with regard to them.

OV 19, however, was scored by the sentencing court. A sentencing court must assess 10 points for OV 19 if an "offender otherwise interfered with or attempted to interfere with the administration of justice." MCL 777.49(c). Conduct that occurs after the offense is completed may be used to score OV 19, People v Smith, 488 Mich 193, 202; 793 NW2d 666 (2010), up to and including conduct that occurs before criminal charges are filed, People v Barbee, 470 Mich 283, 288; 681 NW2d 348 (2004). Here, the presentence report stated that when Warner made eye contact with a police officer at the hotel, Warner "ran towards the back bathroom," and tried to flush a bag containing a powdery substance, later determined to be heroin, down the toilet. By attempting to flush the heroin, Warner was trying to destroy evidence of a crime. Accordingly, the trial court did not clearly err in finding that a 10-point score was warranted for OV 19.

4. REASONABLENESS OF WARNER'S SENTENCE

Warner finally argues that his sentence was unreasonable. When a sentencing court departs from an advisory sentencing range, we review the resulting sentence for reasonableness. Lockridge, 498 Mich at 392. In order to determine whether a sentence is reasonable, we apply the principle-of-proportionality test set out by People v Milbourn, 435 Mich 630; 461 NW2d 1 (1990). People v Steanhouse, 313 Mich App 1, 46-47; 880 NW2d 297 (2015). The Milbourn test requires sentences "to be proportionate to the seriousness of the circumstances surrounding the offense and the offender," taking "into account the nature of the offense and the background of the offender." Milbourn, 435 Mich at 636, 651. "[A] sentence that fulfills the principle of proportionality under Milbourn, and its progeny, constitutes a reasonable sentence under Lockridge." Steanhouse, 313 Mich App at 47-48. In addition, " 'trial judges may continue to depart from the guidelines when, in their judgment, the recommended range under the guidelines is disproportionate, in either direction, to the seriousness of the crime.' " Id. at 45, quoting Milbourn, 435 Mich at 657.

Warner's 54-month minimum sentence was proportionate. Warner provided heroin to a 15-year-old girl he had met on the internet while staying with her at a hotel. He had obtained nude pictures of the girl and admitted to having sex with her. Other than the fact that Warner was engaged in other contemporaneous felonious activity—which was scored under OV 12—none of these facts were considered by the sentencing guidelines. Considering the characteristics of the individual to whom Warner delivered the heroin, and considering the extent and seriousness of the criminal activity Warner was engaged in beyond the sentencing offense, the sentencing court's sentence was proportionate.

Because we have determined that Warner's claims are without merit and that he is not entitled to a remand for resentencing, we need not address his claim that he should be resentenced before a different judge in a different circuit court. --------

Affirmed.

/s/ Michael J. Kelly

/s/ Cynthia Diane Stephens

/s/ Colleen A. O'Brien


Summaries of

People v. Warner

STATE OF MICHIGAN COURT OF APPEALS
Jan 19, 2017
No. 330039 (Mich. Ct. App. Jan. 19, 2017)
Case details for

People v. Warner

Case Details

Full title:PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. AARON BRUCE…

Court:STATE OF MICHIGAN COURT OF APPEALS

Date published: Jan 19, 2017

Citations

No. 330039 (Mich. Ct. App. Jan. 19, 2017)