Opinion
355728 355729 355731
01-13-2022
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee v. JASON FREDERICK WESCH, Defendant-Appellant.
UNPUBLISHED
Jackson Circuit Court LC No. 18-004570-FH; 18-004737-FH; 18-004884-FH
Before: Swartzle, P.J., and K. F. Kelly and Redford, JJ.
Per Curiam.
In these consolidated appeals, defendant appeals by delayed leave granted his sentences following guilty pleas in three different cases. For the reasons stated below, we affirm.
People v Wesch, unpublished order of the Court of Appeals, entered February 2, 2021 (Docket Nos. 355728, 355729, and 355731).
I. BACKGROUND
In lower court case no. 18-004570-FH (Case No. 4570), defendant stole jewelry with a total value of about $6,000 from a jewelry store. When police located defendant the next day, defendant led police on a car chase, which then became a foot chase. As defendant fled from police, he attempted to enter a house that he was not authorized to enter. A man in the house opened the door, and defendant entered. The pursuing police officers followed defendant into the house; defendant resisted their attempts to restrain him, but the officers were able to apprehend him. Police found methamphetamine and the stolen jewelry in defendant's possession. In lower court case no. 18-004737-FH (Case No. 4737), while defendant was incarcerated, he stole the keys to a delivery truck and attempted to drive through the jail's gates. The truck became stuck on the gate and a struggle ensued between defendant and responding deputies; the deputies then detained defendant. In lower court case no. 18-004884-FH (Case No. 4884), defendant broke into his mother and stepfather's house and stole firearms.
Defendant was sentenced for a probation violation in an unrelated case, lower court case no. 17-004776 (Case No. 4776), on August 15, 2018. Defendant has been incarcerated since that date, but he was not sentenced for the offenses at issue in these cases until April 4, 2019. Defendant was then was resentenced on June 18, 2020, and August 24, 2020. (Defendant does not raise any issues on appeal related to his first sentencing in these cases.) Moments before the June 18, 2020, resentencing hearing started, the trial judge acknowledged that the substitute bailiff at the hearing, Deputy Jay Strebe, was the victim of the home invasion defendant was being sentenced for. The trial judge considered the fact that defendant ran into Deputy Strebe while attempting to flee law enforcement "funnier than hell." At one point in the hearing, the trial judge asked Deputy Strebe if the police report for the home invasion was accurate; Deputy Strebe replied that it was accurate.
In Case No. 4570, the trial court sentenced defendant to imprisonment of 12 to 20 years for possession of methamphetamine, MCL 333.7403(2)(b)(i). The trial court also sentenced defendant as a fourth-offense habitual offender, MCL 769.12, to imprisonment of 15 to 40 years for third-degree fleeing and eluding, MCL 750.479a(3); 10 to 15 years for resisting and obstructing, MCL 750.81d(1); 17 to 40 years for first-degree home invasion, MCL 750.110a(2); and 15 to 30 years for first-degree retail fraud, MCL 750.356c. The trial court gave defendant a jail credit of 532 days for each conviction.
In Case No. 4737, the trial court sentenced defendant as a fourth-offense habitual offender to imprisonment of 3 to 15 years for escape awaiting felony trial, MCL 750.197(2); destruction of police property, MCL 750.377b; unlawfully driving away a motor vehicle, MCL 750.413; and resisting and obstructing a police officer. The trial court gave defendant a jail credit of 492 days for each conviction.
In Case No. 4884, the trial court sentenced defendant as a fourth-offense habitual offender to imprisonment of 11 to 20 years for second-degree home invasion, MCL 750.110a(3); receiving and concealing a stolen firearm, MCL 750.535b; and larceny of a firearm, MCL 750.357b. The trial court gave defendant a jail credit of 442 days for each conviction. These appeals followed.
II. ANALYSIS
A. RECUSAL
Defendant first argues that the trial judge erred when he did not recuse himself from defendant's cases. Alternatively, defendant argues that defense counsel was ineffective for failing to request that the trial judge recuse himself. Defendant failed to raise any claim of judicial bias in the trial court. Thus, the issue is unpreserved. See People v Jackson, 292 Mich.App. 583, 597; 808 N.W.2d 541 (2011). Unpreserved issues are reviewed for plain error. People v Cain, 498 Mich. 108, 116; 869 N.W.2d 829 (2015).
To avoid forfeiture under the plain error rule, three requirements must be met: 1) error must have occurred, 2) the error was plain, i.e., clear or obvious, 3) and the
plain error affected substantial rights. The third requirement generally requires a showing of prejudice, i.e., that the error affected the outcome of the lower court proceedings. It is the defendant rather than the Government who bears the burden of persuasion with respect to prejudice. Finally, once a defendant satisfies these three requirements, an appellate court must exercise its discretion in deciding whether to reverse. Reversal is warranted only when the plain, forfeited error resulted in the conviction of an actually innocent defendant or when an error seriously affected the fairness, integrity or public reputation of judicial proceedings independent of the defendant's innocence. [People v Carines, 460 Mich. 750, 763-764; 597 N.W.2d 130 (1999) (cleaned up).]"A 'clear or obvious' error under the second prong is one that is not 'subject to reasonable dispute.'" People v Randolph, 502 Mich. 1, 10; 917 N.W.2d 249 (2018) (citation omitted).
Regardless of whether a claim of ineffective assistance is properly preserved, if the trial court did not hold a Ginther hearing, "our review is limited to the facts on the record." People v Wilson, 242 Mich.App. 350, 352; 619 N.W.2d 413 (2000). "A claim of ineffective assistance of counsel is a mixed question of law and fact. A trial court's findings of fact, if any, are reviewed for clear error, and this Court reviews the ultimate constitutional issue arising from an ineffective assistance of counsel claim de novo." People v Petri, 279 Mich.App. 407, 410; 760 N.W.2d 882 (2008).
People v Ginther, 390 Mich. 436; 212 N.W.2d 922 (1973). No Ginther hearing was held in these cases.
Before the June 18, 2020, resentencing hearing, the trial judge commented that defendant running into Deputy Strebe while attempting to flee law enforcement was "funnier than hell." Additionally, at the same hearing, the trial judge asked Deputy Strebe to corroborate information from the police report of the incident; Deputy Strebe stated that the police report was accurate. We assume without deciding that the trial judge's actions were improper. Nevertheless, defendant is not entitled to relief because he cannot establish the necessary prejudice. Defendant asserts that being sentenced by the trial judge "call[ed] into question the propriety of the rulings made and the sentences imposed," but that is not sufficient to demonstrate that any error affected the outcome of the lower court proceedings. See Carines, 460 Mich. at 763. Indeed, defendant has not identified what a different judge would have done differently. The simple fact that an error occurred, as assumed, does not establish prejudice. Rather, prejudice occurs when an error affected the proceedings in some way. Defendant has not met his burden to establish that the trial judge's actions affected his sentence in any way. By simply announcing that he was prejudiced by being sentenced by this judge, without showing that the trial judge's failure to recuse himself from these cases affected his sentences, defendant has failed to meet his burden to establish that he was prejudiced by the trial judge's actions. See id.
Defendant additionally argues that his trial counsel was ineffective for failing to object to Deputy Strebe's presence and the trial judge's comments about Deputy Strebe being defendant's victim. To establish a claim of ineffective assistance of counsel, defendant must show that: (1) defense counsel's performance was deficient; and (2) the deficient performance prejudiced the defense. People v Taylor, 275 Mich.App. 177, 186; 737 N.W.2d 790 (2007). Defendant bears a heavy burden to show that counsel made errors so serious that counsel was not performing as guaranteed by the Sixth Amendment. People v Carbin, 463 Mich. 590, 599-600; 623 N.W.2d 884 (2001), citing Strickland v Washington, 466 U.S. 668; 104 S.Ct. 2052; 80 L.Ed.2d 674 (1984); People v Rockey, 237 Mich.App. 74, 76-77; 601 N.W.2d 887 (1999). The performance will be deemed to have prejudiced the defense if it is reasonably probable that, but for counsel's error, the result of the proceeding would have been different. People v Jordan, 275 Mich.App. 659, 667; 739 N.W.2d 706 (2007).
Assuming without deciding that defense counsel was ineffective for failing to object at resentencing, defendant cannot establish the necessary prejudice to warrant relief here. Prejudice for defendant's ineffective-assistance-of-counsel claim is different than what he must establish for plain-error relief, but this claim fails for similar reasons. In short, it is not reasonably probable that defendant would have received more lenient sentences if he was sentenced by a different judge. Defendant's sentences appear reasonable based on the record before us, and if defendant was sentenced by a different judge it is just as likely that he would receive more lenient sentences as is it that he would receive harsher sentences. Indeed, defendant received a within-guidelines sentence for his home-invasion conviction in Case No. 4570 and he has not argued that any of his sentences were unreasonable. After reviewing the resentencing transcripts, it is apparent that the trial judge did not treat defendant's home-invasion conviction in Case No. 4570 any differently than defendant's other offenses. It is similarly apparent that the trial judge did not impose harsher sentences for any of defendant's other sentences because of the home invasion in Case No. 4570. Thus, defendant is not entitled to relief based because there is not a reasonable probability that defendant was prejudiced by his trial counsel's failure to ask the trial judge to recuse himself.
B. OFFENSE VARIABLE 9
Defendant's second claim of error is that the trial court erred when it assessed 10 points for offense variable (OV) 9. Defendant raised this issue at the resentencing hearing on June 18, 2020, preserving this issue for appeal. See People v Sours, 315 Mich.App. 346, 348; 890 N.W.2d 401 (2016); MCL 769.34(10). When reviewing a trial court's scoring decision, the trial court's "factual determinations are reviewed for clear error and must be supported by a preponderance of the evidence." People v Hardy, 494 Mich. 430, 438; 835 N.W.2d 340 (2013). "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." Id. at 438. "The sentencing Court may consider facts not admitted by the defendant or found beyond a reasonable doubt by the jury. Offense variables are properly scored by reference only to the sentencing offense except when the language of a particular offense variable statute specifically provides otherwise." People v Roberts, 331 Mich.App. 680, 687-688; 954 N.W.2d 221 (2020), reversed in part on other grounds by People v Roberts, 506 Mich. 938 (2020) (cleaned up). Finally, "[t]he trial court may rely on reasonable inferences arising from the record evidence to sustain the scoring of an offense variable." People v Earl, 297 Mich.App. 104, 109; 822 N.W.2d 271 (2012), aff'd 495 Mich. 33 (2014).
Offense variable 9 is codified in MCL 777.39 and provides that a trial court must assess 10 points for OV 9 when "[t]here were 2 to 9 victims who were placed in danger of physical injury or death, or 4 to 19 victims who were placed in danger of property loss." MCL 777.39(1)(c). The statute further directs the sentencing court to "[c]ount each person who was placed in danger of physical injury or loss of life or property as a victim," MCL 777.39(2)(a). "Points assessed under OV 9 must be based solely on the defendant's conduct during the sentencing offense." People v Rodriguez, 327 Mich.App. 573, 581-582; 935 N.W.2d 51 (2019). Finally, "[t]he trial court may rely on reasonable inferences arising from the record evidence to sustain the scoring of an offense variable." Earl, 297 Mich.App. at 109.
Defendant's OV-9-scoring challenge applies only to his first-degree-home-invasion conviction in Case No. 4570. First-degree home invasion is defined in MCL 750.110a(2):
A person who breaks and enters a dwelling with intent to commit a felony, larceny, or assault in the dwelling, a person who enters a dwelling without permission with intent to commit a felony, larceny, or assault in the dwelling, or a person who breaks and enters a dwelling or enters a dwelling without permission and, at any time while he or she is entering, present in, or exiting the dwelling, commits a felony, larceny, or assault is guilty of home invasion in the first degree if at any time while the person is entering, present in, or exiting the dwelling either of the following circumstances exists:
(a)The person is armed with a dangerous weapon.
(b)Another person is lawfully present in the dwelling.
The trial court assessed 10 points for OV 9 because several police officers were required to apprehend defendant. Defendant argues that it was improper for the trial court to consider any of the police officers who restrained him as victims for the purposes of OV 9 because the commission of the home invasion was no longer ongoing by the time any police officers arrived and were put in danger by defendant resisting their attempts to apprehend him.
This Court's decision in People v Bowling, 299 Mich.App. 552; 830 N.W.2d 800 (2013), is instructive on whether an event can be considered to have taken place during a home invasion. In Bowling, police officers arrived at a house while a home invasion was in progress. Id. at 555. As the offenders tried to flee the house, one of the offenders shot and killed a police officer who was waiting outside the house. Id. at 556. This Court concluded that the police officer was killed during the home invasion and was properly considered a victim of the home invasion for the purposes of OV 9. Id. at 561-562. Thus, to be a victim, an individual need not be present when a home invasion begins. See id.
In support of his argument that OV 9 was improperly scored, defendant cites People v McGraw, 484 Mich. 120; 771 N.W.2d 655 (2009). In McGraw, police officers responding to a breaking and entering were put in danger during a chase of the defendant that took place after the defendant left the house where that crime took place. Id. at 122. In that situation, our Supreme Court concluded that the police officers were put in danger after the breaking and entering had ended. Id. at 134-135. The Court in McGraw concluded that it was not necessary to determine exactly when the breaking and entering offense was completed because it was clear that defendant's flight from the police was "far beyond and removed from the sentencing offense." Id. at 135 n 45. Defendant was not apprehended after fleeing the scene in Case No. 4570 and, therefore, McGraw is distinguishable.
Officers apprehended defendant while he was still in the home. Given this, the present case presents a situation more like Bowling than McGraw. The record supports the trial court's conclusion that the danger the responding police officers experienced at the scene of the home invasion occurred during the commission of that home invasion. See Bowling, 299 Mich.App. at 561-562. Thus, the trial court did not err when it assessed 10 points for OV 9 on the basis that Deputy Strebe, as well as at least one responding officer, were put in danger during the course of the home invasion.
C. JAIL CREDIT
Defendant's third claim of error is that the trial court erred when it did not give him credit for time served in the cases at issue in this appeal for time he spent incarcerated following sentencing in a separate case. Defendant preserved this issue by challenging the trial court's jail-credit computation at the August 24, 2020, resentencing hearing. See People v Clark, 315 Mich.App. 219, 224; 888 N.W.2d 309 (2016). Whether defendant is entitled to a jail credit under MCL 769.11b for time served in jail before sentencing is an issue of law that this Court reviews de novo. People v Waclawski, 286 Mich.App. 634, 688; 780 N.W.2d 321 (2009).
MCL 769.11b addresses how much credit a defendant should receive for time served if he was held in jail prior to sentencing because of an inability to furnish bond for the convicted offense. In full, MCL 769.11b provides:
Whenever any person is hereafter convicted of any crime within this state and has served any time in jail prior to sentencing because of being denied or unable to furnish bond for the offense of which he is convicted, the trial court in imposing sentence shall specifically grant credit against the sentence for such time served in jail prior to sentencing.The primary purpose of MCL 769.11b "is to equalize, as far as possible, the status of the indigent or lower-income accused with the status of the accused who can afford to post bail." People v Givans, 227 Mich.App. 113, 125; 575 N.W.2d 84 (1997).
Our Supreme Court recently addressed MCL 769.11b in People v Allen, Mich.; N.W.2d (2021) (Docket No. 160594). The Allen Court explained that, under MCL 769.11b, "the trial court must grant jail credit when a defendant is held in jail for the offense of which he or she is ultimately convicted if he or she is denied or unable to furnish bond for that offense." Id. at; slip op at 7. Additionally, "[i]t follows from this statute that individuals who are detained in jail for some reason other than the denial of or inability to furnish bond are not entitled to jail credit." Id. If a defendant is a parolee and arrested for an offense that violated his parole then the Michigan Department of Corrections can request that he be detained under MCL 791.238 and MCL 791.239. Id. "[O]nce the individual is held for the parole violation, his or her continued detention has nothing to do with a denial of or inability to furnish bond in the new criminal proceeding." Id. Accordingly, "once the individual is not being held because he or she was denied or unable to furnish bond in that proceeding, he or she is no longer entitled to jail credit under MCL 769.11b toward any sentence imposed in the new proceeding." Id.
Similarly, in Givans, 227 Mich.App. at 125-126, this Court concluded that the defendant was not entitled to credit for time that the defendant spent incarcerated after he was sentenced in an unrelated case in a different county. The defendant was given credit for time served for the period from arrest to the day that he was sentenced in the other case, but not for the time between the two sentencings. Id. at 125. The Givans Court concluded that the time between the defendant's two sentencings did not qualify for credit under MCL 769.11b because the defendant was incarcerated at that time following his conviction and sentence in the other case, not for failing to post bond. Id. at 125-126.
Defendant argues that the trial court erred when it did not credit him for time spent incarcerated following sentencing in Case No. 4776. Defendant's position is that he should have received credit for time served for all time he spent incarcerated before sentencing in the cases at issue in this appeal, including the time after he was sentenced in Case No. 4776.
The caselaw and statute are clear on this issue: credit for time served under MCL 769.11b can be given to a defendant only for time served because he was unable to furnish bond for the offense for which that defendant was convicted. MCL 769.11b; Allen, Mich. at; slip op at 7; Givans, 227 Mich.App. at 126. When defendant began serving his sentence in Case No. 4776, he was no longer incarcerated because he could not furnish bond in Case Nos. 4750, 4737, and 4884. Rather, at that point, he was incarcerated to serve his sentence in Case No. 4776. Thus, defendant is not entitled to credit for time spent incarcerated after sentencing in Case No. 4776.
D. VOLUNTARY PLEA
Finally, defendant argues that these cases should be remanded to determine the validity of his guilty pleas because, according to defendant, the trial court imposed consecutive sentences without explaining to defendant prior to his pleas that consecutive sentences were a possibility. Yet, defendant did not timely seek to withdraw or challenge his plea, so this issue is unpreserved. See People v Armisted, 295 Mich.App. 32, 45-46; 811 N.W.2d 47 (2011). Moreover, defendant did not include this challenge in his questions presented and, therefore, the argument is waived. See People v Anderson, 284 Mich.App. 11, 16; 772 N.W.2d 792 (2009); MCR 7.212(C)(5).
In any event, the argument is without merit. Defendant contends that his sentences in Case Nos. 4750, 4737, and 4884 were consecutive to his sentence in Case No. 4776. Defendant's sentences in the cases on appeal, however, were not consecutive to his sentence in Case No. 4776 because they started before that sentence concluded. See People v Chambers, 430 Mich. 217, 220 n 2; 421 N.W.2d 903 (1988); Givans, 227 Mich.App. at 126. Thus, the time defendant spent incarcerated between sentencing in Case No. 4776 and sentencing in Case Nos. 4750, 4737, and 4884 does not amount to a consecutive sentence.
III. CONCLUSION
For the reasons stated in this opinion, we affirm defendant's sentences in Docket Nos. 355728, 355729, and 355731.