Summary
confining review to "mistakes apparent from the record"
Summary of this case from People v. LarkinOpinion
Docket No. 194996.
Submitted April 1, 1997, at Detroit.
Decided May 13, 1997, at 9:00 A.M.
Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Arthur A. Busch, Prosecuting Attorney, Donald A. Kuebler, Chief, Appellate Division, and Vikki Bayeh, Assistant Prosecuting Attorney, for the people.
Janice A. Furioso, for the defendant on appeal.
Before: MARKEY, P.J., and BANDSTRA and HOEKSTRA, JJ.
Defendant pleaded guilty of possession of less than twenty-five grams of cocaine, MCL 333.7403(2)(a)(v); MSA 14.15(7403)(2)(a)(v), in exchange for the prosecutor's agreement to dismiss the original charge of possession with intent to deliver less than fifty grams of cocaine. He was originally sentenced to five years' probation, with the first thirty days to be served in the county jail. After he violated probation, the trial court amended defendant's probation to include the condition that he successfully complete the Special Alternative to Incarceration (SAI or "boot camp") Program. Defendant was eventually found guilty of violating his probation for failing to complete boot camp. The trial court then sentenced him to five to eight years' imprisonment. The court subsequently denied defendant's motion for resentencing, and this Court denied defendant's motion to remand for resentencing. Defendant now appeals his sentence as of right. We affirm.
Defendant first argues that his sentence is disproportionate. We review sentences for an abuse of discretion. People v Honeyman, 215 Mich. App. 687, 697; 546 N.W.2d 719 (1996). A sentence constitutes an abuse of discretion if it is disproportionate to the seriousness of the circumstances surrounding the offense and the offender. People v Milbourn, 435 Mich. 630, 636; 461 N.W.2d 1 (1990). Milbourn does not address the unique sentencing situation that arises, however, when a defendant pleads guilty of a charge in exchange for dismissal of other or greater charges. People v Brzezinski (After Remand), 196 Mich. App. 253, 256; 492 N.W.2d 781 (1992). "Such pleas will invariably present the sentencing judge with important factors that may not be adequately embodied in the guideline variables," People v Duprey, 186 Mich. App. 313, 318; 463 N.W.2d 240 (1990), so departure from the guidelines is often justified on this basis, People v Butts, 144 Mich. App. 637, 640-641; 376 N.W.2d 176 (1985). Notably, the sentencing guidelines do not apply to sentencing for probation violations. People v Edgett, 220 Mich. App. 686, 690, 694; 560 N.W.2d 360 (1996).
Defendant's conviction of possession of less than twenty-five grams of cocaine is punishable by up to four years' imprisonment. MCL 333.7403(2)(a)(v); MSA 14.15(7403)(2)(a)(v). Because defendant had prior drug convictions, the trial court had the discretion to sentence him to a term up to twice that long under the subsequent offender provision of the controlled substances act. MCL 333.7413(2); MSA 14.15(7413)(2). In addition, "[t]he trial court is at liberty to consider defendant's actions and the seriousness and severity of the facts and circumstances surrounding the probation violation in arriving at the proper sentence to be given." People v Peters, 191 Mich. App. 159, 167; 477 N.W.2d 479 (1991).
Here, defendant came before the trial court three times because of two different probation violations. Regarding the second violation, defendant apparently was assaultive with the staff at boot camp and could not conform his conduct to the camp's requirements, despite the threat of incarceration should he fail to complete SAI. Although defendant spent the first twenty-nine years of his life without a criminal record, he has recently been convicted of three different drug offenses and has violated his probation twice. In light of defendant's subsequent offender status, his plea, and the fact that the sentencing guidelines do not apply to probation violators, we conclude that defendant's sentence is proportionate to the offender and the offense. Edgett, supra; Brzezinski, supra; see also People v Reynolds, 195 Mich. App. 182, 184-185; 489 N.W.2d 128 (1992). Thus, the trial court did not abuse its discretion in sentencing defendant.
Defendant next argues that he is entitled to be resentenced. He alleges that his guidelines were improperly scored and that his sentence was necessarily disproportionate because it was five to ten times greater than the guidelines' range. As discussed above, we conclude that defendant's sentence was proportionate.
More importantly, however, defendant may not challenge the scoring of his guidelines on appeal. The guidelines do not apply to probation violators, enhanced drug offenders, or habitual offenders. Edgett, supra at 689-691. This Court in Edgett, supra at 694-695, went on to conclude that when dealing with habitual offenders, "we are not to calculate an enhanced guideline range and we are not to consider the guidelines' range for the underlying offense" or consider the guidelines as a tool, starting point, or barometer in determining proportionality. "[T]he guidelines have `no bearing' with regard to whether an abuse [of discretion] has occurred." Id. at 694 This Court also held that, as a result, we will not review an habitual offender's challenge to the scoring of the guidelines because the guidelines are irrelevant. Id. at 694-695.
We believe that the reasoning applied in Edgett, supra at 694-695, although dealing only with habitual offenders, should apply with equal force to probation violators and those with enhanced sentences for subsequent drug offenses. Thus, when dealing with probation violators, subsequent drug offenders, or habitual offenders, this Court may not use the guidelines in any manner in determining whether the defendant's sentence is proportionate. Id. at 694. Further, defendant may not challenge the scoring of his guidelines on the underlying offense because the scoring "is of no moment" in light of the fact that we are prohibited from considering the guidelines at all. Id. at 694-695. Even were we to address this issue, we would find that defendant's guidelines were properly scored because there was evidence to support the trial court's determination. See People v Elliott, 215 Mich. App. 259, 260-261; 544 N.W.2d 748 (1996).
Defendant next argues that he is entitled to be resentenced because his sentence was based on inaccurate information, i.e., the trial court incorrectly concluded that he assaulted an officer at boot camp. He alleges that there is no evidence to support this conclusion. We hold that the trial court never made this finding. Instead, the trial court characterized defendant's behavior as "assaultive upon the officers." The prosecutor presented ample evidence that defendant was verbally "assaultive" to everyone at the camp, including the officers. Thus, the trial court's finding was not clearly erroneous. MCR 2.613(C).
Finally, defendant argues that he was denied the effective assistance of counsel. He claims that his attorney did not visit him in jail and failed to call two favorable witnesses. Because there was no Ginther hearing, our review is limited to mistakes apparent on the record. People v Nantelle, 215 Mich. App. 77, 87; 544 N.W.2d 667 (1996). Here, we find insufficient evidence on the record to verify defendant's allegations that he was denied the effective assistance of counsel.
People v Ginther, 390 Mich. 436, 443; 212 N.W.2d 922 (1973).
Affirmed.