Opinion
352628
06-24-2021
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. ANDRE DURRELL YARBROUGH, Defendant-Appellant.
UNPUBLISHED
Calhoun Circuit Court LC No. 2018-003441-FH
Before: Stephens, P.J., and Beckering and O'Brien, JJ.PER CURIAM.
Defendant appeals as of right his jury conviction of one count resisting and obstructing a police officer MCL 750.81d(1). Defendant was sentenced as a third habitual offender, MCL 769.11, to 25 months to 4 years imprisonment. We affirm.
Defendant was found not guilty of one count of possession of a controlled substance, methamphetamine, MCL 333.7403(2).
I. BACKGROUND
Defendant's conviction of resisting and obstructing an officer arose on November 26, 2018. On that night, law enforcement received a call that a suspicious vehicle was parked in someone's driveway playing loud music. When the police arrived, they noticed three occupants. Defendant was the lone rear occupant. When the vehicle was searched, crystal methamphetamine was found in the backseat where defendant was seated. When told to put his hands behind his back, defendant ran. Defendant was caught and arrested. He was charged with possession of methamphetamine and resisting and obstructing an officer. Defendant rejected multiple plea offers, because they did not offer probation. A one-day jury trial was held. Defendant was found not guilty of the possession charge, but guilty of the resisting and obstruction charge. Defendant was later sentenced to 24 to 48 months.
On appeal to this Court, defendant challenges the trial court's finding that defendant's 2013 conviction for possession of marijuana was a felony, as well as the court's scoring of prior offense variables (PRV) 2 and 6, and offense variable (OV) 9. He also raises ineffective assistance of counsel claims based upon counsel's failure to object to the felony categorization of the marijuana conviction and the scoring of PRV 2 and PRV 6.
II. THIRD HABITUAL OFFENDER STATUS
Defendant argues that the trial court's sentencing him as a third habitual offender was erroneous because the court improperly considered defendant's prior conviction for possession of marijuana as a felony. Defendant additionally argues that his trial counsel was ineffective for not objecting to the third habitual notice. We disagree with both contentions.
A. STANDARD OF REVIEW
"An issue of statutory interpretation is reviewed de novo." People v Speed, 331 Mich.App. 328, 331; 952 N.W.2d 550 (2020). "In interpreting statutes, we start by examining the plain language of the statute ... [and] if the statutory language is plain and unambiguous, then no judicial interpretation is necessary or permitted. ..." People v Mattoon, 271 Mich.App. 275, 278; 721 N.W.2d 269 (2006). When calculating the sentencing guidelines, a court may consider "all record evidence, including the contents of a PSIR, plea admissions, and testimony presented at a preliminary examination". People v McChester, 310 Mich.App. 354, 358; 873 N.W.2d 646 (2015). Id. Unpreserved sentencing issues are reviewed for plain error affecting defendant's substantial rights. People v McLaughlin, 258 Mich.App. 635, 670; 672 N.W.2d 860 (2003).
"When reviewing an ineffective assistance of counsel claim, this Court reviews for clear error the trial court's findings of fact and reviews de novo questions of law." People v Shaw, 315 Mich.App. 668, 671-672; 892 N.W.2d 15 (2016). "The trial court's findings are clearly erroneous if this Court is definitely and firmly convinced that the trial court made a mistake. Id. at 672. Review of unpreserved claims of ineffective assistance is limited to mistakes apparent on the record. People v Payne, 285 Mich.App. 181, 188; 774 N.W.2d 714 (2009).
B. ANALYSIS
On December 18, 2018, the prosecution filed an amended information to include 2013 convictions for resisting and obstructing an officer, and possession of marijuana. Defendant argues that the May 29, 2013 conviction for possession of marijuana was not a felony. Defendant turns to the language of the statute to support his contention. MCL 333.7403(2)(d) provides:
(2) A person who violates this section as to:
(d) Marihuana or a substance listed in section 7212(1)(d) is guilty of a misdemeanor punishable by imprisonment for not more than 1 year or a fine of not more than $2, 000.00, or both.
Defendant points out that the statute specifically states that a violation of MCL 333.7403(2)(d) is a misdemeanor, not a felony. Defendant additionally argues that MCL 333.7403(2)(d) does not meet the definition of a "felony" under the definitions' section of the sentencing guidelines manual because punishment for violation of the statute is not "by death or by imprisonment for more than one year," and the statute is not listed in the "crime list" section of the manual.
Defendant waived his challenge to the habitual offender notice at sentencing when defense counsel agreed that the convictions as stated in the notice were proper. Defense counsel's agreement with the habitual offender notice at sentencing waived defendant's challenge to the notice and convictions on appeal. Regardless of defendant's waiver, the trial court properly sentenced defendant as a third habitual offender.
Waiver is "the intentional relinquishment or abandonment of a known right." People v Carter, 462 Mich. 206, 215; 612 N.W.2d 144 (2000) (quotation marks and citation omitted). "One who waives his rights under a rule may not then seek appellate review of a claimed deprivation of those rights, for his waiver has extinguished any error." Id. (quotation marks and citation omitted).
As defendant argues, MCL 333.7401(2)(d) is not listed in the sentencing guidelines' crime list as an enumerated felony. However, the sentencing guidelines manual is not controlling and this offense came under the separate, now modified Public Health Code. MCL 333.7403(2)(d); MCL 333.7413(2); People v Wyrick, 474 Mich. 947; 707 N.W.2d 188 (2005). Under MCL 333.7413(2) of the Public Health Code, "an individual convicted of a second or subsequent offense under this article may be imprisoned for a term not more than twice the term otherwise authorized or fined an amount not more than twice that otherwise authorized, or both." Defendant's PSIR indicates that he was convicted of possession of marijuana in 2012 and 2013. Defendant's 2013 conviction for possession of marijuana was a subsequent offense under the Public Health Code subject to the double penalty provision of MCL 333.7413(2). Consequently, while defendant's first offense of MCL 333.7403(2)(d) was punishable for not more than 1 year, his second 2013 offense was punishable for not more than two years, MCL 333.7413(2). The code of criminal procedure defines "felony" as "a violation of a penal law of this state for which the offender, upon conviction, may be punished by imprisonment for more than 1 year or an offense expressly designated by law to be a felony." MCL 761.1(f). "Because misdemeanors punishable by two years of imprisonment fall within the 'felony' definition, they may be considered felonies for purposes of the[] [habitual-offender] statute[]." People v Smith, 423 Mich. 427, 445; 378 N.W.2d 384 (1985).
It was proper for the trial court to sentence defendant as a third habitual offender. Defendant was convicted of obstructing and resisting an officer, and his second possession of marijuana offense in 2013. Defendant's conviction for the instant offense of resisting and obstructing involving Johnson was defendant's third felony conviction for purposes of the habitual offender statute.
We must therefore reject defendant's contention that his trial counsel was ineffective for not having objected to the third habitual sentence enhancement.
To establish a claim of ineffective assistance of counsel a defendant must show that counsel's performance was deficient and that counsel's deficient performance prejudiced the defense. A counsel's performance was deficient if it fell below an objective standard of professional reasonableness. The performance 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 Fyda, 288 Mich.App. 446, 450; 793 N.W.2d 712 (2010) (citations omitted).]
Because defendant's 2013 possession of marijuana offense was properly treated as a felony, and was in fact, defendant's third conviction, defense counsel was not deficient at sentencing in having reviewed the record and determined the convictions in the amended information were proper. Defense counsel's objection otherwise would have been futile. Counsel does not render ineffective assistance by failing to raise futile objections. People v Ackerman, 257 Mich.App. 434, 455; 669 N.W.2d 818 (2003).
III. SENTENCING
Defendant challenges his sentencing guidelines on the bases that PRV 2, PRV 6, and OV 9 were incorrectly scored. He also faults his counsel for not objecting to PRV 2 and PRV 6.
A. STANDARD OF REVIEW
This Court reviews de novo issues concerning the proper interpretation and application of the legislative sentencing guidelines. People v Morson, 471 Mich. 248, 255; 685 N.W.2d 203 (2004). "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." People v Hardy, 494 Mich. 430, 438; 835 N.W.2d 340 (2013). Clear error occurs "when the reviewing court is left with a definite and firm conviction that an error occurred." McChester, 310 Mich.App. at 358 (quotation marks and citation omitted). When calculating the sentencing guidelines, a court may consider "all record evidence, including the contents of a PSIR, plea admissions, and testimony presented at a preliminary examination". Id. "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." Hardy, 494 Mich. at 438. Unpreserved sentencing issues are reviewed for plain error affecting defendant's substantial rights. McLaughlin, 258 Mich.App. at 670.
"When reviewing an ineffective assistance of counsel claim, this Court reviews for clear error the trial court's findings of fact and reviews de novo questions of law." Shaw, 315 Mich.App. at 671-672. "The trial court's findings are clearly erroneous if this Court is definitely and firmly convinced that the trial court made a mistake. Id. at 672. Review of unpreserved claims of ineffective assistance is limited to mistakes apparent on the record. Payne, 285 Mich.App. at 188.
B. ANALYSIS
PRV 2 concerns a defendant's prior low severity convictions. MCL 777.52(1). A prior low severity felony conviction includes a conviction for any of the following, if the conviction was entered before the sentencing offense was committed:
(a) A crime listed in offense class E, F, G, or H.
(b) A felony under a law of the United States or another state that corresponds to a crime listed in offense class E, F, G, or H.
(c) A felony that is not listed in offense class M2, A, B, C, D, E, F, G, or H and that is punishable by a maximum term of imprisonment of less than 10 years.
(d) A felony under a law of the United States or another state that does not correspond to a crime listed in offense class M2, A, B, C, D, E, F, G, or H and that is punishable by a maximum term of imprisonment of less than 10 years. [MCL 777.52(2)].10 points are scored for PRV 2 when the defendant "has 2 prior low severity felony convictions." MCL 777.52(1)(c). On appeal, defendant argues that his 2013 conviction of possession of marijuana should not be considered in scoring PRV 2. We disagree. For the reasons previously stated in Issue II, defendant's 2013 conviction was a subsequent offense subject to the double penalty provision of MCL 333.7413(2). Consequently, defendant's second 2013 offense was punishable for not more than two years, MCL 333.7413(2). The code of criminal procedure defines "felony" as "a violation of a penal law of this state for which the offender, upon conviction, may be punished by imprisonment for more than 1 year or an offense expressly designated by law to be a felony." MCL 761.1(f). It was thus, proper to treat defendant's 2013 possession conviction as a low severity felony under MCL 777.52(2)(d).
PRV 6 concerns the defendant's relationship to the criminal justice system. MCL 777.56(1). PRV 6 is scored at 10 points when the defendant "is on parole, probation, or delayed sentence status or on bond awaiting adjudication or sentencing for a felony". MCL 777.56(1)(c). On appeal, defendant argues that PRV 6 should have been scored at zero because he was not on probation or parole at the time of the instant offense of resisting and obstructing. According to defendant's presentence investigation report (PSIR), "defendant was on bond for a Resisting and Obstructing when he was arrested for this case." Further, that while on bond for this case, he accrued "12 more arrests resulting in six (6) convictions and two (2) pending charges." The PSIR also stated defendant had pending two cases where he was charged with CCW, domestic violence, assault with intent to murder, felony firearm, and police assault/resist/obstruct causing serious impairment. These undisputed facts support the scoring of PRV 6 at 10 points.
OV 9 is scored for the number of victims involved. MCL 777.39(1). OV 9 is scored at 10 points when "[t]here were 2 to 9 victims who were placed in danger of physical injury or death". MCL 777.39(1)(c). "A person may be a victim under OV 9 even if he or she did not suffer actual harm; a close proximity to a physically threatening situation may suffice to count the person as a victim." People v Gratsch, 299 Mich.App. 604, 624; 831 N.W.2d 462, judgment vacated in part on other grounds, 495 Mich. 876; 838 N.W.2d 686 (2013). At sentencing, defendant objected to the scoring of OV 9 at 10 points as improper because, he argued that neither officer was put in harm's way. At sentencing, the trial court determined that the facts of the case and the jury's finding supported OV 9 being properly scored at 10 points. The trial court's finding was not erroneous.
Johnson testified that he had to chase defendant on foot. When he finally caught defendant, defendant physically resisted apprehension. Johnson was required to sit on defendant's back while defendant rolled back and forth with his hands tucked under him in an effort to avoid being handcuffed. Hancotte chased defendant in his vehicle and had to assist Johnson in handcuffing defendant given defendant's level of resistance. The situation was physically threatening and there was the potential for both officers to have been harmed. Thus, the trial court's scoring of 10 points for OV 9 was not erroneous.
Defendant also argues that his trial counsel was ineffective for failing to object to the assessment of points for PRVs 2 and 6.
To establish a claim of ineffective assistance of counsel a defendant must show that counsel's performance was deficient and that counsel's deficient performance prejudiced the defense. A counsel's performance was deficient if it fell below an objective standard of professional reasonableness. The performance prejudiced the defense if it is reasonably probable that, but for counsel's error, the result of the proceeding would have been different. [Fyda, 288 Mich.App. at 450 (citations omitted).]
Defense counsel's performance was not deficient. The scoring of PRVs 2 and 6 were correct for the reasons previously stated. Counsel's objection as to their scoring would have therefore been without merit. Counsel is not required to make meritless objections. People v Moorer, 262 Mich.App. 64, 76; 683 N.W.2d 736 (2004). Neither will the failure to make a meritless objection be a predicate for ineffective assistance.
Defendant lastly argues that the cumulative effect of defense counsel's error resulted in defendant being placed in a higher sentencing grid. Sometimes, "the cumulative effect of several errors can constitute sufficient prejudice to warrant reversal where the prejudice of any one error would not." People v LeBlanc, 465 Mich. 575, 591; 640 N.W.2d 246 (2002). "In making this determination, only actual errors are aggregated to determine their cumulative effect." People v Bahoda, 448 Mich. 261, 293 n 64; 531 N.W.2d 659 (1995). We have found no error, much less aggregate error, to support a cumulative error claim.
Affirmed.