People of Michigan v. Darryl Lee Sanders Jr ( 2015 )

STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
February 24, 2015
Plaintiff-Appellee,
v No. 318432
Wayne Circuit Court
DARRYL LEE SANDERS, JR., LC No. 11-012210-FC
Defendant-Appellant.
Before: SERVITTO, P.J., and STEPHENS and M. J. KELLY, JJ.
PER CURIAM.
Defendant was convicted by a jury of six counts of assault with intent to do great bodily
harm less than murder, MCL 750.84, and possession of a firearm during the commission of a
felony (felony-firearm), MCL 750.227b. Defendant was originally sentenced to two years’
imprisonment for the felony-firearm conviction and concurrent sentences of 72 to 120 months’
imprisonment for each assault with intent to do great bodily harm less than murder conviction.
Defendant appealed to this Court, and this Court remanded the case to the trial court for
reconsideration of the scoring of offense variable (OV) 12. People v Sanders, unpublished
opinion per curiam of the Court of Appeals, issued June 25, 2013 (Docket No. 310093). On
August 26, 2013, defendant was resentenced to two years’ imprisonment for the felony-firearm
conviction and concurrent sentences of 72 to 120 months’ imprisonment for each assault with
intent to do great bodily harm less than murder conviction. Defendant now appeals from his
resentencing as of right. We affirm.
Defendant first argues that the trial court improperly denied his motion to correct an
invalid sentence and that he is entitled to resentencing because the trial court improperly assessed
15 points for prior record variable (PRV) 5. We hold that defendant waived and abandoned this
issue.
“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 NW2d 340 (2013). Additionally, “[w]hether 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.
(stating this standard of review in the context of determining whether the trial court properly
denied the defendant’s motion for resentencing).
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MCR 6.429(a) provides, “A motion to correct an invalid sentence may be filed by either
party. The court may correct an invalid sentence, but the court may not modify a valid sentence
after it has been imposed except as provided by law.” This Court has clarified that “[a]n invalid
sentence refers to any error or defect in the sentence or sentencing procedure that entitles a
defendant to be resentenced or to have the sentence changed.” People v Catanzarite, 211 Mich
App 573, 583; 536 NW2d 570 (1995). “A sentence is invalid when it is beyond statutory limits,
when it is based upon constitutionally impermissible grounds, improper assumptions of guilt, a
misconception of law, or when it conforms to local sentencing policy rather than individualized
facts.” People v Miles, 454 Mich. 90, 96; 559 NW2d 299 (1997) (emphasis added). In certain
cases, a modification of a sentence requires the due-process protections inherent in a
resentencing proceeding. Id. at 98-99. Purely ministerial modifications, on the other hand, do
not require a resentencing proceeding. Id.
A defendant is entitled to a second appeal as of right from a resentencing proceeding
ordered by this Court. People v Jones, 394 Mich. 434, 435; 231 NW2d 649 (1975). However,
“[t]he scope of the second appeal is limited by the scope of the remand.” Id. at 435-436. In
addition, “[w]hen a case is remanded by an appellate court, proceedings on remand are limited to
the scope of the remand order.” People v Canter, 197 Mich. App. 550, 567; 496 NW2d 336
(1992). If this Court remands a case because the defendant’s entire sentence was invalid, then
“every aspect of the sentence is before the judge de novo unless the remand indicates otherwise.”
People v Williams, 208 Mich. App. 60, 65; 526 NW2d 614 (1994).
Recently, in People v Davis, 300 Mich. App. 502, 508; 834 NW2d 897 (2013), abrogated
in part on other grounds by Hardy, 494 Mich. at 438 n 18 (clarifying the proper standard of
review for sentencing errors), this Court reaffirmed that trial court proceedings on remand from
this Court are limited to the issues raised in this Court’s remand order. In Davis, this Court had
previously remanded the case to the trial court to consider the scoring of OV 13. Id. at 509.
However, this Court held that the remand order did not limit the proceedings on remand to the
issue of OV 13 because this Court stated in the remand order that the trial court had discretion to
resentence the defendant if the trial court found that OV 13 was improperly scored. Id. at 509-
510. Therefore, the case returned to a “presentence posture,” and the trial court was able to
consider other issues at resentencing. Id. at 510.
This Court remanded the case to the trial court for reconsideration of the assessment of
25 points for OV 12. Sanders, unpub op at 2. However, this Court stated that “[i]f the trial court
determines that it improperly scored the variable and that the error affects the appropriate
guidelines range, defendant shall be resentenced.” See id. At resentencing, the trial court
assessed zero points for OV 12. The assessment of zero points for OV 12 affected the
appropriate guidelines range because the minimum sentencing guidelines range was altered from
43 to 76 months’ imprisonment to 38 to 76 months’ imprisonment. Therefore, defendant was
entitled to resentencing. Id. The case returned to a presentence posture, and the entire issue of
defendant’s sentence was before the trial court de novo. See Davis, 300 Mich. App. at 509-510;
Williams, 208 Mich. App. at 65. Thus, the trial judge erred when he reasoned that he was required
to deny defendant’s motion to correct an invalid sentence because he had not been ordered to
resentence defendant with regard to PRV 5.
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Nevertheless, defendant is not entitled to modification of his sentence or resentencing for
two reasons. First, defendant waived the issue when former appellate defense counsel expressed
satisfaction with the sentencing guidelines at defendant’s resentencing. A defendant waives an
issue for appellate review if the defendant intentionally relinquishes or abandons his or her
known right. People v Carter, 462 Mich. 206, 215; 612 NW2d 144 (2000). The prosecution
does not argue in its brief on appeal that the issue was waived. However, the prosecution argued
that the issue was waived during the hearing on defendant’s motion to correct an invalid
sentence, and this Court has discretion to consider issues not raised in the parties’ briefs on
appeal. See People v Billings, 283 Mich. App. 538, 549; 770 NW2d 893 (2009) (recognizing this
Court’s right to discuss issues that were not raised on appeal under certain circumstances).
Former appellate defense counsel’s statement constituted an “intentional relinquishment or
abandonment of a known right” because former appellate defense counsel expressly stated that
the defense had no additions or corrections to the sentencing guidelines. See Carter, 462 Mich. at
215.
Second, defendant abandons this argument on appeal because defendant fails to provide
an argument or legal authority to support his position that three of his five prior misdemeanor
convictions do not constitute crimes against a person, property, controlled substance offenses, or
weapons offenses under PRV 5. See People v Payne, 285 Mich. App. 181, 195; 774 NW2d 714
(2009) (citation omitted) (“An appellant may not merely announce his position and leave it to
this Court to discover and rationalize the basis for his claims, nor may he give only cursory
treatment with little or no citation of supporting authority.”); People v Ackerman, 257 Mich. App.
434, 450; 669 NW2d 818 (2003) (“the failure to cite any supporting legal authority constitutes
abandonment of an issue”). Defendant presented a single conclusory assertion that the prior
convictions were improperly construed for scoring under PRV 5. For the reasons discussed
above, defendant waived and abandoned his arguments regarding the trial court’s assessment of
15 points for PRV 5.
Defendant also contends that he is entitled to resentencing by a different judge because
the trial judge would be unable to put the previous sentencing proceedings out of his mind during
resentencing. We disagree.
A new trial judge is not required when the trial court erred with regard to an issue of law
and there is no other indication that the trial judge would have trouble putting aside his or her
views. People v Hill , 221 Mich. App. 391, 398; 561 NW2d 862 (1997). Even assuming that
defendant was entitled to resentencing, defendant would not be entitled to a new trial judge.
Defendant challenges the trial court’s application of the law to the facts, rather than the trial
court’s findings of fact. The trial judge did not express any personal views at resentencing or at
the hearing on defendant’s motion to correct an invalid sentence. In addition, defendant does not
show why the trial judge would have trouble putting aside his views or how reassignment would
preserve the appearance of justice. Furthermore, reassignment would create a waste of judicial
resources because another trial judge would have to be assigned to the case and become familiar
with the facts and issues. See Hill, 221 Mich. App. at 398. Therefore, even if defendant were
entitled to resentencing, defendant would not be entitled to a different trial judge. See id.
Defendant also argues that trial and former appellate defense counsel were ineffective for
failing to object to the trial court’s assessment of 15 points for PRV 5 at sentencing and
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resentencing. Defendant abandoned the issue of whether former appellate defense counsel was
ineffective in the resentencing by failing to include the issue in the statement of questions
presented. An issue that is not raised in the statement of the questions presented is abandoned on
appeal. See MCR 7.212(C)(5) (providing that a brief on appeal must contain a statement of the
questions involved); People v McMiller, 202 Mich. App. 82, 83 n 1; 507 NW2d 812 (1993)
(holding that an issue was abandoned when it was not raised in the statement of the questions
presented).
Affirmed.
/s/ Deborah A. Servitto
/s/ Cynthia Diane Stephens
/s/ Michael J. Kelly
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