People of Michigan v. Tyirraince Lavell Daniels ( 2020 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
February 27, 2020
Plaintiff-Appellee,
v No. 343919
Saginaw Circuit Court
TYIRRAINCE LAVELL DANIELS, LC No. 17-044361-FC
Defendant-Appellant.
Before: BORRELLO, P.J., and METER and RIORDAN, JJ.
PER CURIAM.
Following a jury trial, defendant was convicted of second-degree murder, MCL 750.317;
intentionally discharging a weapon from a vehicle, causing death, MCL 750.234a(1)(d); being a
felon in possession of a firearm (felon-in-possession), MCL 750.224f(5); carrying a concealed
weapon (CCW), MCL 750.227; and three counts of possession of a firearm during the commission
of a felony (felony-firearm), MCL 750.227b.1 The trial court sentenced defendant as a fourth-
offense habitual offender, MCL 769.12, to 60 to 90 years of imprisonment for the conviction of
second-degree murder, 50 to 80 years of imprisonment for the conviction of intentionally
discharging a weapon within a vehicle, 6 to 15 years of imprisonment for the felon-in-possession
and CCW convictions, and two consecutive years of imprisonment for the three convictions of
felony-firearm. Defendant appeals as of right. We affirm.
I. FACTS
This case arises from a fatal shooting. The victim was shot in the head through his vehicle’s
windshield while his car was disabled from a flat tire. Defendant’s girlfriend, who was also the
mother of the victim’s child, was a passenger in defendant’s truck. She testified that she saw the
victim driving toward them and defendant stated, “I’m tired of him playing with me,” and then
1
The jury acquitted defendant of a charge of extortion, MCL 750.213, and its accompanying
felony-firearm charge, MCL 750.227b.
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defendant fired three shots into the victim’s vehicle. She further testified that defendant then
waved the gun at her and told her that he would kill her if she told anybody what had happened.
At trial, defendant testified that in the year leading up to the shooting the victim had
threatened to kill him, and when he saw that the victim was the driver of the disabled vehicle, he
believed that the victim was trying to run him off the road. Defendant testified that he feared that
his life and his girlfriend’s life were in danger, and that he reached his arm out of the window and
shot at the victim three times.
II. ANALYSIS
A. INEFFECTIVE ASSISTANCE
Defendant first argues that he was denied the effective assistance of counsel when defense
counsel did not request an instruction on voluntary manslaughter. We disagree.
Defendant did not move for a new trial or an evidentiary hearing in the trial court; therefore,
this issue is unpreserved. People v Payne, 285 Mich. App. 181, 188; 774 NW2d 714 (2009).
“Whether a person has been denied effective assistance of counsel is a mixed question of fact and
constitutional law.” People v LeBlanc, 465 Mich. 575, 579; 640 NW2d 246 (2002). The trial
court’s findings of fact are reviewed for clear error, and questions of constitutional law are
reviewed de novo. Id. “When there has been no evidentiary hearing and no findings of fact by
the trial court, this Court reviews de novo the entire record to determine whether the defendant’s
trial counsel’s representation constituted the ineffective assistance of counsel.” People v Rose,
289 Mich. App. 499, 524; 808 NW2d 301 (2010). Review is limited to mistakes apparent from the
trial court record when the defendant fails to preserve his or her ineffective assistance of counsel
claim. Payne, 285 Mich. App. at 188.
A defendant has the right to the effective assistance of counsel in a criminal case.
Strickland v Washington, 466 U.S. 668, 686; 104 S. Ct. 2052; 80 L. Ed. 2d 674 (1984). “Defense
counsel should be strongly presumed to have rendered adequate assistance . . . .” People v Vaughn,
491 Mich. 642, 670; 821 NW2d 288 (2012) (quotation marks and citation omitted). In order to
succeed on a claim of ineffective assistance of counsel, the defendant bears the burden of showing
that trial counsel’s performance fell below an objective standard of reasonableness, and that the
deficient performance resulted in prejudice. Strickland, 466 U.S. at 688, 692.
Whether counsel’s assistance fell below the standard of objective reasonableness requires
an inquiry into whether the conduct was “outside the wide range of professionally competent
assistance.” Id. at 690. Defense counsel has wide discretion regarding matters of trial strategy
and “[t]his Court will not substitute its judgment for that of defense counsel or review decisions
with the benefit of hindsight.” People v Heft, 299 Mich. App. 69, 83; 829 NW2d 266 (2012).
Decisions regarding whether to request jury instructions may involve matters of trial strategy.
People v Gonzalez, 468 Mich. 636, 645; 664 NW2d 159 (2003). “Prejudice means a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would have
been different. A reasonable probability is a probability sufficient to undermine confidence in the
outcome.” People v Randolph, 502 Mich. 1, 9; 917 NW2d 249 (2018) (quotation marks and citation
omitted).
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“Manslaughter is a necessarily included lesser offense of murder.” People v Gillis, 474
Mich. 105, 137; 712 NW2d 419 (2006). When a defendant is charged with murder, an instruction
for voluntary manslaughter must be given if supported by a rational view of the evidence. People
v Mendoza, 468 Mich. 527, 541; 664 NW2d 685 (2003). Manslaughter is defined as an unlawful
killing without malice. Id. at 533. “Voluntary manslaughter requires a showing that (1) defendant
killed in the heat of passion, (2) this passion was caused by an adequate provocation, and (3) there
was no lapse of time during which a reasonable person could have controlled his passions.” People
v Roper, 286 Mich. App. 77, 87; 777 NW2d 483 (2009). “Adequate provocation is that which
would cause the reasonable person to lose control.” People v Pennington, 323 Mich. App. 452,
465; 917 NW2d 720 (2018) (quotation marks and citation omitted). “[P]rovocation is the
circumstance that negates the presence of malice.” Mendoza, 468 Mich. at 536.
Defense counsel acted with reasonable trial strategy by not requesting the voluntary
manslaughter instruction. Defendant’s own testimony reflected that he did not act out of passion
or loss of control, but out of fear for his safety. During closing argument, defense counsel
vigorously argued that defendant acted out of an objectively reasonable fear for his life. In light
of defendant’s self-defense testimony and defense counsel’s closing argument, it is clear that
counsel did not intend to introduce other mitigating factors. Defense counsel may have believed
that requesting an instruction on manslaughter would have undermined defendant’s self-defense
theory and confused the jury. It is well established that “[t]his Court will not substitute its
judgment for that of defense counsel . . . .” Heft, 299 Mich. App. at 83. Therefore, defense
counsel’s failure to request the manslaughter instruction was not objectively unreasonable given
the existence of a legitimate strategy.
Moreover, defendant cannot show that he suffered any prejudice as a result of defense
counsel’s decision. In order to establish prejudice, the defendant must prove that the
unprofessional error was outcome-determinative. Randolph, 502 Mich. at 9. Because the jury
determined that defendant acted with malice rather than in self-defense, it is unlikely that the jury
would have concluded that defendant acted out of passion rather than malice if it had received the
manslaughter instruction.
B. PSIR CORRECTION
Defendant argues that the trial court erred by allowing certain statements to remain within
the presentencing investigation report (PSIR) that directly addressed defendant’s acquitted
conduct, and that he is entitled to correction of the PSIR to remove this information. We disagree.
“This Court reviews a trial court’s response to a defendant’s challenge to the accuracy of a
PSIR for an abuse of discretion.” People v Maben, 313 Mich. App. 545, 552; 884 NW2d 314 (2015)
(quotation marks and citation omitted). “A trial court abuses its discretion when it selects an
outcome outside the range of reasonable and principled outcomes.” Id. (quotation marks and
citation omitted). This Court reviews the trial court’s factual findings for clear error. People v
Wellman, 320 Mich. App. 603, 605; 910 NW2d 304 (2017).
When calculating the sentencing guidelines range, a trial court may consider all record
evidence. People v Johnson, 298 Mich. App. 128, 131; 826 NW2d 170 (2012). The trial court must
allow a defendant the opportunity to rebut any inaccurate information during the sentencing
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proceeding. People v Waclawski, 286 Mich. App. 634, 690; 780 NW2d 321 (2009). “If the court
finds that challenged information is inaccurate or irrelevant, that finding must be made part of the
record and the information must be corrected or stricken from the report.” Id.
Defendant’s PSIR contained a statement in the agent’s description of the offense that
implicated conduct giving rise to the charge of extortion, of which defendant was acquitted.
Specifically, the PSIR stated that “[defendant’s girlfriend] and [defendant] argued and he pointed
the butt of the pistol at her head and told her if she told anyone he would kill her.” The trial court
denied defendant’s request at sentencing that the statement be stricken from the PSIR. The
statement was relevant because it concerned the res gestae of the shooting as described by
defendant’s girlfriend who was an eyewitness to the events. Even assuming that the retention of
the statement constituted error, the error was harmless, because there is no indication in the record
that the trial court relied on the acquitted conduct when sentencing defendant. People v Beck, ___
Mich ___, ___; ___ NW2d ___ (2019) (Docket No. 152934); slip op at 18-19 (a trial court may
not rely on acquitted conduct to enhance a defendant’s sentence).
C. MCL 769.13(2)
Defendant next argues that he is entitled to have his fourth-offense habitual-offender
sentence enhancement vacated and to be resentenced accordingly because the prosecutor failed to
adhere to the requirements of MCL 769.13(2). We disagree.
MCL 769.13, which delineates the process for seeking a sentence enhancement, states:
A notice of intent to seek an enhanced sentence filed under subsection (1)
shall list the prior conviction or convictions that will or may be relied upon for
purposes of sentence enhancement. The notice shall be filed with the court and
served upon the defendant or his or her attorney within the time provided in
subsection (1). The notice may be personally served upon the defendant or his or
her attorney at the arraignment on the information charging the underlying offense,
or may be served in the manner provided by law or court rule for service of written
pleadings. The prosecuting attorney shall file a written proof of service with the
clerk of the court. [MCL 769.13(2).]
Defendant’s argument lacks a factual predicate. The prosecution complied with the
requirements of MCL 769.13(2) by providing habitual-offender notice in the Felony Information
and by listing each offense that pertained to sentence enhancement. The prosecutor filed a written
proof of service with the clerk of the court stating that defense counsel had been served with two
copies of the Felony Information. Thus, defendant’s argument is without merit.
D. SENTENCE MODIFICATION
Defendant argues that the trial court abused its discretion by amending a valid sentence.
We disagree.
The trial court erroneously sentenced defendant to a minimum of 920 months to 9 years of
imprisonment for the conviction of second-degree murder. Two days later, the trial court held a
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resentencing hearing in order to correct the mistake in the record. The trial court stated that it
intended to correct the sentence for the second-degree murder conviction to 720 months to 90 years
of imprisonment. The trial court inquired as to whether counsel had any objections and neither
the prosecutor nor defense counsel objected. The next day, trial court entered the judgment of
sentence with the corrected sentence.
MCR 6.435(B) addresses the trial court’s authority to cure substantive mistakes in the
record, and provides that “[a]fter giving the parties an opportunity to be heard, and provided it has
not yet entered judgment in the case, the court may reconsider and modify, correct, or rescind any
order it concludes was erroneous.” A trial court lacks the authority to correct sua sponte an invalid
sentence after an entry of the judgment of sentence. People v Comer, 500 Mich. 278, 297; 901
NW2d 553 (2017). MCR 6.435(B) “permits a trial court to act on its own initiative to correct
substantive mistakes in a sentence, but only until judgment is entered . . . .” Id. at 296.
In this case, the trial court did not abuse its discretion by correcting a substantive mistake
within the record before it entered the judgment of sentence. The trial court maintained the
authority to correct substantive mistakes in the sentence so long as the parties had an opportunity
to be heard and the judgment of sentence had not been entered. Id. at 293; MCR 6.435(B). The
trial court provided the parties an opportunity to be heard and amended defendant’s sentence before
the entry of the judgment. Accordingly, defendant’s argument is without merit.
E. DEFENDANT’S SUPPLEMENTAL BRIEFS
Defendant filed two supplemental briefs on appeal in which he raised a number of
arguments. We consider each issue seriatim and find them to be without merit.
1. CLERICAL ERROR
First, defendant argues that the judgment of sentence contained a clerical error that required
remand to the trial court for correction. Specifically, defendant contends that the trial court erred
by failing to check a box on the judgment of sentence form to indicate that a number of his
sentences were consecutive rather than concurrent. We disagree.
“Clerical mistakes in judgments, orders, or other parts of the record and errors arising from
oversight or omission may be corrected by the court at any time on its own initiative or on motion
of a party, and after notice if the court orders it.” MCR 6.435(A).
During sentencing, the trial court stated that it intended to impose concurrent sentences for
defendant’s convictions of second-degree murder, MCL 750.317, intentionally discharging a
weapon from a vehicle, causing death, MCL 750.234a(1)(d), felon-in-possession, MCL
750.224f(5), and CCW, MCL 750.227. The trial court further indicated that defendant’s sentence
for three counts of felony-firearm, MCL 750.227b, would be imposed consecutive to the sentences
for the respective underlying felonies. The trial court repeated its intention during defendant’s
resentencing hearing. On the judgment of sentence form, the trial court omitted checking the box
next to item #9, which reads as follows:
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9. Sentences to be served consecutively to (If this item is not checked, the sentence is concurrent.)
each other case numbers ____________________________________________.
However, next to item #8 where the trial court listed defendant’s sentences for the first three
counts, under the column titled “OTHER INFORMATION,” the trial court indicated that the
concurrent/consecutive status was detailed on an attached sheet which states:
COUNT 1 [second-degree murder, MCL 750.317]: Concurrent with all Counts
EXCEPT Count 2
COUNT 2 [felony-firearm, MCL 750.227b]: Preceding and Consecutive to Count
1, Concurrent with all other Counts
COUNT 3 [weapon discharge, MCL 750.234a(1)(d)]: Concurrent with all Counts
EXCEPT Count 4
COUNT 4 [felony-firearm, MCL 750.227b]: Preceding and Consecutive to Count
3, Concurrent with all other Counts
COUNT 5 [felon-in-possession, MCL 750.224f(5)]: Concurrent with all Counts
EXCEPT Count 6
COUNT 6 [felony-firearm, MCL 750.227b]: Preceding and Consecutive to Count
5, Concurrent with all other Counts
COUNT 9 [CCW, MCL 750.227]: Concurrent with all Counts
The trial court’s written order clearly states that defendant’s felony-firearm sentences run
consecutive to the sentences for their respective underlying felonies, and there is no inconsistency
between the trial court’s written order and what was expressed verbally during the sentencing
hearing and resentencing hearing. People v Mysliwiec, 315 Mich. App. 414, 418 n 2; 890 NW2d
691 (2016) (a trial court speaks through its written judgments and orders). The trial court’s failure
to check the box next to item #9 did not render inoperative or invalid its pronouncement in the
attachment to the judgment of sentence. Given the clarity of the trial court’s instructions, we
cannot conclude that the trial court’s failure to check the box next to item #9 created any ambiguity.
The judgment of sentence further indicates that all of defendant’s sentences began on
4/24/18 or 4/26/18. Defendant argues that this renders his sentences concurrent. However,
assuming this was a clerical mistake, defendant’s earliest release date and maximum discharge
date comport with the consecutive/concurrent schedule contained in the attachment. Thus, we
cannot conclude that remand is required.
2. JURY INSTRUCTION
Defendant further argues that the trial court plainly erred by providing the jury with a
preliminary jury instruction on self-defense. Defendant contends that his trial strategy was to wait
until the conclusion of the prosecution’s case-in-chief before selecting a defense theory. He argues
that the trial court’s sua sponte decision to instruct the jury on self-defense forced him to abandon
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his initial strategy and present evidence of self-defense, to the exclusion of other defenses. Absent
this error, defendant states, he would have presented a defense consistent with his statement to law
enforcement, that he was not involved in the shooting.
Defendant waived his argument on appeal by expressing satisfaction with the jury
instructions during trial. People v Carter, 462 Mich. 206, 215; 612 NW2d 144 (2000) (when a
defendant expresses satisfaction with the jury instructions, any error is waived and he may not then
seek appellate review of a claimed deprivation of those rights, for his waiver has extinguished any
error). The trial court issued preliminary jury instructions that included a self-defense instruction,
and defense counsel did not object to the instructions as given. Moreover, when the trial court
asked if counsel had anything else to add before concluding, defense counsel responded, “No,
Your Honor.” Defendant’s failure to raise any objection to the instructions demonstrates
satisfaction with the instructions as given, and the express approval by defense counsel of the trial
court’s instruction extinguished any error.2
Additionally, under plain error review, reversal is only appropriate when the plain error
that affected substantial rights “seriously affected the fairness, integrity, or public reputation of the
proceedings” or when the defendant shows “actual innocence.” People v Pipes, 475 Mich. 267,
283; 715 NW2d 290 (2006). Defendant cites no legal authority to support his argument that the
trial court’s preliminary instructions bound him to a single theory of defense consistent with those
instructions. We reject defendant’s assertion that the preliminary instructions compelled him to
testify on his own behalf at trial, let alone compelled him to testify to in a manner that undermined
the fairness and integrity of the proceedings. Defendant testified that he shot the victim out of fear
for his life and the safety of his girlfriend. His testimony was inconsistent with his prior statements
to police, but we cannot see how the trial court’s preliminary instructions caused defendant’s
testimony to be impeached. Moreover, considering defendant’s trial testimony, we cannot
conclude that he has shown “actual innocence” requiring reversal of his convictions. Id.
2
At oral arguments, defendant’s attorney argued that the alleged error and prejudice occurred when
the trial court issued the preliminary jury instruction, before trial counsel had an opportunity to
approve or object to the instructions. This implies that trial counsel’s subsequent approval of the
jury instructions was of no consequence. We have held otherwise. See, e.g., People v Chapo, 283
Mich. App. 360, 372-373; 770 NW2d 68 (2009) (holding that waiver applied where defense counsel
expressed satisfaction with the jury instructions after they were given); People v Lueth, 253 Mich
App 670, 689; 660 NW2d 322 (2002) (holding that waiver applied where defense counsel
expressly approved of the jury instructions after the jury had retired to deliberate). Defendant does
not argue that trial counsel was ineffective in this regard. However, given defendant’s subsequent
assertion of a self-defense theory, we note that trial counsel’s failure to object and express approval
of the preliminary jury instructions is “a quintessential example of trial strategy” which we will
not second-guess with the benefit of hindsight. People v Reed, 449 Mich. 375, 400; 535 NW2d
496 (1995); People v Dixon, 263 Mich. App. 393, 398; 688 NW2d 308 (2004).
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3. JUDICIAL IMPARTIALITY
Defendant next argues that the trial judge pierced the veil of judicial impartiality by
referring to the victim as a “victim” during voir dire. We disagree.
A criminal defendant is entitled to a trial before a neutral trial judge, and a defendant
claiming judicial bias must overcome a heavy presumption of judicial impartiality. People v
Jackson, 292 Mich. App. 583, 597-598; 808 NW2d 541 (2011). Judicial rulings and opinions
formed during the trial process are not themselves valid grounds for alleging bias unless there is a
deep-seated favoritism or antagonism such that the exercise of fair judgment is impossible. Id. at
598. A trial judge engages in misconduct when the judge pierces the veil of judicial impartiality
“and violates the constitutional guarantee of a fair trial when, considering the totality of the
circumstances, it is reasonably likely that the judge’s conduct improperly influenced the jury by
creating the appearance of advocacy or partiality against a party.” People v Stevens, 498 Mich.
162, 171; 869 NW2d 233 (2015). This analysis is fact-specific and the inquiry is “whether the
judge’s conduct was sufficiently severe and clear so as to create the appearance of bias against the
aggrieved party.” Id. at 171 n 3. We evaluate the totality of the circumstances and consider the
following factors:
[T]he nature of the judicial conduct, the tone and demeanor of the trial judge, the
scope of the judicial conduct in the context of the length and complexity of the trial
and issues therein, the extent to which the judge’s conduct was directed at one side
more than the other, and the presence of any curative instructions. [Id. at 172.]
During jury selection, a juror informed the court that he knew “the victim.” The juror
specifically referred to the victim as “the victim.” The trial court asked the juror, “Does the fact
that you know the victim make you think you could not be fair and impartial to both sides, here?”
Defendant argues that this reference was improper because a victim is only afforded legal status
after a defendant has been convicted. See People v Stanaway, 446 Mich. 643, 678 n 37; 521 NW2d
557 (1994). However, it was an isolated comment, made before the jury was sworn, and not within
the context of presenting evidence to determine defendant’s guilt or innocence. The comment was
made for the purpose of determining whether the juror could be impartial despite having known
the victim, to whom the juror referred as “the victim.” Given the totality of the circumstances
surrounding the comment, defendant has failed to overcome the heavy presumption of judicial
impartiality.
4. PROSECUTORIAL MISCONDUCT
Defendant next argues that the prosecution committed misconduct that prejudiced
defendant by failing to provide notice of all res gestae witnesses. We disagree.
A res gestae witness is a person who witnesses “some event in the continuum of a criminal
transaction” and whose testimony would assist in “developing a full disclosure of the facts at trial.”
People v Long, 246 Mich. App. 582, 585; 633 NW2d 843 (2001). The prosecutor must attach to
the information a list of all known witnesses, including res gestae witnesses, and has a continuing
duty to disclose the names of any further res gestae witnesses as they become known. MCL
767.40a(1); MCL 767.40a(2). “The purpose of the ‘listing’ requirement is merely to notify the
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defendant of the witness’ existence and res gestae status.” People v Calhoun, 178 Mich. App. 517,
523; 444 NW2d 232 (1989). “Therefore, if the defendant knew of the res gestae witness in any
event, the prosecutor’s failure to list the witness would be harmless error.” Id.
Although the prosecution failed to list the witnesses pursuant to MCL 767.40a(1) and (2),
this error was harmless because defendant had knowledge of the witnesses through preliminary
examination testimony, and therefore, any error was harmless. Calhoun, 178 Mich. App. 523.
5. INEFFECTIVE ASSISTANCE
Defendant next argues that defense counsel provided ineffective assistance by failing to
interview all witnesses. We disagree.
As we have already stated, in order to succeed on a claim of ineffective assistance of
counsel, defendant must show that trial counsel’s performance fell below an objective standard of
reasonableness, and that the deficient performance resulted in prejudice. Strickland, 466 U.S. at
688, 692.
Defendant failed to present record evidence that defense counsel failed to interview
witnesses. Therefore, defendant cannot establish that defense counsel acted outside the objective
standard of reasonableness. Defendant has attempted to expand the lower court record by
providing an itemized account statement for services rendered by defense counsel. According to
defendant, the itemized account does not include time expended on interviews, which suggests
that no interviews had occurred. However, because this is not evidence contained within the
record, this Court need not consider it. People v Morrison, ___ Mich App ___, ___; ___ NW2d
___ (2019) (Docket No. 344531); slip op at 4. Without evidence that any failure to interview
witnesses occurred, defendant’s argument lacks a factual predicate.
Although our Supreme Court has concluded that a failure to interview key witnesses falls
below the objective standard of reasonableness, People v Trakhtenberg, 493 Mich. 38, 53-54; 826
NW2d 136 (2012), prejudice must be established to succeed on an ineffective assistance of counsel
claim, Strickland, 466 U.S. at 692. Defendant has not demonstrated how defense counsel’s alleged
failure to interview witnesses resulted in prejudice during trial nor how he would have substantially
benefited from the consulting of witnesses, and his claim fails. Randolph, 502 Mich. at 9 (prejudice
means a reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different; a reasonable probability is one sufficient to undermine
confidence in the outcome).
Defendant contends that prejudice can be presumed, and argues that an evidentiary hearing
is necessary to further develop this issue. However, we see no basis to conclude that a presumption
of prejudice is appropriate in this case, because there is no indication that defendant was
completely denied counsel at a critical stage in the proceedings. See People v Frazier, 478 Mich.
231, 243; 733 NW2d 713 (2007), citing US v Cronic, 466 U.S. 648; 104 S. Ct. 2039; 80 LEd2d 657
(1984). Accordingly, in light of defendant’s inability to demonstrate prejudice, further factual
development is unnecessary and an evidentiary hearing is not required.
6. RESTITUTION
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Defendant next argues that the trial court erred by imposing restitution based solely on the
prosecution’s proffered amount, and that remand for a hearing on restitution is required. We
disagree.
The William Van Regenmorter Crime Victim’s Rights Act (CVRA), MCL 780.751 et seq.,
mandates that a sentencing court order convicted defendants to make full restitution to any victim
of the defendant’s course of conduct that gives rise to the conviction. People v Corbin, 312 Mich
App 352, 359; 880 NW2d 2 (2015). Restitution should only compensate for losses that are easily
ascertained and measured and a direct result of the defendant’s criminal acts. People v Byard, 265
Mich. App. 510, 513; 696 NW2d 783 (2005). The restitution amount should be based upon the
evidence. People v Guajardo, 213 Mich. App. 198, 200; 539 NW2d 570 (1995). “A judge is
entitled to rely on the information in the presentence report, which is presumed to be accurate
unless the defendant effectively challenges the accuracy of the factual information.” People v
Grant, 455 Mich. 221, 233-234; 565 NW2d 389.
The trial court did not err by ordering defendant to pay $5,434.50 in restitution. According
to the prosecution, the amount of the funeral expenses totaled $5,434.50—the same amount listed
in the PSIR. Defendant did not challenge the accuracy of the amount estimated in the PSIR. The
amount is therefore presumed to be accurate, and the trial court was entitled to rely on it. Grant,
455 Mich. at 233-234. Accordingly, remand for a hearing on the matter is not required.
III. CONCLUSION
Defendant has failed to show that he is entitled to relief. Therefore, we affirm.
/s/ Stephen L. Borrello
/s/ Patrick M. Meter
/s/ Michael J. Riordan
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