Opinion
No. 346844
04-23-2020
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. CHARLES ANTHONY BROWN, Defendant-Appellant.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Jackson Circuit Court
LC No. 17-004902-FH Before: BORRELLO, P.J., and O'BRIEN and CAMERON, JJ. PER CURIAM.
Defendant, Charles Anthony Brown, was convicted by a jury of being a felon in possession of ammunition, MCL 750.224f(6). The trial court sentenced Brown as a fourth-offense habitual offender, MCL 769.12, to 48 to 120 months' imprisonment. We affirm Brown's conviction, but vacate his sentence and remand for resentencing.
I. FACTUAL BACKGROUND
On the evening of April 21, 2017, the complainant and her boyfriend smoked crack cocaine with Brown at his home. According to the complainant, after the three smoked crack cocaine together, Brown demanded that either the complainant or the complainant's boyfriend leave his home to acquire a television for him. Brown stated that only one of them was permitted to leave the home, and the complainant testified that she was "scared" because Brown had a knife. The complainant's boyfriend agreed to leave the home to obtain the television. According to the complainant, after her boyfriend left, Brown barricaded the door in order to prevent her from leaving.
The complainant's boyfriend contacted law enforcement and reported that Brown was holding the complainant hostage. In the early morning hours of April 22, 2017, law enforcement arrived at the scene, and Brown was arrested. During a search of Brown's home, a revolver was located on the roof and ammunition was located inside of the home. Brown was charged with one count of unlawful imprisonment, MCL 750.349b; one count of felon in possession of ammunition; and one count of felonious assault, MCL 750.82.
During trial, the complainant and her boyfriend were impeached with their prior inconsistent statements, and several times indicated that they could not remember certain details of the incident in question. Officer Michael Galbreath testified that, although ammunition was located in Brown's home, the revolver was inoperable. Officer Galbreath also testified that the ammunition that was recovered was not compatible with the revolver. Brown testified in his own defense and denied that he held the complainant against her will or that he threatened anyone with a knife. Brown admitted that he was aware that ammunition was present in his home.
Ultimately, the jury returned verdicts of not guilty of unlawful imprisonment and of guilty of felon in possession of ammunition. The jury was unable to reach a verdict on the felonious assault charge. Brown was sentenced to a term of imprisonment, and this appeal followed.
II. ANALYSIS
A. OFFENSE VARIABLE 9
Brown argues that the trial court erred by assessing 10 points for offense variable (OV) 9. The prosecutor agrees and so do we. "We review for clear error the trial court's factual determinations, which must be supported by a preponderance of the evidence." People v Schrauben, 314 Mich App 181, 196; 886 NW2d 173 (2016). "We review de novo whether the factual determinations were sufficient to assess points under OV [9]." Id. "A sentencing court may consider all record evidence before it when calculating the guidelines, including, but not limited to, the contents of a presentence investigation report [(PSIR)], admissions made by a defendant during a plea proceeding, or testimony taken at a preliminary examination or trial." People v Ratkov (After Remand), 201 Mich App 123, 125; 505 NW2d 886 (1993).
MCL 777.39 provides, in relevant part:
(1) Offense variable 9 is number of victims. Score offense variable 9 by determining which of the following apply and by assigning the number of points attributable to the one that has the highest number of points:
* * *
(c) There 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 ....................................................................................... 10 points
(d) There were fewer than 2 victims who were placed in danger of physical injury or death, or fewer than 4 victims who were placed in danger of property loss ......................................................................................... 0 points
When scoring OV 9, a sentencing court is required to "[c]ount each person who was placed in danger of physical injury or loss of life . . . as a victim." MCL 777.39(a). OV 9 is "offense specific," meaning "only conduct relating to the offense may be taken into consideration when scoring" OV 9. People v McGraw, 484 Mich 120, 124; 771 NW2d 655 (2009) (quotation marks and citation omitted). See also People v Biddles, 316 Mich App 148, 167; 896 NW2d 461 (2016). However, when scoring an offense specific OV, "a trial court may properly consider all of [the] defendant's conduct during the offense." People v Chelmicki, 305 Mich App 58, 72; 850 NW2d 612 (2014) (quotation marks and citations omitted).
During the sentencing hearing, the trial court assessed 10 points for OV 9. Brown objected, arguing that there were not two to nine victims stemming from his possession of ammunition. In response, the prosecutor noted that testimony supported that Brown had "brandished" a knife and that, even though testimony did not support that Brown had pointed a gun at anyone, a revolver was located outside of Brown's home by law enforcement. The trial court found that OV 9 was properly assigned 10 points, stating:
All right. Well, I think I am going to hold that that is correctly scored. I think that there were clearly two people there that felt they couldn't leave. In fact, [Brown] even went to the additional efforts of actually taking that weapon and opening up the window and throwing it out, you know, under the roof when he knew the police were around the thing. So he certainly had some consciousness that even though it was not a readily operable felon—firearm, it was something he probably didn't want the police to find, so I'm going to find that that OV-9 is correctly scored at 10 points.
After review of the record, it is clear that a preponderance of the evidence does not support that two people were placed in danger of physical injury because of Brown's possession of ammunition, which was the sentencing offense. See McGraw, 484 Mich at 124. Testimony at trial supports that the only firearm that was located at the scene was deliberately modified to be inoperable. Specifically, the revolver could not "fire a round" because its "chambers were plugged." Testimony also supports that none of the ammunition that was located in the home was compatible with the revolver. Thus, Brown's possession of ammunition—without a working handgun—did not put the complainant, her boyfriend, or the other female who was in the home at any greater risk of injury or death. Despite the fact that the revolver could not have been used to shoot anyone, the trial court held that OV 9 was properly assigned 10 points because "there were clearly two people there that felt they couldn't leave." In so holding, however, the trial court did not make factual findings concerning how the "two people" were placed in danger of physical injury based on their perceived inability to leave the home. Furthermore, although Brown was charged with unlawful imprisonment, he was acquitted of that charge. Our Supreme Court has held that, "[o]nce acquitted of a given crime, it violates due process to sentence the defendant as if he committed the very same crime." People v Beck, 504 Mich 605, 609; 939 NW2d 213 (2019). Because the jury found that Brown did not engage in unlawful imprisonment, Brown was entitled to a presumption of innocence and the trial court erred by considering that conduct at sentencing. See id. at 626. Thus, because the evidence does not support that two people were in danger of physical injury based on Brown's conduct during the sentencing offense, the trial court erred by assessing 10 points for OV 9. Because removing 10 points from the OV score changes Brown's guidelines minimum sentence range, MCL 777.66; MCL 777.21(3)(c); MCL 769.12, Brown is entitled to resentencing, People v Francisco, 474 Mich 82, 89 n 8; 711 NW2d 44 (2006).
Although testimony at trial supports that Brown possessed a knife while the complainant and her boyfriend were present in Brown's home, this testimony cannot support assessing 10 points for OV 9. At the sentencing hearing, Brown objected to the trial court assessing 15 points for OV 1, MCL 777.31. Brown argued that, because the jury could not reach a verdict on the felonious assault charge, the jury clearly found the complainant's testimony that Brown threatened her with a knife to be incredible. The trial court assessed zero points for OV 1 because it agreed that "there wasn't sufficient evidence" to assess 15 points given that the jury acquitted Brown of unlawful imprisonment and could not reach a verdict on the felonious assault charge. Thus, based on the trial court's findings with respect to OV 1, testimony that Brown possessed a knife during the commission of the sentencing offense was not sufficient to support assessing 10 points for OV 9.
B. BROWN'S STANDARD 4 BRIEF
In a pro se supplemental brief filed pursuant to Supreme Court Administrative Order No. 2004-6, Brown raises additional issues on appeal. However, because Brown did not raise these challenges in his list of questions presented as required by MCR 7.212(C)(5), they are not properly presented and need not be considered. See People v Miller, 238 Mich App 168, 172; 604 NW2d 781 (1999). Nonetheless, we have considered Brown's arguments and conclude that they lack merit.
1. PRIOR RECORD VARIABLES
Brown argues that his trial counsel was ineffective for failing to object to the trial court's consideration of convictions that occurred more than 10 years before the offense in this case when scoring prior record variables (PRVs) one through five. Brown failed to raise an ineffective assistance of counsel claim in the trial court in connection with a motion for a new trial or a Ginther hearing. Therefore, our review of this issue is limited to mistakes apparent from the record. People v Heft, 299 Mich App 69, 80; 829 NW2d 266 (2012). "To demonstrate ineffective assistance of counsel, a defendant must show that his or her attorney's performance fell below an objective standard of reasonableness under prevailing professional norms and that this performance caused him or her prejudice." People v Nix, 301 Mich App 195, 207; 836 NW2d 224 (2013). "To demonstrate prejudice, a defendant must show the probability that, but for counsel's errors, the result of the proceedings would have been different." Id.
People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
MCL 777.50 provides, in relevant part, as follows:
(1) In scoring prior record variables 1 to 5, do not use any conviction or juvenile adjudication that precedes a period of 10 or more years between the discharge date from a conviction or juvenile adjudication and the defendant's commission of the next offense resulting in a conviction or juvenile adjudication.
(2) Apply subsection (1) by determining the time between the discharge date for the prior conviction or juvenile adjudication most recently preceding the commission date of the sentencing offense. If it is 10 or more years, do not use that prior conviction or juvenile adjudication and any earlier conviction or juvenile adjudication in scoring prior record variables. If it is less than 10 years, use that
prior conviction or juvenile adjudication in scoring prior record variables and determine the time between the commission date of that prior conviction and the discharge date of the next earlier prior conviction or juvenile adjudication. If that period is 10 or more years, do not use that prior conviction or juvenile adjudication and any earlier conviction or juvenile adjudication in scoring prior record variables. If it is less than 10 years, use that prior conviction or juvenile adjudication in scoring prior record variables and repeat this determination for each remaining prior conviction or juvenile adjudication until a period of 10 or more years is found or no prior convictions or juvenile adjudications remain.
The "10-year gap" rule contained in MCL 777.50(1) applies to all types of prior convictions and adjudications, including high-severity felonies, low-severity felonies, high-severity juvenile adjudications, low-severity juvenile adjudications, and misdemeanors. See People v Butler, 315 Mich App 546, 551; 892 NW2d 546 (2016). "When a defendant has gone 10 years between the discharge from a conviction and the commission of his or her next offense, all convictions, regardless of the crime, are to be ignored." Id. at 551-552. "In making this judgment, the Legislature, not unreasonably, insisted that the 10-year conviction-free period be exactly that: conviction free." Id. at 552. As such, any conviction or adjudication, even one that would otherwise not be scored under a particular PRV, will interrupt the running of the 10-year period. Id. at 552-553.
Brown's PSIR indicates that he had 10 prior felony convictions and 21 prior misdemeanor convictions. A close review of the timeline of Brown's convictions establishes that there was not a 10-year gap between the discharge from a conviction and the commission of Brown's next offense. Although Brown appears to argue on appeal that the information contained in the PSIR concerning his criminal history was "materially false," he does not cite to any record evidence to support this assertion. Consequently, because the trial court did not violate MCL 777.50's 10-year gap rule when assessing points for PRVs one through five, Brown has failed to establish that his counsel was ineffective for failing to object. See People v Ericksen, 288 Mich App 192, 201; 793 NW2d 120 (2010) (stating that counsel is not ineffective for failing to raise a meritless argument).
2. JUDICIAL BIAS
Brown next argues that he was denied a fair trial because the trial judge displayed bias toward him. Because this issue is unpreserved, we review for plain error affecting substantial rights. See People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). In determining whether a trial judge's conduct deprives a defendant of a fair trial, this Court considers whether the "trial judge's conduct . . . pierces the veil of judicial impartiality." People v Stevens, 498 Mich 162, 164; 869 NW2d 233 (2015). "A judge's conduct pierces this veil 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." Id. at 171.
In this case, Brown alleges that he was denied a fair trial because of the "impermissible appearance of judicial bias." However, Brown fails to cite to any relevant portions of the record to support this argument, and we find no evidence of bias on our own review of the record. Consequently, Brown has failed to establish plain error affecting his substantial rights, and we conclude that defense counsel was not ineffective for failing to file a motion to disqualify the trial judge. See Ericksen, 288 Mich App at 201 (stating that counsel is not ineffective for failing to raise a meritless argument).
We affirm Brown's conviction, but vacate Brown's sentence and remand for resentencing. We do not retain jurisdiction.
/s/ Stephen L. Borrello
/s/ Colleen A. O'Brien
/s/ Thomas C. Cameron