854 N.W.2d 205 (Mich.App. 2014), 314953, People v. Lopez

Docket Nº:314953
Citation:854 N.W.2d 205, 305 Mich.App. 686
Opinion Judge:Donofrio, P.J.
Party Name:PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. JORGE LOPEZ, Defendant-Appellant
Attorney:For PEOPLE OF MI, PLAINTIFF-APPELLEE: VALERIE M STEER, DETROIT, MI. For LOPEZ JORGE, DEFENDANT-APPELLANT: DANIEL J RUST, REDFORD, MI.
Judge Panel:Before: DONOFRIO, P.J., and GLEICHER and M.J. KELLY, JJ. GLEICHER, J. (concurring in part and dissenting in part). CONCUR BY: Elizabeth L. Gleicher (In Part)
Case Date:June 19, 2014
Court:Court of Appeals of Michigan
 
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Page 205

854 N.W.2d 205 (Mich.App. 2014)

305 Mich.App. 686

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee,

v.

JORGE LOPEZ, Defendant-Appellant

No. 314953

Court of Appeals of Michigan

June 19, 2014

Page 206

[Copyrighted Material Omitted]

Page 207

Wayne Circuit Court. LC No. 12-006757-FC.

For PEOPLE OF MI, PLAINTIFF-APPELLEE: VALERIE M STEER, DETROIT, MI.

For LOPEZ JORGE, DEFENDANT-APPELLANT: DANIEL J RUST, REDFORD, MI.

Before: DONOFRIO, P.J., and GLEICHER and M.J. KELLY, JJ. GLEICHER, J. (concurring in part and dissenting in part).

OPINION

[305 Mich.App. 688] Donofrio, P.J.

Page 208

Following his jury trial, defendant was convicted of all five crimes charged: Count I--armed robbery, in violation of MCL 750.529; Count II--assault with intent to rob while armed, in violation of MCL 750.89; Count III--possession of a firearm during the commission of a felony (felony-firearm), in violation of MCL 750.227b; Count IV--unlawful possession of a firearm by a felon, in violation of MCL 750.224f; and Count V--carrying a concealed weapon, in violation of MCL 750.227. The court sentenced defendant as a fourth-offense habitual offender, MCL 769.12, to concurrent terms of 35 to 55 years in prison for Counts I, II, IV, and V, plus a consecutive term of 2 additional years for Count III.

On appeal, defendant challenges the sentencing court's failure to individually score the sentencing guidelines, MCL 777.1 et seq., for each of his convictions and its failure to sentence him in accordance with the guidelines range applicable to each conviction. Defendant also filed a brief under Standard 4 of Supreme Court Administrative Order No. 2004-6, asserting that he is entitled to a new trial because the jury's verdict was against the great weight of the evidence and that [305 Mich.App. 689] both his trial and appellate counsel provided him ineffective legal assistance. Finding no merit to any of these arguments, we affirm.

I. THE SENTENCING GUIDELINES AND LOWER-CRIME-CLASS FELONIES

Defendant argues that the sentencing court erred when it sentenced him on all his felonies in accordance with the sentencing guidelines for the most serious conviction. He reasons that scoring and calculating the guidelines for the other convictions would have resulted in a lower guidelines range for those convictions, which results in his imposed sentences being illegal because the court did not justify any upward departure. We disagree.

The standard of review for sentencing decisions was set forth in People v. Babcock, 469 Mich. 247, 264-265; 666 N.W.2d 231 (2003):

[T]he existence or nonexistence of a particular factor is a factual determination for the sentencing court to determine, and should therefore be reviewed by an appellate court for clear error. The determination that a particular factor is objective and verifiable should be reviewed by the appellate court as a matter of law. A trial court's determination that the objective and verifiable factors present in a particular case constitute substantial and compelling reasons to depart from the statutory minimum sentence shall be reviewed for abuse of discretion. [Quotation marks omitted.]

Michigan's sentencing guidelines calculations only affect a defendant's minimum sentence, while a defendant's maximum sentence is limited by statute. People v. McCuller, 479 Mich. 672, 677; 739 N.W.2d 563 (2007); People v. Drohan, 475 Mich. 140, 164; 715 N.W.2d 778 (2006). The sentencing court must sentence the defendant to a minimum sentence within the guidelines [305 Mich.App. 690] range unless it decides to depart from the guidelines. MCL 769.34. If a trial court wishes to impose a minimum sentence outside the guidelines range, it must articulate substantial and compelling reasons for departing that are objective and verifiable, keenly attract the court's attention, and are of considerable worth in deciding the terms of the sentence. Babcock, 469 Mich. at 257.

Page 209

Defendant does not dispute that the court correctly scored the guidelines and sentenced defendant as a III-F offender for armed robbery, which is a Class A felony, MCL 777.16y, to incarceration for 35 to 55 years.1 Rather, defendant argues that the trial court was required to sentence him on his felon-in-possession-of-a-firearm and carrying-a-concealed-weapon convictions--both of which are Class E felonies, MCL 777.16musing the sentencing guidelines for Class E felonies. We are bound by this Court's decision in People v. Mack, 265 Mich.App. 122; 695 N.W.2d 342 (2005), which addressed this exact issue. In Mack, we held that the trial court was not required to independently score the guidelines for and sentence the defendant on each of his concurrent convictions if the court properly scored and sentenced the defendant on the conviction with the highest crime classification.2 Id. at 126-130. The Mack Court reasoned [305 Mich.App. 691] that, when sentencing on multiple concurrent convictions, the guidelines did not need to be scored for the lower-crime-class offenses because MCL 771.14(2)(e) provides that presentence reports and guidelines calculations were only required " for the highest crime class felony conviction." 3 Id. at 127-128, citing MCL 771.14(2)(e). The rationale for this legislative scheme is fairly clear because, except in possibly an extreme and tortured case, the guidelines range for the conviction with the highest crime classification will be greater than the guidelines range for any other offense. Given that the sentences are to be served concurrently, the guidelines range for the

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highest-crime-class offense would subsume the guidelines range for lower-crime-class [305 Mich.App. 692] offenses, and there would be no tangible reason or benefit in establishing guidelines ranges for the lower-crime-class offenses. Therefore, because the sentences for defendant's lower-crime-class offenses were to be served concurrently with the highest-class-felony sentence, the Class E guidelines did not need to be scored and there was no departure.

We caution sentencing courts, when imposing concurrent sentences, to remain cognizant of any statutory maximums for each conviction and to ensure that each individual sentence, irrespective of any guidelines calculations used, does not exceed its statutory maximum. In this case, defendant's maximum sentences of 55 years in prison for his Class E felony convictions did not exceed the statutory maximum. Normally, the statutory maximum for these offenses is five years. MCL 750.224f(5); MCL 750.227(3). However, defendant was sentenced as a fourth-offense habitual offender, MCL 769.12, which elevated those statutory five-year maximums to life. Specifically, MCL 769.12(1)(b) provides that if the base offense normally is punishable by a maximum term of five years or more, then " the court . . . may sentence the person to imprisonment for life or for a lesser term." Therefore, the imposed sentences did not run afoul of any legislative maximum.

Further, we also question, like the Mack Court did, " whether a sentence for a conviction of the lesser class felony that is not scored under the guidelines pursuant to [MCL 771.14(2)(e)( ii ) and ( iii )] could permissibly exceed the sentence imposed on the highest crime class felony and remain proportional." Mack, 265 Mich.App. at 129. But because defendant's sentences for his lower-crime-class felonies did not exceed those imposed for his highest-crimeclass felonies, we need not decide that question. See id.

[305 Mich.App. 693] II. INEFFECTIVE ASSISTANCE OF COUNSEL

In his Standard 4 brief, defendant claims that he received ineffective assistance of trial and appellate counsel. We initially note that defendant's challenge to his trial counsel was not preserved because he did not move for a new trial or for a Ginther 4 hearing. People v. Wilson, 242 Mich.App. 350, 352; ...

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