People v. Carico, No. 277973 (Mich. App. 2/24/2009)
| Decision Date | 24 February 2009 |
| Docket Number | No. 277973.,277973. |
| Parties | PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. ROBERT PHILLIPP CARICO, Defendant-Appellant. |
| Court | Court of Appeal of Michigan — District of US |
Appeal from Jackson Circuit Court, LC No. 04-001070-FH.
Before: Whitbeck, P.J., and O'Connell and Owens, JJ.
UNPUBLISHED
On remand from our Supreme Court for consideration as on leave granted, defendant challenges the trial court's denial of his motion for resentencing, which followed this Court's remand for an evidentiary hearing concerning defendant's sentences for his jury convictions of two counts of felonious assault, MCL 750.82, one count of felon in possession of a firearm, MCL 750.224f, and three counts of possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b. We affirm. This appeal has been decided without oral argument pursuant to MCR 7.214(E).
Defendant was sentenced to three concurrent terms of two years' imprisonment for the felony-firearm convictions, to be served consecutively to three concurrent terms of 58 to 180 months' imprisonment for the felon in possession and felonious assault convictions. All sentences were to be served consecutively to a sentence that defendant was already serving for a prior conviction of felon in possession of a firearm. In an earlier appeal in this case, we affirmed defendant's convictions but remanded for an evidentiary hearing regarding the possible use of prior uncounseled felony convictions at sentencing. People v Carico, unpublished per curiam opinion of the Court of Appeals, issued December 21, 2006 (Docket No. 263155).
On remand, the trial court noted that the prosecutor had acknowledged that the presentence investigation report (PSIR) contained inaccuracies and reiterated that because enough valid prior misdemeanors and felonies had been established, the guidelines score remained the same. The trial court also concluded that the changes that the prosecutor agreed should be made would not require resentencing. On that basis, the trial court denied defendant's motion for resentencing.
We review a trial court's denial of a motion for resentencing for an abuse of discretion. People v Puckett, 178 Mich App 224, 227; 443 NW2d 470 (1989). We review a trial court's
scoring decision "to determine whether the trial court properly exercised its discretion and whether the record evidence adequately supports a particular score." People v McLaughlin, 258 Mich App 635, 671; 672 NW2d 860 (2003). We review questions of statutory interpretation de novo. People v Schaub, 254 Mich App 110, 114-115; 656 NW2d 824 (2002).
On appeal, defendant argues that the trial court erroneously relied on the existence of an operating under the influence of liquor (OUIL) third-offense conviction from 1991 when scoring the guidelines. Defendant maintains that this conviction was illegitimate because the OUIL enhancement statute at the time of the conviction required two prior OUIL convictions as predicate offenses and did not count impaired driving convictions. Defendant only had one prior OUIL conviction and two prior impaired driving convictions at the time. Defendant appears to argue that, because a jurisdictional defect existed regarding that offense, the trial court erred in using that offense to score his...
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