People v. Duc Van Nguyen

Decision Date11 August 2022
Docket Number357031
PartiesPEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. DUC VAN NGUYEN, Defendant-Appellant.
CourtCourt of Appeal of Michigan — District of US

UNPUBLISHED

Midland Circuit Court LC No. 12-005140-FH

Before: Sawyer, P.J., and Shapiro and Redford, JJ.

PER CURIAM

Defendant appeals as of right the lower court's order entered following a Crosby[1] hearing denying defendant's request for resentencing. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

On November 14, 2012, a jury convicted defendant of assault with intent to do great bodily harm less than murder, MCL 750.84 assault with a dangerous weapon, MCL 750.82, and third-offense domestic violence, MCL 750.81(2) and (4). Defendant committed the crimes during a dispute with his unarmed roommate on May 9, 2012. Defendant struck his roommate multiple times with a meat cleaver. The trial court calculated the guidelines minimum sentence range of 34 to 134 months for defendant's assault with intent to do great bodily harm less than murder. The trial court sentenced defendant as a fourth-offense habitual offender, MCL 769.12, to concurrent terms of 11 years (132 months) to 30 years' imprisonment for assault with intent to do great bodily harm, and 10 to 15 years' imprisonment each for assault with a dangerous weapon and third-offense domestic violence.

Defendant appealed and this Court affirmed. People v Duc Van Nguyen, unpublished per curiam opinion of the Court of Appeals, issued May 15, 2014 (Docket No. 314193). Defendant sought leave to appeal to our Supreme Court but it denied leave because defendant failed to persuade the Court that the questions presented should be reviewed. People v Duc Van Nguyen, 497 Mich. 947; 857 N.W.2d 34 (2014). Defendant petitioned for writ of certiorari but the United States Supreme Court denied the petition. Duc Van Nguyen v Michigan, 576 U.S. 1008; 135 S.Ct. 2811; 192 L.Ed.2d 854 (2015). On May 27, 2015, defendant next moved in the trial court for relief from judgment. Because the judge who presided over defendant's case had retired, a new judge was assigned to the case and denied the motion. Defendant filed a delayed application for leave to appeal the trial court's denial of his motion for relief from judgment and this Court denied the application. People v Duc Van Nguyen, unpublished order of the Court of Appeals, entered February 26, 2016 (Docket No. 330122). Defendant filed an application for leave to appeal to our Supreme Court which denied leave because he failed to meet his burden of establishing entitlement to relief under MCR 6.508(D). People v Duc Van Nguyen, 500 Mich. 932; 889 N.W.2d 265 (2017).

Defendant then petitioned for a writ of habeas corpus in the United States District Court for the Eastern District of Michigan which granted in part the petition on the ground that the trial court imposed his sentence under the mandatory sentencing guidelines which the court found violated Alleyne v United States, 570 U.S. 99; 133 S.Ct. 2151; 186 L.Ed.2d 314 (2013). The federal court ordered defendant's case remanded to the trial court for proceedings consistent with the court's decision to be commenced within 180 days.[2] A notice of remand, the federal court's judgment, and its opinion and order were filed in the trial court on October 7, 2020. On March 8, 2021, the circuit court gave the parties notice that a status conference would be held on March 17, 2021. The court appointed attorney, Leland Burton, on March 9, 2021, to represent defendant in the proceedings.[3] The court conducted a status conference on March 17, 2021, and thereafter sent notice that the court would hold a hearing on April 1, 2021, via Zoom regarding resentencing. The Michigan Department of Corrections prepared and distributed to the circuit court, the prosecution, and defense counsel an updated presentence investigation report (PSIR).

On remand, on April 1, 2021, as in 2015, the assigned judge was the same. This judge presided over and commenced a Crosby hearing.[4] Defendant attended remotely via Zoom, and his court-appointed attorney appeared on his behalf.[5] Defense counsel alerted the court that defendant had filed a motion. The court acknowledged that defendant had raised an issue regarding the court's jurisdiction on the ground that the 180 days in which the court had to begin resentencing proceedings had expired on March 29, 2021. The court noted that the order required the state court to initiate sentencing proceedings within 180 days. The court ruled that the prosecution had initiated the proceedings within the specified timeframe. The court then inquired whether defendant desired to be resentenced. The court permitted defendant to address the court. The court told defendant that the sentencing guidelines were advisory only and that defendant had an opportunity to tell the court if he wanted to be resentenced, but he could ask not to be resentenced. Defendant requested to be resentenced. Defense counsel affirmed that defendant desired to be resentenced.

The lower court stated that it had reviewed the PSIR and the transcript of the original sentencing hearing. Respecting the sentences imposed originally by the trial court, the lower court stated that it would not have imposed a materially different sentence given the record available to the court. The court stated that the sentencing guidelines were no longer compulsory and only advisory. The court explained that it analyzed each of the crimes of which defendant had been convicted and considered all of the events that took place in the commission of the crimes. The court ruled that it would not impose a materially different sentence upon defendant. The court, therefore, declined to resentence defendant. The court permitted defendant to personally address the court and he argued again that the 180-day period had elapsed requiring his release from prison. The court disagreed. Defendant now appeals.

II. STANDARDS OF REVIEW

"For an issue to be preserved for appellate review, it must be raised, addressed, and decided by the lower court." People v Metamora Water Serv, Inc, 276 Mich.App. 376, 382; 741 N.W.2d 61 (2007) (citation omitted). In this case, on remand, defendant requested that the circuit court resentence him, but the court declined his request. Therefore, defendant preserved for appeal the issue of resentencing.

Defendant, however, did not object to the court's holding the Crosby hearing via Zoom. To preserve claims of error, a party must object before the lower court. See People v Pipes, 475 Mich. 267, 277; 715 N.W.2d 290 (2006). To preserve for review by this Court a constitutional error claim that implicates a defendant's due-process rights, the issue must be raised in the trial court. People v Williams, 245 Mich.App. 427, 430-431; 628 N.W.2d 80 (2001). In this case, defendant did not raise the issue of his physical presence at the Crosby hearing and made no objection to appearing remotely via Zoom. Therefore, he failed to preserve the issue for appellate review.

To preserve a claim of ineffective assistance of counsel, a defendant must move in the trial court for a Ginther hearing. People v Petri, 279 Mich.App. 407, 410; 760 N.W.2d 882 (2008). Defendant did not raise the alternative issue of ineffective assistance of counsel before the lower court or move for a Ginther[6] hearing in this Court. Therefore, defendant failed to preserve for appeal his alternative claim of error.

Defendant also did not object in the lower court after remand to defense counsel's appointment to represent him in the Crosby hearing, raised no issue of lack of preparation, conflict of interest, nor did he even intimate that his counsel performed deficiently. Defendant did not move for an evidentiary hearing to address his ineffective assistance claim. Defendant, therefore, did not preserve for appeal any of the claims of error he asserts in his Standard 4 brief.

We review de novo a trial court's statutory interpretation, and for an abuse of discretion its sentencing decisions. People v Babcock, 469 Mich. 247, 253; 666 N.W.2d 231 (2003). 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 N.W.2d 470 (1989). An abuse of discretion occurs when the trial court chooses an outcome that is outside the range of principled outcomes. People v Schaw, 288 Mich.App. 231, 236; 791 N.W.2d 743 (2010).

We review defendant's unpreserved constitutional claim for plain error affecting his substantial rights. People v Carines, 460 Mich. 750, 763-764; 597 N.W.2d 130 (1999). Under the plain-error rule, defendant bears the burden to prove: 1) an error occurred, 2) the error was plain, i.e., clear or obvious, 3) and the plain error affected substantial rights, i.e., prejudiced defendant by affecting the outcome of the proceedings. Id. If defendant satisfies those three requirements, this Court must determine whether the plain error seriously affected the fairness, integrity, or public reputation of the judicial proceedings independent of defendant's innocence. Id.

A claim of ineffective assistance of counsel "presents a mixed question of fact and constitutional law." People v Armstrong, 490 Mich. 281, 289; 806 N.W.2d 676 (2011). We review the trial court's findings of fact, if any, for clear error, and review de novo its conclusions of law. Petri, 279 Mich.App. at 410. "Clear error exists if the reviewing court is left with a definite and firm conviction that the trial court made a mistake." Armstrong, 490 Mich. at 289. Because defendant failed to preserve the ineffective assistance issue, and no evidentiary hearing has been held, our review is limited to mistakes apparent on the lower court record. See People v Seals, 285 Mich.App. 1, 17, 19-20; ...

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