People v. Gregory
| Decision Date | 05 August 2021 |
| Docket Number | 351777 |
| Parties | PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. LILBERT HARRIS GREGORY, Defendant-Appellant. |
| Court | Court of Appeal of Michigan — District of US |
UNPUBLISHED
Macomb Circuit Court LC No. 2018-004418-FC
Before: Tukel, P.J., and Sawyer and Cameron, JJ.
Defendant appeals as of right after his jury trial convictions of armed robbery, MCL 750.529, and carrying a firearm during the commission of a felony, MCL 750.227b. The trial court sentenced defendant, as a fourth habitual offender, MCL 769.12, to serve 132 to 300 months' imprisonment for the armed robbery conviction and two years' consecutive imprisonment for the felony-firearm conviction. Defendant challenges his convictions and sentences on multiple grounds which we discuss in greater detail later. All of defendant's arguments are unavailing, and we therefore we affirm defendant's convictions and sentences.
Defendant and the victim met in February or March 2018, when defendant came to the victim's door and asked if the victim wanted his sidewalk or driveway shoveled. The victim paid defendant to shovel snow that winter, but they did not have any other interactions until defendant asked the victim to give him change for a $100 bill. The victim did not realize that the $100 bill was fake until after he already had given defendant change.
The victim did not speak to defendant again until November 2018 when the event at issue in this case occurred. On that day defendant rang the victim's doorbell; the victim opened the door, but did not invite defendant inside. Defendant apologized for the fake $100 bill before entering the victim's house. The victim took his cell phone out and attempted to dial 911 because defendant came into the home uninvited. Defendant responded by taking the victim's cell phone and pushing him down onto his back. The victim then noticed defendant holding a black pistol. While the victim remained on the floor defendant demanded to know where the victim's wallet was. The victim told him and defendant took $300 or $400 from the victim's wallet, wiped the wallet with his shirt sleeve, and took one of the handsets to the victim's landline telephone. As defendant left the victim's home, he told the victim not to call the police and threatened that he would return if the victim did call; defendant took the victim's money, cell phone, and handset to the landline with him when he left.
The victim used a different handset to his landline telephone to call his sister-in-law after defendant left with a handset to his landline that defendant had not taken with him. Later, several police officers arrived at the victim's home. Defendant eventually turned himself in after receiving a call from his attorney that the police were looking for him.
Defendant argues that that the trial court incorrectly scored Offense Variables (OV) 3 and 19 and that his trial counsel was ineffective for failing to object to those OV scores. We disagree.
"A claim that the sentencing guidelines range was improperly calculated is preserved by raising the issue at sentencing, in a motion for resentencing, or in a motion to remand." People v Sours, 315 Mich.App. 346, 348; 890 N.W.2d 401 (2016) (citation and quotation marks omitted); see also MCL 769.34(10). Defendant failed to challenge the scoring of OV 3 and 19 in any way, and thus those issues are unpreserved.
To properly preserve a claim of ineffective assistance of counsel, a defendant must move for either a new trial or a Ginther[1] hearing in the trial court; failure to make any such motion "ordinarily precludes review of the issue unless the appellate record contains sufficient detail to support the defendant's claim." People v Sabin (On Second Remand), 242 Mich.App. 656, 658-659; 620 N.W.2d 19 (2000). Defendant failed to seek a Ginther hearing or a new trial. Thus, the issue is also unpreserved.
In general, unpreserved issues are reviewed for plain error. People v Cain, 498 Mich. 108, 116; 869 N.W.2d 829 (2015).
To avoid forfeiture under the plain error rule, three requirements must be met: 1) error must have occurred, 2) the error was plain, i.e., clear or obvious, 3) and the plain error affected substantial rights. The third requirement generally requires a showing of prejudice, i.e., that the error affected the outcome of the lower court proceedings. It is the defendant rather than the Government who bears the burden of persuasion with respect to prejudice. Finally, once a defendant satisfies these three requirements, an appellate court must exercise its discretion in deciding whether to reverse. Reversal is warranted only when the plain, forfeited error resulted in the conviction of an actually innocent defendant or when an error seriously affected the fairness, integrity or public reputation of judicial proceedings independent of the defendant's innocence. [People v Carines, 460 Mich. 750, 763-764; 597 N.W.2d 130 (1999) (quotation marks, citations, and brackets omitted).]
"A 'clear or obvious' error under the second prong is one that is not 'subject to reasonable dispute.'" People v Randolph, 502 Mich. 1, 10; 917 N.W.2d 249 (2018).
The plain error standard, however, does not apply to unpreserved ineffective assistance of counsel claims. Regardless of whether a claim of ineffective assistance is properly preserved, if the trial court did not hold a Ginther hearing, "our review is limited to the facts on the record." People v Wilson, 242 Mich.App. 350, 352; 619 N.W.2d 413 (2000). People v Petri, 279 Mich.App. 407, 410; 760 N.W.2d 882 (2008).
OV 3 relates to "physical injury to a victim." MCL 777.33(1). The trial court must assess 5 points for OV 3 when "[b]odily injury not requiring medical treatment occurred to a victim." MCL 777.33(1)(e). For this purpose," 'bodily injury' encompasses anything that the victim would, under the circumstances, perceive as some unwanted physically damaging consequence." People v McDonald, 293 Mich.App. 292, 298; 811 N.W.2d 507 (2011).
Defendant argues that the trial court erred because there was no evidence that the victim suffered any bodily injury. Yet, according to the victim's trial testimony, defendant entered the victim's home, "grabbed" the victim's cell phone while the victim tried to call 911, and then pushed the victim in "the chest area," causing the victim to fall on his back. The victim was "bruised up" and "maybe hurting a little" because of the fall. In his victim impact statement, the victim explained that he "suffered minor bruises and had soreness for a week following the incident." Being pushed to the ground and suffering from bruises and soreness clearly qualify as something that a victim would perceive as an unwanted physically damaging consequence. See id. Thus, the trial court properly scored OV 3 at 5 points.
Because the trial court did not err by assessing 5 points for OV 3, defense counsel was not ineffective for failing to object. "Failing to advance a meritless argument or raise a futile objection does not constitute ineffective assistance of counsel." People v Ericksen, 288 Mich.App. 192, 201; 793 N.W.2d 120 (2010).
OV 19 relates, in relevant part, to "interference with the administration of justice." MCL 777.49. The trial court must assess 15 points for OV 19 when the "offender used force or the threat of force against another person or the property of another person to interfere with, attempt to interfere with, or that results in the interference with the administration of justice or the rendering of emergency services." MCL 77.49(b). For this purpose, "[i]nterfering or attempting to interfere with the administration of justice includes acts that constitute obstruction of justice, but is not limited to such acts." People v McKewen, 326 Mich.App. 342, 358; 926 N.W.2d 888 (2018), (quotation marks and citations omitted). "OV 19 is generally scored for conduct that constitutes an attempt to avoid being caught and held accountable for the sentencing offense." Sours, 315 Mich.App. at 349. "The aggravating factors considered in OV 19 contemplate events that almost always occur after the charged offense has been completed." People v Smith, 488 Mich. 193, 200; 793 N.W.2d 666 (2010).
For purposes of OV 19, this Court has defined force as" 'strength or energy exerted or brought to bear: cause of motion or change.'" People v Smith, 318 Mich.App. 281, 287; 897 N.W.2d 743 (2016), quoting Merriam-Webster's Collegiate Dictionary (11th ed). This Court elaborated as follows:
if an offender threw a victim's cell phone into a lake, such action necessarily would involve the use of force against the property of another. Likewise, if the offender threatened to throw a victim's cell phone into the lake, then the action would involve the threatened use of force against the property of another. In either case, if the reason for the offender's action was to prevent or discourage the victim from reporting a crime, then the offender's actions would constitute interference with the administration of justice that would justify a score of 15 points under OV 19. [Smith, 318 Mich.App. at 287.]
Further, "an offender's threat to kill his or her victim to prevent the victim from reporting a crime would warrant a score of 15 points for OV 19." Id. at 286.
Again according to the victim's testimony, defendant grabbed the victim's cell phone as he...
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