People v. Moritz, No. 275210 (Mich. App. 1/10/2008)

• Decision Date: 10 January 2008
• Docket Number: No. 275210.,275210.
• Parties: PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. CONNY GEORGE MORITZ, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

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PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. CONNY GEORGE MORITZ, Defendant-Appellant.

No. 275210.

Court of Appeals of Michigan.

January 10, 2008.

Appeal from Macomb Circuit Court, LC No. 03-000991-FC.

Before: Fitzgerald, P.J., and Markey and Smolenski, JJ.

PER CURIAM.

Defendant appeals by right from his consecutive sentences of 18 years, nine months to 50 years for kidnapping, MCL 750.349, and seven years, 11 months to 20 years for first-degree home invasion, MCL 750.110a(2). We affirm.

A jury convicted defendant of kidnapping, first-degree home invasion, carrying a dangerous weapon with unlawful intent, MCL 750.226, four counts of felonious assault, MCL 750.82, and three counts of possession of a firearm during the commission of a felony, MCL 750.227b. Initially, the trial court sentenced defendant to 23 years, nine months to 50 years for kidnapping, 11 years, eight months to 20 years for first-degree home invasion, two to five years for carrying a dangerous weapon, two to four years for each count of felonious assault, and two years for each count of felony-firearm. The trial court ordered the sentence for first-degree home invasion to run consecutively to the sentence for kidnapping.

Thereafter, the trial court granted defendant's motion for resentencing and resentenced defendant to consecutive terms of 23 to 50 years in prison for kidnapping, and 11 to 20 years for first-degree home invasion. Both minimum terms constituted an upward departure from the guidelines.¹ Defendant's other sentences remained the same.

This Court consolidated defendant's appeals from the original sentencing and his resentencing, and in People v Moritz, unpublished per curiam opinion of the Court of Appeals issued August 3, 2006 (Docket Nos. 251265, 258436), this Court affirmed defendant's convictions but reversed his sentences for kidnapping and first-degree home invasion and remanded for further proceedings. In Docket No. 258436, this Court rejected defendant's assertion that in imposing sentence, the trial court erred by relying on facts not determined by the jury, in violation of Blakely v Washington, 542 US 296; 124 S Ct 2531; 159 L Ed 2d 403 (2004). The Moritz Court reversed defendant's sentences for kidnapping and first-degree home invasion on the ground that the trial court failed to articulate substantial and compelling reasons for exceeding the guidelines and remanded the matter to the trial court for resentencing.² Id. at 3-5.

At the resentencing hearing, the trial court indicated that it would impose minimum terms within but at the high end of the guidelines ranges. The trial court sentenced defendant to 225 months to 50 years for kidnapping and to a consecutive sentence of 95 months to 20 years for first-degree home invasion. After the trial court announced the sentences, defendant asked if he was allowed to speak. The trial court inquired, "What do you want to say?" Defendant stated that he wanted to speak on the record about a letter that he had sent to the trial court. The trial court said, "Tell me about it." When defendant asked if he should read the letter, the trial court said, "No. I want you to talk to me. What are you asking me to do?" Defendant indicated that he wished to challenge his conviction of kidnapping on the basis that he was the legal guardian of the victim, an incapacitated person. The trial court noted that was a legal issue that the court had already decided. Defendant agreed it was a legal question, and he "wanted to do an interlocutory appeal on that." The court advised defendant his remedy was to appeal to the Court of Appeals. Defendant continued to argue stating, "it's impossible to charge me with kidnapping my wife when she's in my care." After the trial court read defendant his appeal rights, defendant complained about the availability of transcripts and also referred to all three sentencing proceedings as "sham sentences."

On appeal, defendant, through appointed counsel, argues that he is entitled to another resentencing on his convictions of kidnapping and first-degree home invasion because the trial court scored the guidelines based on facts not found beyond a reasonable doubt by the jury as required by Blakely, supra, and other cases. We disagree.

Defendant raised this argument in his previous appeal, and this Court rejected it. Moritz, supra, slip op at 3 n 2, citing People v Drohan, 475 Mich 140, 164; 715 NW2d 778 (2006). The principles articulated in Blakely, supra, do not apply to Michigan's indeterminate sentencing scheme. See Drohan, supra at 159-164. The law in Michigan has not changed since our prior opinion. See People v McCuller, 479 Mich 672, 677-678; 739 NW2d 563 (2007), and People v Harper, 479 Mich 599, 615; 739 NW2d 523 (2007). Thus, in addition, the law of the case doctrine bars defendant's argument. People v Herrera (On Remand), 204 Mich App 333, 340; 514 NW2d 543 (1994).

Next, defendant argues through appointed counsel that the trial court abused its discretion by ordering his sentence for first-degree home invasion to run consecutively to his sentence for kidnapping. Defendant asserts that because he received minimum terms at the high end of the guidelines for both convictions, consecutive sentencing was unnecessary. We disagree.

We review a trial court's decision to impose consecutive sentences for an abuse of discretion. People v St. John, 230 Mich App 644, 646; 585 NW2d 849 (1998).

MCL 750.110a(8) provides:

(8) The court may order a term of imprisonment imposed for home invasion in the first degree to be served consecutively to any term of imprisonment imposed for any other criminal offense arising from the same transaction.

Defendant did not preserve this issue; therefore, our review is for plain error. People v Kimble, 470 Mich 305, 312; 684 NW2d 669 (2004). MCL 769.34(10) states in part: "If a minimum sentence is within the appropriate guidelines sentence range, the court of appeals shall affirm that sentence and shall not remand for resentencing absent an error in scoring the sentencing guidelines or inaccurate information relied upon in determining the defendant's sentence." Because we have rejected defendant's arguments regarding guidelines scoring and defendant does not argue his sentences were based on inaccurate information, and because each consecutive sentence is within the appropriate guidelines sentence range, it is doubtful defendant may appeal this issue. See Kimble, supra at 310-312. Moreover, defendant has not demonstrated plain error occurred. Id. Defendant was convicted of serious offenses: he drove from Tennessee to Michigan, kidnapped his estranged wife at gunpoint, and wounded two children while firing a gun in a vehicle. Consecutive sentences were not outside the range of principled outcomes, People v Babcock, 469 Mich 247, 269; 666 NW2d 231 (2003), and thus did not constitute an abuse of discretion.

Next, defendant, acting in propria persona, argues that he is entitled to be resentenced before a different judge because the trial court denied him the right to engage in allocution before imposing sentence. We disagree.

"At sentencing, the court, must, on the record: . . . (c) give the defendant, the defendant's lawyer, the prosecutor, and the victim an opportunity to advise the court of any circumstances they believe the court should consider in imposing sentence." MCR 6.425(E)(1)(c). The determination of the applicability and scope of the common-law right to allocute is a question of law that we review de novo. People v Petty, 469 Mich 108, 113; 665 NW2d 443 (2003).

Here, at resentencing, the trial court stated that when it had imposed sentence in the second proceeding, it had intended to stay within the...