People v. Norfleet

• Decision Date: 08 November 2016
• Docket Number: Docket No. 328968.
• Parties: PEOPLE v. NORFLEET.
• Court: Court of Appeal of Michigan — District of US

317 Mich.App. 649

897 N.W.2d 195

PEOPLE

v.NORFLEET.

Docket No. 328968.

Court of Appeals of Michigan.

Submitted Oct. 5, 2016, at Grand Rapids.

Decided Nov. 8, 2016, at 9:05 a.m.

Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, Robert Cooney, Prosecuting Attorney, and Christopher J. Forsyth, Assistant Prosecuting Attorney, for the people.

Ronald K. Norfleet in propria persona, and Laurel K. Young for defendant.

Before: SHAPIRO, P.J., and SHOEKSTRA and SERVITTO, JJ.

PER CURIAM.

Defendant was convicted of multiple drug offenses and sentenced to five consecutive sentences. We affirm his convictions but remand for further sentencing proceedings.

This case presents an issue of first impression regarding appellate review of a trial court's decision to impose consecutive sentences when imposition of consecutive sentences was not mandatory. We hold that when a statute grants a trial court discretion to impose a consecutive sentence, the trial court's decision to do so is reviewed for an abuse of discretion, i.e., whether the trial court's decision was outside the range of reasonable and principled outcomes. See People v. Babcock, 469 Mich. 247, 269, 666 N.W.2d 231 (2003). Accordingly, trial courts imposing one or more discretionary consecutive sentences are required to articulate on the record the reasons for each consecutive sentence imposed.

I. FACTUAL AND PROCEDURAL BACKGROUND

Defendant was charged with and convicted of seven drug-related offenses. The charges were based on activities conducted by defendant in concert with two other individuals, Bryan and Alysha Nerg, and several of the sales involved Angela Bembeneck. Officers observed Alysha delivering what they believed to be heroin to Bembeneck on February 13, 2015. Bembeneck and Alysha both testified at trial that Bembeneck had ordered the heroin by calling defendant, who in turn called Alysha and told her to make the delivery. Officers conducted a traffic stop on Bembeneck shortly after the suspected exchange.¹ Bembeneck consented to a search and admitted to the officer who pulled her over that she had heroin in her possession. Bembeneck then agreed to serve as a confidential informant and, on police direction, called defendant to order more heroin. Alysha testified that defendant called her to have her deliver more heroin to Bembeneck. Bembeneck made the purchase with "controlled buy funds" provided by the police and received heroin from Alysha in exchange for those funds. In addition to these two exchanges, Bryan testified that, on the same date, he delivered cash to defendant, who was in his Jeep, in exchange for heroin.

Following the controlled buy, search warrants were executed at both defendant's residence and the motel where Bryan and Alysha Nerg were residing. Heroin was found in the Nergs' motel room, but no heroin was found at defendant's residence or in his Jeep. Police testified that a search of defendant's residence revealed large amounts of cash, including the "controlled buy funds" that Bembeneck used in the exchange with Alysha, keys for a safe-deposit box, two BB gun pistols, and baggies. Officers testified that, while no heroin was found in defendant's home, a drug dog did alert to drugs at several locations in the house and that the drug dog was not able to search defendant's kitchen because an evidence tabulation station had been set up there.

Defendant's ex-girlfriend, Desseray Richey, testified that, after learning that officers had searched defendant's home, she went there and took what she "suspected could have been drugs" out of the kitchen and flushed them down the toilet. Richey also testified that she had previously picked up cash and made deliveries for defendant, including deliveries to the Nergs. Richey testified that defendant told her the deliveries were "protein powder," which he claimed to sell as part of his business as a personal trainer.²

Defendant was charged with three counts of delivery of less than 50 grams of heroin, MCL 333.7401(2)(a)(iv ), on the basis of the two deliveries to Bembeneck by Alysha Nerg—as to which the prosecution alleged that defendant acted as an aider and abettor—and his direct delivery in his Jeep to Bryan Nerg on the same day. He was also charged with one count of possession with intent to deliver less than 50 grams of heroin, MCL 333.7401(2)(a)(iv ), on the basis of his control over the heroin found in the Nergs' motel room; one count of conspiracy to deliver less than 50 grams of heroin, MCL 333.7401(2)(a)(iv ) and MCL 750.157a ; one count of maintaining a drug house, MCL 333.7405(1)(d) ; and one count of maintaining a drug vehicle, MCL 333.7405(1)(d).

Defendant was convicted on all charges and was sentenced as a fourth-offense habitual offender, MCL 769.12, at the top of the recommended sentencing guidelines range on each charge. He was sentenced to five terms of 134 months to 40 years' imprisonment:

one term for each of the three counts of delivery of less than 50 grams of heroin, one term for the count of possession with intent to deliver less than 50 grams of heroin, and one term for conspiracy to deliver less than 50 grams of heroin. He was also sentenced to two terms of 46 months to 15 years' imprisonment: one term for maintaining a drug house, and one term for maintaining a drug vehicle. The trial court directed that each of the sentences for the first five counts be served consecutively to the other four. Therefore, defendant will first become eligible for parole consideration after 55 years.

II. DEFENDANT'S CHALLENGES TO HIS CONVICTIONS

Defendant raises several issues that he claims merit reversal of some or all of his convictions. The first three arguments were raised in the brief submitted by appellate counsel, and the final three were raised in defendant's Standard 4 brief.³ Defendant is not entitled to relief on any of these grounds.

First, defendant argues that his trial counsel was ineffective for failing to move for a mistrial when the jury heard an audio recording of a phone call in which defendant allegedly referred to his prior murder conviction and violent past. Allowing the jury to hear those references could have had a prejudicial effect. However, contrary to defendant's claim, there is no indication in the record that this portion of the audio recording was ever played to the jury. Defendant offers no evidence, other than his own affidavit, to support his claim that the statements were, in fact, played to the jury. In his affidavit, defendant states that the entire recording of this phone call was played for the jury, a contention the record clearly rebuts. The record shows that differing portions of this phone call were played to the jury, not that the tape was played in its entirety. Additionally, because no Ginther⁴ hearing was held, "review is limited to mistakes apparent on the record." People v. Hurst, 205 Mich.App. 634, 641, 517 N.W.2d 858 (1994). Because we find no mistake on the part of trial counsel apparent on the record, we conclude that defendant is not entitled to relief on his claim of ineffective assistance of counsel.

Second, defendant argues that the trial court erred in instructing the jury on the elements of the charges for keeping and maintaining a drug house and keeping and maintaining a drug vehicle. Specifically, defendant argues that the jury was not instructed on the Supreme Court's construction of the phrase "keep or maintain" as requiring controlled-substance use to be both continuous and a substantial purpose for which the house or vehicle was used. People v. Thompson, 477 Mich. 146, 156–157, 730 N.W.2d 708 (2007). However, the Supreme Court has held that "jury instructions that were somewhat deficient may nonetheless, when viewed as a whole, have sufficed to protect a defendant's rights when the jury would have convicted the defendant on the basis of the evidence regardless of the instructional error." People v. Kowalski, 489 Mich. 488, 506, 803 N.W.2d 200 (2011).

While defendant is correct that the jury was not instructed on the definition of "keep or maintain" or on the requirement of continuous use, there is no error because the jury would have convicted defendant on the basis of the evidence at trial even if the jury had been more fully instructed on the intricacies of the "keep or maintain" element. Defendant relies on the fact that the police found no heroin in either his home or his Jeep. However, had such evidence been found and presented, it would not be direct evidence that the keeping or selling was continuous or that the keeping or selling was a substantial purpose of the home or Jeep. The evidence of continuous use of his home and Jeep to keep and sell heroin and the evidence that a substantial purpose of his home and Jeep was to keep and sell heroin was the testimony of various witnesses, which indicated that the Jeep was used to make heroin deliveries and that the home was used to store both the heroin and the proceeds of the heroin's sale. Therefore, defendant cannot show that the alleged instructional error prejudiced him in any way because the alleged lack of evidence does not correspond to the alleged instructional omission; he would have been convicted on the basis of the evidence admitted regardless of the instructional error. See Kowalski, 489 Mich. at 504–506, 803 N.W.2d 200.

Third, defendant argues that there was insufficient evidence to support his conviction of possession with the intent to deliver less than 50 grams of heroin. Defendant argues that there was insufficient evidence to convict him of possession with intent to deliver because there was no evidence that he possessed the heroin recovered in the Nergs' motel room. However, "[a] person need not have actual physical possession of a controlled substance to be guilty of possessing it." People v. Wolfe, 440 Mich. 508, 519–520, 489 N.W.2d 748 (1992), amended on other grounds 441 Mich. 1201, 489 N.W.2d 748 (1992). "Possession is a term that signifies...