People v. Uphaus

• Decision Date: 11 March 2008
• Docket Number: Docket No. 267238.
• Citation: 748 N.W.2d 899,278 Mich. App. 174
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee/Cross-Appellant, v. Gary Steven UPHAUS, Defendant-Appellant/Cross-Appellee.
• Court: Court of Appeal of Michigan — District of US

748 N.W.2d 899

278 Mich. App. 174

PEOPLE of the State of Michigan, Plaintiff-Appellee/Cross-Appellant, v. Gary Steven UPHAUS, Defendant-Appellant/Cross-Appellee.

Docket No. 267238.

Court of Appeals of Michigan.

Submitted December 17, 2007, at Lansing.

Decided March 11, 2008, at 9:10 a.m.

Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, David L. Morse, Prosecuting Attorney, and William J. Vailliencourt, Jr., Assistant Prosecuting Attorney, for the people.

State Appellate Defender (by Douglas W. Baker) and Gary S. Uphaus in propria persona.

Before: SMOLENSKI, P.J., and SAAD and WILDER, JJ.

SMOLENSKI, P.J.

This case is before us on remand from our Supreme Court. In our previous opinion, we concluded that defendant had not raised any errors warranting a new trial, but determined that he was entitled to be resentenced on the sole basis that the trial court improperly utilized facts not found by a jury in departing from the required sentence. See People v. Uphaus, 275 Mich.App. 158, 163, 173 n. 6, 737 N.W.2d 519 (2007) (Uphaus I). Our Supreme Court, in lieu of granting leave to appeal, reversed that portion of our judgment and remanded the case to this Court to consider defendant's remaining issues. People v. Uphaus, 480 Mich. 939, 741 N.W.2d 21 (2007) (Uphaus II). On remand, we conclude that there were no errors warranting relief. Therefore, we affirm.

I. Background

A jury convicted defendant of one count each of delivery of marijuana, MCL 333.7401(2)(d)(iii), and possession with the intent to deliver marijuana, MCL 333.7401(2)(d)(iii). The jury also convicted defendant of four counts of carrying or possessing a firearm during the commission of a felony (felony-firearm), MCL 750.227b. The recommended minimum sentences for the marijuana offenses under the sentencing guidelines were zero to nine months' imprisonment. Because the upper end of the recommended minimum sentences were less than 18 months' imprisonment, the trial court had to sentence defendant to an intermediate sanction, which could include not more than nine months in jail, unless the trial court stated a substantial and compelling reason to sentence the defendant to the jurisdiction of the Department of Corrections. Uphaus I, supra at 163, 737 N.W.2d 519. The trial court determined that defendant was a serious threat to society and to police officers and that these constituted substantial and compelling reasons to depart from the sentencing guidelines. The trial court sentenced defendant to concurrent terms of four to eight years in prison for each of the marijuana convictions. Id. at 164, 737 N.W.2d 519. The trial court also determined that defendant could not properly be convicted of four counts of felony-firearm based on the possession of multiple firearms during the commission of a single predicate felony. Accordingly, the trial court vacated three of defendant's felony-firearm convictions. The trial court sentenced defendant to serve two years in prison consecutive to and preceding the sentences for the marijuana convictions. Id. at 160, 737 N.W.2d 519.

On appeal, defendant raised several claims of error. These claims primarily addressed the propriety of the trial court's sentencing decisions. In addition, the prosecution cross-appealed the trial court's decision to vacate three of defendant's felony-firearm convictions. In considering these issues, we ruled that the trial court properly vacated three of defendant's felony-firearm convictions. Id. at 176, 737 N.W.2d 519. We also concluded that there were no errors warranting a reversal of defendant's convictions. See Id. at 173 n 6, 737 N.W.2d 519. For these reasons, we affirmed defendant's convictions. Id. at 176, 737 N.W.2d 519. However, although we concluded that a trial court could properly consider facts not found by a jury in determining whether a defendant qualified for an intermediate sanction, see id. at 170-171, 737 N.W.2d 519, we concluded that once a defendant qualifies for an intermediate sanction, the sentence set in MCL 769.34(4)(a) becomes the relevant sentencing maximum for purposes of Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). Uphaus I, supra at 171, 737 N.W.2d 519. On this basis, we concluded that the trial court erred when it relied on facts not found by the jury to impose a sentence greater than that permitted by MCL 769.34(4)(a). Uphaus, supra at 172-173, 737 N.W.2d 519. Consequently, we vacated defendant's sentences and remanded for resentencing. Id. at 173, 737 N.W.2d 519.

After our decision, our Supreme Court confirmed that a trial court could properly rely on facts not found by a jury in calculating a defendant's minimum sentence range. People v. McCuller, 479 Mich. 672, 677 n. 3, 689-690, 739 N.W.2d 563 (2007). However, in People v. Harper, 479 Mich. 599, 603 n. 1, 739 N.W.2d 523 (2007), our Supreme Court rejected our conclusion that the trial court erred when it relied on facts not found by a jury in determining whether to depart from the sentencing requirements of MCL 769.34(4)(a). The Court explained that the intermediate sanction provided by MCL 769.34(4)(a) does not set a new maximum for purposes of Blakely, supra, and consequently a trial court may rely on facts not found by a jury in determining whether to depart from an intermediate sanction. Harper, supra at 631-632, 637-638, 739 N.W.2d 523. On this basis, our Supreme Court reversed that portion of our prior opinion in this matter that held that a trial court could not rely on facts not found by a jury in determining whether to depart from the sentencing requirements imposed by MCL 769.34(4)(a). See Uphaus II, supra. Our Supreme Court denied leave to appeal in all other respects and remanded this case to this Court for resolution of defendant's remaining claims of error. Id.

II. Substantial and Compelling Reason for Departing

We shall first address defendant's argument that the trial court failed to state a substantial and compelling reason for departing from the sentencing guidelines.

In reviewing a trial court's decision to depart from the sentencing guidelines, this court reviews for clear error the trial court's finding that a particular factor in support of departure exists. People v. Young, 276 Mich.App. 446, 448, 740 N.W.2d 347 (2007). However, whether the factor is objective and verifiable is a question of law that this Court reviews de novo. Id. This Court reviews for an abuse of discretion the trial court's determination that the objective and verifiable factors in a particular case constitute a substantial and compelling reason to depart from the sentencing guidelines. Id.

On appeal, defendant argues that the trial court did not state a proper basis for departing from the sentencing guidelines. Specifically, defendant contends that the trial court improperly based its departure decision on defendant's refusal to admit that he threatened officers, or to show remorse for threats he allegedly made against police officers, or for lying about whether he actually made the threats. However, we do not agree that the trial court departed from the sentencing guidelines on these bases.

At sentencing, the prosecution asked the trial court to exceed the sentencing guidelines on the basis of evidence that defendant had repeatedly threatened to kill police officers. In response, defendant spoke at length about his belief that the police officers were deliberately harassing him and his family in an effort to find some basis for putting him in prison. He further alleged that the accusations that he threatened the police were not credible. Thus, the trial court allowed defendant to directly challenge the evidence that he posed a threat to police officers.

Nevertheless, the trial court agreed with the prosecutor's argument and elected to exceed the sentencing guidelines. The trial court explained that it chose to exceed the guidelines "because I'm satisfied from what I have heard that [defendant] is a serious threat to society. And particularly to the police officers who have been involved in this case and other cases." The trial court further explained:

There seems to be a thread that runs through [defendant's] allocution in this case that the police officers are liars. Over the many years that I['ve] sat on this bench I've had occasion to have many people come before me in face of allegations from officers who have been threatened while performing their duties. And many times they will come forward and admit that they've made the remarks.... Express remorse [for] them and often attribute them to their circumstances, or the stress they were under or the — or the influence they may have been under at the time of the arrest, or confrontation or — or meeting with the police officer. In this case there's just that strong suggestion that the officers were all lying and that — that it's untrue and I just don't buy it. I've seen too many of these cases come before me.

Although the trial court mentioned that defendant accused the officers of lying and noted that some defendant's have in the past admitted making threats or expressed remorse for making threats, it is clear that the trial court did not decide to depart on these bases. Rather, taken in context, the trial court's remarks appear to be directed at the findings underlying the court's conclusion that defendant was a threat to society and especially to police officers. The trial court merely attempted to explain that, given its experience with similar matters, it found the police officers' statements to be credible and defendant's denial to be incredible — that is, the court simply didn't "buy" defendant's story. Hence, we do not agree that the trial court departed from the sentencing guidelines because it concluded that defendant lied about threatening the officers or failed to admit guilt or express remorse. The trial court's departure was based only on its determination that defendant...