People v. Walden

• Decision Date: 20 April 2017
• Docket Number: No. 330144.,330144.
• Citation: 901 N.W.2d 142,319 Mich.App. 344
• Parties: PEOPLE of the State of Michigan, Plaintiff–Appellee, v. Robert Louis WALDEN, Defendant–Appellant.
• Court: Court of Appeal of Michigan — District of US

319 Mich.App. 344

901 N.W.2d 142

PEOPLE of the State of Michigan, Plaintiff–Appellee,

v.Robert Louis WALDEN, Defendant–Appellant.

No. 330144.

Court of Appeals of Michigan.

Submitted April 4, 2017, at Detroit

Decided April 20, 2017, 9:05 a.m.

Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, William P. Nichols, Prosecuting Attorney, and Michael C. Brown, Assistant Prosecuting Attorney, for the people.

Law Office of John D. Roach, Jr., PLC (by John D. Roach, Jr. ), for defendant.

Before: O'Connell, P.J., and Gleicher and Boonstra, JJ.

Boonstra, J.Defendant appeals by right his conviction, following a jury trial, of voluntary manslaughter, MCL 750.321. The trial court sentenced defendant as a second-offense habitual offender, MCL 769.10, to 120 to 270 months' imprisonment. The issues raised on appeal relate only to defendant's sentence. We affirm.

I. PERTINENT FACTS AND PROCEDURAL HISTORY

This appeal arises out of the fatal stabbing of Bryan Allen on October 1, 2014, in the 300 block of Almyra Avenue in Monroe, Michigan. Derek Brown testified that at 9:30 p.m. or 10:00 p.m., he and Allen were on Almyra Avenue, playing on their cellular telephones, with their backs to a group of people engaged in an ongoing altercation nearby.

Brown testified that defendant came up suddenly behind them and said, "I got something for you." Defendant then threw a jacket over Allen's face and made two "motions" towards Allen's abdomen. Brown assumed that defendant had punched Allen. Allen pushed the jacket off him, and defendant "peeled off" in a car parked a couple of feet away. Allen, perhaps not realizing he had been stabbed, told Brown, "come on, let's go," and the two walked across the street and through a backyard on their way to Allen's mother's home. On the way, Allen told Brown that he was "messed up," claimed that defendant had stabbed him, and fell to the ground. Brown pulled up Allen's shirt, which was soaked with blood, and observed Allen's intestines hanging out. Brown began calling for help. Three people unknown to Brown came to assist. A truck then pulled up, and by Brown's recollection, three individuals loaded Allen into the truck and rushed him to Mercy Hospital. Allen succumbed to his injuries and died that night.

Defendant testified that at around 9:30 p.m. or 10:00 p.m., he went to Almyra Avenue to gamble. When he arrived in his girlfriend's car, roughly 10 to 15 people were in the street shooting dice. Defendant testified that a participant in the dice game, Kelly Aaron, "jumped" him, punched him, kicked him, and stomped on his head. According to defendant, he was able to escape with the assistance of another participant in the dice game, but Aaron followed him, hitting him, punching him, and chasing him around the car. Allen and Brown then "walked up" on defendant, and defendant pulled out a pocketknife for protection because he was afraid for his life. Being surrounded, defendant began to "sling," or wave, the pocketknife around to keep people back. Defendant did not think that he hit anyone with the knife. Eventually, defendant was able to get into the car, which he dropped off at the home of a friend of his girlfriend. Defendant then paid an unknown individual to take him to Detroit. On the way, defendant threw his pocketknife out the window. Defendant learned later that night that Allen had died.

Defendant was convicted as described earlier. At sentencing, the trial court assessed 10 points for offense variable (OV) 9 (number of victims). The trial court also departed upward by 13 months from the advisory minimum sentencing guidelines range, stating in support of the departure:

In this matter the sentencing guidelines are 43 to 107 months as ... both attorneys have indicated. It's advisory at this point in time given [ People v. Lockridge, 498 Mich. 358, 870 N.W.2d 502 (2015) ]. [Defendant] had three misdemeanors but he was out on bond for aggravated assault at the time this thing occurred. ... [T]he jury didn't buy the self[-]defense argument and I don't buy the self[-]defense argument.

* * *

Now, the Lockridge case says that I don't have to find a substantial and compelling reason to deviate from the guidelines anymore or I don't have to elucidate those reasons. However, I think just a couple of things that came out in trial; you testified yourself ... that you got stabbed four times. I don't know if that's true or not true but I don't know why in God's name you'd be carrying a knife if you were the victim of being stabbed before.

Once this thing took place there was immediately [sic] leaving the scene, changing the cars and as [the prosecutor] pointed out because it struck me as well, you were driven to Detroit by an anonymous or random person, which I don't believe in a million years. I don't think you told the truth there and I don't think you really told the truth about the facts and circumstances as they went down at the time.

All lives do matter. Bryan Allen will not see his child graduate from high school, get married, do all the things that you're still going to have an opportunity no matter what I do, you're still going to have an opportunity to see your children do. And that's just not right and that's just not fair but I can't make that right and I can't make it fair.

This appeal followed.

II. OFFENSE VARIABLE 9

Defendant argues that the trial court incorrectly assessed 10 points for OV 9. The substance of defendant's argument is that because there was only one victim, Allen, OV 9 should have been scored at zero points. We disagree.

We review the trial court's factual determinations regarding an OV score for clear error; such determinations must be supported by a preponderance of the evidence. People v. Hardy, 494 Mich. 430, 438, 835 N.W.2d 340 (2013). "Whether the facts, as found, are adequate to satisfy the scoring conditions prescribed by the statute, i.e., the application of the facts to the law, is a question of statutory interpretation, which [this Court] reviews de novo." Id.

MCL 777.39 governs the scoring of OV 9, providing in pertinent part as follows:

(1) Offense variable 9 is number of victims. Score offense variable 9 by determining which of the following apply and by assigning the number of points attributable to the one that has the highest number of points:

* * *

(c) There were 2 to 9 victims who were placed in danger of physical injury or death¹ ...... 10 points

(d) There were fewer than 2 victims who were placed in danger of physical injury or death ...... 0 points

(2) All of the following apply to scoring offense variable 9:

(a) Count each person who was placed in danger of physical injury or loss of life or property as a victim.

Under MCL 777.39(2)(a), each person who was placed in danger of physical injury or loss of life is considered a victim for the purposes of scoring OV 9. People v. McGraw, 484 Mich. 120, 128–129, 771 N.W.2d 655 (2009). See also People v. Sargent, 481 Mich. 346, 350 n. 2, 750 N.W.2d 161 (2008) (stating that "in a robbery, the defendant may have robbed only one victim, but scoring OV 9 for multiple victims may nevertheless be appropriate if there were other individuals present at the scene of the robbery who were placed in danger of injury or loss of life").

The facts in this case support the trial court's determination that more than one victim was placed in danger of physical injury or loss of life. Witnesses testified that several men were gambling in a dice game when the altercation between defendant and Aaron began. By defendant's own testimony, at least three people were near defendant when he drew a knife and began swinging it for protection so that he could get into his car and leave. Therefore, although Allen was the only person stabbed, at least two other people were placed in immediate danger of physical injury or loss of life and are thus victims for the purpose of scoring OV 9. MCL 777.39(2)(a) ; Sargent, 481 Mich. at 350 n. 2, 750 N.W.2d 161. Accordingly, defendant was properly assessed 10 points for OV 9, because between two and nine victims were placed at risk of physical injury or loss of life. MCL 777.39(1)(c). Because defendant's OVs were scored on the basis of accurate information, he is not entitled to resentencing. People v. Francisco, 474 Mich. 82, 88, 711 N.W.2d 44 (2006).

III. UPWARD SENTENCING DEPARTURE

Defendant also argues that his sentence was procedurally and substantively unreasonable under MCL 769.34(3)(b)² and, accordingly, that he is entitled to have his case remanded for resentencing. We disagree. There are no special steps that a defendant must take to preserve the question whether the sentence was proportional; a defendant properly presents the issue for appeal by providing this Court a copy of the presentence investigation report. People v. Cain, 238 Mich.App. 95, 129, 605 N.W.2d 28 (1999), citing MCR 7.212(C)(7) ; see also People v. Oswald, 208 Mich.App. 444, 446, 528 N.W.2d 782 (1995). Further, there is no preservation requirement when the trial court imposes a sentence more severe than sentencing guidelines recommend. People v. Smith, 482 Mich. 292, 300, 754 N.W.2d 284 (2008). We review a trial court's upward departure from a defendant's calculated guidelines range for reasonableness. Lockridge, 498 Mich. at 391–392, 870 N.W.2d 502 (2015). We review the reasonableness of a sentence for an abuse of the trial court's discretion. See People v. Steanhouse, 313 Mich.App. 1, 44–47, 880 N.W.2d 297 (2015), lv. gtd. 499 Mich. 934, 879 N.W.2d 252 (2016), citing People v. Milbourn, 435 Mich. 630, 634–636, 461 N.W.2d 1 (1990). We conclude from the circumstances of this case, the record, and the trial court's statements during sentencing, that the sentence imposed was reasonable.

We first reject defendant's initial contention that his sentence is procedurally unreasonable because OV 9 was incorrectly scored, and that his total OV score is therefore incorrect. As discussed earlier, OV 9 was properly scored. Even if defendant's...