Opinion
No. 341309
02-12-2019
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. DEONTE PANNELL, Defendant-Appellant.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Wayne Circuit Court
LC No. 17-002944-01-FH Before: MURRAY, C.J., and STEPHENS and RIORDAN, JJ. PER CURIAM.
Defendant, Deonte Pannell, appeals as of right his jury conviction of resisting or obstructing a police officer, MCL 750.81d(1). The trial court sentenced defendant as a fourth-offense habitual offender, MCL 769.12, to 2 to 15 years in prison. We affirm defendant's conviction, but remand for the ministerial task of striking certain information from defendant's presentence investigation report (PSIR).
I. BACKGROUND FACTS & PROCEDURAL HISTORY
Defendant was the passenger in an automobile whose driver had an outstanding warrant for his arrest. When police, in a marked car and with lights and sirens engaged, attempted to stop the vehicle, the driver refused to pull over. Once finally stopped, defendant exited the vehicle and looked at the officers before fleeing. Police yelled at him to stop running. Defendant continued running, and while running, reached in his pants and discarded a gun, which police later discovered in the snow. Defendant was tried, convicted, and sentenced as previously noted. This appeal followed.
II. JURY INSTRUCTIONS
Defendant argues the trial court plainly erred in a manner requiring reversal by failing to instruct the jury regarding an essential element of resisting or obstructing pursuant to People v Moreno, 491 Mich 38, 52; 814 NW2d 624 (2012). Because the issue is waived and, even so, fails the plain-error test, we disagree.
A. WAIVER
Defendant fails to recognize that his trial counsel waived any such claim of error by expressly approving of the jury instructions that were actually provided. See People v Carter, 462 Mich 206, 216; 612 NW2d 144 (2000). With regard to the resisting and obstructing charge, the trial court instructed the jury in the following manner:
To prove this charge the Prosecutor must prove each of the following elements beyond a reasonable doubt. First, that the defendant resisted and or obstructed the police officers Dattahn and Antoine Hill [sic].Immediately after the trial court finished instructing the jury with regard to resisting or obstructing, the court asked, "Counsel, any objections, additions, corrections, deletions to the jury instructions that I've just given to the jury?" Defense counsel replied, "No, your Honor." In other words, defendant's trial counsel expressly approved of the instructions that had been provided, indicating that no additions or corrections were necessary. Thus, counsel waived defendant's instant claim of instructional error. See Carter, 462 Mich at 216 (holding that counsel's express approval of the instructions provided waives any claim of instructional error). "This waiver extinguishes any error and precludes defendant from raising the issue on appeal." Id. at 209.
Obstruct include [sic] the use or threatened use of physical interference or force in knowing failure to comply with a lawful command. The defendant must have actually resisted by what he said or did. But physical violence is not necessary. Second, that the defendant knew or had reason to know that the persons the defendant resisted and or obstructed were police officers preforming [sic] their duties at the time.
B. PLAIN ERROR
This Court reviews unpreserved claims of instructional error for plain error affecting the defendant's substantial rights. People v Everett, 318 Mich App 511, 526; 899 NW2d 94 (2017). The plain-error test has four elements:
1) error must have occurred, 2) the error was plain, i.e., clear or obvious, 3) . . . the plain error affected substantial rights . . . [, and 4) ] 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 Randolph, 502 Mich 1, 10; 917 NW2d 249 (2018), quoting People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999) (alterations and ellipses in Randolph).]"A 'clear or obvious' error under the second prong is one that is not subject to reasonable dispute." Randolph, 502 Mich at 10. The third element "generally requires a showing of prejudice, i.e., that the error affected the outcome of the lower court proceedings." Carines, 460 Mich at 763. "It is the defendant rather than the Government who bears the burden of persuasion with respect to prejudice." Id. (quotation marks and citation omitted).
Defendant is correct that the trial court's resisting or obstructing instructions were erroneous in light of Moreno, and plainly so. To secure a conviction for resisting or obstructing, "the prosecution must establish that the officers' actions were lawful," Moreno, 491 Mich at 52, and such proof is "an actual element of the crime," People v Quinn, 305 Mich App 484, 492; 853 NW2d 383 (2014). Thus, the trial court plainly erred by failing to instruct the jury that the prosecution had the burden of proving, beyond a reasonable doubt, that the police conduct that defendant resisted or obstructed was lawful.
However, on this record, defendant has failed to meet his burden under the third element of the plain-error test—i.e., the burden of demonstrating that the error in question was outcome determinative. Specifically, defendant points to no evidence indicating that the police officers' actions were unlawful, nor does the existing evidence support such a conclusion. On the contrary, all of the record evidence indicates that the police conduct in this case was lawful. See People v Corr, 287 Mich App 499, 507-508; 788 NW2d 860 (2010) (observing that it is generally reasonable for a passenger in a stopped vehicle to be temporarily seized along with the driver, at least for the duration of the investigatory stop, and that, in the interest of officer safety, the police may reasonably require the passenger to remain in the vehicle or to exit it). Moreover, defendant's failure to obey a lawful command from the officers—their repeated commands for him to stop—provided them with probable cause to effectuate a warrantless arrest. See People v Chapo, 283 Mich App 360, 368; 770 NW2d 68 (2009) ("considering the evidence that defendant refused to obey Officer Hoffman's lawful commands, we agree . . . that probable cause for an arrest without a warrant developed during the course of the traffic stop"). Consequently, defendant has failed to demonstrate that the plain instructional error he claims was outcome determinative. See Randolph, 502 Mich at 10.
Nor can defendant satisfy the fourth element of the plain-error test as there is no basis to conclude that the trial court's instructional error led to the conviction of an actually innocent person or seriously affected the fairness, integrity, or public reputation of judicial proceedings independent of defendant's innocence. See id.
III. PSIR
Defendant's second claim of error regards the trial court's resolution of his challenges to the accuracy of certain information in his PSIR. Defendant contends that the trial court did not properly resolve the substantive merits of those challenges. We agree.
A. LAW & ANALYSIS
"This Court reviews a trial court's response to a defendant's challenge to the accuracy of a PSIR for an abuse of discretion." People v Uphaus, 278 Mich App 174, 181; 748 NW2d 899 (2008). "A trial court abuses its discretion when its decision falls outside the range of reasonable and principled outcomes" or is premised upon an error of law. People v Swain, 288 Mich App 609, 628; 794 NW2d 92 (2010).
In pertinent part, MCR 6.425(E)(2) provides:
If any information in the presentence report is challenged, the court must allow the parties to be heard regarding the challenge, and make a finding with respect to the challenge or determine that a finding is unnecessary because it will not take the challenged information into account in sentencing. If the court finds merit in the challenge or determines that it will not take the challenged information into account in sentencing, it must direct the probation officer toSimilarly, MCL 771.14(6) provides:
(a) correct or delete the challenged information in the report, whichever is appropriate, and
(b) provide defendant's lawyer with an opportunity to review the corrected report before it is sent to the Department of Corrections.
At the time of sentencing, either party may challenge, on the record, the accuracy or relevancy of any information contained in the presentence investigation report. The court may order an adjournment to permit the parties to prepare a challenge or a response to a challenge. If the court finds on the record that the challenged information is inaccurate or irrelevant, that finding shall be made a part of the record, the presentence investigation report shall be amended, and the inaccurate or irrelevant information shall be stricken accordingly before the report is transmitted to the department of corrections.
When a defendant challenges the accuracy of information in the PSIR, "the prosecution must prove by a preponderance of the evidence that the facts are as the prosecution asserts." People v Lloyd, 284 Mich App 703, 705; 774 NW2d 347 (2009). "[T]he trial court must allow the parties to be heard and must make a finding as to the challenge or determine that the finding is unnecessary because the court will not consider it during sentencing." People v Waclawski, 286 Mich App 634, 689-690; 780 NW2d 321 (2009). If the trial court specifically indicates that it will not rely on certain information in the PSIR in sentencing the defendant, such information is irrelevant, and the defendant is therefore entitled to have it stricken from the PSIR. People v Martinez (After Remand), 210 Mich App 199, 202; 532 NW2d 863 (1995). Accord People v Taylor, 146 Mich App 203, 205-206; 380 NW2d 47 (1985) ("When a court, for purposes of expediency, efficiency or otherwise, disregards information challenged as inaccurate, the court in effect determines that the information is irrelevant to sentencing. The defendant is therefore entitled to have that information stricken.").
The trial court explicitly indicated that, in determining defendant's sentence, it was not relying on any of the information in the PSIR that defendant had challenged as inaccurate. Consequently, such information was irrelevant to the trial court's sentencing determination, and defendant was entitled to have it stricken from the PSIR under MCL 771.14(6). By failing to strike the information, the trial court erred, which necessarily renders its decision an abuse of discretion. The proper remedy is "remand for the challenged parts of defendant's presentence investigation report to be stricken." See Taylor, 146 Mich App at 206.
IV. CONCLUSION
We affirm defendant's conviction and sentence, but remand for correction of defendant's presentence investigation report consistent with this opinion. We do not retain jurisdiction.
/s/ Christopher M. Murray
/s/ Cynthia Diane Stephens
/s/ Michael J. Riordan