Opinion
No. 343657
03-19-2019
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. JAMAL TYREZ STOKES, 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 UNPUBLISHED Kalamazoo Circuit Court
LC No. 2015-001052-FH Before: RIORDAN, P.J., and MARKEY and LETICA, JJ. PER CURIAM.
This Court previously affirmed Jamal Tyrez Stokes's convictions for assault with intent to commit sexual penetration, MCL 750.520g(1), and fourth-degree criminal sexual conduct (CSC-IV), MCL 750.520e(1)(b), but remanded the case to the trial court for resentencing. People v Stokes, unpublished per curiam opinion of the Court of Appeals, issued November 28, 2017 (334849). On remand, Stokes was resentenced as a fourth-offense habitual offender, MCL 769.12, to 32 months to 30 years' imprisonment for the assault conviction and 1 to 15 years' imprisonment for the CSC-IV conviction. He appeals as of right. We affirm.
On appeal, Stokes challenges the trial court's assessment of 25 points for offense variable (OV) 13, arguing that the trial court improperly considered a 2012 charge that was dismissed pursuant to a plea deal. We disagree.
The factual determinations made by the trial court in scoring the sentencing guidelines "are reviewed for clear error and must be supported by a preponderance of the evidence." People v Hardy, 494 Mich 430, 438; 835 NW2d 340 (2013). "Whether the facts, as found, are adequate to satisfy the scoring conditions prescribed by statute, i.e., the application of the facts to the law, is a question of statutory interpretation, which an appellate court reviews de novo." Id.
OV 13 addresses a continuing pattern of criminal behavior. MCL 777.43(1); People v Gibbs, 299 Mich App 473, 487; 830 NW2d 821 (2013). The sentencing court must assign 25 points if "[t]he offense was part of a pattern of felonious criminal activity involving 3 or more crimes against a person." MCL 777.43(1)(c). "For determining the appropriate points under this variable, all crimes within a 5-year period, including the sentencing offense, shall be counted regardless of whether the offense resulted in a conviction." MCL 777.43(2)(a).
A sentencing court may consider charges that were dismissed, including charges dismissed as part of a plea agreement, if there is a preponderance of the evidence supporting that the charged offense took place. People v Nix, 301 Mich App 195, 205; 836 NW2d 224 (2013). However, the mere fact that a defendant was accused of a qualifying crime is not sufficient alone. See People v Phelps, 288 Mich App 123, 141-142; 791 NW2d 732 (2010), overruled in part on other grounds by Hardy, 494 Mich at 438 n 18. Evidence must be presented at sentencing establishing that the defendant committed the alleged offense by a preponderance of the evidence. See People v Earl, 297 Mich App 104, 110-111; 822 NW2d 271 (2012). A preponderance of the evidence exists when evidence is presented that, "when weighed with that opposed to it, has more convincing force and the greater probability of truth." People v Cross, 281 Mich App 737, 740; 760 NW2d 314 (2008). Because a remand for resentencing places the case in a presentence posture, see People v Ezell, 446 Mich 869 (1994), the parties may introduce additional evidence concerning the defendant's conduct.
To support the assessment of 25 points for OV 13, the prosecution produced a police report concerning a 2012 incident involving Stokes. According to the report, Stokes was driving a vehicle that had been reported stolen. When police officers initiated a traffic stop, Stokes fled from the vehicle. The police searched a cell phone belonging to a passenger of the vehicle and discovered a recent Facebook conversation between the passenger and Stokes. Based upon the Facebook images of Stokes, the police were able to identify him as the driver who had fled. Stokes's criminal history, as reflected in the presentence investigation report (PSIR), indicates that he was originally charged with three offenses arising from this incident, including assaulting, resisting, or obstructing a police officer (resisting and obstructing), MCL 750.81d(1), but convicted of receiving and concealing stolen property valued at $20,000 or more, MCL 750.535(2)(a), based upon a plea. Defense counsel objected to the use of the resisting and obstructing charge for purposes of OV 13 because the police report did not identify that charge. Defense counsel acknowledged that Stokes had been charged with resisting and obstructing, but hypothesized that the charge may have been dismissed as part of a plea agreement because there was insufficient evidence. The trial court found that the report supported the assessment of 25 points for OV 13, and indicated that it would attach the police report to the PSIR.
The police report requested charges of unlawful driving away of a motor vehicle, MCL 750.413, and receiving and concealing stolen property.
The two sentencing offenses, combined with the 2012 resisting and obstructing, constituted three crimes against a person. --------
Stokes argues on appeal that the resisting and obstructing charge was not established by a preponderance of the evidence. We disagree. Although we acknowledge that the PSIR transmitted to this Court does not include the police report, it is apparent from the resentencing transcript that the trial court considered the report and directed that it be attached to the PSIR as record evidence. We further reject Stokes's contention that the police report was insufficient to satisfy the preponderance of the evidence standard. The rules of evidence do not apply to sentencing proceedings, MRE 1101(b)(3), and Stokes cites no authority for the notion that the allegations in the police report had to be substantiated by additional testimonial or documentary evidence. Moreover, Stokes has yet to dispute the accuracy of the facts as alleged in the police report. The trial court was free to consider a charge that was dismissed pursuant to a plea agreement, Nix, 301 Mich App at 205, and the weight of the unchallenged evidence supports the trial court's finding that Stokes committed a third crime against a person, i.e., resisting and obstructing, in the relevant five-year period, see MCL 777.16d (classifying resisting and obstructing as a crime against a person).
Stokes also argues that the trial court improperly considered the two convictions in the instant case as two crimes against a person, rather than considering the single event as one crime against a person. We disagree.
Stokes did not raise this objection at the resentencing hearing, so the issue is unpreserved. People v Kimble, 470 Mich 305, 309; 684 NW2d 669 (2004). The issue is reviewed for plain error affecting substantial rights. Id. at 312. Plain error affects substantial rights when it alters the outcome of the trial court proceedings. People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). Reversal is appropriate only when an error is so serious it results in the conviction of an innocent defendant or when it affects the fairness, integrity, or public reputation of the judicial proceedings, independent of the defendant's innocence. Id.
This Court has held that "a single felonious act cannot constitute a pattern" under OV 13. People v Carll, 322 Mich App 690, 704; 915 NW2d 387 (2018). However, when a defendant commits multiple acts in a single criminal episode, the trial court may consider each act separately for the purpose of scoring OV 13. Id. at 705. See also Gibbs, 299 Mich App at 488 (finding a pattern of criminal activity based on a single criminal episode of robbery involving three victims and resulting in three convictions); People v Harmon, 248 Mich App 522, 524, 532; 640 NW2d 314 (2001) (affirming assessment of 25 points when the defendant took four nude photographs of two minors on a single day, resulting in four convictions).
Stokes was convicted of one count of assault with intent to commit sexual penetration and one count of CSC-IV, both of which are designated as crimes against a person. See MCL 777.16y. Two felonious acts were committed against the victim: the first when Stokes touched her breast and legs, see MCL 750.520e(1)(b), and the second when Stokes grabbed the victim's hair, pushed her down, and attempted to put his penis in her mouth, see MCL 750.520g(1). Stokes only engaged in one criminal episode, but he committed two distinct acts that resulted in two qualifying convictions. The two concurrent convictions are properly considered as two crimes against a person. See Gibbs, 299 Mich App at 488; Harmon, 248 Mich App at 532. Therefore, the trial court properly considered and counted both convictions when it assessed OV 13. Because the trial court properly considered both convictions in the instant case, there was no plain error.
Affirmed.
/s/ Michael J. Riordan
/s/ Jane E. Markey
/s/ Anica Letica