If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
March 24, 2022
Plaintiff-Appellee,
v No. 353416
Isabella Circuit Court
DOUGLAS KIM ELLER, LC No. 19-001271-FH
Defendant-Appellant.
Before: RICK, P.J., and O’BRIEN and CAMERON, JJ.
PER CURIAM.
Defendant appeals as of right his jury-trial convictions of operating a motor vehicle while
intoxicated, third offense (OWI-III), MCL 257.625(1), MCL 257.625(9)(c); operating a motor
vehicle while license suspended, MCL 257.904(3)(a); and having an open alcoholic container in a
motor vehicle, MCL 257.624a(1). The trial court sentenced defendant as a fourth-offense habitual
offender, MCL 769.12, to 6 to 20 years’ imprisonment for OWI-III; 93 days’ imprisonment for
operating a motor vehicle while license suspended; and 90 days’ imprisonment for having an open
alcoholic container in a motor vehicle. We affirm.
I. BACKGROUND
On the evening of October 18, 2019, defendant visited a casino with his nephew, his
daughter, and his daughter’s husband. Defendant left the casino early, went to the van that they
all arrived in, and fell asleep. Back in the casino, defendant’s daughter and her husband got into a
domestic altercation, which led to defendant, his daughter, and his nephew leaving the casino in
the van in the early morning hours of October 19, 2019. They were subsequently pulled over by
tribal police responding to the domestic-assault incident. An officer who responded to the scene
testified at trial that he identified defendant as the driver, determined that he was intoxicated, and
arrested him. Defendant admitted at trial that he was in the driver’s seat when police approached
the vehicle, but testified that his nephew was the one driving the van, and defendant switched seats
with his nephew after the van was pulled over.
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II. ADJOURNMENT
On appeal, defendant first argues that the trial court abused its discretion by denying his
motion for an adjournment prior to trial. We disagree.
A. STANDARD OF REVIEW
“This Court reviews the grant or denial of an adjournment for an abuse of discretion.”
People v Snider, 239 Mich App 393, 421; 608 NW2d 502 (2000). A court abuses its discretion
when its decision is “outside the range of principled outcomes.” People v Watkins, 491 Mich 450,
467; 818 NW2d 296 (2012). “[A] defendant must show prejudice as a result of the trial court’s
abuse of discretion.” Snider, 239 Mich App at 421.
B. ANALYSIS
Before trial, the Michigan State Police (MSP) issued a statement in which it revealed that
it was “investigating potential fraud” by the contract employees of a vendor, Intoximeters, that
performed service and calibrations on the “Datamaster” breathalyzer machines in use throughout
Michigan. These machines have been used to test alcohol levels in those suspected of OWI. One
such machine was used in this case, and the results from the machine reflected that defendant’s
alcohol levels were over the statutory limit. Defendant moved for an adjournment in order to
conduct his own investigation into the fraud allegations raised against Intoximeters’ contractors to
determine whether the fraud affected his case. The trial court denied defendant’s motion.
The trial court’s decision to deny defendant’s motion for an adjournment was not an abuse
of discretion. The only evidence of the potential fraud that was before the court—the statement
from the MSP—demonstrated that the fraud related to certification records involved with the
servicing of the Datamaster machines. The MSP’s statement explicitly provided that “the
discrepancies do not directly impact or deal with the results of evidential breath tests.”1
Additionally, defendant’s trial counsel told the court that she believed that the MSP “would have
certified [the Datamaster machine in this case] at this point in time,” and she reiterated that the
MSP had told her “that they did come and determine that the Saginaw Chippewa Datamaster that’s
involved in this case wasn’t part of this fraudulent activity.” Trial counsel further agreed with the
trial court that counsel had “been advised that the Michigan State Police have inspected and
verified the instruments [and] that they are properly calibrated . . . .” In short, the information
before the court when it denied defendant’s motion suggested that the Datamaster machine used
in this case was not affected by the alleged fraud, and that, even if it was, that fraud did not affect
the results of the evidential breath test. On the basis of this information, the trial court did not
abuse its discretion by denying defendant’s motion for an adjournment.
Further, even if the court’s decision to deny defendant’s request was an abuse of discretion,
defendant has failed to show how he was prejudiced. See Snider, 239 Mich App at 421. Defendant
1
Nothing in the record—either submitted to the trial court or on appeal—suggests that the MSP’s
statement about what the fraud related to was inaccurate.
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contends that, had the adjournment been granted, he would have discovered that one of
Intoximeters’ contractors who serviced the Datamaster machine in this case was under
investigation for fraud. Defendant ignores, however, that this was discovered before trial, and was
produced at trial through trial counsel’s cross-examination of one of the witnesses. Accordingly,
defendant failed to show how he was prejudiced even if the trial court should have granted his
requested adjournment.
III. DIRECTED VERDICT
Defendant next argues that the trial court erred by denying his motion for a directed verdict
because there was no evidence that he operated the vehicle. We disagree.
A. STANDARD OF REVIEW
This Court reviews de novo the trial court’s decision on a directed verdict. People v
McKewen, 326 Mich App 342, 347 n 1; 926 NW2d 888 (2018). This Court must “review the
evidence in the light most favorable to the prosecution to determine whether the essential elements
of the charged crimes were proved beyond a reasonable doubt.” Id. This Court must “draw all
reasonable inferences and make credibility choices in support of the jury verdict.” Id. (quotation
marks and citation omitted).
B. ANALYSIS
Defendant takes issue only with the element of “operating” a motor vehicle, contending
that there was no evidence to show that he operated the van on the night in question. MCL 257.625
does not contain a definition for “operating a motor vehicle.” However, MCL 257.35a(a) defines
“[o]perate” or “operating” to include “[b]eing in actual physical control of a vehicle.” The
arresting officer, Officer Jeffrey Chaprnka, testified that defendant was the driver of the vehicle,
and being the driver of a vehicle would fall under being in actual physical control of a vehicle
under MCL 257.35a(a). Accordingly, Officer Chaprnka’s testimony provided adequate support
for a finding that defendant operated the van.
Defendant argues that Officer Chaprnka’s testimony identifying defendant as the driver of
the van was insufficient to support a finding that defendant was, in fact, the driver of the van
because the officer failed to provide “any basis whatsoever for how or why [he] concluded [that
defendant] was the driver . . . .” In support of this argument, defendant directs this Court’s
attention to cases holding that conclusory statements related to a person’s state of mind are
insufficient to support that the person, in fact, possessed the asserted state of mind. See, e.g.,
People v Hampton, 407 Mich 354, 366; 285 NW2d 284 (1979) (explaining that “the mere
allegation of actual malice is not, without more, sufficient to raise a material issue of fact”). Unlike
those cases, Officer Chaprnka’s testimony relates to an issue of fact. While Officer Chaprnka
could have elaborated more on how he concluded that defendant was the driver—such as that he
saw defendant sitting in the driver’s seat or saw defendant exit out the driver’s-side door—such
additional testimony was not necessary for a jury to conclude that defendant was the driver of the
van. In short, Officer Chaprnka’s testimony that defendant was the driver of the van was sufficient
to support a finding that defendant was the driver of the van, and therefore operated the van.
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IV. EVIDENTIARY ISSUES
Defendant argues that Officer Chaprnka and Officer Jim Post improperly bolstered the
accuracy of the Datamaster machine and that the Datamaster machine’s accuracy logs and results
should not have been admitted. We disagree.
A. STANDARD OF REVIEW
A trial court’s decision to admit or preclude evidence is reviewed for an abuse of discretion.
People v Mardlin, 487 Mich 609, 614; 790 NW2d 607 (2010). A court abuses its discretion when
its decision is “outside the range of principled outcomes.” Watkins, 491 Mich at 467. However,
because defendant objected to the Datamaster machine’s results on different grounds from those
raised on appeal, our review of that argument is for plain error affecting substantial rights. See
People v Carines, 460 Mich 750, 763-764; 597 NW2d 130 (1999). “To avoid forfeiture under the
plain error rule, three requirements must be met: 1) error must have occurred, 2) the error was
plain, i.e., clear or obvious, 3) and the plain error affected substantial rights.” Id. at 763.
B. ANALYSIS
Regarding the two officers, defendant has failed to show that improper bolstering occurred.
Officer Chaprnka testified about how he operated the machine, how it worked from an operator’s
perspective, and the procedures for using the machine. Officer Chaprnka explained that the
machine would display error messages if there were issues with the calibration and that he would
stop using the machine if he received such a message. Officer Chaprnka further testified that a
machine was calibrated and running properly if a state technician performed the monthly service
of the machine. He was vigorously cross-examined about the various procedures, error codes,
results, and other matters related to operation of the machine. He was licensed to operate the
Datamaster machine, so his testimony on these areas was not improper. Officer Chaprnka testified
about operating the Datamaster machine and the results of the test, not their accuracy.
Officer Post was the recordkeeper for the Datamaster machine, and he testified concerning
how he checked its accuracy. He explained that the machine did its tests automatically and “[a]ll
I do is just put it in the book and put it in the drawer.” Officer Post confirmed that the “accuracy
checks” reflected “whether or not the Datamaster is working properly”; if an accuracy check was
performed and the Datamaster machine was not working properly, “the machine will be out of
service.” The machine would remain out of service until “a tech” was called in; Officer Post said
that he could not do this himself. When asked how it was determined from the accuracy test that
the machine was indeed accurate, Officer Post explained the “machine is awful smart” and did this
automatically by “tell[ing] you right there if it’s out of service, ticket says out of service.” Contrary
to defendant’s contentions, Officer Post, as the recordkeeper, testified concerning matters that he
was qualified to testify about. He testified concerning how the records were kept and how the
accuracy checks were maintained, which were largely automated. He also testified about how the
machine typically worked, how records were stored, and how the results were deemed to be
accurate based on the machine’s ordinary day to day functioning. This was not improper
bolstering; it was testimony based on Officer Post’s experience as the recordkeeper for the
machine.
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Regarding defendant’s challenges to the Datamaster machine’s logs, this Court has recently
held that “Datamaster logs [are] admissible as business records” under MRE 803(6) (business-
record exception to hearsay). People v Fontenot, 333 Mich App 528; 963 NW2d 397 (2020).
Therefore, these results were properly admitted and, contrary to defendant’s assertions, were not
inadmissible hearsay.
Finally, regarding defendant’s argument that the results of the Datamaster machine should
not have been admitted, MCL 257.625a(6)(b)(ii) provides that the results of a breathalyzer test are
admissible in court. As previously discussed, the MSP stated that the alleged fraud did not affect
the breath results of the machines and that the Datamaster machine at issue in this case was not
involved in the investigation. Therefore, defendant has failed to show that the results were
unreliable and that their admission was plain error.
V. JURY INSTRUCTIONS
Defendant next argues that the trial court abused its discretion by denying his request for a
“missing-witness” instruction to be read and by reading to the jury an instruction informing it that
it could make an inference about his blood-alcohol levels. Neither issue requires reversal.
A. STANDARD OF REVIEW
Defendant preserved his argument related to the missing-witness instruction by requesting
the instruction in the trial court, but failed to preserve his argument concerning the instruction
related to defendant’s blood-alcohol content because, while he objected to the instruction, he
argued that it was improper on grounds different from those raised on appeal. See Snider, 239
Mich App at 422; People v Cross, 202 Mich App 138, 148; 508 NW2d 144 (1993).
“This Court reviews a trial court’s denial of a request for a missing witness instruction for
an abuse of discretion.” Snider, 239 Mich App at 422. A court abuses its discretion when its
decision is “outside the range of principled outcomes.” Watkins, 491 Mich at 467. In contrast,
unpreserved issues are reviewed for plain error affecting substantial rights. Carines, 460 Mich at
763-764. “To avoid forfeiture under the plain error rule, three requirements must be met: 1) error
must have occurred, 2) the error was plain, i.e., clear or obvious, 3) and the plain error affected
substantial rights.” Id. at 763.
B. ANALYSIS
MCL 767.40a provides the procedures that prosecuting attorneys must follow when
informing defendants about what witnesses the prosecution intends to present at trial. Under MCL
767.40a(1), the prosecuting attorney is required to attach to the “information a list of all witnesses
known to the prosecuting attorney who might be called at trial and all res gestae witnesses known
to the prosecuting attorney or investigating law enforcement officers.” Pursuant to Subsection (3),
at least 30 days before trial, the prosecuting attorney “shall send to the defendant or his or her
attorney a list of the witnesses the prosecuting attorney intends to produce at trial.” MCL
767.40a(3). Under Subsection (4), “[t]he prosecuting attorney may add or delete from the list of
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witnesses he or she intends to call at trial at any time upon leave of the court and for good cause
shown or by stipulation of the parties.” MCL 767.40a(4).
In the present case, there is no dispute that the prosecution’s amended witness list included
Officer Matthew Gibson as a witness, and that the prosecution did not call Officer Gibson at trial.
When the prosecution rested without calling Officer Gibson, however, defendant did not object.
Defendant only took issue with the prosecution’s decision to not call Officer Gibson after both
parties rested and before the trial court gave its instructions. At that time, defendant argued that
he was entitled to a missing-witness instruction. In response, the prosecutor contended that Officer
Gibson’s inclusion on the witness list meant only that the prosecution intended to call him as a
witness, and explained that “[i]ntended to be called as a witness doesn’t mean that the People are
going to call every witness that we put on the witness list.” The trial court agreed with the
prosecutor, reasoning that the prosecution “had no responsibility” to call Officer Gibson because
“he was listed as a potential witness.”
The trial court’s reasoning was flawed as a matter of law. The court seems to have
conflated MCL 767.40a(1) with Subsection (4). Under MCL 767.40a(1), the prosecution is
required to identify potential witnesses in the information, but is not required to produce those
witnesses at trial. See People v Everett, 318 Mich App 511, 520-521; 899 NW2d 94 (2017). Once
a prosecution endorses a witness pursuant to MCL 767.40a(3), however, “the prosecution notifies
a defendant of a more defined plan of action, moving beyond simple disclosure of known res gestae
witnesses and those known witnesses that might be called.” Everett, 318 Mich App at 521. Once
the prosecution endorses a witness, it “commits to a course of conduct that may only be altered in
accordance with MCL 767.40a(4) ‘upon leave of the court and for good cause shown or by
stipulation of the parties.’ ” Everett, 318 Mich App at 522. Thus, the trial court was incorrect as
a matter of law when it reasoned that the prosecution “had no responsibility” to call Officer Gibson
because “he was listed as a potential witness.” Once the prosecution endorsed Officer Gibson
under MCL 767.40a(3), it indeed had a responsibility to call Officer Gibson, and it could only
shirk that responsibility “upon leave of the court and for good cause shown or by stipulation of the
parties.” MCL 767.40a(4).
The question posed by defendant, however, is not whether the trial court abused its
discretion by excusing the prosecution’s failure to call Officer Gibson—the court clearly did. See
Everett, 318 Mich App at 523 (“By allowing [the missing witness’s] removal from the witness list
without making a determination of good cause, the trial court abused its discretion by failing to
operate in the legal framework set forth in MCL 767.40a.”). Indeed, defendant never objected to
Officer Gibson’s removal from the witness list, nor does he contend on appeal that this was error.
Rather, the question posed by defendant is whether the trial court abused its discretion by refusing
to give the missing-witness instruction. Despite that the prosecution failed to call Officer Gibson,
whether the missing-witness instruction was applicable was still a matter of discretion for the trial
court. See People v Cook, 266 Mich App 290, 293 n 4; 702 NW2d 613 (2005).
Assuming that the trial court should have given the missing-witness instruction—meaning
that its failure to do so was an abuse of discretion—defendant is still not entitled to relief. This
Court will only reverse for instructional error when it affirmatively appears that a failure to do so
would result in a miscarriage of justice. MCL 769.26. See also Johnson v Corbet, 423 Mich 304,
327; 377 NW2d 713 (1985); MCR 2.613(A). “The defendant bears the burden of establishing that
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the asserted instructional error resulted in a miscarriage of justice.” People v Dupree, 486 Mich
693, 702; 788 NW2d 399 (2010).
Defendant argues that, “If it had been permitted to do so, the jury likely would have
concluded [Officer] Gibson would have testified he did not believe [defendant] was driving when
the vehicle was pulled over,” which would have resulted in defendant’s acquittal. Yet the missing-
witness instruction only provides that the jury “may infer that this witness’s testimony would have
been unfavorable to the prosecution’s case.” M Crim JI 5.12 (emphasis added). While defendant
speculates about the ways in which the jury could have inferred that Officer Gibson’s testimony
would have been damaging to the prosecution, defendant ignores that the jury was not required to
infer that Officer Gibson would have testified unfavorably to the prosecution’s case. The jury
could have just as easily inferred that Officer Gibson’s testimony would not have been unfavorable
to the prosecution, especially given that, based on defendant’s testimony, the officer would have
seen defendant in the driver’s seat when he approached the van. Again, it is defendant’s burden
to establish that the instructional error resulted in a miscarriage of justice. Dupree, 486 Mich at
702. Defendant’s speculations about what the jury might have inferred, without more, are
insufficient to affirmatively establish that the trial court’s failure to give the missing-witness
instruction resulted in a miscarriage of justice on the facts of this case.
Regarding defendant’s argument that the instruction about defendant’s breathalyzer results
should not have been given, defendant has failed to show plain error. The trial court gave the jury
the following instruction about blood-alcohol levels: “You may infer that the Defendant’s bodily
alcohol content at the time of the test was the same as his bodily alcohol content at the time he
operated the motor vehicle.” Defendant’s sole argument is that, because the Datamaster machine’s
reliability was called into question with the fraud allegations, this instruction should not have been
given. However, as previously discussed, the machine results were not affected, and the specific
machine in this case was cleared of any involvement with the fraud.
VI. INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant argues that his trial counsel was ineffective for agreeing to read the jury the
standard instruction after it asked the trial court questions about what constituted “operating a
vehicle.” We disagree.
A. STANDARD OF REVIEW
Claims of ineffective assistance of counsel present mixed questions of fact and law. People
v Head, 323 Mich App 526, 539; 917 NW2d 752 (2018). Factual findings are reviewed for clear
error and legal conclusions are reviewed de novo. Id. No evidentiary hearing was held in this
case, so our review is for errors apparent from the record. People v Lockett, 295 Mich App 165,
186; 814 NW2d 295 (2012).
B. ANALYSIS
“To prevail on a claim of ineffective assistance, a defendant must, at a minimum, show that
(1) counsel’s performance was below an objective standard of reasonableness and (2) a reasonable
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probability exists that the outcome of the proceeding would have been different but for trial
counsel’s errors.” Head, 323 Mich App at 539 (quotation marks and citation omitted; alteration
removed). “[A] reasonable probability is a probability sufficient to undermine confidence in the
outcome.” People v Randolph, 502 Mich 1, 9; 917 NW2d 249 (2018). This Court presumes
counsel was effective, and defendant carries a heavy burden to overcome this presumption. Head,
323 Mich App at 539.
The trial court initially read to the jury the following instruction:
The Defendant is charged with operating a motor vehicle while under the
influence of alcohol or with an unlawful bodily alcohol level. To prove that the
Defendant operated while intoxicated the Prosecutor must prove each of the
following elements beyond a reasonable doubt.
First, that the Defendant was operating a motor vehicle on or about October
19, 2019. Operating means driving or having actual physical control of the vehicle.
The jury sent the following note during deliberations:
What is the law regarding who is considered operating a vehicle. Is it someone in
the driver’s seat when the officer walks up? Or seen driving? At what point do
you become an operator?
The trial court and defendant’s trial counsel both agreed that an appropriate response was to read
the “[e]lements of operating while intoxicated” from the Michigan Criminal Jury instructions. The
trial court, accordingly, read the following clarification to the jury:
The first question, “What is the law regarding who is considered operating a
vehicle?”
I’m going to refer you to the jury instructions, specifically jury instruction
15.2 and it identifies; operating means driving or having actual physical control of
the vehicle. Fifteen point two.
Is it someone—question, “Is it someone in the driver’s seat when the officer
walks up? Or seen driving?” I have to refer you back to that instruction. “At what
point do you become an operator?” Those are questions of fact, both of those two
questions. That’s up to you as a question of fact for you . . . to decide. Or for you
to decide.
So, the instruction elements of operating while intoxicated 15.2 gives you
the definition of operating, what it means.
As previously discussed, defendant’s trial counsel did not object to this instruction but, instead,
explicitly agreed to it.
Defendant contends that his trial counsel was ineffective by agreeing that the trial court
should reread the operating instruction to the jury. According to defendant, instead of so agreeing,
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his trial counsel should have insisted that the trial court provide a more in-depth instruction about
the meaning of “operating” taken from this Court’s opinion in City of Plymouth v Longeway, 296
Mich App 1, 10-11; 818 NW2d 419 (2012).
This argument fails because defendant does not adequately explain how his counsel’s
performance fell below an objective standard of reasonableness. Defendant only contends that his
trial counsel should have taken different action, which does not establish that the action his trial
counsel took was objectively unreasonable. No error exists if jury instructions fairly present the
law and do not mislead the jury. People v Katt, 248 Mich App 282, 310-311; 639 NW2d 815
(2001). The jury instructions in this case were legally accurate—the instruction contained
language from the very statute, MCL 257.35a, that defendant cites on appeal for the definition of
operating a motor vehicle. The court rereading the instructions addressed the jurors’ questions
about how to determine whether someone was “operating” a motor vehicle. It would not have
been unreasonable for defense counsel to request further clarification as defendant suggests on
appeal, but there exists a “wide range of reasonable professional assistance.” People v LeBlanc,
465 Mich 575, 578; 640 NW2d 246 (2002) (quotation marks and citation omitted). That
defendant’s trial counsel could have taken a different course of action does not establish that the
action that his trial counsel chose to take fell outside that wide range of reasonable professional
assistance. Accordingly, defendant has not established that his trial counsel’s decision to have the
trial court reread the jury instructions fell below an objective standard of reasonableness.
VII. SENTENCING
Lastly, defendant argues that he is entitled to be resentenced because the trial court abused
its discretion by departing upward from defendant’s minimum sentencing guidelines range and
because the trial court relied on inaccurate information. We disagree.
A. STANDARD OF REVIEW
Sentences that depart from the guidelines range are reviewed for reasonableness. People
v Lockridge, 498 Mich 358, 365; 870 NW2d 502 (2015). When reviewing a sentence for
reasonableness, the standard of review is abuse of discretion. People v Steanhouse, 500 Mich 453,
471; 902 NW2d 327 (2017) (Steanhouse II). Similarly, this Court reviews a sentencing “court’s
response to a claim of inaccuracies in the presentence investigation report . . . for an abuse of
discretion.” People v Waclawski, 286 Mich App 634, 689; 780 NW2d 321 (2009). A court abuses
its discretion when its decision is “outside the range of principled outcomes.” Watkins, 491 Mich
at 467.
B. ANALYSIS
Michigan’s sentencing guidelines are now advisory only. Lockridge, 498 Mich at 365.
Nevertheless, any departure from the guidelines must be reasonable. Id. at 392. A sentence is
reasonable if it complies with the “principle of proportionality” standard set forth in People v
Milbourn, 435 Mich 630, 636; 461 NW2d 1 (1990). See Steanhouse II, 500 Mich at 460-461. A
sentence is proportional when it reflects the “seriousness of the circumstances surrounding the
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offense and the offender,” including “the background of the offender.” Milbourn, 435 Mich at
636, 651.
When departing from the guidelines, a trial court must “justify the sentence imposed in
order to facilitate appellate review,” Lockridge, 498 Mich at 392, by “explain[ing] why the
sentence imposed is more proportionate than a sentence within the guidelines recommendation
would have been,” People v Smith, 482 Mich 292, 304; 754 NW2d 284 (2008). Factors that
Michigan courts may consider when determining whether a departure sentence is more
proportionate include (1) whether the guidelines accurately reflect the seriousness of the crime, (2)
the defendant’s misconduct while in custody, (3) the defendant’s expressions of remorse, (4) the
defendant’s potential for rehabilitation, (5) other factors not considered by the guidelines, and (6)
factors considered by the guidelines but given inadequate weight. People v Dixon-Bey, 321 Mich
App 490, 525 & 525 n 9; 909 NW2d 458 (2017). A failure to “provide adequate reasons for the
extent of the departure sentence imposed” constitutes a violation of the principle of proportionality
and, thus, an abuse of discretion. Steanhouse II, 500 Mich at 476.
In the present case, defendant’s minimum sentencing guidelines range was 10 to 46
months. The trial court sentenced defendant to serve a minimum term of 72 months, which is 26
months beyond the upper bounds of the guidelines. Twenty-five points were assessed for prior
record variable (PRV) 1, which applies when an “offender has 1 prior high severity felony
conviction.” MCL 777.51(1)(c). Thirty points were assessed for PRV 2, which applies when an
“offender has 4 or more low severity felony convictions.” MCL 777.52(1)(a). Fifteen points were
assessed for PRV 5, which applies when an “offender has 5 or 6 prior misdemeanor convictions
or prior misdemeanor juvenile adjudications.” MCL 777.55(1)(b). Finally, 10 points were
assessed for offense variable (OV) 18, which, relevant to this appeal, addresses operating a motor
vehicle under the influence of alcohol. See MCL 777.48(1)(c). Defendant had 29 misconducts
from his prior incarcerations, five parole violations, 10 prior felonies, eight prior misdemeanors,
and six prior OWIs.
The trial court gave the following reasons for its departure:
Thank you. Well we don’t [know] what [the prison misconducts] are
exactly. But I’ll tell you, . . . most prisoners have between one to three minor
misconduct, he’s got 29. He’s got five parole violations. He’s been to prison three
times. This is his seventh operating a motor vehicle while intoxicated. He’s got
ten felonies and eight misdemeanors.
More importantly . . . Counsel argued that he was trying to protect his
daughter who was . . . supposedly the subject of a domestic violence. The
Defendant has not taken any responsibility for drinking and driving. He’s tried to
say that he was not drinking and driving, that he just after the car was pulled over
which was drove by his daughter he jumped in the seat. Police officer clearly
testified that the Defendant was driving. I found the Defendant’s testimony not
credible at all during the trial, his demeanor and everything. And on top of that
after his incredible statements and he’s convicted he’s sticking with it and still
saying he didn’t do anything wrong.
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* * *
All right, I find the criteria the Court has considered in determining your
sentence includes your discipline, protection of society, your potential for
reformation, and the deterrence of others from like offenses. I have also considered
the proportionality of your sentence taking into account the nature of your offense
and your background. I find that your sentence today is proportionate to the
seriousness of this matter for which punishment is imposed. Your prior record,
three times in prison, your parole violations, your prison misconducts, your lack of
remorse or accountability in this matter. I could have gone higher on these,
especially on the six year I could have gone much higher and I think the 20 years
is fair facing you were looking up to life in prison.
Contrary to defendant’s contentions on appeal, the guidelines did not adequately account
for the trial court’s concerns. None of the guidelines addressed (1) the extent of his time spent in
prison, (2) his prison misconduct violations, (3) his parole violations, (4) the fact that this was his
seventh OWI conviction, or (5) his lack of remorse and inability to take responsibility for his
actions even after his conviction. Moreover, the guidelines did not adequately account for the
number of defendant’s prior felonies and misdemeanors. The trial court demonstrated that it was
aware of the principle of proportionality, and it enumerated proper factors to justify why it believed
that a departure sentence was more proportionate than a sentence within the guidelines would have
been. This case is one in which many factors were either not considered or else inadequately
considered by the guidelines, see Milbourn, 435 Mich at 659-660, which justified the trial court’s
departure.
Defendant takes issue with the trial court’s remarks about the number of prison
misconducts “most prisoners” have, contending that the trial court’s statement was unsupported
by the record, and so, according to defendant, the trial court did not sentence him on the basis of
accurate information. See People v McGraw, 484 Mich 120, 131; 771 NW2d 655 (2009)
(explaining that a defendant is entitled to be sentenced on the basis of accurate information). We
do not agree with defendant that the trial court’s passing remarks about most prisoners’ having a
few misconduct violations supports that defendant was sentenced on the basis of inaccurate
information. Regardless of whether these remarks are supported by statistics or not, the record is
clear that the trial court based its sentence on defendant’s prison history, past offenses, past OWIs,
lack of remorse, seriousness of the offense, and lack of potential for rehabilitation. In context, the
purpose of trial court’s remark appears to have been to highlight defendant’s 29 misconduct
violations. That the court made passing remarks about other prisoners does not warrant
resentencing.
As for defendant’s argument concerning the accuracy of the PSIR, defendant waived that
argument. “Waiver has been defined as the intentional relinquishment or abandonment of a known
right.” People v Carter, 462 Mich 206, 215; 612 NW2d 144 (2000) (quotation marks and citations
omitted). “One who waives his rights under a rule may not then seek appellate review of a claimed
deprivation of those rights, for his waiver has extinguished any error.” Id. (quotation marks and
citations omitted). Defendant and his counsel made several corrections to the PSIR, but these
corrections did not involve the complained-of language raised on appeal. Defendant’s trial counsel
informed the trial court that she had reviewed the PSIR with defendant and that they had no other
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corrections to make. Moreover, we are not convinced that the complained-of language was
inaccurate. The PSIR provided that defendant had been a suspect in the domestic assault incident,
and defendant has presented no evidence to show otherwise.
Affirmed.
/s/ Michelle M. Rick
/s/ Colleen A. O’Brien
/s/ Thomas C. Cameron
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