PEOPLE OF MI V DAVID PHILLIP TRAYLOR
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
September 25, 2001
Plaintiff-Appellee,
v
No. 222612
St. Clair Circuit Court
LC No. 92-002536-FH
DAVID PHILLIP TRAYLOR,
Defendant-Appellant.
Before: Collins, P.J., and Murphy and Jansen, JJ.
PER CURIAM.
Defendant was convicted of violating his probation following a hearing because he used
marijuana in violation of the terms of his probation. Defendant was sentenced to twenty-four to
forty-eight months’ imprisonment with credit for seventy-five days served for his underlying
conviction of delivery or manufacture of marijuana, MCL 333.7401(2)(c). Defendant appeals as
of right and we affirm.
Defendant first argues that the trial court abused its discretion in denying defendant’s
request for a continuance. See People v Charles O Williams, 386 Mich 565, 575; 194 NW2d 337
(1972). Four factors should be considered when determining if a trial court’s denial of a
continuance was an abuse of discretion: (1) whether the defendant asserted a constitutional right,
(2) whether the defendant had a legitimate reason for asserting that right, (3) whether the
defendant was negligent in asserting that right, and (4) whether the defendant requested previous
adjournments. People v Wilson, 397 Mich 76, 81; 243 NW2d 257 (1976). A defendant must
also demonstrate that the trial court’s abuse of discretion resulted in prejudice. Id., citing MCL
769.26.
Here, defendant faced two probation violation charges at the hearing: (1) participating in
a residential breaking and entering, and (2) using marijuana. Defendant requested a continuance
because he had retained counsel the morning of the hearing, and defense counsel wished to
subpoena the codefendant involved in the breaking and entering to testify about defendant’s
involvement. Regardless of the reason for requesting this witness, defendant was clearly not
prejudiced by the trial court’s ruling because it ultimately dismissed this charge.
Moreover, defendant was negligent in asserting his right to effective assistance of counsel
as a ground for a continuance. At his arraignment, defendant informed the trial court that he had
retained counsel. Defendant neither argued nor produced evidence that an irreconcilable
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difference arose between him and counsel during the nine days between the arraignment and
sentencing. Likewise, defendant neither argued nor produced evidence that intervening
circumstances prevented him from contacting or retaining substitute counsel during that nine-day
period. Accordingly, the trial court did not abuse its discretion in denying defendant’s request
for a continuance.
Defendant’s second issue attacking his sentence is moot because, according to the
Department of Corrections’ offender tracking information system, defendant has been released
on parole, making it impossible for this Court to fashion a remedy. People v Briseno, 211 Mich
App 11, 17; 535 NW2d 559 (1995).
Affirmed.
/s/ Jeffrey G. Collins
/s/ William B. Murphy
/s/ Kathleen Jansen
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