PEOPLE OF MI V CLARK HAROLD WILLIAMS
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
April 12, 2005
Plaintiff-Appellee,
v
No. 248911
Monroe Circuit Court
LC No. 02-032284-FH
CLARK HAROLD WILLIAMS,
Defendant-Appellant.
Before: Whitbeck, C.J., and Zahra and Owens, JJ.
PER CURIAM.
Defendant Clark Williams appeals as of right his jury conviction for felon in possession
of a firearm.1 Williams was sentenced as a third habitual offender2 to 3 to 10 years in prison.
We affirm.
I. Basic Facts And Procedural History
Williams and his coworker, Christopher Szarek, were working after midnight on June 29,
2002. Earlier in the evening, Szarek had discussed going to the home of Williams’ father the
next day to do some “shooting on his property.” When Szarek finished his shift at approximately
2:30 a.m., Williams suggested that they do some shooting then. Szarek thought there was
something “a little different” about Williams and decided to follow him home to ensure that he
made it home safely. Szarek told Williams that he would stay overnight and that the two could
do some shooting the following day.
When they arrived at the home, Szarek had reservations about doing any shooting at all
because the home of Williams’ father was more residential than Szarek thought it would be.
However, Williams took an assault rifle into the backyard and began firing bullets into the
ground in front of him. Szarek convinced Williams to go back inside the home. Minutes later,
Williams went into the front yard and began firing the weapon into the gravel in the driveway.
The two men again went back inside. Shortly thereafter, Williams went into the back yard and
1
MCL 750.224f.
2
MCL 769.11.
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again fired the weapon. Szarek decided to leave once he determined that Williams was finished
firing the weapon.
Karl Borso, the Williams’ neighbor, heard the gunshots, and Borso’s wife called the
police. As Borso stepped outside to determine where the gunshots were coming from he heard
five more gunshots. Borso then drove down the road in the direction from which he heard the
gunshots, and noticed that the lights were on at Williams’ father’s home. Another neighbor,
Ronald Mann, also heard the gunshots. Mann stepped outside of his home and noticed the
silhouette of a person walking back and forth from the garage of the home of Williams’ father to
the end of the driveway. He heard someone yell, “I’m sorry,” followed by several gunshots.
Mann went back into his house and called the police, who were dispatched to the home of
Williams’ father.
Sergeant Brett Ortolano and Officer John Bills approached the front door of the home of
Williams’ father, and Officer William Owens went to the back. Ortolano knocked on the door
and announced himself as a police officer. No one answered the door. Ortolano walked around
the home toward the garage and looked through the windows to see if anyone was in the home.
While in a breezeway, he looked through a window and saw Williams lying on a couch.
Ortolano knocked on the window, announced his presence as a police officer, and asked
Williams if he was okay. Williams sat up, looked at Ortolano, and said, “What?” Ortolano
stated, “Hey, it’s the police, will you come talk to me, are you okay?” Williams said, “Come on
in.” Ortolano tried to open the door near the window, but the door was locked. Ortolano
knocked on the window again and told Williams that the door was locked. He asked Williams to
come to the door to talk to him. Williams reached down by his left side and retrieved an “AK-47
style assault rifle.” Williams stood up and yelled at Ortolano, “Mother fucker, do you want a
piece of this?” Ortolano drew his weapon, a nine millimeter sub-gun, and yelled, “Police, drop
the gun, drop the gun, drop the gun.” Williams did not respond and pointed his weapon at
Ortolano. Ortolano fired his weapon at Williams, then went to his vehicle to reload.
Williams came out of the home several minutes later and screamed at the officers, “You
guys fucked up, you shot me.” The officers approached Williams to subdue him and Williams
yelled, “Shoot me, shoot me mother fucker, shoot me.” After numerous requests for Williams to
lie on ground, he complied. Williams was bleeding from his chest area. Officer James Butler,
who was also on the scene, began to administer first aid to Williams. Williams remained
agitated as officers continued to point their weapons at him. Williams rolled over and got back
on his feet, and the officers told Williams to get back on the ground. When Williams did not
comply, Owens used pepper spray to subdue him. Ortolano took Williams to the ground and
Butler handcuffed him. Rescue personnel arrived and took Williams to the hospital.
A jury convicted Williams of being a felon in possession of a firearm and the trial court
sentenced him to 3 to 10 years’ imprisonment.
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II. The Sentencing Court’s Factual Findings And Offense Variable Scoring
A. Standard Of Review
We review for clear error the trial court's factual findings at sentencing.3 However, the
proper construction or application of statutory sentencing guidelines presents a question of law
that we review de novo.4 A sentencing court has discretion in determining the number of
sentencing guideline points to be scored provided that evidence of record adequately supports a
particular score.5 A scoring decision for which there is any evidence in support will be upheld.6
B. Apprendi And Its Progeny Do Not Apply
Williams contends that the trial court erroneously scored his offense variables by
considering facts that the jury rejected in violation of his due process rights. He argues that
sentencing factors relied on by the trial court during sentencing must be submitted to the jury and
proven beyond a reasonable doubt. However, the standard for findings of fact at sentencing are
not the same as findings of fact at or during trial. Because the prosecution must prove
controverted factual assertions underlying the scoring of the sentencing guidelines by a
preponderance of the evidence rather than beyond a reasonable doubt, situations may arise
wherein although the factfinder declined to find a fact proven beyond a reasonable doubt for
purposes of conviction, the same fact may be found by a preponderance of the evidence for
purposes of sentencing.7
Williams also contends that Michigan’s sentencing scheme violates Apprendi v New
Jersey and its progeny,9 which held that “any fact that increases the penalty for a crime beyond
the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable
doubt.”10 Although the United States Supreme Court struck down determinate sentencing
schemes as unconstitutional infringements on the role of the jury as factfinder in Blakely v
Washington, the Court expressly stated that indeterminate sentencing schemes were not affected
by its holding.11 Because Michigan employs a constitutional indeterminate sentencing scheme,
8
3
MCR 2.613(C); People v Houston, 261 Mich App 463, 471; 683 NW2d 192 (2004).
4
Id.
5
Id.
6
People v Perez, 255 Mich App 703, 712-713; 662 NW2d 446 (2003), vacated in part on other
grounds, 469 Mich 415; 670 NW2d 655 (2003); People v Elliott, 215 Mich App 259, 260; 544
NW2d 748 (1996).
7
Id.
8
Apprendi v New Jersey, 530 US 466; 120 S Ct 2348; 147 L Ed 2d 435 (2000).
9
See United States v Booker, ___ US ___; 125 S Ct 738; ___ L Ed 2d___ (2005); Blakely v
Washington, 542 US ___, 124 S Ct 2531, 2532; 159 L Ed 2d 738 (2004).
10
Apprendi, supra at 490.
11
Blakely, supra at 2537, 2540, 2543.
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the Supreme Court’s analysis in Apprendi and Blakely is not controlling.12 A recent panel of this
Court confirmed the Michigan Supreme Court’s holding that Blakely does not apply to sentences
imposed in Michigan.13 The United States Supreme Court’s recent decision in Booker extending
Blakely’s holding to the Federal Sentencing Guidelines14 does not change this result because the
Federal Sentencing Guidelines are also a determinate sentencing scheme.
Therefore, factual findings for sentencing purposes require a mere preponderance of the
evidence.15 Information relied upon may come from several sources, including some that would
not be admissible at trial.16 The trial court followed this standard and found facts by a
preponderance of the evidence. Therefore, we conclude that the trial court’s sentencing does not
violate the Fifth and Sixth Amendments of the United States Constitution.
C. Offense Variables Were Properly Scored
Williams contends that improper scoring of offense variable (OV) 1 resulted in a
departure from the correct statutory sentencing guideline range. Specifically, Williams contends
that he cannot be scored under this variable because of his acquittal on the felonious assault
charge. However, the trial court properly considered the facts underlying the acquittal when
scoring the guidelines and fashioning a sentence.17 The trial court assessed Williams fifteen
points for OV 1, indicating that he pointed a gun at or toward a victim or the victim had a
reasonable apprehension of an immediate battery.18 The scoring of the guidelines need not be
consistent with the jury’s verdict.19 The trial court’s determination that Williams pointed a
weapon at the police officer was amply supported by the evidence. The trial court properly
considered testimony that Williams grabbed the AK-47 and pointed it at the police officer.
Evidence at trial showed that police officers saw Williams reach down by his side, retrieve a
weapon, and point it at a police officer. The record also indicates that as Williams drew the
weapon, he yelled at the police officer and asked him if he wanted “a piece of this.” The
evidence also showed that a neighbor and another officer heard the police officer yell that
Williams had a gun. As the trial court correctly stated, it was allowed to consider this at
sentencing in order to “fashion an appropriate sentence” for Williams. Therefore, the trial court
did not err in scoring OV 1.
12
People v Claypool, 470 Mich 715, 730 n 14; 684 NW2d 278 (2004).
13
See People v Wilson, ___ Mich App ___; ___ NW2d___ (Docket No. 250804, issued March 8,
2005) (citing People v Claypool, 470 Mich 715, 730 n 14; 684 NW2d 278 (2004)).
14
Booker, supra at 756.
15
Perez, supra at 713.
16
Id.
17
People v Coulter, 205 Mich App 453, 456; 517 NW2d 827 (1994).
18
MCL 777.31(1).
19
See Perez, supra at 712-713.
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Williams also contends the trial court improperly scored OV 9. The trial court assessed
Williams ten points for OV 9, indicating that there were two to nine victims. Testimony at trial
indicated that neighbors were placed in danger when Williams decided to discharge the gun. In
addition, officers who responded to the scene were placed in danger. Because evidence on the
record supported the scoring decision, we will uphold it.20
Williams further contends that the trial court improperly scored OV 12. Williams was
assessed ten points under OV 12, indicating that he engaged in “[o]ne contemporaneous
felonious criminal act involving a crime against a person. . . ."21 The act that formed the basis
for the scoring decision in this case was the felonious assault against the police officer, for which
Williams was acquitted. However, factfinding for the purposes of sentencing is not wholly
derivative of factfinding attendant to trial proceedings, but takes place later and is governed by
the preponderance of the evidence standard.22 The trial court found that there was evidence that
Williams pointed a gun at a police officer. The record clearly supports the trial court’s
sentencing decision. The record indicates that Williams raised a weapon and pointed it at the
police officer. Williams also asked the police officer if he wanted a “piece of this” as he stood
and raised the weapon. Therefore, the trial court properly scored this variable.
Williams also contends that the trial court improperly scored OV 19. The trial court
assessed Williams ten points under OV 19 for attempting to interfere with the administration of
justice.23 “Interference” constitutes the obstruction of justice, which entails every willful act of
corruption, intimidation, or force that tends to impair the law.24 The Michigan Supreme Court
has held that the phrase “interfered with or attempted to interfere with the administration of
justice” encompasses more than the actual judicial process. Law enforcement officers are an
integral component in the administration of justice, regardless of whether they are operating
directly pursuant to a court order.25 The investigation of crime is critical to the administration of
justice.26
At sentencing, the trial court found by a preponderance of the evidence that Williams’
lack of cooperation with officers during their investigation and during police officers’ attempt to
treat him was interference with the administration of justice. Evidence presented at trial
supported the trial court’s sentencing decision. The record indicates that Williams screamed at
several officers when he exited the home. When officers approached Williams, he yelled,
“Shoot me, shoot me . . . , shoot me.” Williams did not initially comply with the police officers’
request that he lie on the ground. Even after complying with their request, Williams later
20
See id. at 712-713; Elliott, supra at 260.
21
MCL 777.42(1)(d).
22
Perez, supra at 713.
23
MCL 777.49.
24
People v Barbee, 470 Mich 283, 286; 681 NW2d 348 (2004).
25
Id. at 287-88.
26
Id. at 288.
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became agitated and rolled over to get back on his feet. The police eventually pepper sprayed
and handcuffed him. Therefore, the trial court properly scored Williams at sentencing regarding
OV 19.
In light of our decision, it is unnecessary to reach Williams’ contention that he is entitled
to resentencing before a new judge on remand.
Affirmed.
/s/ William C. Whitbeck
/s/ Brian K. Zahra
/s/ Donald S. Owens
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