PEOPLE OF MI V TERRENCE LASALE BRASWELL
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
January 8, 2008
Plaintiff-Appellee,
v
No. 271210
Wayne Circuit Court
LC No. 05-012013-01
TERRENCE LASALE BRASWELL,
Defendant-Appellant.
Before: Saad, P. J., and Owens and Kelly, JJ.
PER CURIAM.
Defendant appeals as of right his jury trial convictions for assault with intent to do great
bodily harm less than murder, MCL 750.84, felon in possession of a firearm, MCL 750.224f, and
possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b. He
was sentenced as a third habitual offender, MCL 769.11, to 10 to 20 years’ imprisonment for the
assault conviction, 40 to 60 months’ imprisonment for the felon-in-possession conviction, and
two years’ imprisonment for the felony-firearm conviction. We affirm.
I. Basic Facts and Proceedings
Defendant and his uncle, Gilbert Williams, shared caretaking responsibilities for Marie
Cooper, who is elderly and suffers from Alzheimer’s disease. Cooper is defendant’s
grandmother and Williams’s mother. Defendant was living at Cooper’s house in Detroit, and
Williams stopped by every evening to assist Cooper by cooking for her, bathing her, and
spending time with her. Williams was preparing to bathe Cooper one evening when defendant
confronted Williams, accusing him of “trying to set him up to be killed” and saying that he
would “crush” Williams. Williams claimed that he replied that he was not scared of defendant
and they could “deal with” whatever defendant’s problem was. From a distance of three or four
feet, defendant fired a small handgun at Williams, and Williams sustained a gunshot wound in
his chest or abdomen. Williams underwent surgery and survived.
Defendant was charged with assault with intent to commit murder, MCL 750.83, but the
jury convicted him of the lesser-included offense of assault with intent to do great bodily harm
less than murder.
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II. Defendant’s Request for Substitution of Counsel
Defendant requested that the trial court appoint new counsel at a pretrial hearing.
Defendant argues that he is entitled to a new trial because his relationship with defense counsel
broke down and the trial court failed to appoint new counsel without an adequate inquiry into the
breakdown. We disagree. We review a trial court’s decision regarding a request for the
substitution of counsel for an abuse of discretion. People v Traylor, 245 Mich App 460, 462;
628 NW2d 120 (2001). An abuse of discretion occurs where a trial court’s decision falls outside
of the range of principled outcomes. People v Babcock, 469 Mich 247, 269; 666 NW2d 231
(2003).
The Sixth Amendment affords criminal defendants the right to have counsel of their own
choosing, People v Akins, 259 Mich App 545, 557; 675 NW2d 863 (2003), and an indigent
defendant has the right to have appointed counsel represent him, People v Bauder, 269
Mich App 174, 193; 712 NW2d 506 (2005). However, an indigent defendant is not entitled to
have the attorney of his choice appointed simply by requesting that the attorney originally
appointed be replaced. Traylor, supra at 462; People v Mack, 190 Mich App 7, 14; 475 NW2d
830 (1991). Rather, the defendant must show good cause for substitution and demonstrate that it
will not unreasonably disrupt the judicial process. Bauder, supra at 193; Traylor, supra at 462.
Good cause is shown where “a legitimate difference of opinion develops between a defendant
and his appointed counsel with regard to a fundamental trial tactic.” Mack, supra at 14.
When a defendant contends that his appointed attorney is not adequate, diligent, or
interested, the trial court should “hear the defendant’s claim and, if there is a factual dispute, take
testimony and state its findings and conclusion on the record[,]” Bauder, supra at 193, and the
defendant must state any differences of opinion regarding trial tactics with specificity, Traylor,
supra at 464. A defendant’s “mere allegation that he lacked confidence in his trial counsel is not
good cause to substitute counsel.” Id. at 463. Although the trial court’s inquiry into defendant’s
disputes with counsel may have been limited in this case, nothing on the record indicates any
irreconcilable differences of opinion. Defendant made only vague allegations that his counsel
was not trustworthy, that defendant was unable to “correspond” with him, and that his counsel
was not helping him. Further, defense counsel was effective to the extent that defendant was
convicted of the lesser-included offense of assault with intent to do great bodily harm less than
murder. Defendant has not shown that good cause existed to justify a substitution of his trial
counsel and, therefore, we hold that the trial court did not abuse its discretion by refusing to
order substitution of counsel.
III. Sentencing
A. Departure
Defendant contends that the trial court erred in departing from the sentencing guidelines
because it failed to articulate its reasons for the departure. We agree. Defendant’s minimum
sentence range under the guidelines was 29 to 57 months, MCL 777.65, but the upper range was
increased by 50 percent (to 85 months) because he was sentenced as a third habitual offender,
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MCL 769.11; MCL 777.21(3)(b). The trial court departed from this range and imposed a
minimum sentence of 10 years (or 120 months) in prison.
A trial court must impose a minimum sentence within the sentencing guidelines range
unless there are substantial and compelling reasons for a departure and the court states those
reasons on the record. MCL 769.34(3); Babcock, supra at 255-256. A substantial and
compelling reason is “an ‘objective and verifiable’ reason that ‘keenly’ or ‘irresistibly’ grabs our
attention.” Babcock, supra at 258, quoting People v Fields, 448 Mich 58, 62, 67-68; 528 NW2d
176 (1995). If the trial court fails to articulate the reason for a departure from the sentence range
recommended by the guidelines, this Court must remand for rearticulation or resentencing.
Babcock, supra at 258-259.
Defendant bases his challenge solely on the assertion that the trial court failed to
articulate its reasons for departure; he does not claim that the trial court’s reasons were not
substantial and compelling. The trial court acknowledged that the sentencing guidelines range
was 29 to 85 months. After observing that defendant shot his relative, that he refused to accept
responsibility for the shooting, and that the jury had given him “a break” in convicting him of the
lesser-included charge of assault with intent to do great bodily harm less than murder, the trial
court imposed a sentence of 10 to 20 years, departing upward from the guidelines. When
imposing this departure, the trial court did not articulate its reasons for the upward departure;
instead, it merely stated, “Ten to 20, for the Assault with Intent to do Great Bodily harm. And
that’s because of the guidelines. Five prior felonies.” Although the trial court indicated that it
imposed the sentence of 10 to 20 years “because of the guidelines,” it did not indicate whether it
imposed this upward departure because defendant had five prior felonies, because defendant’s
actions and lack of remorse warranted an upward departure from the guidelines, or for some
other reason. Accordingly, remand is necessary to permit the trial court to articulate on the
record its reasons for an upward departure from the minimum sentencing range recommended by
the guidelines.
B. Offense Variable 4
Defendant claims that offense variable (OV) 4 was misscored. We disagree. We review
a challenge to the scoring of the sentencing guidelines for an abuse of discretion. People v
Sexton, 250 Mich App 211, 227; 646 NW2d 875 (2002).
Defendant received ten points for OV 4, which takes into account serious psychological
injury to the victim that “may require professional treatment.” MCL 777.34(1)(a), (2); People v
Wilkens, 267 Mich App 728, 740; 705 NW2d 728 (2005) (emphasis added). Although there was
no evidence that Williams sought professional psychological treatment, this is inconclusive. Id.
Williams testified that, after defendant shot him, he was “scared because [his] life was hanging
in the balance[.]” His niece, to whose house he ran for assistance, described Williams as
“hysterical.” A trial court’s scoring decision will be upheld if there is any evidence in the record
to support it, People v Houston, 261 Mich App 463, 471; 683 NW2d 192 (2004), and this Court
has held that a victim’s testimony about being fearful was sufficient to support a score of ten
points for OV 4, People v Apgar, 264 Mich App 321, 329; 690 NW2d 312 (2004). We therefore
find that there was sufficient evidence to support the trial court’s score of ten points for OV 4.
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C. Resentencing Before A Different Judge
Finally, defendant argues that he is entitled to resentencing by a different judge. We
disagree. We are not vacating defendant’s sentence; we are merely remanding the matter to the
trial court for articulation of the reasons for the upward departure in the sentence. Clearly, only
the judge who imposed a sentence can articulate the reasons he had for imposing it. Only if a
judge cannot articulate substantial and compelling reasons for a departure will we vacate the
sentence and remand for resentencing.1
Defendant’s convictions are affirmed, but the case is remanded for articulation of the
reasons for the upward departure from the minimum sentencing range recommended by the
guidelines. We do not retain jurisdiction.
/s/ Henry William Saad
/s/ Donald S. Owens
1
Of course, if on remand the trial court cannot articulate the reasons for its upward departure,
resentencing would be necessary.
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