PEOPLE OF MI V TIMOTHY ALLEN HOLTZ SR
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
March 25, 2008
Plaintiff-Appellee,
v
No. 274008
Lenawee Circuit Court
LC No. 05-011977-FH
05-011978-FH
05-011979-FH
05-011980-FH
05-011981-FH
05-011982-FH
05-011983-FH
05-011984-FH
05-011985-FH
05-011986-FH
05-011987-FH
06-012156-FH
06-012157-FH
TIMOTHY ALLEN HOLTZ, SR.,
Defendant-Appellant.
Before: Murray, P.J., and Bandstra and Fort Hood, JJ.
PER CURIAM.
Defendant appeals by delayed leave granted his convictions by guilty plea for two counts
of indictable common law offenses, MCL 750.505, five counts of uttering and publishing, MCL
750.249, four counts of using a computer to commit a crime, MCL 752.796, and two counts of
obtaining personal identification information without authorization, formerly MCL 750.285.1
Defendant was sentenced to two to five years’ imprisonment for his indictable common law
offenses convictions, 2 to 14 years’ imprisonment for his uttering and publishing convictions,
two to ten years’ imprisonment for his using a computer to commit a crime convictions, and two
1
Defendant was also originally charged with two counts of larceny from the person, MCL
750.357, four counts of identify theft, MCL 445.65; MCL 445.69, four additional counts of
uttering and publishing, MCL 750.249, and four counts of forgery, MCL 750.248, but those
charges were dismissed pursuant to the plea deal defendant reached with the prosecution.
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to five years’ imprisonment for his obtaining personal identification information without
authorization convictions.2 We affirm.
Defendant first argues that the trial court improperly denied his motion for an
adjournment and, as a consequence, he was deprived of his right to present an insanity defense.
We disagree.
We review a trial court’s ruling on a motion for an adjournment or continuance for an
abuse of discretion. People v Coy, 258 Mich App 1, 17; 669 NW2d 831 (2003). In challenging
the denial of a motion for an adjournment, a defendant must show both good cause and due
diligence. Id. at 18-19. “‘Good cause’ factors include ‘whether defendant (1) asserted a
constitutional right, (2) had a legitimate reason for asserting the right, (3) had been negligent, and
(4) had requested previous adjournments.’” Id. at 18, quoting People v Lawton, 196 Mich App
341, 348; 492 NW2d 810 (1992). Even with good cause and due diligence, the trial court’s
denial of a request for an adjournment or continuance is not grounds for reversal unless the
defendant demonstrates prejudice as a result of the abuse of discretion. People v Snider, 239
Mich App 393, 421-422; 608 NW2d 502 (2000).
The trial court did not abuse its discretion when it denied defendant’s motion for
adjournment because defendant did not show good cause or due diligence. Although he asserted
a constitutional right, had a legitimate reason for asserting the right, and had not requested
previous adjournments, defendant was negligent in pursuing his insanity defense. Trial counsel
claimed that it received a letter from defendant’s psychologist on February 28, 2006. In the
letter, the psychologist stated that he treated defendant regularly since January 2005. The
prosecutor initiated charges against defendant on October 13, 2005. Defendant did not explain,
to the trial court or to this Court on appeal, why his psychologist did not notify trial counsel
earlier of his concerns about defendant’s mental health and the effect defendant’s mental issues
had on his criminal culpability. Also, it is not apparent from the record what, if anything, caused
the delay. Because defendant has not offered an alternate explanation, we conclude that
defendant had ample time, at least three months, to obtain an evaluation from his psychologist
and file notice of an insanity defense. Only his own negligence and lack of due diligence
prevented him from doing so. Accordingly, the trial court did not abuse its discretion when it
denied defendant’s motion for adjournment. See Coy, supra at 17.
We note that defendant’s arguments challenging the trial court’s factual findings are
irrelevant to the issue of whether defendant was entitled to an adjournment. Whether the trial
court properly evaluated the psychologist’s qualifications and the substance of his letter does not
negate the fact that defendant never explained why he was entitled an adjournment. Without a
showing of good cause and due diligence, defendant cannot overcome his burden of proof on
appeal. In any event, we note that MCL 768.21a(2) provides that one cannot utilize legal
2
With the exception of his sentences for using a computer to commit a crime, defendant’s
sentences are concurrent. Defendant will serve his four sentences for using a computer to
commit a crime concurrently and consecutive to his sentences for his other convictions.
Defendant was also ordered to pay restitution as a condition of his parole.
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insanity when premised on voluntary intoxication. The medical opinion offered in support of
defendant’s belated insanity defense merely concludes that defendant’s intoxication was
“involuntary.” Thus, irrespective of the trial court’s factual findings regarding the medical
expert’s qualifications, the trial court rightfully questioned the deficiencies of the content of the
opinion to support the insanity defense.
Defendant next argues that the trial court erred when it departed from the sentencing
guidelines because its reasons were not substantial or compelling. We review the trial court’s
determination that a particular factor warranting departure existed for clear error. People v
Babcock, 469 Mich 247, 273; 666 NW2d 231 (2003). The trial court’s determination that a
particular factor is objective and verifiable is reviewed de novo. Id. Also, we review a trial
court’s decision that substantial and compelling reasons exist to support a departure from the
sentencing guidelines for an abuse of discretion. Id. at 274.
“A court may depart from the appropriate sentence range established under the
sentencing guidelines . . . if the court has a substantial and compelling reason for that departure
and states on the record the reasons for departure.” MCL 769.34(3). A substantial and
compelling reason must be objective and verifiable, must keenly or irresistibly grab the court’s
attention, be recognized as of considerable worth in deciding the length of a sentence, and exists
in only exceptional cases. Babcock, supra at 258. An “objective and verifiable” reason must be
based on “actions or occurrences that are external to the minds of the judge, defendant, and
others involved in making the decision, and must be capable of being confirmed.” People v
Abramski, 257 Mich App 71, 74; 665 NW2d 501 (2003). Further, a departure may not be based
on characteristics already taken into account in determining the appropriate sentencing
guidelines range unless the court determines from facts in the record that the particular
characteristic at issue has been given inadequate or disproportionate weight. Id.; MCL
769.34(3)(b).
Defendant first argues that the trial court erred when it relied on defendant’s status as a
deputy sheriff to enhance his sentence. By doing so, defendant argues, the trial court violated
MCL 769.34(3)(a), which prohibits using a defendant’s “legal occupation” as a reason to depart
from the guidelines. MCL 769.34(3)(a) provides:
The court shall not use an individual’s gender, race, ethnicity, alienage, national
origin, legal occupation, lack of employment, representation by appointed legal
counsel, representation by retained legal counsel, appearance in propria persona,
or religion to depart from the appropriate sentence range.
The trial court stated, “[a]cting as a police officer, over a period of years, you repeatedly and
systematically exploited those over who you had authority for your personal financial gain.”
Looking at this statement, it is apparent that the trial court did not consider defendant’s “legal
occupation” as a strike against him. Rather, the trial court considered the way defendant used his
position as a deputy sheriff to exploit his victims. Because the trial court did not depart from the
guidelines based on defendant’s legal occupation, it did not violate MCL 769.34(3)(a), and its
consideration of this factor was proper.
Defendant next argues that the trial court erred when it cited defendant’s exploitation of
his victims as a departure reason, when OV 10 already accounted for exploitation. “The court
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shall not base a departure on an offense characteristic or offender characteristic already taken
into account in determining the appropriate sentence range unless the court finds from the facts
contained in the court record, including the presentence investigation report, that the
characteristic has been given inadequate or disproportionate weight.” MCL 769.34(3)(b).
Offense Variable 10, as codified in MCL 777.40, considers whether a defendant exploited a
vulnerable victim with regard to the sentencing offense. The trial court stated, “[a]cting as a
police officer, over a period of years, you repeatedly and systematically exploited those who you
had authority for your personal financial gain.” “The sheer magnitude of these criminal offenses
committed by you and the abuse of your authority as a law enforcement officer are given
inadequate weight in the guidelines.” From these statements it is clear that the trial court was
appalled by the number of crimes defendant committed, and the manner in which defendant
committed them, i.e., while serving as a sheriff’s deputy, and decided that the sentencing
guidelines did not give sufficient weight to the exploitation defendant perpetrated. Given the
way defendant flagrantly abused his position of authority to commit these crimes, we cannot
disagree.
Next, defendant contends that the trial court’s statement that “the sheer magnitude of
these criminal offenses” justified its departure from the sentencing guidelines “should be rejected
both as an overstatement and as the Judge’s subjective view.” Given that defendant pleaded
guilty to 13 felonies, as a part of plea deal that resulted in the dismissal of ten additional felony
charges, it cannot be said that the trial court overstated the magnitude of defendant’s criminal
operation. In addition, this reason is objective and verifiable because the number of offenses
defendant committed is a fact that exists outside of judge’s mind and can be independently
confirmed. See Abramski, supra at 74.
Defendant also argues that the trial court’s statement that defendant, “brought law
enforcement officers into disrespect in the community,” is not objective and verifiable. An
“objective and verifiable” reason must be based on “actions or occurrences that are external to
the minds of the judge, defendant, and others involved in making the decision, and must be
capable of being confirmed.” Abramski, supra at 74. Both the probation officer who wrote
defendant’s presentence report and defendant acknowledged the harm he caused the sheriff’s
department. However, other than the statements by the judge, defendant and the probation
officer, the record does not contain any evidence documenting the effect defendant’s actions had
on the law enforcement community. The trial court’s general statement that the case generated
media coverage does not, in and of itself, show that defendant’s actions negatively affected the
law enforcement community. Therefore, it is not apparent that the “actions or occurrences are
external to the minds of the judge, defendant and others involved in making the decision,” and
this departure reason is not objective and verifiable. See id. The trial court erred when it relied
this reason to depart from the sentencing guidelines, as it is not substantial and compelling. See
Babcock, supra at 265.
However, because this error is unpreserved, defendant must show that it was a plain error
that affected his substantial rights. See People v McLaughlin, 258 Mich App 635, 670; 672
NW2d 860 (2003). That is, defendant must show that: “1) error . . . occurred; 2) the error was
plain, i.e., clear or obvious; 3) and the plain error affected substantial rights. The third
requirement generally requires a showing of prejudice, i.e., that the error affected the outcome of
the lower court proceedings.” People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999).
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Here, it is apparent that the error occurred and that it is a clear and obvious error upon
review of the record. But, defendant must also show that the plain error affected his substantial
rights. Defendant failed to meet this burden. When a trial court provides multiple substantial
and compelling reasons for departure from the sentencing guidelines range, and some reasons are
not substantial and compelling, this Court must determine whether the trial court would have
departed and would have departed to the same degree on the basis of the substantial and
compelling reasons alone. People v Solmonson, 261 Mich App 657, 670; 683 NW2d 761 (2004).
Remand to the trial court for resentencing or rearticulation of its substantial and compelling
reasons is necessary only if the appellate court cannot make such a determination or if the
appellate court determines that the trial court would not have departed to the same degree. Id.
In this case, the trial court cited numerous reasons for its departure from the guidelines.
The other reasons the trial court cited are substantial and compelling reasons to depart from the
guidelines. Based on a review of the record, we conclude that the trial court would have
departed to the same degree irrespective of its conclusion defendant brought disrespect onto law
enforcement community because it focused so strongly on defendant’s extreme abuse of his
position of authority, the vast number of crimes he committed and severe exploitation of his
victims. Remand for to the trial court for resentencing or rearticulation of its substantial and
compelling reasons is not necessary. See Solmonson, supra at 670.
Defendant also challenges his sentences on the basis that the trial court did not impose
proportionate and individualized sentences when it focused solely on defendant’s crime and did
not consider his many years of public service. We disagree.
Whether a sentence outside the guidelines range is proportionate to the crime and the
defendant’s criminal history is reviewed by this Court for an abuse of discretion. Babcock, supra
at 264-265. Individualized sentencing for each defendant is the policy of this state. People v
Sabin, 242 Mich App 656, 661; 620 NW2d 19 (2000). Thus, sentences must be “proportionate
to the seriousness of the defendant’s conduct and to the defendant in light of his criminal
record.” Babcock, supra at 262. The substantial and compelling reasons for departure should
“contribute to a more proportionate criminal sentence than is available within the guidelines
range.” Id. at 264.
Defendant’s sentences were specifically imposed based on the seriousness of his conduct
and his personal history. The trial court considered “the seriousness of these offenses, your
history, the principle of proportionality, the statutory penalty, the cost of confinement, the
sentencing guidelines, the report and recommendation of the Probation Department, the letters
you’ve submitted, and what has been said upon the record at this hearing” to determine
defendant’s sentences. The trial court is not required to weigh some factors, such as defendant’s
honorable service as a law enforcement officer, more heavily than others. Rather, the trial court
must assess the offender as a whole, taking into consideration all of the circumstances of the
case, and tailor a sentence accordingly. See Babcock, supra at 262. Because the trial court
tailored defendant’s sentences to fit the circumstances of his case, no abuse of discretion
occurred.
Defendant next challenges the scoring of offense variables (OVs) 9 and 13. However,
defendant waived review of the OV scoring by expressing satisfaction, on the record, with the
trial court’s guidelines scoring. See People v Carter, 462 Mich 206, 214-215; 612 NW2d 144
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(2000). Therefore, any error that occurred was extinguished and there are no errors for this
Court to review.
Lastly, defendant raises ineffective assistance claims based on his attorney’s failure to
object to his scores for OVs 9 and 13. Defendant did not move for an evidentiary hearing or a
new trial before the trial court; therefore, defendant failed to preserve his ineffective assistance
claims for appeal. People v Thomas, 260 Mich App 450, 456; 678 NW2d 631 (2004). For that
reason, our review is limited to errors apparent on the record. Id.
Generally, “[w]hether a person has been denied effective assistance of counsel is a mixed
question of fact and constitutional law.” People v LeBlanc, 465 Mich 575, 579; 640 NW2d 246
(2002). The trial court decides the facts and whether they constitute a violation of the right to
effective assistance. Id. We review factual findings for clear error, and questions of law de
novo. Id. To establish a claim of ineffective assistance, defendant must show that his attorney’s
representation fell below an objective standard of reasonableness under prevailing professional
norms, that but for trial counsel’s errors, there is a reasonable probability that the results of
defendant’s trial or sentencing would have been different, and that the proceedings were
fundamentally unfair or unreliable. People v Toma, 462 Mich 281, 302-303; 613 NW2d 694
(2000); People v Rodgers, 248 Mich App 702, 714; 645 NW2d 294 (2001). To establish that
trial counsel’s performance was deficient, defendant “must overcome the strong presumption that
his counsel’s action constituted sound trial strategy under the circumstances.” Toma, supra at
302. Counsel is not ineffective for failing to make a meritless argument or raise a futile
objection. People v Matuszak, 263 Mich App 42, 58; 687 NW2d 342 (2004).
Defendant cannot show that trial counsel’s performance was deficient. Trial counsel did
not object to the trial court’s scoring of OV 9. However, this was in accordance with precedent
at the time, which allowed trial courts to score OV 9 for financial injury. See People v Knowles,
256 Mich App 53, 61-63; 662 NW2d 824 (2003), overruled by People v Melton, 271 Mich App
590; 722 NW2d 698 (2006). The fact that this Court convened a conflict resolution panel on
February 15, 2006, to resolve the conflicting opinions in Knowles, supra at 53, and People v
Melton, 269 Mich App 542; 711 NW2d 430 (2006), superseded by 271 Mich App 590; 722
NW2d 698 (2006), does not affect this analysis because this Court did not indicate which opinion
properly interpreted OV 9. Trial counsel could not have known that this Court would overrule
Knowles, supra, based on the conflict panel resolution order. Had trial counsel objected, his
argument would have been meritless, having no basis in the law. Trial counsel’s performance is
not rendered ineffective for failing to raise meritless arguments. Matuszak, supra at 58.
Defendant’s argument that trial counsel should have objected to his score for OV 13 is
similarly meritless. Offense Variable 13, as codified in MCL 777.43, instructs trial courts to
score a defendant ten points if he committed “3 or more crimes against a person or property . . .
.” MCL 777.43(c). Defendant admitted that he was guilty of all of the charges the prosecutor
dismissed pursuant to the plea agreement, and agreed that his guilt could be considered for
sentencing purposes. Two of the dismissed charges were larceny from a person, MCL 750.357,
which is a crime against a person. The trial court, therefore, properly scored defendant ten points
for OV 13, because he committed three or more crimes against a person or property: two crimes
against a person, larceny from two people, plus the seven property crimes defendant concedes
should be counted. See MCL 750.357. Therefore, trial counsel was not ineffective for raising a
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futile objection to the score. Matuszak, supra at 58.
Affirmed.
/s/ Christopher M. Murray
/s/ Richard A. Bandstra
/s/ Karen M. Fort Hood
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