PEOPLE OF MI V JOSEPH MICHAEL WORSTEIN
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
March 3, 2009
Plaintiff-Appellee,
v
No. 283376
Wayne Circuit Court
LC No. 06-000022-01-FH
JOSEPH MICHAEL WORSTEIN,
Defendant-Appellant.
Before: Donofrio, P.J., and K. F. Kelly and Beckering, JJ.
PER CURIAM.
Defendant claims an appeal from the sentences imposed on his jury convictions of
possession with intent to deliver the controlled substance Psilocybin, MCL 333.7401(2)(b)(ii),
manufacture of the controlled substance Psilocybin, MCL 333.7401(2)(b)(ii), possession with
intent to deliver marijuana, MCL 333.7401(2)(d)(iii), and possession of a firearm during the
commission of a felony, MCL 750.227b. We affirm.
The trial court sentenced defendant to concurrent prison terms of two to seven years for
the Psilocybin convictions and two to four years for the marijuana conviction, and to a
consecutive two-year term for the felony-firearm conviction. Defendant sought delayed appeal
in this Court. This Court remanded this case to the trial court for consideration of defendant’s
challenge to the scoring of various prior record variables, and for any resentencing necessitated
by the trial court’s resolution of that challenge. This Court denied leave in all other respects.
At the resentencing hearing, the parties agreed that the recalculated guidelines
recommended a minimum term range of seven to 23 months. The trial court sentenced defendant
to concurrent terms of 23 months to seven years for the Psilocybin convictions and 18 months to
four years for the marijuana conviction, and to a consecutive two-year term for the felonyfirearm conviction. Defendant received credit for 661 days served.
Defendant argues that he is entitled to be resentenced by a different judge because the
trial judge appeared to be prejudiced against him and defense counsel. We disagree.
-1-
A judge is disqualified when he or she cannot impartially hear a case. MCR 2.003(B). A
party who challenges a judge for personal bias or prejudice1 must overcome a heavy presumption
of judicial impartiality. Cain v Dep’t of Corrections, 451 Mich 470, 497; 548 NW2d 210 (1996).
In general, the challenger must prove that the judge harbors actual bias in favor of or prejudice
against either a party or a party’s attorney that is both personal and extrajudicial. Van Buren Tp
v Garter Belt Inc, 258 Mich App 594, 598; 673 NW2d 111 (2003). The opinions formed by a
judge based on facts introduced or events that occurred during the proceedings do not constitute
bias or prejudice unless the judge exhibits deep-seated favoritism or antagonism that makes the
exercise of fair judgment impossible. Cain, supra at 496. Critical comments directed to a party
or to a party’s attorney ordinarily do not support a finding of bias or prejudice, People v Wells,
238 Mich App 383, 391; 605 NW2d 374 (1999), nor do expressions of impatience,
dissatisfaction, annoyance, and even anger, that are within the bounds of what imperfect men and
women sometimes display. Cain, supra at 497, n. 30.
Defendant failed to preserve this issue; therefore, our review is for plain error. People v
Carines, 460 Mich 750, 763-764; 597 NW2d 130 (1999).
In the remarks about which defendant complains, the trial judge seemed to think that
counsel believed that she should have the guidelines scoring grids committed to memory,
expressed frustration when defense counsel asserted that the terms imposed constituted
defendant’s “first” prison sentences, asserted that defendant’s actions had a harmful effect on
society, and noted that defendant did not seem to be taking the situation seriously. In People v
Antoine, 194 Mich App 189; 486 NW2d 92 (1992), this Court stated:
Sentencing is the time for comments against felonious, antisocial behavior
recounted and unraveled before the eyes of the sentencer. At that critical stage of
the proceeding when penalty is levied, the law vindicated, and the grievance of
society and the victim redressed, the language of punishment need not be tepid.
[Id. at 191.]
The trial judge’s comments regarding defendant’s illegal behavior were based on evidence
introduced at trial. The trial judge’s comments regarding what she seemed to perceive as
counsel’s expectations regarding her memory might be characterized as peevish, but do not
reflect actual prejudice against defendant or defense counsel. The trial judge’s remarks, read in
context, do not exhibit the type of deep-seated antagonism that would make it impossible for the
judge to act fairly. Defendant has not overcome the presumption that the judge acted in an
impartial manner. Defendant is not entitled to relief on the ground that the trial judge was
prejudiced against him or his counsel. Cain, supra; Wells, supra.
1
MCR 2.003(B)(1).
-2-
Moreover, defendant’s sentences were within the recalculated guidelines. Defendant
does not assert that the trial court erred in scoring the guidelines, or that the trial court imposed
sentence based on inaccurate information. Therefore, we must affirm the sentences. MCL
769.34(10).
Affirmed.
/s/ Pat M. Donofrio
/s/ Kirsten Frank Kelly
/s/ Jane M. Beckering
-3-
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