PEOPLE OF MI V DREW JAMES PELTOLA
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
October 20, 2009
Plaintiff-Appellee,
v
No. 288578
Dickinson Circuit Court
LC No. 08-004032-FH
DREW JAMES PELTOLA,
Defendant-Appellant.
Before: Hoekstra, P.J., and Bandstra and Servitto, JJ.
PER CURIAM.
Following a jury trial, defendant was convicted of delivery of less than 50 grams of
heroin, MCL 333.7401(2)(a)(iv), and conspiracy to deliver less than 50 grams of heroin, MCL
333.7401(2)(a)(iv); MCL 750.157a. The trial court sentenced defendant, according to MCL
333.7413(2), to 46 months to 40 years’ imprisonment for each conviction. The sentences are to
be consecutive to defendant’s parole for a prior drug offense. Defendant received no credit for
time served. Defendant appeals as of right his convictions and sentences. Because defendant
was not denied the effective assistance of counsel, we affirm defendant’s convictions. We also
affirm defendant’s sentences. The trial court did not err in doubling the minimum sentence and
defendant was not entitled to any credit for time served. Because changes ordered by the trial
court to the presentence investigation report have not yet been made, we remand for correction of
the report.
I. Sentencing Issues
Defendant first argues that the trial court erred in doubling his minimum sentence under
MCL 333.7413(2). Defendant contends that the phrase “the term otherwise authorized” in the
statute only applies to the statutory maximum sentence.
Our Supreme Court recently rejected defendant’s argument. In People v Lowe, 484 Mich
718, 724; ___ NW2d ___ (2009), the Court held that “under Michigan’s scheme of indeterminate
sentencing and the courts’ implementation of that scheme, the ‘term otherwise authorized’ is not
exclusively the minimum sentence or the maximum sentence, but it is the actual indeterminate
sentence, which is defined by both the minimum and maximum limits for that sentence.” It
explained:
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[T]he “period of time” that a defendant could potentially spend in prison lies
somewhere between the minimum and the maximum allowable sentences, and
accordingly those sentences operate in tandem to define the “term” for which a
defendant has been sentenced. In order to double this “term,” a trial court
necessarily has to double both the minimum and maximum sentences because
both are required to constitute a particular “term.” Accordingly, § 7413(2)’s
authorization for a trial court to imprison a defendant for a “term not more than
twice the term otherwise authorized” signifies that both the minimum and
maximum sentences must be doubled to fashion an enhanced sentence that is
twice the “term otherwise authorized.” [Id.]
The Supreme Court also rejected the argument that the absence of enhancement language in
MCL 777.21(4) suggests that the Legislature did not intend to authorize doubling of the
minimum sentence:
MCL 777.21(4) simply provides the methodology for a trial court to follow in
calculating a defendant’s minimum sentence guideline range. The lack of a
minimum sentence enhancement in that subsection provides no insight into
whether MCL 333.7413(2) provides a minimum sentence enhancement, and it is
unclear why a lack of a minimum sentence enhancement under MCL 777.21(4)
must mean that the Legislature intended MCL 333.7413(2) to also lack a
minimum sentence enhancement. The Legislature’s silence in MCL 777.21(4)
regarding a minimum sentence enhancement cannot preclude the Legislature from
providing a minimum sentence enhancement in a separate statute. [Id. at 728.]
We are bound by our Supreme Court’s decision in Lowe. People v Hall, 249 Mich App 262,
270; 643 NW2d 253 (2002). The trial court did not err in doubling defendant’s minimum
sentence under MCL 333.7413(2).
Defendant also argues that he was entitled to credit for time served for the time he spent
in jail awaiting sentencing on the instant offenses. Defendant’s argument is two-fold. First, he
argues that, pursuant to the plain language of MCL 769.11b, he was entitled to credit for the time
he served while awaiting sentencing on the instant offenses. However, in People v Idziak, 484
Mich 549, 562-563; ___ NW2d ___ (2009), our Supreme Court rejected the argument:
[T]he jail credit statute does not apply to a parolee who is convicted and
sentenced to a new term of imprisonment for a felony committed while on parole
because, once arrested in connection with the new felony, the parolee continues to
serve out any unexpired portion of his earlier sentence unless and until discharged
by the Parole Board. For that reason, he remains incarcerated regardless of
whether he would otherwise be eligible for bond before conviction on the new
offense. He is incarcerated not “because of being denied or unable to furnish
bond” for the new offense, but for an independent reason. Therefore, the jail
credit statute, MCL 769.11b, does not apply.
Second, defendant asserts that his deoble jeopardy, due process, and equal protection rights were
violated by the trial court’s denial of jail credit. These arguments were also rejected by the
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Supreme Court in Idziak. Id. at 570-574. Accordingly, defendant is not entitled to any credit for
time served.
II. Presentence Information Report
We agree with the parties that remand is necessary for correction of the presentence
information report (PSIR). Defendant objected to the inclusion of certain factual statements in
the PSIR. The trial court agreed to delete one sentence and to add another. To date, these
amendments have not been made. When a trial court determines that information in the PSIR is
inaccurate, it must strike or correct the disputed information before sending the PSIR to the
Department of Corrections (DOC). People v Spanke, 254 Mich App 642, 649; 658 NW2d 504
(2003). “‘[C]ritical decisions are made by the [DOC] . . . based on the information contained in
the [PSIR].’” People v Uphaus (On Remand), 278 Mich App 174, 182; 748 NW2d 899 (2008)
(quotation omitted). Accordingly, we remand for correction of the PSIR.
III. Ineffective Assistance of Counsel
In his Standard 4 brief, defendant argues that he was denied the effective assistance of
counsel. We disagree. Because defendant failed to move for a new trial or an evidentiary
hearing below, our review is limited to the existing record. People v Thomas, 260 Mich App
450, 456; 678 NW2d 631 (2004).
To establish a claim of ineffective assistance of counsel, a defendant must show that trial
counsel’s performance fell below an objective standard of reasonableness and that trial counsel’s
representation was so prejudicial that he was denied a fair trial. People v Solmonson, 261 Mich
App 657, 663; 683 NW2d 761 (1999). “[T]he defendant must overcome a strong presumption
that counsel’s performance constituted sound trial strategy.” People v Riley, 468 Mich 135, 140;
659 NW2d 611 (2003). Further, we will not assess trial counsel’s competence with the benefit of
hindsight. People v Rice (On Remand), 235 Mich App 429, 445; 597 NW2d 843 (1999).
Defendant first claims that he was denied the effective assistance of counsel by counsel’s
failure to call any alibi witnesses after filing a notice of alibi defense. However, decisions
regarding what evidence to present and whether to call witnesses are presumed to be matters of
trial strategy, People v Rockey, 237 Mich App 74, 76; 601 NW2d 887 (1999), and we will not
second-guess counsel on matters of trial strategy, People v Avant, 235 Mich App 499, 508; 597
NW2d 864 (1999). Further, the failure to call witnesses only constitutes ineffective assistance of
counsel if it deprived the defendant of a substantial defense. People v Dixon, 263 Mich App 393,
398; 688 NW2d 308 (2004) (opinion of Cooper, J.). Defendant claims that the alibi witnesses
would have testified that he was attending a birthday party at the time of the controlled drug buy.
However, one of the prosecution’s witnesses testified that defendant was not present during the
drug buy. Accordingly, defendant was not deprived of a substantial defense.
Defendant next argues that he was denied the effective assistance of counsel by defense
counsel’s lack of performance, which was due to an undisclosed conflict of interest. Defendant
fails to articulate what his counsel’s alleged conflict of interest was, but asserts that this conflict
resulted in his counsel’s lack of performance at trial. “An appellant may not merely announce
his position and leave it to this Court to discover and rationalize the basis for his claims . . . .”
People v Matuszak, 263 Mich App 42, 59; 687 NW2d 342 (2004) (quotation omitted). By
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failing to identify counsel’s alleged conflict of interest or how it affected the outcome of his case,
defendant has abandoned the issue on appeal.
Defendant further argues that he was denied the effective assistance of counsel by
defense counsel’s failure to request discovery in a timely manner. Specifically, defendant asserts
that defense counsel failed to secure various witness statements that were inconsistent with their
trial testimony. However, it is clear that defense counsel was aware of and in possession of the
statements made by the prosecution’s witnesses because he cross-examined those witnesses
extensively about their prior inconsistent statements. Defendant’s argument is without merit.
Defendant asserts that he was denied the effective assistance of counsel by defense
counsel’s failure to move to strike unnecessary and misleading allegations in the information.
Defendant fails to explain what allegations were unnecessary and how they were misleading.
Therefore, this issue is also abandoned. Matuszak, supra at 59.
Defendant also challenges defense counsel’s failure to object to plaintiff’s motion to
amend the second amended information at trial. However, defense counsel did object, stating
that it violated defendant’s right to notice. The trial court denied the objection and allowed
amendment. MCR 6.112(H) provides that an information may be amended before, during, or
after trial “unless the proposed amendment would unfairly surprise or prejudice the defendant.”
Here, the prosecutor requested a change of dates to correct the second amended information.
The original and first amended information included the proper dates. Defendant suffered no
surprise or prejudice from this date change. The amendment was proper.
We affirm defendant’s convictions and sentences, but remand for correction of the PSIR.
We do not retain jurisdiction.
/s/ Joel P. Hoekstra
/s/ Richard A. Bandstra
/s/ Deborah A. Servitto
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