PEOPLE OF MI V WILLIAM DARNELL AMISON
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
April 27, 2010
Plaintiff-Appellee,
v
No. 289777
Jackson Circuit Court
LC No. 08-004478-FH
WILLIAM DARNELL AMISON,
Defendant-Appellant.
Before: SAAD, P.J., and HOEKSTRA and MURRAY, JJ.
PER CURIAM.
A jury convicted defendant of possession with intent to deliver less than 50 grams of a
controlled substance (crack cocaine) second or subsequent offense.1 The trial court sentenced
him to a prison term of three to 40 years. Defendant appeals, and we affirm.
I. FACTS AND PROCEEDINGS
Defendant sold a rock of crack cocaine (“first rock”) to an undercover officer in a
controlled “buy-bust” transaction coordinated by a confidential informant. Defendant was
arrested approximately two minutes after the transaction. The prosecutor says defendant tried to
evade arrest by pedaling his bicycle faster when the arresting officers’ vehicle approached him.
He was conveyed to the Jackson County Jail, where officers searched defendant’s person and
found another rock of crack cocaine (“second rock”) concealed in a cigarette pack in defendant’s
pants pocket. The combined weight of both rocks was less than one gram. The officers also
found $284 in cash in defendant’s pocket. Officers did not find the “prerecorded buy money,”
but the two minutes between the transaction and the arrest could have given him sufficient
opportunity to dispose of it.
On the first day of trial, the prosecutor advised the trial court that defendant was prepared
to plead guilty to delivery of cocaine, habitual offender, second offense, subject to a 30-year
maximum prison term. The prosecutor explained that defendant was currently paroled for a prior
1
MCL 333.7401(2)(a)(iv); MCL 333.7413(2).
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conviction, “so whatever sentence that he would get from the Court on the 30-year felony would
be mandatorily consecutive to the time that he’s currently serving.” The prosecutor stated that
the lead officer, Detective Gary Schuette, had no objection to the proposed plea arrangement.
The trial court questioned why defendant waited until the morning of trial to accept a plea offer
after previously refusing. The court commented to defense counsel, “there’s a reason I have plea
cutoff dates.” Defense counsel replied that the prosecutor had not made the offer until the
previous Thursday (four days before the trial began on Monday). He explained that defendant
had just had the opportunity to consult his family. The trial court replied as follows:
It’s the day of trial. He’s on parole. He’s got two prior deliveries for cocaine.
And, you know, we had plenty of time to have his family over to the county jail or
in your office. He’s going to either going [sic] to plea (inaudible) or he’s going to
trial. So that’s my posture.
The prosecutor introduced both rocks of cocaine into evidence. Defendant objected to
the introduction of the second rock on the ground that the prosecutor failed to establish a proper
chain of custody. The trial court admitted the evidence over defendant’s objection, and said that
a deficiency in the chain of custody pertained to the evidence’s weight, not its admissibility. The
prosecutor requested that Officer Garcia be permitted to testify regarding chain of custody, and
the trial court permitted the prosecutor to call Garcia, but stated that the case would continue
whether he testified or not.
Near the end of trial, the prosecutor advised the trial court that Officer Garcia was not
present in court because he had been unable to find a caregiver for his sick children. The trial
court asked, “All Garcia is the chain, right?” The prosecutor replied, “Well, the evidence was
turned over to him. He packaged it, put it in an evidence locker and then it was sent to the lab.”
The prosecutor further stated, “I might just not move it in evidence and ask the jury to disregard.
I’ll basically say I want to be fair, since there’s a break in the chain.” He added, “The rock that’s
important is the delivery rock, anyway. There’s nothing wrong with that one.” He suggested
that the trial court instruct the jury that the prosecutor had withdrawn his motion to introduce the
second rock of cocaine, and that the jurors should disregard all reference to the second rock and
focus only on the rock that was delivered to the confidential informant.
The trial court advised defense counsel that if the second rock were withdrawn from
evidence, and the jurors instructed to disregard it, the trial court would not instruct the jury on
the lesser offense of simple possession (i.e., possession without intent to deliver). Defense
counsel replied that he would “like [the jurors] to have as much evidence as they can” regarding
the lesser charge of possession. The trial court offered defendant two options: the court could
withdraw the second rock, but omit the instruction on the lesser included offense of simple
possession; or allow the second rock in evidence and instruct the jury on the lesser offense of
simple possession. After consulting with defendant, defense counsel informed the trial court that
defendant “would like to have the lesser included offense of possession available to the jury.”
The jury convicted defendant of possession with intent to deliver less than 50 grams of
cocaine. The trial court sentenced him to a prison term of 3 to 40 years.
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II. REJECTION OF PLEA AGREEMENT
Defendant argues that the trial court violated his due process rights by rejecting his
pretrial plea agreement with the prosecutor. He acknowledges that he has no absolute right to
acceptance of his guilty plea, but contends that the trial court: (1) rejected his plea without
exercising sound judicial discretion, and (2) imposed an arbitrary deadline for accepting the
prosecutor’s plea offer.
We review a trial court’s decision to reject a guilty plea for abuse of discretion.2 A trial
court has discretion to reject a plea agreement based on considerations of public interest and the
proper administration of justice.3 A defendant has “no absolute right to have a guilty plea
accepted,” and a “court may reject a plea in exercise of sound judicial discretion.4” A trial court
abuses its discretion when it selects an outcome that is not within the range of reasonable and
principled outcomes.5
Here, we find no abuse of discretion. The trial court denied the plea bargain because
defendant waited until after the cut-off date and until the first day of trial. This was not an
arbitrary, unreasoned decision, but a proper consideration of the interests of judicial economy
after resources had been expended to begin the trial.
III. ADMISSION OF SECOND ROCK OF CRACK COCAINE
Defendant contends that the trial court abused its discretion in admitting the second rock
of crack cocaine into evidence although the prosecutor failed to provide testimony to establish
the chain of custody of the second rock.
Defendant waived this issue by approving the admission of the evidence so that he could
pursue the strategy of allowing the jury the option of convicting defendant of the lesser offense
of simple possession. In People v Carter, 462 Mich 206, 215; 612 NW2d 144 (2000), our
Supreme Court distinguished between forfeited error and waived error. A party who merely
forfeits an error by failing to preserve the issue for appellate review may obtain appellate relief
for plain error. However, a party who waives a known right cannot seek appellate review of a
claimed deprivation of the right. Id. Consequently, defendant’s decision to keep the second rock
in evidence precludes review of this alleged error. In any event, a deficiency in the chain of
custody of the evidence bears on the weight of the evidence, not its admissibility, and the
admission of evidence does not require a perfect chain of custody.6
2
See People v Grove, 455 Mich 439, 444; 566 NW2d 547 (1997).
3
People v Wright, 99 Mich App 801, 822-823; 298 NW2d 857 (1980).
4
Santobello v New York, 404 US 257, 262; 92 S Ct 495; 30 L Ed 2d 427 (1971).
5
People v Roper, 286 Mich App 77, 84; 777 NW2d 483 (2009).
6
People v White, 208 Mich App 126, 130-132; 527 NW2d 34 (1994).
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IV. GUIDELINES SCORING
Defendant contends that his sentence was based on the erroneous scoring of two offense
variables, OV 12 and OV 19. Defendant preserved this error with a timely objection at the
sentencing hearing.7 We review a trial court’s scoring decisions to determine whether the
sentencing court exercised its discretion and whether the evidence adequately supported its
scoring decisions.8 We will uphold a scoring decision if there is any evidence in its support.9
The trial court scored OV 12, contemporaneous felonious criminal acts, one point, the
proper score where one contemporaneous criminal act involving any other crime was committed.
A felonious criminal act is contemporaneous if the act occurred within 24 hours of the
sentencing offense and the act has not and will not result in a separate conviction.10 Here, the
trial court determined that defendant committed a contemporaneous felony in attempting to
obstruct and elude arrest.11 This finding was based on the testimony of Officer Brett Stiles, who
observed defendant ride a bicycle away from the alley where the controlled buy took place.
Officer Stiles testified that he observed defendant pedal the bicycle much faster when the
arresting officers’ vehicle pulled up to him. Although this testimony might not be sufficient to
satisfy the reasonable doubt standard necessary to convict defendant under MCL 750.81d, it is
sufficient to support the trial court’s scoring decision.
The trial court scored OV 19, interference with the administration of justice, 10 points,
the appropriate score where the offender “otherwise interfered with or attempted to interfere with
the administration of justice.12” Defendant’s attempt to elude arrest constituted an interference
with the administration of justice in support of this score. Accordingly, there was no scoring
error.
Defendant also argues that the guidelines scoring violates the Sixth Amendment, US
Const Am, VI, by increasing his sentence based on factual findings not made by a jury. The
United States Supreme Court held in Blakely v Washington, 542 US 296; 124 S Ct 2531; 159 L
Ed 2d 403 (2004), that the Sixth Amendment is violated when a trial court increases a
defendant’s sentence beyond the maximum sentence permitted by law on the basis of facts found
by the court rather than by the jury. However, Michigan's sentencing scheme is unaffected by
Blakely because Michigan uses an indeterminate sentencing scheme in which the trial court sets
the minimum sentence but can never exceed the statutory maximum sentence. People v Drohan,
475 Mich 140, 164; 715 NW2d 778 (2006). Thus, “[a]s long as the defendant receives a
7
MCR 6.429(c).
8
People v McLaughlin, 258 Mich App 635, 671; 672 NW2d 860 (2003).
9
People v Elliott, 215 Mich App 259, 260; 544 NW2d 748 (1996).
10
MCL 777.42(2)(a)(i) and (ii).
11
MCL 750.81d.
12
MCL 777.49(c).
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sentence within that statutory maximum, a trial court may utilize judicially ascertained facts to
fashion a sentence within the range authorized by the jury's verdict.” Id. at 164. Here
defendant’s sentence was within the statutory maximum. MCL 333.7401(2)(a)(iv) provides a
maximum sentence of 20 years. MCL 333.7413(2) provides that an individual convicted of a
second or subsequent offense is subject to a term “not more than twice the term otherwise
authorized.” Thus, defendant was subject to a maximum term of 40 years. The trial court did
not exceed that maximum: there is no Sixth Amendment violation.
V. SENTENCING ISSUES
Defendant raises additional sentencing issues regarding the trial court’s exercise of its
statutory authority to double the sentence authorized by law and the court’s alleged failure to
consider all relevant mitigating circumstances. These issues are without merit.
Defendant’s sentencing guidelines set a minimum sentence range of 19 to 38 months.13
The statutory maximum sentence for defendant’s offense was 20 years.14 Defendant’s prior
convictions subjected him to sentence enhancement procedures that authorized the trial court to
double the authorized sentence. See MCL 333.7413(2), which provides “Except as otherwise
provided in subsections (1) and (3) [involving quantities of 50 grams or more], an individual
convicted of a second or subsequent offense under this article may be imprisoned for a term not
more than twice the term otherwise authorized or fined an amount not more than twice that
otherwise authorized, or both.” Consequently, the trial court had the authority to double the
minimum sentence range to a range of 38 to 76 months, and to double the maximum statutory
sentence to 40 years.15 Although the trial court stated that defendant’s extensive criminal history
warranted sentencing at the high end of the range, the trial court ordered a minimum sentence of
3 years, which is at the high end of the unenhanced guidelines range, and below the doubled
range. The trial court thus doubled the maximum sentence only, and not the minimum sentence
range, although it had the authority to increase both. In view of defendant’s extensive criminal
history, mostly involving drug trafficking, the trial court did not abuse its discretion in partially
exercising its authority to enhance defendant’s sentence.
Defendant also contends that the trial court failed to take into consideration all mitigating
circumstances, which, he asserts, would have resulted in a shorter sentence. He argues that if all
of these circumstances were properly considered, the trial court would not have exercised its
authority to issue a doubled maximum sentence. He also argues that his sentence constitutes
13
MCL 777.13m provides that a violation of MCL 333.7401(2)(a)(iv) is a Class F offense. MCL
777.65 provides the guideline ranges for Class D offenses. Defendant’s guidelines scores place
him at the PRV Level F/OV Level II point on the grid, for a minimum sentence of 19 to 38
months, without sentence enhancement under MCL 333.7413(2).
14
MCL 333.7401(2)(a)(iv).
15
People v Lowe, 484 Mich 718, 724-725; 773 NW2d 1 (2009).
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cruel and unusual punishment16 because it is excessive in view of his specific circumstances. A
sentence within the sentencing guidelines range is presumptively proportionate, and a
proportionate sentence does not amount to cruel or unusual punishment.17 Defendant’s sentence
is within the guideline range, and is therefore presumptively proportionate. Defendant raises no
unique or compelling mitigating circumstances to rebut this presumption. Defendant’s claims
that he is afflicted with drug addiction, that he is remorseful for his crime, and that he enjoys
family support are ordinary circumstances that do not detract from his culpability. Defendant
fails to assert any viable legal premise for his claim of unlawful sentencing.
VI. SENTENCE CREDIT
Defendant argues that he was entitled to credit toward his sentence because he was jailed
while awaiting trial. We hold that the trial court properly denied credit.
Generally, a defendant who has served time in jail prior to sentencing “because of being
denied or unable to furnish bond for the offense of which he is convicted” is entitled to credit
against his sentence for the time served in jail prior to sentencing. MCL 769.11b. However, a
paroled prisoner who violates the terms of his parole must “serve out the unexpired portion of his
or her maximum imprisonment.” MCL 791.238(2). Additionally, if a paroled prisoner is
convicted of a new felony and sentenced to a term of imprisonment for that felony while he is on
parole for a sentence for a previous offense, “the term of imprisonment imposed for the later
offense shall begin to run at the expiration of the remaining portion of the term of imprisonment
imposed for the previous offense.” MCL 768.7a.
In People v Idziak, 484 Mich 549, 566-569; 773 NW2d 616 (2009), the Supreme Court
ruled that a paroled prisoner who is arrested for a new felony, detained in jail prior to trial for the
new felony, and subsequently convicted of and sentenced the new felony, cannot receive credit
for time served in jail before the date that his maximum sentence for the parole offense was
completed. The Court held that MCL 769.11b does not apply in these circumstances because the
defendant is incarcerated pursuant to the parole statutes, rather than incarcerated for the reasons
stated in MCL 769.11b, being denied or unable to furnish bond. Id. The Court summarized its
holding as follows:
We hold that, under MCL 791.238(2), the parolee resumes serving his earlier
sentence on the date he is arrested for the new criminal offense. As long as time
16
US Cons, Am VIII; Const 1963, art 1, § 16.
17
Drohan, supra at 91-92; see also People v Powell, 278 Mich App 318, 323-324; 750 NW2d
607 (2008). We acknowledge that although MCL 769.34(10) requires this Court affirm a
sentence within the appropriate guidelines range “absent an error in scoring the sentencing
guidelines or inaccurate information relied upon in determining the defendant’s sentence,” our
Court has recognized, in People v Conley, 270 Mich App 301, 316; 715 NW2d 377 (2006), that
this restriction does not apply to claims of constitutional error. Nonetheless, defendant has failed
to overcome the presumption that his sentence is proportionate.
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remains on the parolee’s earlier sentence, he remains incarcerated, regardless of
his eligibility for bond or his ability to furnish it. Since the parolee is not being
held in jail “because of being denied or unable to furnish bond,” the jail credit
statute does not apply. [Id. at 552.]
Here, defendant does not dispute that he had not completed the sentence for his prior
offense before his sentencing date for the instant felony. Accordingly, the trial court did not err
in denying him credit for time served in jail while awaiting trial.
Affirmed.
/s/ Henry William Saad
/s/ Joel P. Hoekstra
/s/ Christopher M. Murray
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