Download as PDF
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
June 14, 2011
Nos. 297054; 300338
Berrien Circuit Court
LC No. 2009-003280-FH
NANNETTE LAREE HERNANDEZ,
Before: SHAPIRO, P.J., and O’CONNELL and OWENS, JJ.
In these consolidated actions, defendant appeals as of right her convictions for two counts
of using a computer to commit a crime, MCL 752.796 and 752.797(3)(d), two counts of false
pretenses, MCL 750.218(1) and (4)(a), and two counts of uttering and publishing, MCL 750.249,
and the sentence imposed after she pleaded guilty to a probation violation. We affirm, but
remand for correction of the presentence investigation report (PSIR).
Defendant’s convictions arose from her attempts to sell a sailboat she did not own on the
online auction site eBay®, and her alleged falsification and alteration of a bill of sale and
cashier’s check she posted on eBay® in order to represent that she owned the sailboat.
Defendant first argues that her counsel was ineffective. To prevail on this argument, defendant
must show that her trial counsel’s representation fell below an objective standard of
reasonableness under professional norms, that but for her counsel’s error there is a reasonable
probability that the results of the proceedings 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). Given that there was no Ginther1 hearing in the trial court, our review is
limited to mistakes apparent on the record. People v Rodriguez, 251 Mich App 10, 38; 650
NW2d 96 (2002).
Defendant first argues that counsel was ineffective in failing to obtain expert analysis of
defendant’s two computers and an external hard drive. Defendant contends that this hardware
People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
housed emails that would have supported her theory of the case. Defendant further contends that
an examination of the hardware would have shown that she did not alter the cashier’s check. “A
defendant is entitled to have his counsel prepare, investigate, and present all substantial
defenses.” People v Kelly, 186 Mich App 524, 526; 465 NW2d 569 (1990) (citations omitted).
However, “defendant has the burden of establishing the factual predicate for [her] claim of
ineffective assistance of counsel . . . .” People v Hoag, 460 Mich 1, 6; 594 NW2d 57 (1999).
Defendant has not explained how an inspection of the hardware could have substantiated her
claims about the emails or the cashier’s check. Accordingly, defendant’s ineffective assistance
argument regarding this claim of error is without merit.
Defendant also argues that trial counsel was ineffective in failing to object to the
retention of Juror No. 48. The juror indicated during voir dire that she did not know any of the
witnesses in the case. One the second day of trial, however, the juror learned that she actually
knew one witness. The juror also acknowledged that she had spoken to the witness during a
break on that day. To the extent that defendant is arguing that Juror No. 48 was biased, the
argument is without merit. In People v Daoust, 228 Mich App 1, 9; 577 NW2d 179 (1998),
overruled in part People v Miller, 482 Mich 540; 759 NW2d 850 (2008), this Court held that
“when information potentially affecting a juror’s ability to act impartially is discovered after the
jury is sworn, the defendant is entitled to relief only if he can establish (1) that he was actually
prejudiced by the presence of the juror in question or (2) that the juror was properly excusable
for cause.” (Emphasis added.) In Miller, 482 Mich at 561, the Supreme Court held:
To the extent that in Daoust the Court of Appeals broadly states in dicta that a
new trial is always required whenever a juror would have been excusable for
cause, Daoust is wrong and overruled. As discussed earlier, the proper inquiry is
whether the defendant was denied his right to an impartial jury. If he was not,
there is no need for a new trial.
The record demonstrates that the juror was acquainted with the witness during the
previous t-ball season only. The juror swore that she would not allow her limited knowledge of
the witness to affect her assessment of the evidence. When the juror briefly spoke to the witness,
they did not discuss the case. Thus, counsel’s decision not to object to retention of the juror was
reasonable. Even if the juror had been excusable for cause and counsel should have objected to
her remaining on the jury, there was no evidence that defendant was denied her right to a fair and
impartial jury, or that the result of the proceedings would have been different if the juror had
been excused. Moreover, we find no merit in defendant’s argument that the juror could not
follow the trial court’s instructions. The juror stated under oath that she did not realize that she
knew the witness until she saw her during the break. There is no indication in the record that the
juror knew the witness was involved in the trial when the juror first spoke to the witness.
Defendant has failed to demonstrate ineffective assistance of counsel regarding this claim of
Defendant also argues that trial counsel was ineffective for failing to object to the trial
court’s sentencing mistakes. Defendant was sentenced, in part, to probation and incarceration at
the Kalamazoo Probation Enhancement Program (KPEP). However, defendant pleaded guilty to
violating her probation for inappropriately touching a KPEP staff member and being discharged
for that reason. At the probation violation hearing, the trial court revoked defendant’s probation
and sentenced her, in relevant part, to 1 to 15 years’ imprisonment for her convictions of uttering
and publishing.2 Defendant asserts that counsel failed to insist on an updated PSIR and failed to
confirm that the changes to the original PSIR the court ordered at sentencing were actually made.
“At a resentencing, the trial court is obligated to utilize a reasonably updated presentence
investigation report.” People v Hemphill, 439 Mich 576, 578-579; 487 NW2d 152 (1992)
(citation omitted). “A five-month-old report was found not to have been properly used where
there were significant allegations that the defendant’s circumstances had changed during the
interim.” Id. at 581, citing People v Crook, 123 Mich App 500, 503; 333 NW2d 317 (1983). A
PSIR of a specific age may not be “inherently defective.” Crook, 123 Mich App at 503. A
defendant may waive preparation of an updated report if the original report is not “manifestly
outdated.” Hemphill, 439 Mich at 582.
The trial court appears not to have considered an updated PSIR before sentencing
defendant following revocation of her probation. However, defendant has not argued or
demonstrated any specific change in her circumstances since the original sentencing. The mere
passage of time cannot render the report “inherently defective.” Crook, 123 Mich App at 503.
Defendant has not shown prejudice resulting from counsel’s failure to insist that the trial court
use a current PSIR, and thus, she has not demonstrated ineffective assistance based on this error.
Defendant next points out that at the original sentencing hearing, the trial court ordered
changes to be made to the PSIR. Defendant maintains that counsel failed to ensure that these
changes were made. The changes included that defendant continued to maintain that she thought
she owned the sailboat, that defendant denied that she was asked for verification of her college
degrees, and that defendant denied violating the court’s orders concerning internet transactions.
However, the trial court did not consider these changes in sentencing defendant for violating
probation. Rather, the court considered defendant’s conduct during probation. Defendant has
not shown how the outcome of her sentencing for the probation violations would have been
different had these changes been included in the PSIR. She has therefore failed to demonstrate
ineffective assistance regarding this claim of error.
Defendant also argues that defense counsel was ineffective because the Offense Variables
(OVs) were “argued and changed at sentencing,” and the PSIR “does not reflect these changes.”
Because defendant fails to offer any further argument or explanation on this issue, we deem the
issue abandoned. See People v Kelly, 231 Mich App 627, 640-641; 588 NW2d 480 (1998) (“An
appellant may not merely announce his position and leave it to this Court to discover and
rationalize the basis for his claims, nor may he give only cursory treatment . . . .”).
Defendant argues that counsel was also ineffective by failing to object to the court’s
violation of MCR 6.445(F)(2). The rule provides that before accepting a guilty plea to a
probation violation, the court must “advise the probationer of the maximum possible jail or
The sentence was later amended to 1 to 14 years’ imprisonment.
prison sentence for the offense.” MCR 6.445(F)(2). The court incorrectly advised defendant
that the maximum possible sentence for uttering and publishing is 15 years, rather than the actual
14 years. See MCL 750.249. We note that the information and the amended information in this
case indicated that the maximum penalty for uttering and publishing was 14 years. Thus,
defendant should have been aware of the maximum possible sentence, and she has failed to show
prejudice resulting from counsel’s failure to object. Similarly, although defendant argues that
the court violated MCR 6.425(E)(1)(d) by stating that her maximum sentence was 15 years’
imprisonment, the amended judgment of sentence shows that the trial court ultimately imposed
only a 14-year maximum sentence. Generally, a judgment or order is effective when reduced to
written form. See People v Vincent, 455 Mich 110, 123; 565 NW2d 629 (1997). Defendant has
failed to demonstrate ineffective assistance based on these claims of error.
Defendant also argues that she is entitled to resentencing because of the trial court’s
various sentencing mistakes. We review unpreserved errors for plain error affecting a
defendant’s substantial rights. People v Carines, 460 Mich 750, 763-764; 597 NW2d 130
(1999). The trial court apparently did not use an updated PSIR at the probation violation
hearing. However, as we previously discussed, defendant has not shown that the original PSIR
was manifestly outdated. Likewise, defendant has not shown prejudice from the trial court’s
misstatement of the maximum sentence for uttering and publishing, or the court’s statement at
resentencing that defendant was sentenced to a maximum of 15 years’ imprisonment. Therefore,
any error did not affect defendant’s substantial rights, and she is not entitled to resentencing.
However, the court ordered several changes to the PSIR as discussed above, and we cannot
confirm that these changes have been included in the PSIR. Plaintiff acknowledges that this
Court may order the trial court to correct the PSIR to reflect the changes described in the
Affirmed, but remanded for the administrative task of correcting the PSIR as needed. We
do not retain jurisdiction.
/s/ Douglas B. Shapiro
/s/ Peter D. O’Connell
/s/ Donald S. Owens