PEOPLE OF MI V RODNEY P HICKS
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
FOR PUBLICATION
December 2, 2003
9:05 a.m.
Plaintiff-Appellee,
v
No. 239981
Wayne Circuit Court
LC No. 01-004688
RODNEY P. HICKS
Defendant-Appellant.
Updated Copy
February 13, 2004
Before: Wilder, P.J., and Griffin and Gage, JJ.
WILDER, J.
Defendant appeals by right his conviction of unarmed robbery, MCL 750.530, following
a jury trial, and his sentence of 14 to 22-1/2 years' imprisonment. We affirm.
I. Facts and Proceedings
Defendant's conviction arises out of an incident on March 28, 2001, outside a Mobil
gasoline station on Fenkell Road in Detroit. Erin Branham, the victim, testified that she arrived
at the gas station around 5:00 a.m. to meet a coworker who daily drove her to work. Branham
entered the station to make a purchase and noticed that two men entered shortly after she did.
She recognized them from other encounters at the gas station and had a brief conversation with
them. After making her purchase, Branham left the station and waited outside for her coworker.
As she stood with her purse strap over her shoulder and her hand on her purse, she felt someone
pulling her purse strap from behind her. She reacted by moving forward, and the tugging grew
stronger, forcing her backward. She struggled to hold on to her purse, but the perpetrator
wrestled the purse away from her and ran down Fenkell Street. As the perpetrator ran away,
Branham recognized him as one of the men she spoke to in the gas station that morning, later
identified as defendant.
Valerie Jackson, an employee of the Mobil station, witnessed the incident from inside the
gas station. Immediately after the incident, Branham entered the gas station and asked Jackson
to call the police, which she did. A few minutes later, Branham flagged down two passing police
officers, Officer Mark Frazier and Officer John Baritche, told them about the incident, and
described the perpetrator to them. Jackson confirmed Branham's description of the perpetrator to
the officers, and the officers immediately informed their dispatcher of the crime and the
perpetrator's description.
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A few minutes later, the officers received a call from their police sergeant, who was at a
BP gas station six or seven blocks down the street. Officers Frazier and Baritche went to the BP
station and saw a man who matched Branham's description of the perpetrator. The officers
approached the man, whom Officer Frazier identified in court as defendant, and arrested him.
When the officers searched defendant's person upon arrest, papers, bills, and medical cards,
including items belonging to the victim, fell out of defendant's sweatshirt.
After his arrest, defendant provided a written statement that read: "[Y]es, I was in the gas
station. Me and her [sic] talked for a while. She went outside to look for her ride, and I went
outside and snatched her purse and went about my business."
During trial, defendant, who represented himself with the assistance of his former
counsel, rested without presenting any evidence. In his closing argument, defendant admitted
committing larceny from a person, but claimed that he did not commit unarmed robbery. The
jury convicted defendant of unarmed robbery. The trial court subsequently sentenced defendant
to 14 to 22-1/2 years' imprisonment, departing from the sentencing guidelines range of 50 to 125
months. Defendant now appeals.
II. Standards of Review
We review for an abuse of discretion the trial court's decision to permit defendant to
represent himself. People v Russell, 254 Mich App 11, 18; 656 NW2d 817 (2002). We review a
challenge to the sufficiency of the evidence by examining all the evidence in a light most
favorable to the prosecution to determine whether a rational trier of fact could conclude that the
prosecution proved the essential elements of the crime beyond a reasonable doubt. People v
Hunter, 466 Mich 1, 6; 643 NW2d 218 (2002), citing People v Wolfe, 440 Mich 508, 515; 489
NW2d 748 (1992). Generally, we review claims of prosecutorial misconduct on a case-by-case
basis to determine whether, examining the record as a whole, the defendant was denied a fair
trial. People v Bahoda, 448 Mich 261, 267; 531 NW2d 659 (1995). However, because
defendant did not object to the prosecutor's comments at trial, our review is limited to
determining whether plain error occurred that affected defendant's substantial rights. People v
Schutte, 240 Mich App 713, 720; 613 NW2d 370 (2000), citing People v Carines, 460 Mich 750,
761-762; 597 NW2d 130 (1999).
We review the trial court's scoring of a sentencing guidelines variable for clear error.
People v Witherspoon, 257 Mich App 329, 334-335; 670 NW2d 434 (2003), citing People v
Fields, 448 Mich 58, 77; 528 NW2d 176 (1995). A scoring decision is not clearly erroneous if
the record contains "'any evidence in support' of the decision." Witherspoon, supra at 335, citing
People v Elliott, 215 Mich App 259, 260; 544 NW2d 748 (1996) (emphasis in Witherspoon).
We review for an abuse of discretion whether a stated reason for departure from the sentencing
guidelines constitutes a substantial and compelling reason for departure. People v Babcock, 469
Mich 247, 264-265; 666 NW2d 231 (2003), quoting Fields, supra at 77-78.
III. Analysis
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Defendant first argues that the trial court abused its discretion by permitting defendant to
represent himself at trial because his request was not unequivocal and was not made knowingly
and intelligently. We disagree.
"Proper compliance with the waiver of counsel procedures . . . is a necessary antecedent
to a judicial grant of the right to proceed in propria persona. Proper compliance requires that the
court engage, on the record, in a methodical assessment of the wisdom of self-representation by
the defendant." People v Adkins (After Remand), 452 Mich 702, 720-721; 551 NW2d 108
(1996). Before a trial court grants a request for self-representation, the trial court must find (1)
that the request is unequivocal; (2) that the assertion of the right of self-representation is
knowing, intelligent, and voluntary, with the defendant having been made aware by the trial
court of the "dangers and disadvantages of self-representation"; and (3) that the defendant "will
not unduly disrupt the court while acting as his own counsel." People v Ahumada, 222 Mich
App 612, 614-615; 564 NW2d 188 (1997), citing Adkins, supra at 706, 722; People v Anderson,
398 Mich 361, 366-368; 247 NW2d 857 (1976). Additionally, MCR 6.005 imposes a duty on
the trial court to inform the defendant of the charge and penalty he faces, advise him of the risks
of self-representation, and offer him the opportunity to consult with retained or appointed
counsel. Ahumada, supra at 614-615. These requirements are "vehicles to ensure that the
defendant knowingly and intelligently waived counsel with open eyes." Adkins, supra at 725.
Immediately before trial began in the instant case, defense counsel informed the trial
court that defendant had informed her that defendant wanted to represent himself. Defendant
further explained his position to the trial court:
As far as my attorney, I wouldn't say I want to fire her, but I put her on the
back burner as far as she can be my assistance (sic) in dealing in this case here
because everything that I asked her to do she haven't [sic] done. You know what
I'm saying and . . . .
The trial court interjected, "What is that?" Defendant continued:
I feel that I'm more competent in doing the job than [defense counsel] is,
you know. So, you know, but I'm not saying I want to just give up all my rights
to where I would like to have an attorney on the back burner. You know that
being, you know, give me a little guidance, little assistance, but I feel that I am
more competent in handling this case than she was.
The trial court then inquired about why defendant believed he was more competent than
his attorney and asked defendant to tell him about his background. Defendant digressed to
addressing issues involved in his case, and the trial court eventually told defendant that he
should speak to his attorney about the matters defendant wanted the trial court to consider.
Before conferring with his attorney, defendant again told the trial court:
Before you go, before you go, I'mo [sic] say this here before you go. I
could represent myself, and instead of you saying "attorney," I don't—I can do it
myself. I understand what you say.
-3-
But when it comes down to we['re] in a disagreement when it come to my
trial tactics, you know, she says she can't do my trial tactics. That she wants to do
her own her, and it hurts me for her to do it the way she wants to do it. So I can't
advise her to be my attorney if she is not in my best interest.
After defendant conferred with his attorney, the following colloquy transpired:
The Court: Okay. Mr. Hicks, would you stand for the moment please?
Mr. Hicks, the law requires me to tell you certain items of information and
ask you certain questions before I make a determination as to whether or not
you're going to represent yourself.
Am I correct in understanding that you absolutely want to represent
yourself?
Defendant Hicks: Yes, sir.
The Court: No question about that?
Defendant Hicks: No question about that.
The Court: Okay.
Defendant Hicks: With the help of—
The Court: Oh, absolutely. Yes. Ms. Heard will remain and sit through
the case and provide you with the opportunity to consult with her.
You understand that?
Defendant Hicks: Yes.
The trial court then stated that it was aware of Anderson, supra, and MCR 6.005(D), and
informed defendant that he was charged with unarmed robbery, which "carries with it a
maximum possible penalty of 15 years in prison," and that a notice had been filed indicating that
defendant was an habitual-offender, fourth offense, which meant that defendant "could face up to
life in prison." Defendant replied affirmatively when asked if he understood what the trial court
had told him.
The trial court also informed defendant that although he was not a lawyer, he would be
required to follow the rules applying to lawyers and that it was "very unwise" for him to
represent himself. Referring to a picture of Abraham Lincoln in the courtroom, the trial court
informed defendant that Abraham Lincoln said that "anyone who chooses to represent himself
has a fool for a client. Defendant stated that he "had heard that a thousand times." The trial
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court again inquired, "You wish to represent yourself; is that true, Mr. Hicks?" Defendant
replied, "Yes, sir." The trial court then permitted defendant to represent himself, with his former
defense counsel available to assist him.1 Before the jury entered the courtroom on the second
day of trial, the trial court asked defendant if he wished to continue representing himself, and
defendant responded affirmatively.
Defendant now claims that his request to represent himself was not unequivocal.
Defendant relies primarily on the following language from Justice Griffin's lead plurality opinion
in People v Dennany, 445 Mich 412, 446; 519 NW2d 128 (1994) (Griffin, J.):
Because there is no substantive right to standby counsel, the trial court is
under no obligation to grant such a request. Consequently, a request to proceed
pro se with standby counsel—be it to help with either procedural or trial issues—
can never be deemed to be an unequivocal assertion of the defendant's rights.
We agree with the first proposition, that there is no substantive right to hybrid representation and
that the trial court is under no obligation to grant a request for standby counsel. However, the
second proposition upon which defendant relies to argue that, because he requested standby
counsel when he announced his desire to represent himself, his request was equivocal as a matter
of law, is one that we reject. We note that while Justices Mallett and Brickley concurred with
Justice Griffin, the four other justices deciding Dennany disagreed that a request for standby
counsel makes a request for self-representation equivocal.
In explaining his position that the rule announced in the lead plurality opinion "creates a
trap for the unwary defendant," id. at 454 (Cavanagh, C.J.), Chief Justice Cavanagh, with whom
Justice Levin concurred, stated that
standby counsel is almost invariably appointed whenever a defendant chooses to
represent himself. It is fundamentally unfair to punish a defendant for requesting
what all presume will be provided in the first place. To allow the uninformed to
unwittingly waive their right of self-representation merely by requesting standby
counsel "is to imprison a man in his privileges and call it the Constitution."
Adams v United States ex rel McCann, 317 US 269, 280; 63 S Ct 236; 87 L Ed 2d
268 (1942). [Id. at 456.]
Justice Boyle agreed with the lead plurality opinion's conclusion that "a request for
standby counsel is not, as a matter of law, an unequivocal assertion of a desire to proceed pro
se." Dennany, supra at 458 (Boyle, J.). However, Justice Boyle, with whom Justice Riley
concurred, disagreed with extending that proposition to hold that a request to proceed pro se
accompanied by a request for standby counsel can never amount to an unequivocal assertion of a
1
Although neither defendant nor the trial court used the term "standby counsel," it is clear that
this familiar term accurately describes the relationship between defendant and his former
attorney during the trial. Throughout the remainder of this opinion, the term "standby counsel"
will be used for ease of reference.
-5-
defendant's rights. Id. at 468 n 12 (Boyle, J.). With regard to one of the cases consolidated in
Dennany, she stated:
When read in its entirety, the colloquy between defense counsel, the
defendant, and the court suggests that [the defendant] was assenting to [the
attorney's] appointment as standby counsel, not equivocating on his desire to
proceed pro se.
While discussion of standby counsel should be postponed until after the
defendant fully waives his right to counsel and is proceeding pro se, when the
subject does arise, as in this case, it is the trial judge who is in the best position to
decide whether or not the defendant is equivocating with respect to his desire to
proceed pro se. In the waiver context, Sixth Amendment rights do not turn on the
expression of magic words, but on the understanding of the accused. That
understanding is best determined as a question of fact by the trial judge . . . . [Id.
(citation omitted).]
The lead plurality opinion in Dennany does not represent binding authority, and we are not
inclined to follow it.2 See Felsner v McDonald Rent-A-Car, Inc, 193 Mich App 565, 569; 484
NW2d 408 (1992). On the contrary, we conclude that a request for self-representation can be
accompanied by a request for standby counsel and maintain its unequivocal nature. As Justice
Boyle stated, a request for standby counsel does not necessarily indicate that the defendant is
vacillating concerning his desire to represent himself. Dennany, supra at 468 n 12. Inherent in
the trial court's ability to evaluate a waiver of counsel is the ability to determine whether the
defendant is vacillating in his choice or merely requesting that which, as Chief Justice Cavanagh
noted, will likely be granted to the defendant anyway.3
2
We recognize that in People v Seaton, 106 Mich App 234, 236; 307 NW2d 454 (1981), this
Court held that the defendant's request to proceed pro se was equivocal because the defendant
wanted to share responsibilities with his lawyer. The Court in Seaton provided no rationale for
its decision other than the fact that the defendant does not have a right to hybrid representation.
Id. at 236, citing People v Ramsey, 89 Mich App 260; 280 NW2d 840 (1979). Additionally,
Seaton is not binding on this Court. MCR 7.215(J)(1).
3
We note that four justices, Chief Justice Cavanaugh joined by Justice Levin, and Justice Boyle
joined by Justice Riley, concluded (albeit through differing reasoning in their separate opinions)
that a request for standby counsel did not as a matter of law render a request for selfrepresentation equivocal. While this issue was not dispositive or decisive in Dennany, our
Supreme Court has said that "[w]hen a court of last resort intentionally takes up, discusses, and
decides a question germane to, though not necessarily decisive of, the controversy, such decision
is not a dictum, but is a judicial act of the court which it will thereafter recognize as a binding
decision." O'Dess v Grand Trunk W R Co, 218 Mich App 694, 699; 555 NW2d 261 (1996),
quoting In re Cox Estate, 383 Mich 108, 117; 174 NW2d 558 (1970) (emphasis in original). We
note, therefore, that the nondispositive and nondecisive conclusion of the four justices in
Dennany, that a defendant could make an unequivocal request to represent himself even though
(continued…)
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Here, the trial court permitted defendant to represent himself after defendant repeatedly
stated his desire to do so. The trial court was in the best position to determine from the
circumstances whether defendant requested standby counsel because he did not want to represent
himself or because he recognized that it would be difficult to navigate his trial with limited
knowledge of the law. The trial court, in response to defendant's attempt to assert ineffective
assistance of counsel during jury deliberations, commented on defendant's request for selfrepresentation:
Mr. Hicks, let me tell you so that the record is clear. It is rare that I have
seen someone appear in trial with greater enthusiasm and greater interest than
you. Wild horses could not have kept you from representing yourself in this case.
So if there is going to be a review by some other higher court, I don't want
them to think that somehow you were reluctantly trying to represent yourself.
You couldn't wait to represent yourself.
We will not disturb the trial court's discretionary decision to permit self-representation
merely because defendant requested standby counsel in connection with expressing his desire to
represent himself.4 Notably, defendant does not claim on appeal that the trial court
misapprehended his intentions. He merely claims that, because he combined his request for selfrepresentation with a request for standby counsel, his request was equivocal as a matter of law.
Permitting defendant, equipped with the benefit of hindsight, to retract his clearly stated desire to
represent himself solely because he requested standby counsel is tantamount to permitting him to
harbor an appellate parachute, see Adkins, supra at 724, which we will not condone. Moreover,
"[t]o permit a defendant in a criminal case to indulge in the charade of insisting
on a right to act as his own attorney and then on appeal to use the very permission
to defend himself in pro per as a basis for reversal of conviction and a grant of
another trial is to make a mockery of the criminal justice system and the
constitutional rights sought to be protected. We would not permit it." [Adkins,
supra at 725, quoting Dennany, supra at 436, quoting People v Morton, 175 Mich
App 1, 8-9; 437 NW2d 284 (1989).]
Defendant also claims that his request for self-representation was not knowingly and
intelligently made because the trial court did not adequately inform him of the disadvantages of
self-representation. We disagree. The trial court informed defendant that it would be "very
unwise" of him to represent himself and that "a man who represents himself has a fool for a
client," a phrase defendant indicated he had heard "a thousand times." The trial court also
informed defendant that he would be required to follow the rules applicable to lawyers. We
(…continued)
such request was contingent on appointment of standby counsel, might arguably be described as
such a binding judicial act. Nevertheless, our opinion does not rest on such a determination.
4
Of course, a trial court may validly consider that a defendant has requested standby counsel
when deciding whether a defendant's request for self-representation is unequivocal.
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conclude that the trial court adequately informed defendant of the disadvantages of selfrepresentation. See Russell, supra at 16-18. Accordingly, we conclude that the trial court did
not abuse its discretion by granting defendant's request for self-representation.5
Defendant next argues that the evidence was insufficient to sustain his conviction of
unarmed robbery because the prosecution did not present evidence that defendant took the purse
"by force and violence, or by assault or putting in fear," MCL 750.530. We disagree. Viewing
the evidence in a light most favorable to the prosecution, the testimony reflects that the victim
felt a tug on her purse strap, was pulled backward, reflexively lurched forward, and tried to turn
her body to maintain possession of her purse. Additionally, the victim testified that the struggle
aggravated her tendonitis. Valerie Jackson also testified that defendant and Branham struggled
over the purse. This evidence supports a conclusion that defendant took the purse by force and
violence. Moreover, the force exerted by defendant was contemporaneous with the taking and,
therefore, sufficient to support a verdict of unarmed robbery. See People v Randolph, 466 Mich
532, 536; 648 NW2d 164 (2002).
Defendant next raises several claims of prosecutorial misconduct. Defendant did not
object to the prosecutor's allegedly improper remarks at trial. Accordingly, to avoid forfeiture of
review of this issue, defendant must demonstrate that a plain error occurred that affected his
substantial rights. Schutte, supra. Defendant fails to demonstrate that plain error occurred.
Defendant first claims that the prosecutor mischaracterized the evidence by indicating
that defendant grappled with Branham for possession of the purse. The prosecutor is "free to
argue the evidence and all reasonable inferences arising from it as they relate to the theory of the
case. People v Schultz, 246 Mich App 695, 710; 635 NW2d 491 (2001). As discussed above, it
is reasonable to infer from Branham's testimony that she and defendant struggled for possession
of the purse. Consequently, the prosecutor's argument was appropriate.
Defendant also claims that the prosecutor inappropriately stated that defendant robbed
Branham. Defendant does not explain why he believes this was inappropriate, and we decline to
address this issue. A party may not announce a position on appeal and leave it to this Court to
unravel or elaborate his claims. Mudge v Macomb Co, 458 Mich 87, 105; 580 NW2d 845
(1998).
Next, defendant asserts that the prosecutor expressed personal belief in defendant's guilt
and "inaccurately attributed a legal conclusion" to Branham in closing arguments by stating:
"I went about my business." I don't know what his business is, but he
robbed Ms. Branham that day. He took her property when he had no right to do
that, and then he ran away.
5
Defendant's contention that the trial court acted as though it had no discretion to deny his
request to represent himself lacks merit. The trial court stated on the record that it would make
the ultimate decision whether defendant would be permitted to represent himself.
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Ms. Branham comes in and tells us that yes, this is the guy. This is the
person here, Mr. Hicks, who robbed me, who came up from behind me, who
grabbed my purse off my shoulder.
Left shoulder, right shoulder, that didn't matter, but grabbed the purse off
my shoulder, and I fought basically holding on to my purse.
Again, defendant fails to analyze why this section of the prosecutor's argument is
improper, and we will not review it. Mudge, supra.
Next, defendant contends that the prosecutor demonstrated confusion when he stated:
She tells us that yes, I fought back. I turned my shoulder, and it hurt my
shoulder as he was pulling the purse off. Then Mr. Hicks says, "we didn't
struggle did we?" She said, when he asked the question, she said, "we were
struggling. We were struggling over that purse."
Although the prosecutor did not quote the testimony verbatim, his argument fairly characterizes
the testimony and is not improper. Schulz, supra.
Finally, defendant claims that the prosecutor argued facts not in evidence, placed the
prestige of the prosecutor's office before the jury, vouched for the truthfulness of the
prosecution's case, and denigrated defendant by stating in rebuttal argument:
I have been working in the system for 10 years. I respect that. But I don't
respond well when people say that I'm trying to mislead you or lie to you or trying
to pull the wool over your eyes. I'm offended by those comments because it is
simply not true for him to say that I shirked my responsibility as the prosecutor.
I like my job. I represent all the people, the defendant, the victim, all the
people in the State of Michigan. It is my job to make sure the defendant gets a
fair trial. That is my job. It's not like I'm a defense attorney, and my job is to
win. My job is to be fair to all people that come to courtrooms, and I try very
hard to do so.
So when he stands up and accuses me of lying and covering up, he simply
has no evidence of that. It offends me greatly. But I want you to know that in
this case that's just not true. I want you to judge the case based on the evidence,
based on the facts . . . .
These comments were not improper because they constitute a fair response to defendant's
closing argument. See People v Watson, 245 Mich App 572, 592-593; 629 NW2d 411 (2001).
Defendant asserted in his closing argument that the prosecutor "allowed the complainant to tell a
lie" and that "[y]our witness, the complainant, speaks out of both sides of her mouth, which
means that she's not worthy of believing. Nor are you, Mr. Prosecutor. You had no business
waisting [sic] the taxpayers' dollars on this case here. You went beyond your responsibility, Mr.
-9-
Prosecutor." In light of defendant's personal attack on the prosecutor, the prosecutor's response
was proper. Watson, supra.
With regard to his sentence, defendant first challenges the trial court's assessment of a ten
point score for offense variable four (OV 4) in calculating the applicable sentencing guidelines.6
We agree that the trial court scored OV 4 incorrectly. When evaluating OV 4, MCL 777.34, the
trial court must assess ten points if "[s]erious psychological injury requiring professional
treatment occurred to a victim." Defendant accurately states that the record does not reflect any
evidence of serious psychological harm to the victim or give any indication that she needed
psychological treatment. Accordingly, the trial court erred by assessing ten points for OV 4.
Taking into account defendant's status as an habitual-offender, second offense, his correct
sentencing guidelines range was 43-107 months.
Defendant next asserts that the trial court erred by departing from the sentencing
guidelines range in fashioning his sentence. Despite the fact that we have concluded the
appropriate sentencing guidelines range is lower than that calculated by the trial court, we
disagree. We first reject defendant's argument that the trial court's characterization of defendant
as a "predator" demonstrates that the trial court relied on uncharged acts to increase his sentence.
Instead, the record shows that the trial court used the term "predator," a term first used at
sentencing by the prosecution, to accurately describe the manner in which defendant approached
a woman he could overpower and used his strength to accomplish his crime.
Next, defendant claims that the trial court erred by stating reasons for departing from the
sentencing guidelines that were not substantial and compelling. Defendant's argument lacks
merit. The trial court stated at sentencing that in committing this crime, defendant behaved as a
predator and had previously served a fifteen-year sentence for a conviction involving robbery,
kidnapping, and sexual assault. The trial court noted that during his incarceration, defendant
received thirty-four misconduct tickets. Additionally, the trial court stated its opinion that the
sentencing guidelines "do not adequately protect the community from this type of behavior."
Then, immediately before imposing its sentence, the trial court stated:
People versus Babcock requires that there must be a substantial and
compelling reason to deviate and in this particular circumstance I think the
seriousness of your prior convictions, the aggravated circumstances of it being a
robbery, a kidnapping and sexual assault of the victim, the fact that you were
institutionally difficult to deal with, the fact that you maxed out on parole, and
then a very short time later came back and revictimized a woman, the fact of the
matter is we do in fact need to be protected from you.
6
We note that the prosecution incorrectly states that defendant waived review of this issue by
failing to provide a copy of the presentence report. On the contrary, defendant did provide this
Court with a copy of the report.
-10-
The trial court's decision that these factors constitute substantial and compelling reasons for
departure represents a principled choice and, therefore, does not constitute an abuse of
discretion.7 Babcock, supra at 269. Moreover, contrary to defendant's assertions, the sentence
imposed by the trial court is proportionate to defendant's conduct and, in particular, his criminal
history. Defendant spent fifteen years in prison for a combination of serious offenses and
committed another robbery within a few months of release. The trial court properly determined
that a sentence within the guidelines would not be adequate.8 See Babcock, supra at 261-264.
Finally, defendant argues that the trial court did not comply with MCL 769.34(7) because
it did not inform him that he had a right to appeal his sentence based on the fact that it was
longer or more severe than the appropriate sentence range. The record supports defendant's
contention that the trial court did not specifically address defendant's right to appeal on this
basis. However, because defendant has appealed his sentence on this basis, the trial court's error
was harmless.
Affirmed.
/s/ Kurtis T. Wilder
/s/ Richard Allen Griffin
/s/ Hilda R. Gage
7
Defendant also briefly argues that the reasons the trial court provided for departing from the
guidelines are not permissible and that the trial court did not find that these factors were given
inadequate weight in calculating the guidelines. On the contrary, the trial court did not base its
sentence on one of the prohibited reasons for departure found in MCL 769.34(3). Moreover,
because the trial court did not base its departure on reasons already accounted for in calculating
defendant's sentence under the guidelines, it was not required to state that its reasons for
departure had been given inadequate or disproportionate weight. MCL 769.34(3)(b).
8
In this regard, we note that the trial court's statements and the length of the sentence it imposed
reflect the trial court's intent to remove defendant from society for a lengthy period, rather than
simply an intent to increase defendant's sentence by a specific amount of time beyond the
applicable guidelines range. Thus, the trial court's guidelines scoring error does not require
remand for resentencing as we are persuaded the trial court would have rendered the same
sentence regardless of the guidelines score. See, e.g. Babcock, supra at 260-261 & n 15.
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