PEOPLE OF MI V RICKY LEE HORTON
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
December 10, 2002
Plaintiff-Appellee,
v
No. 234035
Wayne Circuit Court
LC No. 00-004034-03
RICKY LEE HORTON,
Defendant-Appellant.
Before: Griffin, P.J., and White and Murray, JJ.
PER CURIAM.
Defendant appeals as of right from his jury convictions of possession with intent to
deliver over 650 grams of cocaine, MCL 333.7401(2)(a)(i), and attempted possession of 225 or
more, but less than 650 grams of cocaine, MCL 333.7401(2)(a)(ii) and MCL 750.92(2), for
which he was sentenced to consecutive terms of forty to sixty years and two to five years,
respectively. We affirm.
Defendant first contends that the trial court committed prejudicial error when it refused to
grant his trial counsel’s motion to withdraw. A trial court’s decision regarding the substitution of
counsel is reviewed for an abuse of discretion. People v Traylor, 245 Mich App 460, 462; 628
NW2d 120 (2001). Defendant was required to show good cause to justify the appointment of
substitute counsel. People v Mack, 190 Mich App 7, 14; 475 NW2d 830 (1991). “Good cause
exists where a legitimate difference of opinion develops between a defendant and his appointed
counsel with regard to a fundamental trial tactic.” Id.
Defendant asserts that the court failed to inquire adequately regarding the breakdown in
the relationship between defendant and trial counsel. The record demonstrates, however, that the
court elicited from defendant his reasons for requesting new counsel, and fully discussed his
various complaints. Defendant complained that his counsel did not visit him frequently enough,
had not obtained transcripts of an evidentiary hearing, refused to seek interlocutory review of the
denial of his motion to suppress his statement, refused to move to suppress the search warrants
because defendant lacked standing, and had not talked with defendant about a defense trial
witness.1 Defendant admitted that counsel had visited him three times and defendant makes no
1
With regard to this alleged witness, defendant did not identify the witness at the motion hearing
and nothing has since been presented regarding this possible witness’ identity. Defendant rested
(continued…)
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showing on appeal that more pre-trial visits were necessary. Counsel stated that the transcripts
of the evidentiary hearing were not available and that he did not intend to file an interlocutory
appeal. The trial court indicated that it would not grant a stay for an appeal and this Court rarely
grants interlocutory appeals by defendants regarding suppression of evidence issues; it is
therefore unlikely that, had an interlocutory appeal been filed, defendant would have received
any relief.
Additionally, we note that counsel moved to suppress defendant’s statements to the
police, an evidentiary hearing on this issue was conducted, and the trial court denied the motion;
therefore, the issue was preserved for appellate review in the event of defendant’s conviction and
it was reasonable to decide that filing an interlocutory appeal would have been frivolous. Even if
counsel had filed an interlocutory appeal and succeeded in getting defendant’s statement to the
police suppressed, the trial would still have gone forward because the prosecution was not
dependent on defendant’s incriminating statement. Moreover, defendant’s appellate counsel has
decided not to raise any issue challenging the admission of defendant’s statement even though
the issue was preserved for possible appellate review. This suggests that trial counsel’s
assessment of the unlikelihood of prevailing on this issue in an interlocutory appeal was correct.
With regard to counsel’s refusal to move to quash the search warrant, we have concluded
in our discussion below that defendant did not have standing to contest the search warrant for the
packages, and defendant’s arrest was valid. Counsel was not required to pursue frivolous
motions. Traylor, supra at 463.
Finally, defendant acknowledges on appeal that the mere act of filing a grievance against
trial counsel is insufficient to establish good cause; however, he nevertheless claims that the fact
that he filed a grievance should be seen as a strong indication that there were irreconcilable
differences between him and his counsel. We rejected a similar claim in Traylor, supra at 463,
and the same analysis applies in this case. Defendant’s grievance indicated that his only claim of
dissatisfaction was counsel’s failure to move to suppress his statement to the police. However,
as noted, an evidentiary hearing regarding this issue had already been completed two months
before defendant wrote his grievance letter. Thus, it was reasonable for the trial court to
conclude that the filing of a grievance did not require that it permit defendant’s counsel to
withdraw.
During trial, defendant complained that his counsel refused to ask the witnesses questions
that defendant wanted asked because counsel asserted the questions were irrelevant or collateral.
The substance of defendant’s proposed questions was not placed on the record. We therefore
conclude that the trial court properly deferred to counsel’s decision regarding the proper strategy
to be followed in questioning the witnesses, Traylor, supra at 463, and that defendant has failed
(…continued)
without presenting any witnesses, and appellate counsel has failed to provide any information
regarding this witness – or even to present any argument or appellate issue concerning the
witness. Defendant’s reference to a possible witness was apparently resolved before trial, or, at
the least, has been abandoned as a basis for his argument concerning the necessity of replacing
his trial counsel. People v Howard, 226 Mich App 528, 537; 575 NW2d 16 (1997).
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to demonstrate good cause to support his request for appointment of a new counsel. Mack,
supra.
Defendant next contends that the trial court erred in failing to follow the sentencing
guidelines and that his sentences are disproportionate. We disagree.
Defendant committed the offenses for which he was convicted on February 19, 2000,
thus the legislative sentencing guidelines applied to his sentencing. MCL 769.34(1). However,
the initial legislative sentencing guidelines did not apply to all criminal offenses, and possession
with intent to deliver over 650 grams of cocaine, MCL 333.7401(2)(a)(i), was not a covered
offense. Accordingly, there were no guidelines to score for that offense and the sentence is
reviewed solely to determine if there has been an abuse of discretion – that is, whether the
sentence is disproportionate. People v Cervantes, 448 Mich 620, 626-627; 532 NW2d 831
(1995); People v Hansford (After Remand), 454 Mich 320, 323-324; 562 NW2d 460 (1997);
People v Edgett, 220 Mich App 686, 690; 560 NW2d 360 (1996). The “key test” of
proportionality is whether the sentence reflects the seriousness of the matter. People v Houston,
448 Mich 312, 320; 532 NW2d 508 (1995). The sentencing court may consider “the severity and
nature of the crime, the circumstances surrounding the criminal behavior, the defendant’s attitude
toward his criminal behavior, the defendant’s social and personal history, and the defendant’s
criminal history, including subsequent offenses.” People v Oliver, 242 Mich App 92, 98; 617
NW2d 721 (2000).
Defendant was forty-seven years old when he was sentenced and had an extensive
criminal history. By his own admission, he had been involved with cocaine before. A total of
over 1,400 grams of cocaine was involved. Testimony at trial established that this amount of
cocaine could be directly processed into approximately 30,000 rocks of crack cocaine if the
purity was maintained, or double that number or more if the cocaine was mixed with a cutting
agent. Finally, defendant had involved his family in his drug-delivery scheme. The trial court
properly considered these facts in determining the sentence. Given these facts, we conclude that
defendant’s sentence for possession with intent to deliver over 650 grams of cocaine was
proportionate to the seriousness of the circumstances surrounding the offense and the offender.
Further, even accepting defendant’s argument that the guidelines for this offense should be
applied retroactively, these facts provide substantial and compelling reasons for departure.
Defendant also claims his two- to five-year sentence for attempted possession of 225 or
more, but less than 650, grams of cocaine was disproportionate because it exceeded the
minimum sentence range of zero to seventeen months recommended by the sentencing
guidelines. A court may exceed the sentencing guidelines for substantial and compelling
reasons, MCL 769.34(3). The trial court’s minimum sentence of twenty-four months was an
upward departure of seven months from the recommended range. We conclude that the trial
court properly justified its minimal departure above the guidelines with substantial and
compelling reasons, including the defendant’s previous criminal history and his use of family
members to accomplish his drug deliveries.
Defendant next claims that his conviction was obtained through the use of illegally seized
evidence. We disagree. First, the warrants were adequately supported by probable cause;
second, defendant lacked standing to challenge the warrants, People v Lombardo, 216 Mich App
500, 505-510; 549 NW2d 596 (1996); People v Zahn, 234 Mich App 438, 446-448; 594 NW2d
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120 (1999); and third, the circumstances surrounding the pursuit and arrest of defendant were
supported by probable cause.
Finally, defendant argues that he was deprived of his right to the effective assistance of
counsel by trial counsel’s failure to research the law regarding standing adequately, counsel’s
failure to challenge the admission of his statement to the police, and failure to object to the
prosecutor’s improper use of that statement at trial. Because defendant failed to move for a new
trial or an evidentiary hearing, our review is limited to the existing record. People v Sabin (On
Second Remand), 242 Mich App 656, 658-650; 620 NW2d 19 (2000). This Court reviews a
claim of ineffective assistance to determine if the defendant has established that his counsel’s
performance was below an objective standard of reasonableness under prevailing professional
norms and that a reasonable probability exists that, but for counsel’s error, the result of the
proceeding would have been different. People v Pickens, 446 Mich 298, 302-303, 314; 521
NW2d 797 (1994); Strickland v Washington, 466 US 668, 694; 104 S Ct 2052; 80 L Ed 2d 674
(1984).
Trial counsel did attempt to suppress defendant’s statement to the police, but he was
unsuccessful. The trial court rejected defendant’s objection to the admission of his statement
because it credited the police officer’s testimony that the statement was not made until after
defendant received and waived his constitutional rights.2 Regarding the search and seizure issue,
we have determined that the issue lacked merit; thus, counsel was not ineffective for failing to
pursue it. Lastly, the prosecutor properly used defendant’s statement as substantive evidence,
MRE 801(d)(2); People v Lundy, 467 Mich 254, 257; 650 NW2d 332 (2002), and any objection
to the use of the statement on the grounds that defendant did not testify would have been futile.
Defendant has thus failed to show ineffective assistance of counsel.
Affirmed.
/s/ Richard Allen Griffin
/s/ Helene N. White
/s/ Christopher M. Murray
2
Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).
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