PEOPLE OF MI V ANGELO GERROD CHANDLER II (Per Curiam Opinion)
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
July 7, 2011
Plaintiff-Appellee,
V
No. 297133
Muskegon Circuit Court
LC No. 06-054255-FH
ANGELO GERROD CHANDLER, II,
Defendant-Appellant.
Before: SHAPIRO, P.J., and O’CONNELL and OWENS, JJ.
PER CURIAM.
Defendant claims an appeal from the sentence of 13 to 30 years in prison imposed on his
conviction of possession with intent to deliver 50 grams or more but less than 450 grams of
cocaine, MCL 333.7401(2)(a)(iii). He also seeks correction of the judgment of sentence to omit
the requirement that he reimburse the county for the cost of his appointed counsel. We affirm
defendant’s sentence, but remand for correction of the judgment of sentence.
Defendant was convicted by a jury of possession of 50 grams or more but less than 450
grams of cocaine, felon in possession of a firearm, MCL 750.224f, possession of a firearm
during the commission of a felony, MCL 750.227b, and domestic violence, MCL 750.81(2). The
trial court sentenced defendant as a second habitual offender, MCL 769.10, to prison terms of 17
to 30 years for possession with intent to deliver cocaine, one to seven and one-half years for
felon in possession of a firearm, and two years for felony-firearm, and to time served for
domestic violence.
Defendant appealed as of right. In People v Chandler, unpublished opinion per curiam of
the Court of Appeals, issued March 17, 2009 (Docket No. 281763), this Court affirmed
defendant’s convictions but vacated his sentence for possession with intent to deliver cocaine
and remanded for resentencing on that conviction only, on the ground that the trial court
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exceeded the sentencing guidelines without providing compelling and substantial reasons for
doing so.1 Id. at 4.
The sentencing guidelines, adjusted for defendant’s status as a second habitual offender,
recommended a minimum term range of 78 months (six and one-half years) to 162 months (13½
years) for defendant’s conviction of possession with intent to deliver cocaine. At the
resentencing hearing, the parties did not challenge the scoring of the guidelines and the
recommended term range did not change. The trial court sentenced defendant to 13 to 30 years
in prison for possession with intent to deliver cocaine, with credit for 425 days served.2
On appeal, defendant argues that the minimum term of 13 years imposed on his
conviction of possession with intent to deliver cocaine, while within the guidelines, is
disproportionate to his circumstances and those of the offense, and that he is entitled to
resentencing on this offense.
Under the sentencing guidelines act, if a minimum sentence is within the appropriate
sentencing guidelines range, we must affirm the sentence and may not remand for resentencing
absent an error in the scoring of the guidelines or inaccurate information relied on by the trial
court in determining the sentence. MCL 769.34(10); People v Kimble, 470 Mich 305, 309; 684
NW2d 669 (2004). A party may not raise on appeal an issue challenging the scoring of the
guidelines or the accuracy of information relied upon in determining a sentence that is within the
appropriate guidelines range unless the party has raised the issue at sentencing, in a proper
motion for resentencing, or in a proper motion to remand. MCL 769.34(10); Kimble, 470 Mich
at 309.
Defendant is not entitled to resentencing. It is undisputed that defendant’s minimum term
is within the sentencing guidelines. Defendant does not challenge the scoring of the guidelines
and does not contend that the trial court relied on inaccurate information when imposing
sentence. Under these circumstances, we must affirm defendant’s sentence. MCL 769.34(10);
People v Babcock, 469 Mich 247, 261; 666 NW2d 231 (2003).
During the resentencing hearing, the trial court indicated that the provision requiring
defendant to reimburse the county for the cost of his appointed counsel would be stricken, as
ordered by this Court.3 The trial court noted that People v Dunbar, 264 Mich App 240; 690
NW2d 476 (2004), in which this Court held that a trial court must ascertain a defendant’s ability
1
This Court also vacated that portion of defendant’s judgment of sentence requiring defendant to
reimburse the county for attorney fees, and remanded for reconsideration in light of defendant’s
ability to pay. Chandler, unpub op at 1.
2
The amended judgment of sentence indicates that defendant was granted credit for 730 days
served on his other sentences.
3
Chandler, unpub op at 5.
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to pay before imposing a fee for appointed counsel, had been reversed,4 but still struck the
provision requiring defendant to pay a fee for his court-appointed counsel. Defendant notes that
although the trial court struck the provision, the provision still appears on the amended judgment
of sentence. Defendant maintains that he is entitled to have the amended judgment of sentence
corrected to properly reflect the trial court’s ruling. We agree.
MCL 769.1k(b)(iii) authorizes, but does not require, a trial court to order a defendant to
repay the costs of providing a court-appointed attorney. During the initial sentencing hearing in
this case, the trial court ordered defendant to repay those costs, but did not determine defendant’s
ability to do so, as required by Dunbar, the law in effect at the time. This Court vacated that
portion of the judgment of sentence, and remanded for reconsideration of defendant’s ability to
pay. Chandler, unpub op at 5. On remand, the trial court recognized that Dunbar had been
reversed, and that that fact might support an argument for retaining the reimbursement
requirement, but nevertheless omitted the reimbursement requirement.
Contrary to plaintiff’s argument, the law of the case doctrine or an exception thereto is
inapplicable in this case. On remand, the trial court acknowledged that the law had changed and
that an argument could be made that the reimbursement requirement could be included in the
judgment of sentence, but exercised its discretion and omitted the requirement. However, for
reasons that are not clear, the requirement was included in the amended judgment of sentence.
Defendant is entitled to have the judgment corrected to omit this requirement.
We affirm defendant’s sentence for possession with intent to deliver cocaine, but remand
for the ministerial correction of the judgment of sentence to omit the requirement that defendant
reimburse the county for the cost of his appointed counsel. We do not retain jurisdiction.
/s/ Douglas B. Shapiro
/s/ Peter D. O’Connell
/s/ Donald S. Owens
4
In People v Jackson, 483 Mich 271; 769 NW2d 630 (2009), our Supreme Court reversed
Dunbar, and held that an assessment of a defendant’s ability to pay a fee for court-appointed
counsel must be done only once the payment requirement is enforced. Id. at 275.
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