People of Michigan v. David Ross Ames, 333239

Background

In Nov. 2015 David Ames and co-conspirators Erika Webb and Jonathan Lewis broke into a Pittsford Road home and stole jewelry, an iPad, and a camera; some jewelry was pawned and proceeds used to buy heroin.
Webb and Lewis pleaded guilty (their plea deals required roughly 23 months’ incarceration) and testified against Ames; police found 60 pieces of jewelry in Ames’s shared residence, including items from the Pittsford home.
Ames admitted pawning jewelry he believed was stolen, sharing proceeds, and giving diamond earrings to a girlfriend; he denied planning or participating in the burglary and testified Webb and Lewis acted alone.
A jury convicted Ames of second-degree home invasion and conspiracy to commit second-degree home invasion; he was sentenced to concurrent terms of 2–15 years with a minimum of 24 months.
On appeal Ames raised prosecutorial misconduct, absence at sentencing, OV 14 scoring, consideration of dismissed/pending charges at sentencing, an alleged inaccurate guidelines range relied on at sentencing, and ineffective assistance of counsel.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Prosecutorial misconduct — burden shift/comments on lack of corroboration	Prosecution argued defendant’s theory was implausible and attacked credibility; prosecutor prefaced with defendant has no burden	Ames says rebuttal improperly shifted burden and bolstered witnesses by minimizing plea benefits	No plain error; prosecutor may attack defendant’s theory and credibility and prefaced remarks reminding jury of burden (claim denied)
Presence at sentencing — sentencing by videoconference	State: waiver valid; SIR and consent form show he consented	Ames says he wasn’t physically present so resentencing required	Waiver valid; defendant consented to electronic sentencing, so no relief
OV 14 (offender as leader) scoring	State: evidence Ames led or at least was a leader (invited Lewis, broke door, used ID to pawn)	Ames says Webb was leader and he only followed her directions so OV 14 should be 0	Scoring affirmed: record supports finding Ames was a leader in multi-offender situation (10 points)
Consideration of dismissed/pending charges at sentencing	State: PSIR presumptively accurate and defendant did not challenge contents at sentencing	Ames argues court improperly relied on facts of unproven charges	No error: court may consider PSIR facts, defendant had opportunity to challenge and did not; reliance permitted
Advisory guidelines range accuracy	State: contends judge misspoke; SIR shows correct range 12–24 months	Ames says judge relied on incorrect oral range 24–57 months, which affected his 24-month minimum	Remand required: record ambiguous whether judge misspoke or relied on incorrect 24–57 range; if incorrect range was relied upon, resentence is required

Key Cases Cited

Unger v. People, 278 Mich. App. 210 (standard for plain-error review)
Carines v. People, 460 Mich. 750 (plain-error test)
Watson v. People, 245 Mich. App. 572 (curative instruction principle)
Dobek v. People, 274 Mich. App. 58 (prosecutorial misconduct test)
Fyda v. People, 288 Mich. App. 446 (limits on commenting on defendant’s failure to present evidence)
McGhee v. People, 268 Mich. App. 600 (prosecutor may attack defense theory)
Fields v. People, 450 Mich. 94 (commenting on lack of corroboration)
Reid v. People, 233 Mich. App. 457 (attacking defendant theory and corroboration)
Howard v. People, 226 Mich. App. 528 (arguing witness credibility)
Heller v. People, 316 Mich. App. 314 (right to be present at felony sentencing)
Palmerton v. People, 200 Mich. App. 302 (valid waiver of presence at sentencing)
Carter v. People, 462 Mich. 206 (waiver extinguishes appellate review)
Schrauben v. People, 314 Mich. App. 181 (appellate review standard for guideline factual findings)
Hardy v. People, 494 Mich. 430 (de novo review of application of facts to law)
Rhodes v. People (On Remand), 305 Mich. App. 85 (definition of "leader")
Coulter v. People, 205 Mich. App. 453 (sentencing court may consider uncharged/pending offenses)
Maben v. People, 313 Mich. App. 545 (presumption of PSIR accuracy; remedy if inaccurate)
Golba v. People, 273 Mich. App. 603 (defendant may challenge PSIR facts; burden to prove by preponderance)
Lockridge v. People, 498 Mich. 358 (guidelines advisory; court must consider them)
McGraw v. People, 484 Mich. 120 (defendant entitled to accurate guideline information)
Francisco v. People, 474 Mich. 82 (sentence invalid if based on incorrect guidelines range)
Ackerman v. People, 257 Mich. App. 434 (no ineffective assistance for failing to raise futile objection)
Jones v. People, 317 Mich. App. 416 (mootness of ineffective-assistance claim when remand occurs)