People of Michigan v. Edward Mark Kowalski
330431
| Mich. Ct. App. | Mar 21, 2017Background
- On Feb 23, 2015, Edward Kowalski, while backing up in a pharmacy parking lot, struck a pedestrian who suffered serious head injuries and seizures; victim survived but had lasting pain and impairments.
- Kowalski was convicted by jury of operating while license suspended causing serious injury (MCL 257.904(5)).
- At sentencing, the probation report scored PRV 5 at 10 points; prosecutor argued (and court accepted) that at least five misdemeanors increased PRV 5 to 15 points; PRV 2 was also considered.
- Prosecutor argued OV 17 should be scored at 10 (wanton/reckless disregard); the trial court scored OV 17 at 10 based on judge-found facts (defendant backed up without looking).
- Defendant moved for resentencing after Lockridge and sought a Ginther hearing claiming ineffective assistance for failing to object to PRV and OV scoring; he later withdrew the resentencing/Ginther motion at the hearing and appealed.
- The Court of Appeals affirmed the conviction and sentence (46 months to 20 years, habitual-offender fourth), rejecting challenges to PRV scoring, OV 17 scoring under Lockridge, and ineffective assistance claims.
Issues
| Issue | Plaintiff's Argument (People) | Defendant's Argument (Kowalski) | Held |
|---|---|---|---|
| PRV 2 & PRV 5 scoring (prior convictions) | Prior convictions fall within 10-year lookback and may be counted; PSIR supports scoring | Many prior convictions were over 10 years or lacked counsel; some records show unknown counsel status, so they should be excluded | No plain error: defendant failed to establish prima facie violation of right to counsel; MCL 777.50 10-year lookback excluded none of the priors, so scoring was proper |
| OV 17 scoring (degree of negligence; Lockridge) | OV 17 correctly scored at 10 based on facts showing wanton/reckless conduct (backing up without looking) | Scoring OV 17 at 10 relied on judicial fact-finding in violation of Lockridge/Sixth Amendment | No reversible error: sentencing occurred after Lockridge when guidelines were advisory, so judge-found facts did not unconstitutionally increase a mandatory minimum; plain-error review fails |
| Ineffective assistance for failing to object to PRVs and OV | Scoring was proper; objections would be futile | Counsel ineffective for not objecting to PRVs and OV 17 | No relief: because scoring was correct, counsel was not ineffective; courts need not find meritless objections |
| Request for Ginther hearing/remand | No basis because no sentencing error shown | Kowalski sought remand for Ginther hearing to develop ineffective-assistance record | Denied: no resentencing required, so no remand or Ginther hearing warranted |
Key Cases Cited
- People v Lockridge, 498 Mich. 358 (2015) (holding Michigan guidelines mandatory-minimum scheme unconstitutional; made guidelines advisory)
- People v Kimble, 470 Mich. 305 (2004) (plain-error review for unpreserved sentencing claims)
- People v Carines, 460 Mich. 750 (1999) (plain-error test and standards for reversal)
- People v Carpentier, 446 Mich. 19 (1994) (prima facie burden to show prior conviction obtained without counsel)
- People v Hannan, 200 Mich. App. 123 (1993) (conviction obtained in violation of right to counsel cannot be used to enhance sentence)
- People v Justice, 216 Mich. App. 633 (1996) (right to counsel applies in misdemeanors when incarceration is actual penalty)
- People v Schrauben, 314 Mich. App. 181 (2016) (Lockridge did not alter MCL 769.34(10) requirement to affirm in-range sentences absent scoring error)