Defendant appeals as of right following his jury trial convictions for bank robbery, MCL 750.531, and two counts of possession of less than 25 grams of a controlled substance, MCL 333.7403(1) and MCL 333.7403(2)(a)(v). He was sentenced as an habitual offender, fourth offense, MCL 769.12, to concurrent prison terms of 10 to 40 years for the robbery conviction and 2 to 15 years for each drug conviction. We affirm.
I. BASIC FACTS
Defendant was convicted of robbing a Southfield branch of Bank of America on March 18, 2010, while dressed as a woman. He was identified as the perpetrator by both the confronted bank teller and a bank manager, and a bystander identified defendant as the person the bystander had observed fleeing from the area. The prosecution also presented three witnesses who each testified that defendant had approached them about being a getaway driver for a planned bank robbery. When defendant was arrested on March 24, 2010, the police found crack cocaine and heroin on his person. At trial, defendant conceded that he was guilty of the narcotics offenses, but denied committing the bank robbery. He presented an alibi defense through his
II. MOTION TO SUPPRESS EVIDENCE
Defendant first argues that the trial court erred by denying his motion to suppress a pair of women’s reading glasses that were seized during a search of defendant’s fiancée’s vehicle. Defendant had been a passenger in the vehicle when he was arrested. When reviewing a motion to suppress evidence, we review for clear error the trial court’s findings of fact and we review de novo its ultimate decision whether to suppress the evidence. People v Hyde,
The United States and the Michigan Constitutions both prohibit unreasonable searches and seizures. US Const, Am IV; Const 1963, art 1, § 11. The basic rule is that “searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment— subject only to a few specifically established and well-delineated exceptions.” Arizona v Gant,
In this case, defendant did not assert a property or possessory interest in the vehicle or the women’s eyeglasses that were seized. The vehicle searched belonged to defendant’s fiancée, who was also the driver. The mere fact that defendant was engaged to the owner of the vehicle did not endow him with an ownership interest in the vehicle or a reasonable expectation of privacy in it. Although defendant claims that his fiancée allowed him to use the vehicle, he did not show a continuous use of and right of access to the vehicle. Thus, defendant failed to carry his burden of demonstrating that he had a legitimate possessory or privacy interest in the vehicle. Accordingly, he lacks standing to contest the search of it and the seizure of the women’s eyeglasses from it. Therefore, the trial court did not err by denying defendant’s motion to suppress.
III. THE SCORING OF OFFENSE VARIABLES 4 AND 13
Defendant argues that he is entitled to resentencing because the trial court erroneously assessed 10 points for offense variables (OVs) 4 and 13 of the sentencing
A trial court’s scoring of the sentencing guidelines is reviewed to determine whether the court properly exercised its discretion and whether the record evidence adequately supports a particular score. People v Lechleitner,
A. OFFENSE VARIABLE 4
Ten points must be scored for OV 4 when “[s]erious psychological injury requiring professional treatment occurred to a victim[.]” MCL 777.34(l)(a). “[T]he victim’s expression of fearfulness is enough to satisfy the statute[.]” People v Davenport (After Remand),
B. OFFENSE VARIABLE 13
OV 13 considers the “continuing pattern of criminal behavior.” MCL 777.43. A score of 10 points is appropriate when “[t]he offense was part of a pattern of felonious criminal activity involving a combination of 3 or more crimes against a person or property or a violation of [MCL 333.7401(2)(a)(i) to (iii) or MCL 333.7403(2)(a)(i) to (iii)] of the public health code[.]” MCL 777.43(l)(d). Defendant argues that the trial court improperly considered a 2008 charge of bank robbery, which was dismissed, as the third offense to support the 10-point score for OV 13.
In determining the appropriate points for OV 13, “all crimes within a 5-year period. . . shall be counted regardless of whether the offense resulted in a conviction.” MCL 777.43(2)(a) (emphasis added). In this case, the presentence report indicates that, in the 2008 case, defendant was identified as the perpetrator by his parole agent and was arrested. At sentencing, the prosecutor presented the surveillance photographs from the 2008 robbery, which occurred at the same bank involved in this case. Although the 2008 case was dismissed in the district court, there was no indication
IV CRIME VICTIM’S ASSESSMENT FEE
Finally, defendant argues that that imposition of an enhanced $130 crime victim’s assessment fee violates the bar on ex post facto laws under the federal and state constitutions because the crimes were committed before the Legislature increased the fee from $60 to $130. We disagree. Because defendant failed to raise this issue below, it is unpreserved and our review is limited to plain error affecting defendant’s substantial rights. People v Cannes,
The ex post facto clauses of both the state and federal constitutions prohibit inflicting a greater punishment for a crime than that provided for when the crime was committed. People v Callon,
Const 1963, art 1, § 24(3) states that ££[t]he legislature may provide for an assessment against convicted defendants to pay for crime victims’ rights.” At the time defendant committed the instant offenses, a trial court
Defendant cites People v Slocum,
However, in People v Matthews,
[T]he assessment is not intended to be a form of restitution dependent upon the injury suffered by any individual victim. Instead, the Legislature, pursuant to the authority granted it under Const 1963, art 1, § 24(2) and (3), has provided for the assessment against certain defendants for the benefit of all victims. [Id. at 177 (emphasis added).]
Thus, while it is true that restitution is a form of punishment such that any newly authorized form of restitution may amount to an increase in the defendant’s punishment, an assessment under the CVRA is neither restitution nor punishment. Moreover, “the Ex Post Facto Clause does not apply to legislative control of remedies and modes of procedure that do not affect matters of substance.” Slocum,
Generally, “ ‘statutes are presumed to operate prospectively unless the contrary intent is clearly manifested.’ ” However, statutes that “operate in furtherance of a remedy or mode of procedure” and that “neither create new rights nor destroy, enlarge, or diminish existing rights are generally held to operate retrospectively” absent a contrary legislative intent. [People v Kolanek,491 Mich 382 , 405;817 NW2d 528 (citations omitted).
Affirmed.
Notes
Defendant does not dispute the legality of the police stop of his fiancée’s vehicle.
We denied the motion to remand for “failure to persuade the Court of the necessity of a remand at this time.” People v Earl, unpublished order of the Court of Appeals, entered February 21, 2012 (Docket No. 302945).
Thus, to the extent that prior panels of this Court treated assessments under the CVRA as restitution or punishment, those opinions are in conflict with this Court’s published authority on the issue. See People v Barnes, unpublished opinion per curiam of the Court of Appeals, issued December 7, 2010 (Docket No. 288711); People v Crocker, unpublished memorandum opinion of the Court of Appeals, issued January 13, 1998 (Docket No. 201100). Unpublished opinions have no precedential value in any event. MCR 7.215(C)(1).