PEOPLE v NORFLEET
Docket No. 328968
Court of Appeals of Michigan
Submitted October 5, 2016. Decided November 8, 2016.
317 Mich. App. 649
Leave to appeal denied 500 Mich 1009.
PEOPLE v NORFLEET
Docket No. 328968. Submitted October 5, 2016, at Grand Rapids. Decided November 8, 2016, at 9:05 a.m. Leave to appeal denied 500 Mich 1009.
Ronald K. Norfleet was convicted following a jury trial in the Grand Traverse Circuit Court of three counts of delivery of less than 50 grams of heroin,
The Court of Appeals held:
1. There was no indication on the record that a portion of an audio recording of a phone call in which defendant allegedly referred to his prior murder conviction and violent past was ever played to the jury. Because no Ginther1 hearing was held, review was limited to mistakes apparent on the record, and because no mistake on the part of trial counsel was apparent on the record, defendant was not entitled to relief on his claim of ineffective assistance of counsel.
2. Jury instructions that were somewhat deficient may nonetheless, when viewed as a whole, have sufficed to protect a defendant‘s rights when the jury would have convicted the defendant on the basis of the evidence regardless of the instruc-tional error. In this case, with regard to the charges of keeping and maintaining a drug house and keeping and maintaining a drug vehicle, while defendant was correct that the jury was not instructed on the definition of “keep or maintain” or on the requirement of continuous use, there was no error because the jury would have convicted defendant on the basis of the evidence at trial even if the jury had been more fully instructed on the intricacies of the “keep or maintain” element. While defendant alleged a lack of evidence because police did not find heroin in his home or vehicle, even if that evidence had been found and presented, it would not be direct evidence that the keeping or selling was continuous or that the keeping or selling was a substantial purpose of the home or vehicle. Several witnesses testified regarding evidence of continuous use of defendant‘s home and vehicle to keep and sell heroin and evidence that a substantial purpose of his home and vehicle was to keep and sell heroin. Therefore, defendant could not show that the alleged instructional error prejudiced him in any way because the alleged lack of evidence did not correspond to the alleged instructional omission; he would have been convicted on the basis of the evidence admitted regardless of the instructional error.
3. A person need not have actual physical possession of a controlled substance to be guilty of possessing it. Possession is a term that signifies dominion or right of control over the drug with knowledge of its presence and character. In this case, several witnesses provided corroborated testimony that defendant had control over the heroin because he was the one who directed the delivery of the heroin to its intended recipients. There was clear evidence of a sufficient nexus between defendant and the contraband for the jury to conclude that, under the totality of the circumstances, defendant had constructive possession of the heroin.
4.
5. As a rule, courts are not impressed by the recanting affidavits of witnesses who attempt to show that they perjured themselves at the trial. Defendant‘s argument that the prosecu-tion knowingly used the false testimony of his ex-girlfriend was not raised in the trial court; therefore, it was unpreserved. Moreover, the testimony of numerous other witnesses as well as physical evidence in the form of the recovered controlled-buy funds supported defendant‘s conviction.
6. Defendant was not entitled to reversal on the basis of the trial court‘s failure to suppress documents seized during a search of defendant‘s jail cell, which defendant claimed included notations concerning trial strategy that he drafted at the direction of his attorney. A hearing revealed that most of the documents had not been seized and that only a few pages had been transmitted to the prosecution. Additionally, there was no indication on the documents that they were prepared for counsel, and the prosecution agreed on the record that the seized materials would not be used at trial.
7. Appellate review of sentences imposed by the trial court must ensure that the sentences imposed comply with the principle of proportionality. The principle of proportionality requires that sentences imposed by the trial court be proportionate to the seriousness of the circumstances surrounding the offense and the offender. Discretionary sentencing decisions are subject to review by the appellate courts to ensure that the exercise of that discretion has not been abused, and each sentence is to be reviewed on its own merits. A proportionality challenge to a given sentence must be based on the individual term imposed and not on the cumulative effect of multiple sentences. The decision of a sentencing court to impose a consecutive sentence under
8. To determine whether a defendant is entitled to relief under People v Lockridge, 498 Mich 358 (2015), it is necessary to determine whether facts admitted by the defendant and facts found by the jury were sufficient to assess the minimum number of offense variable (OV) points necessary for the defendant‘s score to fall in the cell of the sentencing grid under which he or she was sentenced. If the facts that the defendant admitted and the facts found by the jury were insufficient to assess the minimum number of OV points necessary for the defendant‘s score to fall in the cell of the sentencing grid under which he or she was sentenced, then the defendant is entitled to have the case remanded to the trial court to determine whether that court would have imposed a materially different sentence but for the constitutional error. OV 12,
9. The Presentence Investigation Report (PSIR) is presumed to be accurate unless the defendant effectively challenges the accuracy of the factual information. The prosecution has the burden to prove the challenged fact by a preponderance of the evidence upon an effective challenge by a defendant. In this case, defendant‘s PSIR stated that defendant was affiliated with a street gang, and defendant had asked at sentencing that the gang reference be struck from the PSIR. Even assuming the truth of the prosecution‘s assertions, the assertions at most established that defendant was, at one time, affiliated with the gang; those assertions did not establish that defendant was affiliated with the gang at the time of the alleged crimes or thereafter. The trial court abused its discretion by holding that the prosecution met its burden to prove the challenged statement in the PSIR. On remand, the trial court was directed to remove those statements in the PSIR unless a preponderance of the evidence supported their accuracy.
Affirmed in part; case remanded for further proceedings; jurisdiction retained.
SENTENCES - DISCRETIONARY CONSECUTIVE SENTENCES - APPELLATE REVIEW - STANDARD OF REVIEW.
When a statute grants a trial court discretion to impose a consecutive sentence, the trial court‘s decision to do so is reviewed for an abuse of discretion, i.e., whether the trial court‘s decision was outside the range of reasonable and principled outcomes; trial courts imposing one or more discretionary consecutive sentences are required to articulate on the record the reasons for each consecutive sentence imposed.
Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, Robert Cooney, Prosecuting
Attorney, and Christopher J. Forsyth, Assistant Prosecuting Attorney, for the people.
Ronald K. Norfleet, in propria persona, and Laurel K. Young for defendant.
Before: SHAPIRO, P.J., and HOEKSTRA and SERVITTO, JJ.
This case presents an issue of first impression regarding appellate review of a trial court‘s decision to impose consecutive sentences when imposition of consecutive sentences was not mandatory. We hold that when a statute grants a trial court discretion to impose a consecutive sentence, the trial court‘s decision to do so is reviewed for an abuse of discretion, i.e., whether the trial court‘s decision was outside the range of reasonable and principled outcomes. See People v Babcock, 469 Mich 247, 269; 666 NW2d 231 (2003). Accordingly, trial courts imposing one or more discretionary consecutive sentences are required to articulate on the record the reasons for each consecutive sentence imposed.
I. FACTUAL AND PROCEDURAL BACKGROUND
Defendant was charged with and convicted of seven drug-related offenses. The charges were based on activities conducted by defendant in concert with two other individuals, Bryan and Alysha Nerg, and several of the sales involved Angela Bembeneck. Officers observed Alysha delivering what they believed to be heroin to Bembeneck on February 13, 2015. Bembeneck and Alysha both testified at trial that Bembeneck had ordered the heroin by calling defendant, who in turn called Alysha and told her to make the delivery. Officers conducted a traffic stop on Bembeneck shortly after the suspected exchange.3 Bembeneck consented to a search and admitted to the officer who pulled her over that she had heroin in her possession. Bembeneck then agreed to serve as a confidential informant and, on police direction, called defendant to order more heroin. Alysha testified that defendant called her to have her deliver more heroin to Bembeneck. Bembeneck made the purchase with “controlled buy funds” provided by the police and received heroin from Alysha in exchange for those funds. In addition to these two exchanges, Bryan testified that, on the same date, he delivered cash to defendant, who was in his Jeep, in exchange for heroin.
Following the controlled buy, search warrants were executed at both defendant‘s residence and the motel where Bryan and Alysha Nerg were residing. Heroin was found in the Nergs’ motel room, but no heroin was found at defendant‘s residence or in his Jeep. Police testified that a search of defendant‘s residence revealed large amounts of cash, including the “controlled buy funds” that
Defendant‘s ex-girlfriend, Desseray Richey, testified that, after learning that officers had searched defendant‘s home, she went there and took what she “suspected could have been drugs” out of the kitchen and flushed them down the toilet. Richey also testified that she had previously picked up cash and made deliveries for defendant, including deliveries to the Nergs. Richey testified that defendant told her the deliveries were “protein powder,” which he claimed to sell as part of his business as a personal trainer.4
Defendant was charged with three counts of delivery of less than 50 grams of heroin,
Defendant was convicted on all charges and was sentenced as a fourth-offense habitual offender,
one term for each of the three counts of delivery of less than 50 grams of heroin, one term for the count of possession with intent to deliver less than 50 grams of heroin and one term for conspiracy to deliver less than 50 grams of heroin. He was also sentenced to two terms of 46 months to 15 years’ imprisonment: one term for maintaining a drug house, and one term for maintaining a drug vehicle. The trial court directed that each of the sentences for the first five counts be served consecutively. Therefore, defendant will first become eligible for parole consideration after 55 years.
II. DEFENDANT‘S CHALLENGES TO HIS CONVICTIONS
Defendant raises several issues that he claims merit reversal of some or all of his convictions. The first three arguments were raised in the brief submitted by appellate counsel, and the final three were raised in defendant‘s Standard 4 brief.5 Defendant is not entitled to relief on any of these grounds.
First, defendant argues that his trial counsel was ineffective for failing to move for a mistrial when the jury heard an audio recording of a phone call in which defendant allegedly referred to his prior murder
contention the record clearly rebuts. The record shows that differing portions of this phone call were played to the jury, not that the tape was played in its entirety. Additionally, because no Ginther6 hearing was held, “review is limited to mistakes apparent on the record.” People v Hurst, 205 Mich App 634, 641; 517 NW2d 858 (1994). Because we find no mistake on the part of trial counsel apparent on the record, we conclude that defendant is not entitled to relief on his claim of ineffective assistance of counsel.
Second, defendant argues that the trial court erred in instructing the jury on the elements of the charges for keeping and maintaining a drug house and keeping and maintaining a drug vehicle. Specifically, defendant argues that the jury was not instructed on the Supreme Court‘s construction of the phrase “keep or maintain” as requiring controlled-substance use to be both continuous and a substantial purpose for which the house or vehicle was used. People v Thompson, 477 Mich 146, 156-157; 730 NW2d 708 (2007). However, the Supreme Court has held that “jury instructions that were somewhat deficient may nonetheless, when viewed as a whole, have sufficed to protect a defendant‘s rights when the jury would have convicted the defendant on the basis of the evidence regardless of the instructional error.” People v Kowalski, 489 Mich 488, 506; 803 NW2d 200 (2011).
While defendant is correct that the jury was not instructed on the definition of “keep or maintain” or on the requirement of continuous use, there is no error because the jury would have convicted defendant on the basis of the evidence at trial even if the jury had been more fully instructed on the intricacies of the “keep or maintain” element. Defendant relies on the
fact that the police found no heroin in either his home or his Jeep. However, had such evidence been found and presented, it would not be direct evidence that the keeping or selling was continuous or that the keeping or selling was a substantial purpose of the home or Jeep. The evidence of continuous use of his home and Jeep to keep and sell heroin and the evidence that a substantial purpose of his home and Jeep was to keep and sell heroin was the testimony of various witnesses, which indicated that the Jeep was used to make heroin deliveries and that the home was used to store both the heroin and the proceeds of the heroin‘s sale. Therefore, defendant cannot show that the alleged instructional error prejudiced him in any way because the alleged lack of evidence does not correspond to the alleged instructional omission; he would have been convicted on the basis of the evidence admitted regardless of the instructional error. See Kowalski, 489 Mich at 504-506.
Third, defendant argues that there was insufficient evidence to support his conviction of possession with the intent to deliver less than 50 grams of heroin. Defendant argues that there was insufficient evidence to convict him of possession with intent to deliver because there was no evidence that he possessed the heroin recovered in the Nergs’ motel room. However,
over it at the time because he was the one who directed them to deliver the heroin to its intended recipients. This testimony was corroborated by Bembeneck, who testified that defendant was the one whom she would call to request the heroin and that Bryan and Alysha simply delivered it. There was clear evidence of a sufficient nexus between defendant and the contraband for the jury to conclude that, under the totality of the circumstances, defendant had constructive possession of the heroin.
Fourth, defendant argues that the prosecution did not timely serve defendant with notice of its intent to enhance defendant‘s sentence. The felony information in this case, dated March 24, 2015, contains a Fourth Habitual Offender Notice listing the prior convictions that would be relied on for purposes of sentence enhancement. The arraignment took place on March 26, 2015.
Fifth, defendant argues that the prosecution knowingly used the testimony of his ex-girlfriend, Richey, which he alleges was false and perjured. Defendant did not raise this issue in the trial court; therefore, it is unpreserved.7 Attached to defendant‘s Standard 4 brief is an affidavit of Richey signed several days after trial in which she attests that she lied in her trial testimony and that she was told to stress certain alleged false-
hoods, including that defendant told her he sold heroin and that she flushed drugs down the toilet. “As a rule the court is not impressed by the recanting affidavits of witnesses who attempt to show that they perjured themselves at the trial.” People v Smallwood, 306 Mich 49, 55; 10 NW2d 303 (1943). Moreover, Richey‘s trial testimony did not stand alone; defendant‘s guilt was demonstrated by the testimony of numerous other witnesses, including the Nergs, Bembeneck, and police officers. Additionally, physical evidence in the form of the recovered controlled-buy funds supported defendant‘s conviction.
Sixth, defendant argues that he is entitled to reversal because the trial court failed to suppress documents seized during a search of his jail cell, which he claims included notations concerning trial strategy that he drafted at the direction of his attorney. We disagree. A hearing revealed that most of the documents with which defendant was concerned had not been seized and that only a few pages were transmitted to the prosecution. In addition, there is no indication on the documents that they were prepared for counsel, and there is no testimony or affidavit so asserting. Also, the prosecutor agreed
Defendant‘s convictions are affirmed.
III. DEFENDANT‘S SENTENCING CHALLENGES
Defendant raises several issues regarding his sentencing. First, defendant argues that the trial court abused its discretion by ordering consecutive sentences for his conviction of conspiracy to deliver heroin, his conviction of possession with intent to deliver heroin, and his three convictions of delivery of heroin. Second, in his Standard 4 brief, defendant argues that his sentence violates his Sixth Amendment rights as articulated by the Supreme Court‘s decision in People v Lockridge, 498 Mich 358, 388-392; 870 NW2d 502 (2015). Finally, defendant argues that the trial court abused its discretion when it refused to strike from defendant‘s Presentence Investigation Report (PSIR) statements asserting that defendant is affiliated with a major Detroit street gang.
A. THE IMPOSITION OF CONSECUTIVE SENTENCES
In People v Milbourn, 435 Mich 630, 635-636; 461 NW2d 1 (1990),9 the Supreme Court held that appellate review of sentences imposed by the trial court must ensure that the sentences imposed comply with the principle of proportionality. Milbourn held that the principle of proportionality requires that “sen-
tence[s]... imposed by the trial court... be proportionate to the seriousness of the circumstances surrounding the offense and the offender.” Id. at 636. A central proposition to the holding of Milbourn was that discretionary sentencing decisions are subject to review by the appellate courts to ensure that the exercise of that discretion has not been abused. Id. at 662, 664-665.10
We recognize that each sentence is to be reviewed on its own merits. We held in People v Warner, 190 Mich App 734, 735-736; 476 NW2d 660 (1991), that a proportionality challenge to a given sentence must be based on the individual term
No case has held, however, that the decision to impose a consecutive sentence rather than a concurrent one is unreviewable. In People v Miles, 454 Mich 90, 92, 95; 559 NW2d 299 (1997), the Supreme Court rejected the defendant‘s proportionality challenge to the cumulative term resulting from a discretionary sentence and a consecutive two-year sentence for carrying a firearm during the commission of a felony (felony-firearm). However, the trial court in Miles could not and did not exercise any discretion regarding whether to impose a consecutive sentence because the Legislature has mandated that felony-firearm sentences be imposed consecutively to any other.
at issue in Miles, the decision of a sentencing court to impose a consecutive sentence under
In Babcock, 469 Mich at 269, the Supreme Court stated:
At its core, an abuse of discretion standard acknowledges that there will be circumstances in which there will be no single correct outcome; rather, there will be more than one reasonable and principled outcome.... When the trial court selects one of these principled outcomes, the trial court has not abused its discretion and, thus, it is proper for the reviewing court to defer to the trial court‘s judgment. An abuse of discretion occurs, however, when the trial court chooses an outcome falling outside this principled range of outcomes.
We find the standard for reviewing a trial court‘s decision for an abuse of discretion articulated in Babcock to be the appropriate vehicle by which to review a sentencing court‘s discretionary decision to impose consecutive sentences under
Review of a discretionary decision requires that the trial court set forth the reasons underlying its decision. See People v Broden, 428 Mich 343, 350-351; 408 NW2d 789 (1987) (holding that, in order to aid the appellate review of whether an abuse of discretion has occurred at sentencing, the trial court is required to articulate
on the record reasons for imposing a particular sentence). Further,
In the instant case, the trial court spoke only in general terms, stating that it took into account defendant‘s “background, his history, [and] the nature of the offenses involved.” Moreover, it did not speak separately regarding each consecutive sentence, each of which represents a separate exercise of discretion. Therefore, the trial court did not give particularized reasons—with reference to the specific offenses and the defendant—to impose each sentence under
B. DEFENDANT‘S LOCKRIDGE CHALLENGE
In order to determine whether defendant is entitled to relief under Lockridge, it is necessary to determine whether facts admitted by defendant and facts found by the jury were sufficient to assess the minimum number of offense variable (OV) points necessary for “defendant‘s score to fall in the cell of the sentencing grid under which he... was sentenced.” Lockridge, 498 Mich at 394. If the facts defendant admitted and the facts found by the jury “were insufficient to assess the minimum number of OV points necessary for the defendant‘s score to fall in the cell of the sentencing grid under which he or she was sentenced,” then defendant is entitled to have the case “remanded to the trial court to determine whether that court would have imposed a materially different sentence but for the constitutional error.” Id. at 395, 397.
Defendant‘s sentencing information report shows that he received a total of 50 OV points, placing him in
OV Level V. Because 50 points is the minimum number of points in OV Level V,
The assignment of 10 points for OV 12 was supported by the testimony of Bryan Nerg, who stated that, on the evening of February 12, 2015, he received about 20 grams of heroin from defendant and that he packaged this heroin and sold it to approximately 10 to 12 people on February 13, 2015. This testimony was corroborated by police officers who testified to seeing Bryan‘s van coming and going from his motel room throughout the day. While this evidence was sufficient to support the trial court‘s scoring on OV 12,13 because the variable specifically states that it
cannot be scored for criminal acts for which there was a conviction,
C. REFERENCES TO GANG AFFILIATION IN THE PSIR
Defendant‘s PSIR states that defendant “is affiliated with the major street gang in Detroit, MI called Young Boys, Inc.” At sentencing, defendant asked that this gang reference be stricken from the PSIR. The trial court found the reference to be accurate, relying solely on the prosecution‘s assertions that a PSIR from 1987 referred to an encounter defendant had with the De-
troit police in which defendant was found with heroin in gang packaging, that Richey had stated during an interview with police that defendant told her he had been an enforcer for this Detroit gang while showing her the block that he had previously controlled, and that a cell phone
The PSIR “is presumed to be accurate unless the defendant effectively challenges the accuracy of the factual information.” People v Grant, 455 Mich 221, 233-234; 565 NW2d 389 (1997). The prosecution “has the burden to prove the [challenged] fact by a preponderance of the evidence” upon an effective challenge by a defendant. People v Waclawski, 286 Mich App 634, 690; 780 NW2d 321 (2009). We conclude that the trial court abused its discretion by holding that the prosecution met its burden to prove the challenged statement in the PSIR. No evidence was submitted to support the allegations. Even assuming the truth of the prosecution‘s assertions,15 the assertions at most established that defendant was, at one time, affiliated with this gang. The assertions do not establish that defendant was affiliated with the gang at the time of the alleged crimes or thereafter, as the PSIR suggests. Accepting the conclusion in the PSIR solely on the basis of the prosecution‘s statements suggesting that defendant had past gang affiliations was an abuse of discretion. On remand, we direct the trial court to remove these statements in the PSIR unless a preponderance of the evidence supports their accuracy.
IV. CONCLUSION
We remand this case to the trial court for a Crosby hearing to determine whether the trial court would have imposed a materially different sentence had the court not been bound by the sentencing guidelines. If the trial court concludes that it would not have imposed a materially different sentence, then we direct the trial court to articulate its rationale for imposing each of the five consecutive sentences that it ordered in this case. However, if the trial court concludes that it would have imposed a materially different sentence had it not been bound by the guidelines, then it should resentence defendant. If the trial court does resentence defendant, it must provide a rationale for each sentence that it, in its discretion, determines should be served consecutively. We also direct the trial court to remove allegations in defendant‘s PSIR that are not supported by a preponderance of the evidence. In all other respects, we affirm.
Affirmed in part and remanded for further proceedings consistent with this opinion. We retain jurisdiction.
SHAPIRO, P.J., and HOEKSTRA and SERVITTO, JJ., concurred.