People v. Duke

1

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. LEVON FORREST DUKE, Defendant-Appellant.

No. 361705

Court of Appeals of Michigan

December 21, 2023

UNPUBLISHED

Newaygo Circuit Court LC No. 2020-012602-FH

Before: James Robert Redford, P.J., and Douglas B. Shapiro and Christopher P. Yates, JJ.

PER CURIAM.

Defendant was convicted after a jury trial of possession of methamphetamine, MCL 333.7403(2)(b)(i), second or subsequent offense, MCL 333.7413(2)(a), operating a motor vehicle without insurance, MCL 500.3102, and operating a motor vehicle with a suspended license, second offense, MCL 257.904(1)(c). Defendant was sentenced, as a second-offense drug offender, MCL 333.7413(1), to 36 months' to 20 years' imprisonment for the possession of methamphetamine conviction.^[1] On appeal, defendant challenges only his sentence. For the reasons stated in this opinion, we affirm.

I. BACKGROUND

The convictions in this case arose from an October 2020 traffic stop initiated because defendant's vehicle had a "completely smashed front windshield," no registration plate, and a broken passenger-side brake light. When the Newaygo County Sheriff's deputy who initiated the stop approached the vehicle, defendant, who was driving told the deputy that he did not have insurance for the vehicle and that his license was suspended. The deputy arrested defendant and impounded the vehicle. During the inventory search of the vehicle, to which defendant consented, the deputy found partially-used syringes that still contained liquid. The syringes were sent to the Michigan State Police forensic lab, where they tested positive for methamphetamine. At trial, the defense argued that defendant did not know the syringes contained methamphetamine. The jury found defendant guilty of the charges described above.

While on bond before trial, defendant was charged with committing several other crimes. In March 2021, defendant was charged with possession of methamphetamine, second or subsequent offense, and carrying a concealed weapon (CCW), MCL 750.227 (LC No. 21-012724-FH). In July 2021, defendant was arrested and charged for unlawfully driving away an automobile (UDAA), MCL 750.414, and use of methamphetamine, MCL 333.7404(2)(a) (LC No. 21-012804-FH). The charges resulted in defendant's bond being revoked in the instant case. These two lower court cases were resolved by a plea agreement providing for a 42-month cap on the minimum sentence.^[2]

On May 10, 2022, defendant was sentenced on the three separate lower court cases. The sentencing guidelines range for the possession of methamphetamine convictions was calculated at 10 to 23 months, with the possibility of being doubled to 20 to 46 months under MCL 333.7413(1). In requesting a sentence below the guidelines range, defense counsel argued that "[t]his is basically all stemming from my client's drug addiction issues." Defendant informed the trial court that he had been incarcerated for over a year and had not been using drugs.

In sentencing defendant in the instant case, the trial court stated that it was exercising its discretion to "double the advisory guidelines" and maximum penalty. The trial court sentenced defendant within the new-advisory guidelines to a minimum sentence of 36 months and a maximum sentence of 20 years. In LC No. 21-012724-FH, the trial court also exercised its discretion to double the advisory sentencing guidelines and maximum penalty, and sentenced defendant to 42 months' to 20 years' imprisonment on the possession of methamphetamine conviction. For the CCW conviction, the trial court sentenced defendant to 34 months' to 10 years' imprisonment. In LC No. 21-012804-FH, the trial court sentenced defendant to 34 months' to 10 years' imprisonment for the UDAA conviction. All sentences were to be served concurrently.

II. ANALYSIS

A. EFFECTIVE ASSISTANCE OF COUNSEL

Defendant first argues that he was denied the effective assistance of counsel at sentencing because his counsel could have more effectively argued that defendant's drug addiction was a mitigating factor. We disagree.^[3]

Both the United States and Michigan Constitutions guarantee a defendant the right to effective assistance of counsel. U.S. Const, Am VI; Const 1963, art 1, § 20. "A criminal defendant is entitled to effective assistance of counsel at sentencing." People v Newton (After Remand), 179 Mich.App. 484, 493; 446 N.W.2d 487 (1989). To prevail on a claim of ineffective assistance of counsel, a defendant must satisfy the two-part test of Strickland v Washington, 466 U.S. 668; 104 S.Ct. 2052; 80 L.Ed.2d 674 (1984). First, a defendant must show that his counsel's performance fell below an objective standard of reasonableness under the prevailing professional norms. Id. at 687688. Second, a defendant must show that he was prejudiced by counsel's deficient performance. Id. at 687. Prejudice is established when there is "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." People v Randolph, 502 Mich. 1, 9; 917 N.W.2d 249 (2018) (quotation marks and citation omitted). "The defendant has the burden of establishing the factual predicate of his ineffective assistance claim." People v Douglas, 496 Mich. 557, 592; 852 N.W.2d 587 (2014).

Defendant offers several examples of arguments and evidence defense counsel should have presented at sentencing to elaborate on why defendant's drug addiction was a mitigating factor.^[4]Defendant first suggests that defense counsel failed to give proper context to defendant's criminal history by not explaining that some of his prior offenses were committed to fund his drug use. Defendant has a lengthy adult criminal history, which dates back to 2004. While some of the prior offenses were theft-related, it is speculation that these crimes were committed to fund defendant's drug use. See People v Avant, 235 Mich.App. 499, 508; 597 N.W.2d 865 (1999). Further, many of defendant's crimes were not theft-related. For example, defendant's other crimes include resisting arrest, domestic violence, and driving offenses. In any event, as noted, defense counsel argued at sentencing that "this is all basically stemming from my client's drug addiction issues." It was not professional incompetence for defense counsel to not further elaborate on that point.

Defendant next suggests that defense counsel should have presented statistics on relapse and sobriety. According to the statistics cited by defendant, after a full year of sobriety, 50% of former drug users remain sober. Defendant argues that these statistics were particularly relevant and should have been presented to the trial court given defendant's claim that he had been sober for over a year. But defendant informed the trial court of his sobriety at sentencing, and the statistics cited by defendant do not specifically pertain to individuals who obtained sobriety while incarcerated. The statistics would therefore have been of limited value to the trial court in evaluating whether defendant's claimed sobriety supported a shorter sentence. For these reasons, it was objectively reasonable for defense counsel to not present the statistics relied on by defendant.

Defendant also suggests defense counsel should have sought a shorter sentence on the basis that it would allow defendant quicker access to rehabilitative resources. Defendant cites a prison policy report and news articles regarding program unavailability and staffing shortages in the Michigan Department of Corrections (MDOC). Even assuming that it is easier to obtain rehabilitative resources while not incarcerated, in this case, defense counsel argued at sentencing that defendant was receiving rehabilitative services while incarcerated. According to defense counsel, defendant was participating in a "neurological program," which counsel described as a pilot program for treating drug addiction, although it is unclear whether this program would continue once defendant began serving his prison sentence. Regardless, on appeal, defendant does not address the treatment he was receiving, or explain how, given that treatment, defense counsel was supposed to argue that defendant was more likely to address his drug addiction issues while not incarcerated.

Finally, defendant makes repeated references to the COVID-19 pandemic and suggests it contributed to his methamphetamine addiction and related offenses. There is no basis in the record to support this conclusion, partly because defendant declined to participate in the presentence investigation interview. The instant case was defendant's first conviction of methamphetamine possession, so perhaps there is some credence to the suggestion that defendant's methamphetamine addiction arose because of pandemic-related circumstances. However, defendant's criminal history long predates the pandemic. It is therefore unlikely that the trial court would have been swayed by an argument attempting to link defendant's possession offense to the pandemic. Defense counsel is not ineffective for failing to pursue a futile argument. See People v Isrow, 339 Mich.App. 522, 532; 984 N.W.2d 528 (2021).

In sum defense counsel did call the trial court's attention to mitigating factors, including defendant's drug addiction and his participation in treatment while incarcerated in jail, and defendant has not shown that general arguments and statistics regarding drug addiction would have resulted in a shorter sentence. Accordingly, defendant has not established that defense counsel's performance at sentencing was objectively unreasonable. Further, even if defendant could show deficient performance, he has not shown that he was prejudiced by counsel's alleged errors. For the reasons already...