People of Michigan v. Patrick Alan Sourander ( 2022 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
January 27, 2022
Plaintiff-Appellee,
v No. 353707
Ogemaw Circuit Court
PATRICK ALAN SOURANDER, LC No. 14-004450-FC
Defendant-Appellant.
Before: GADOLA, P.J., and MARKEY and MURRAY, JJ.
PER CURIAM.
Defendant appeals as of right the order of the trial court entered on remand convicting him
of involuntary manslaughter, MCL 750.321, and possession of a firearm during the commission
of a felony (felony-firearm), MCL 750.227b(1). Defendant was sentenced, as a fourth-offense
habitual offender, MCL 769.12, to 25 to 50 years in prison for the involuntary manslaughter
conviction and a consecutive sentence of two years for the felony-firearm conviction. Defendant
also was convicted of felon in possession of a firearm, MCL 750.224f, felonious assault, MCL
750.82, and an additional count of felony-firearm, MCL 750.227b(1). Defendant was sentenced
to serve concurrent prison terms of 76 months to 30 years for the felon in possession of a firearm
conviction, 48 months to 15 years for the felonious assault conviction, and a consecutive two-year
sentence for the additional felony-firearm conviction. We affirm.
I. FACTS
On November 14, 2014, defendant, Patrick Alan Sourander, shot and killed Brett Ritter
outside a bar in West Branch. According to defendant, he saw Brett’s brother, Justin Ritter, hitting
a woman and attempted to intervene. Brett then entered the fray and pushed defendant, who drew
a gun and pointed it into the air while moving away. When Brett tried to grab the gun, it
accidentally discharged, killing Brett. In contrast to this version of events, the prosecution
presented evidence that defendant pointed the gun at Justin; when Brett intervened and walked
defendant backward, defendant raised the gun and shot Brett in the chest, killing him.
Defendant was convicted by a jury of second-degree murder, MCL 750.317, felon in
possession of a firearm, MCL 750.224f, felonious assault, MCL 750.82, and two counts of felony-
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firearm, MCL 750.227b(1). Defendant was sentenced to serve concurrent prison terms of 36 to 50
years for the second-degree murder conviction, 76 months to 30 years for the felon in possession
of a firearm conviction, and 48 months to 15 years for the felonious assault conviction. He was
sentenced to two two-year sentences for the felony-firearm convictions, to be served consecutively
to the murder and assault convictions.
Defendant appealed to this Court raising numerous challenges to his convictions, including
that the trial court erred by refusing defense counsel’s request to instruct the jury regarding
involuntary manslaughter. This Court affirmed in part, but reversed defendant’s conviction of
second-degree murder and the corresponding felony-firearm conviction. People v Sourander,
unpublished per curiam opinion of the Court of Appeals, issued January 25, 2018 (Docket
No. 332091). This Court held that because defendant’s testimony regarding the incident presented
a theory of an unintentional shooting during a struggle, the trial court erred by declining to instruct
the jury regarding common-law involuntary manslaughter as requested by the defense. This Court
explained that because common-law involuntary manslaughter is a lesser included offense of
murder, a trial court is required to instruct the jury on common-law involuntary manslaughter if
requested by the defendant and if the instruction is supported by a rational view of the evidence.
Id. at 12.
This Court remanded the case to the trial court for, at the prosecutor’s election, either retrial
on the second-degree murder and corresponding felony-firearm counts or entry of convictions of
involuntary manslaughter, MCL 750.321, and felony-firearm, in lieu of the second-degree murder
and the corresponding felony-firearm convictions. Sourander, unpub op at 13. On remand, the
prosecutor elected entry of the involuntary manslaughter conviction and accompanying felony-
firearm conviction. Defendant was sentenced, as a fourth-offense habitual offender, MCL 769.12,
to 25 to 50 years for the involuntary manslaughter conviction and a consecutive sentence of two
years for felony-firearm, with the sentences for the other convictions remaining the same.
Defendant now appeals.
II. DISCUSSION
A. NOTICE OF SENTENCE ENHANCEMENT
Defendant contends that he is entitled to resentencing because he lacked actual notice that,
as a fourth-offense habitual offender, he would be subject to a 25-year mandatory minimum
sentence upon conviction for involuntary manslaughter. Whether defendant was properly
sentenced as a fourth-offense habitual offender presents a question of law that we review de novo.
See People v Head, 323 Mich App 526, 542; 917 NW2d 752 (2018).
If a prosecutor intends to seek habitual-offender sentencing enhancement under MCL
769.12, he or she must provide notice of the intent to do so. In that regard, MCL 769.13 provides,
in relevant part:
(1) In a criminal action, the prosecuting attorney may seek to enhance the sentence
of the defendant as provided under [MCL 769.10, MCL 769.11, or MCL 769.12],
by filing a written notice of his or her intent to do so within 21 days after the
defendant’s arraignment on the information charging the underlying offense or, if
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arraignment is waived, within 21 days after the filing of the information charging
the underlying offense.
(2) A notice of intent to seek an enhanced sentence filed under subsection (1) shall
list the prior conviction or convictions that will or may be relied upon for purposes
of sentence enhancement. The notice shall be filed with the court and served upon
the defendant or his or her attorney within the time provided in subsection (1). The
notice may be personally served upon the defendant or his or her attorney at the
arraignment on the information charging the underlying offense, or may be served
in the manner provided by law or court rule for service of written pleadings. The
prosecuting attorney shall file a written proof of service with the clerk of the court.
Similarly, MCR 6.112(F) provides:
A notice of intent to seek an enhanced sentence pursuant to MCL 769.13
must list the prior convictions that may be relied upon for purposes of sentence
enhancement. The notice must be filed within 21 days after the defendant’s
arraignment on the information charging the underlying offense or, if arraignment
is waived or eliminated as allowed under MR 6.113(E), within 21 days after the
filing of the information charging the underlying offense.
The purpose of the notice requirement “is to provide the accused with notice, at an early stage in
the proceedings, of the potential consequences should the accused be convicted of the underlying
offense.” Head, 323 Mich App at 543 (quotation marks and citations omitted).
In this case, defendant was charged with second-degree murder, among other charges. The
preliminary examination was held December 1, 2014, and defendant was bound over to the trial
court on five felony counts. Defendant waived arraignment, and on December 10, 2014, the
prosecutor filed a written notice of intent to seek habitual-offender sentence enhancement under
MCL 769.12(1)(a). As required by MCL 769.13(2), the notice identified the prior convictions on
which the prosecution relied, and as required by MCL 769.13(1), the notice was filed within 21
days of the arraignment or filing of the information that charged defendant with the underlying
offense. The trial court’s register of actions indicates that the proof of service of the notice and
information was filed with the trial court. The prosecutor thus complied with the statutory and
court rule notice requirements for seeking habitual-offender sentencing enhancement.
Defendant contends, however, that although the notice indicated conviction under the
habitual offender statute would result in a 25-year mandatory minimum sentence, the notice was
deficient because it did not specify that the 25-year mandatory minimum sentence applied to
conviction of lesser included offenses, such as involuntary manslaughter. We disagree. Neither
MCL 769.13 nor MCR 6.112 requires a habitual-offender notice to state that a mandatory
minimum sentence applies to a lesser-included offense, and we will not read that additional
requirement into the statute or the court rule. See Head, 323 Mich App at 546. Moreover, in this
case the notice stated that defendant was subject to a 25-year mandatory minimum sentence and
provided sufficient information from which to determine his potential sentence. We therefore
reject defendant’s claim that the notice was deficient. See id.
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B. COMMON-LAW MANSLAUGHTER
Defendant contends that the trial court erred on remand by entering a conviction of
common-law manslaughter rather than entering a conviction of statutory manslaughter, which
defendant argues would not have subjected him to a 25-year mandatory minimum sentence.
Defendant concedes that in entering a conviction for common-law manslaughter, the trial court
properly followed People v Smith, 478 Mich 64; 731 NW2d 411 (2007), but argues that an error
nonetheless exists because in Smith the Michigan Supreme Court incorrectly decided that statutory
involuntary manslaughter and common-law involuntary manslaughter are not the same offense.
We disagree that the trial court erred.
In the previous appeal in this case, this Court determined that the trial court erred by
declining to instruct the jury on common-law involuntary manslaughter because that offense is a
necessarily-included lesser offense of second-degree murder and in this case the instruction was
supported by a rational view of the evidence. This Court explained:
Binding caselaw is clear that statutory involuntary manslaughter is not a
necessarily-included lesser offense of second-degree murder because the elements
of second-degree murder do not entirely subsume the elements of statutory
involuntary manslaughter. People v Smith, 478 Mich 64, 71; 731 NW2d 411
(2007). Common-law involuntary manslaughter, however, is “an inferior offense
of murder,” and an instruction on this offense is warranted “when a rational view
of the evidence would support it.” [People v] Mendoza, 468 Mich [527] at 548[;
664 NW2d 685 (2003)]; see also Smith, 478 Mich at 73. [Sourander, unpub op at
12 (footnote omitted).]
On remand, the trial court followed this Court’s remand order and entered an order
convicting defendant of common-law involuntary manslaughter in lieu of the previous conviction
of second-degree murder. We observe that defendant does not contend that the trial court failed
to follow this Court’s remand order, but rather challenges the legal accuracy of Smith, thus
challenging the basis of this Court’s remand order. We disagree, and also observe that defendant’s
challenge is beyond the scope of the remand.
When an appellate court remands for a limited purpose following an appeal as of right in a
criminal case, a second appeal as of right, limited to the scope of the remand, lies from the decision
on remand. People v Jones, 394 Mich 434, 435-436; 231 NW2d 649 (1975). Because the scope
of the second appeal is limited by the scope of the remand, challenges on appeal are limited to
matters that arose during the remand proceedings. Id. Here, defendant does not contend that the
trial court acted contrary to the remand order, but instead challenges the legal basis of this Court’s
remand order in the prior appeal. Because this Court’s decision in the prior appeal is not part of
the trial court proceedings on remand, defendant’s challenge is outside the scope of the remand
and thus not properly before this Court.
Additionally, this Court is precluded by the doctrine of law of the case from revisiting its
earlier decision. See People v Herrera, 204 Mich App 333, 340; 514 NW2d 543 (1994) (“an
appellate court’s decision regarding a particular issue is binding on courts of equal or subordinate
jurisdiction during subsequent proceedings in the same case”). When an appellate court has
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determined a legal question and remanded the case for further proceedings, that legal question will
not be determined differently in a subsequent appeal in the same case where the facts remain
substantially the same. People v Zitka, 335 Mich App 324, 334; 966 NW2d 786 (2020).
The law of the case doctrine is not inflexible, and particularly in a criminal case may be
overlooked if necessary to avoid creating an injustice when a prior opinion was clearly erroneous.
Id. Here, however, this Court’s remand order was in accordance with our Supreme Court’s
decision in Smith.1 Our Supreme Court has explained that an offense is a lesser included offense
only if the elements of the lesser offense are subsumed within the elements of the greater offense.
Smith, 478 Mich at 70. Common-law involuntary manslaughter is a lesser included offense of
murder, People v Mendoza, 468 Mich 527, 544; 664 NW2d 685 (2003), but statutory involuntary
manslaughter is not because statutory involuntary manslaughter requires the use of a firearm,
which is not an element of second-degree murder. Smith, 478 Mich at 71. Because this Court
properly adhered to Smith, no injustice bars application of the law of the case doctrine, which
precludes revisiting this Court’s previous decision. The trial court therefore did not err on remand
by entering a conviction of common-law involuntary manslaughter.
C. OFFENSE VARIABLE (OV) 9
Defendant contends that the trial court incorrectly assessed OV 9 at 10 points after counting
victims from defendant’s multiple convictions rather than from the sentencing offense alone. We
conclude that the trial court did not err by assessing OV 9 at 10 points.
We review de novo whether a sentencing court has properly interpreted and applied a
sentencing statute. People v Hardy, 494 Mich 430, 438; 835 NW2d 340 (2013). In doing so, we
review for clear error the trial court’s factual determinations, which must be supported by a
preponderance of the evidence. People v Dickinson, 321 Mich App 1, 20-21; 909 NW2d 24
(2017). The trial court clearly errs when the reviewing court is left with the definite and firm
conviction that the trial court made a mistake. People v Chaney, 327 Mich App 586, 587 n 1; 935
NW2d 66 (2019).
When calculating sentencing guidelines, the trial court must score offense variables “giving
consideration to the sentencing offense alone, unless otherwise provided in the particular variable.”
People v McGraw, 484 Mich 120, 133; 771 NW2d 655 (2009). OV 9 is properly scored when
victims are placed in danger of death or physical injury. People v Fawaz, 299 Mich App 55, 62;
829 NW2d 259 (2012). A trial court properly assesses 10 points for OV 9 when “[t]here were 2
to 9 victims who were placed in danger of physical injury or death . . . .” MCL 777.39(1)(c). The
trial court must “[c]ount each person who was placed in danger of physical injury or loss of life . . .
as a victim.” MCL 777.39(2)(a). A person is a victim under OV 9 if he or she is placed in danger
of injury or loss of life by the offense, such as a person standing nearby who responds to a call for
help. People v Morson, 471 Mich 248, 262; 685 NW2d 203 (2004). “A person may be a victim
under OV 9 even if he or she did not suffer actual harm; a close proximity to a physically
1
This Court is bound to follow the decisions of our Supreme Court. People v Strickland, 293
Mich App 393, 402; 810 NW2d 660 (2011).
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threatening situation may suffice to count the person as a victim.” People v Gratsch, 299 Mich
App 604, 624; 831 NW2d 462 (2013), vacated in part on other grounds 495 Mich 876 (2013).
In this case, when assessing 10 points for OV 9 the trial court observed that it was not
permitted to aggregate multiple victims over different crimes, but stated: “In this particular case,
[defendant] was convicted of involuntary manslaughter, felonious assault[,] felon in possession of
a weapon, and felony-firearm. There were multiple victims, and it’s not aggregate to count them
in this case even though there were multiple counts. Counting victims in multiple counts is not
aggregating victims . . . .” The trial court then determined that two people counted as victims for
purposes of scoring OV 9 in this case.
In scoring OV 9 in this case, the court was required to count people placed at risk of
involuntary manslaughter alone; it was not permitted to count people placed at risk of other crimes.
See McGraw, 484 Mich at 133. The prosecution presented evidence that defendant pointed the
gun at both Brett and Justin before shooting and killing Brett. Sourander, unpub op at 1. Other
bystanders were also placed at risk when defendant pointed and fired his weapon, killing Brett.
Accordingly, at least two people were placed in danger of death or physical injury related to the
manslaughter count, and thus two people were properly counted as victims when scoring OV 9.
Although the trial court’s reasoning is not entirely clear from the record, the trial court correctly
scored OV 9 at 10 points, and we will not reverse the trial court’s decision when the trial court has
reached the correct result, even if for the wrong reason. People v Jory, 443 Mich 403, 425; 505
NW2d 228 (1993).
D. DEFENDANT’S STANDARD 4 BRIEF
In addition to the issues raised on appeal through defense counsel, defendant raises
numerous other issues in propria persona in a brief filed under Supreme Court Administrative
Order 2004-6, Standard 4. These issues are without merit.
1. REMAND PROCEDURE
Defendant contends that in his first appeal this Court should have granted him a new trial
rather than permitting the trial court on remand to enter a conviction for the lesser included offense
of involuntary manslaughter. We disagree, and also observe that defendant’s challenge is beyond
the scope of the remand. As discussed, in an appeal as of right from an order of the trial court on
remand, the scope of the second appeal is limited to matters that arose during the remand
proceedings. Jones, 394 Mich at 435-436. Here, defendant does not contend that the trial court
acted outside the scope of the remand order, but instead challenges the correctness of this Court’s
remand order in the prior appeal. Because this Court’s decision in the prior appeal is not part of
the trial court proceedings on remand, defendant’s challenge is outside the scope of the remand
and thus not properly before this Court.
As also discussed, the law of the case doctrine precludes this Court from revisiting its
earlier decision when, as here, no injustice is created by its application. See Zitka, 335 Mich App
at 334. Having found defendant guilty of second-degree murder, the jury necessarily found
defendant guilty of each element of the lesser included offense, rendering a new trial unnecessary.
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See People v Bearss, 463 Mich 623, 631; 625 NW2d 10 (2001) (“a jury’s verdict regarding a
necessarily included lesser offense always is encompassed in the verdict on the greater offense.”)
2. CRUEL AND/OR UNUSUAL PUNISHMENT
Defendant contends that the 25-year mandatory minimum sentence imposed under the
habitual offender statute, MCL 769.12, is cruel and/or unusual punishment under the United States
and Michigan Constitutions. We review de novo the constitutional challenge that a sentence is
cruel and/or unusual. People v Burkett, ___ Mich App ___, ___; ___NW2d ___ (2021) (Docket
No. 351882); slip op at 2.
The United States Constitution prohibits subjecting a defendant to cruel and unusual
punishment, US Const, Am VIII, while the Michigan Constitution prohibits subjecting a person to
cruel or unusual punishment. Const 1963, art 1, § 6. The Michigan Constitution thus provides
broader sentencing protection than the federal constitution; if a sentence is constitutional under the
Michigan Constitution, it is also constitutional under the federal constitution. Burkett, ___ Mich
App at ___; slip op at 3. Statutes are presumed to be constitutional, People v Benton, 294 Mich
App 191, 203; 817 NW2d 599 (2011), and when the Legislature provides a mandatory minimum
sentence, the sentence is presumed to be proportionate. Burkett, ___ Mich App at ___; slip op
at 3. This Court previously has held that habitual offender statutes “are constitutional and the
sentences under them are not cruel and unusual, because the state has a right to protect itself from
individuals who continue to engage in criminal activities.” Id. at slip op 2, quoting People v Curry,
142 Mich App 724, 732; 371 NW2d 854 (1985). Here, defendant has not put forth any valid basis
to suggest that the trial court erred by applying the presumptively constitutional fourth-offense
habitual offender statute when sentencing defendant. We therefore find no error.
3. RULE OF LENITY
Defendant contends that the Legislature could not have intended that the sentence for
common-law involuntary manslaughter be harsher than that of statutory involuntary manslaughter
upon application of the habitual offender statute, MCL 769.12. Defendant argues that the “rule of
lenity” dictates that his sentence should be mitigated because the statutes are inconsistent. We
disagree.
Under MCL 769.12(1)(a), if a person has been convicted of three or more felonies, and
commits a subsequent felony that “is a serious crime or a conspiracy to commit a serious crime,”
then “the court shall sentence the person to imprisonment for not less than 25 years.” The term
“serious crime” means an offense against a person in violation of a specified list of statutes. See
MCL 769.12(6)(c). Common-law manslaughter is codified under MCL 750.321, see Smith, 478
Mich at 67-68, and is a serious crime under MCL 769.12(6)(c). Statutory manslaughter is codified
under MCL 750.329, see Smith, 478 Mich at 70, and is not a serious crime for the purposes of
habitual-offender sentencing. See MCL 769.12(6)(c). Defendant argues that under the rule of
lenity the inconsistencies within the statutes should be applied in defendant’s favor to mitigate his
sentence.
The rule of lenity “stands for the proposition that penal laws are to be strictly construed,
with all doubts resolved in a defendant’s favor.” People v Arnold, ___ Mich ___, ___; ___ NW2d
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___ (2021) (Docket No. 160046); slip op at 10 n 51. Under the rule of lenity, courts “should
mitigate punishment when the punishment in a criminal statute is unclear,” People v Johnson, 302
Mich App 450, 462; 838 NW2d 889 (2013), and ambiguous penal statutes must be resolved against
imposing the harsher punishment when there is no firm indication of legislative intent. People v
Smith, 423 Mich 427, 446; 378 NW2d 384 (1985). The rule of lenity, however, applies only in
the circumstances of ambiguity or the absence of any firm indication of legislative intent. People
v Wakeford, 418 Mich 95, 113-114; 341 NW2d 68 (1983). A statutory provision is ambiguous
only if it conflicts irreconcilably with another provision or is equally susceptible to more than one
meaning. People v Gardner, 482 Mich 41, 50 n 12; 753 NW2d 78 (2008).
The habitual-offender statute, MCL 769.12, is not ambiguous; it includes common-law
manslaughter, of which defendant was convicted, within its definition of serious crimes, but does
not include statutory manslaughter. Accordingly, there is firm indication of legislative intent that
common-law involuntary manslaughter and statutory involuntary manslaughter are treated
differently under MCL 769.12. The rule of lenity therefore does not apply in this case. See
Wakeford, 418 Mich at 113-114.
4. DEFENDANT’S REMAINING ARGUMENTS
Defendant raises additional alleged errors related to his original trial, including issues of
prosecutorial misconduct, improper admission of evidence, ineffective assistance of counsel, and
failure of the trial court to instruct the jury on involuntary manslaughter. Defendant’s additional
arguments are not properly before this Court because they raise challenges to events that occurred
at trial before the remand, and thus exceed the scope of the remand order. See Jones, 394 Mich at
435-436. In addition, this Court addressed many of defendant’s challenges in the prior appeal,2
and the law of the case doctrine precludes this Court from revisiting its earlier decision. See Zitka,
335 Mich App at 334.
Affirmed.
/s/ Michael F. Gadola
/s/ Jane E. Markey
/s/ Christopher M. Murray
2
In the prior appeal in this case, defendant successfully challenged the trial court’s decision to not
instruct the jury on involuntary manslaughter, resulting in this Court reversing his conviction for
second-degree murder and remanding for further proceedings. This Court rejected defendant’s
assertions of prosecutorial misconduct and ineffective assistance of counsel.
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