People of Michigan v. Brandon Ronald Dinwiddie ( 2015 )

STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
November 19, 2015
Plaintiff-Appellee,
v No. 322751
Wayne Circuit Court
BRANDON RONALD DINWIDDIE, LC No. 14-001112-FC
Defendant-Appellant.
Before: JANSEN, P.J., and MURPHY and RIORDAN, JJ.
PER CURIAM.
Defendant appeals as of right his jury trial convictions of armed robbery, MCL 750.529,
assault with intent to do great bodily harm less than murder, MCL 750.84, and possession of a
firearm during the commission of a felony (“felony-firearm”), MCL 750.227b.1 Defendant was
sentenced to 18 to 40 years’ imprisonment for the armed robbery conviction, 5 to 10 years’
imprisonment for the assault with intent to do great bodily harm less than murder conviction, and
two years’ imprisonment for the felony-firearm conviction. We affirm.
I. FACTUAL BACKGROUND
On the evening of December 5, 2013, Juan Ramirez was working at Broadway
Transmission in Detroit, where he was employed as a mechanic. Between 8:30 p.m. and 9:00
p.m., Ramirez walked out of Broadway Transmission, intending to walk to a gas station across
the street. Immediately after exiting the shop, Ramirez was approached by two armed men. One
of the men, whom Ramirez recognized as defendant,2 held a shotgun or rifle to Ramirez’s chin.
The other man, identified only as “Dejuan” at trial, held a handgun to Ramirez’s side.
Defendant told Ramirez to reenter Broadway Transmission so that they could take some
money. Ramirez attempted to dissuade defendant from robbing the business, explaining to
1
Defendant was also charged with, and acquitted of, assault with intent to commit murder, MCL
750.83.
2
Ramirez testified that he had known defendant from the neighborhood for approximately one
year.
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defendant, “Man, you don’t want to do this. I ain’t got no money. I mean, I know your people.
You don’t want to do this.” Ultimately, defendant and Dejuan relented, and Ramirez moved
away from the men. However, as Ramirez walked quickly toward the gas station across the
street, he was struck by a bullet, which shattered his right femur bone. Because his back was
turned, he was not sure if defendant or Dejuan fired the weapon.
A witness to the shooting, Jerome Tolbert, identified defendant as the shooter. Just
before the shooting, Tolbert was at the home of defendant’s father, which is located five or six
houses away from Broadway Transmission. As Tolbert was leaving, he observed defendant and
Dejuan attempting to get Ramirez back inside Broadway Transmission. Tolbert saw Ramirez
break free of the men and walk quickly toward the gas station. He then heard three gunshots, the
last of which struck Ramirez. Tolbert stated that defendant shot Ramirez with a .22-caliber rifle.
Tolbert immediately rendered aid to defendant and called 911, while defendant’s father left the
scene after picking up shell casings from the shooting.
After Ramirez was taken away in an ambulance, Tolbert returned to the home of
defendant’s father, where defendant and Dejuan were changing their clothes. When defendant’s
father came back to the residence, he instructed defendant to discard any guns that he had in the
house, but defendant replied that he did not have any guns in the home.
II. INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant first argues that defense counsel’s questioning of Quintashia Sorrel, the
mother of defendant’s child, which revealed that defendant had threatened Sorrel in the past,
constituted ineffective assistance of counsel. We disagree.
A. STANDARD OF REVIEW AND APPLICABLE LAW
Our review of defendant’s ineffective assistance of counsel claim is limited to mistakes
apparent on the record because he did not move for a new trial or Ginther3 hearing. People v
Petri, 279 Mich. App. 407, 410; 760 NW2d 882 (2008). “A claim of ineffective assistance of
counsel is a mixed question of law and fact. A trial court’s findings of fact, if any, are reviewed
for clear error, and this Court reviews the ultimate constitutional issue arising from an ineffective
assistance of counsel claim de novo.” Id., citing People v LeBlanc, 465 Mich. 575, 579; 640
NW2d 246 (2002).
In order to prove that counsel provided ineffective assistance, a defendant must
demonstrate that (1) “ ‘counsel’s representation fell below an objective standard of
reasonableness,’ ” and (2) defendant was prejudiced, i.e., “that ‘there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have been
different.’ ” People v Vaughn, 491 Mich. 642, 669-671; 821 NW2d 288 (2012), quoting
Strickland v Washington, 466 U.S. 668, 688, 694; 104 S. Ct. 2052; 80 L. Ed. 2d 674 (1984). “A
defendant must also show that the result that did occur was fundamentally unfair or unreliable.”
3
People v Ginther, 390 Mich. 436, 443; 212 NW2d 922 (1973).
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People v Lockett, 295 Mich. App. 165, 187; 814 NW2d 295 (2012). “Effective assistance of
counsel is presumed,” and a defendant bears a heavy burden of proving otherwise. Petri, 279
Mich. App. at 410. Likewise, a “[d]efendant must overcome a strong presumption that counsel’s
performance constituted sound trial strategy.” Id. at 411.
B. APPLICATION
At trial, the prosecution called Sorrel to testify. Sorrel stated that defendant was
supposed to visit her home on the evening of December 5, 2013, but never arrived. Defendant
eventually came to Sorrel’s home on December 7, 2013, at which time he told Sorrel that “he
had messed up” because he shot a man who attempted to rob him near his parents’ house. Sorrel
later reported her conversation with defendant to the police.
On cross-examination, defense counsel questioned Sorrel regarding the manner in which
the police contacted her concerning defendant’s involvement in the shooting. Sorrel testified that
she contacted the prosecutor’s office directly in order to tell them about her conversation with
defendant. Defense counsel then asked if Sorrell contacted the prosecutor’s office because she
thought she had information that the prosecution needed to know. Sorrel responded that she
called the prosecutor’s office because she felt threatened by defendant.
Defendant argues that this line of questioning—and the prosecutor’s subsequent
questioning on redirect examination—led the jury to infer that defendant had a propensity for
violence and, therefore, increased the likelihood of the jury finding defendant guilty of the
offenses against Ramirez. As such, defendant contends that defense counsel either purposefully
elicited this testimony or was careless in asking a question to which he did not know the answer.
We find no basis for such a conclusion in the record, and defendant identifies no evidence to
support a theory that defense counsel intended to deliberately sabotage his client.
Rather, the record shows that defense counsel attempted to impeach Sorrel by
demonstrating her bias against defendant. See People v Layher, 464 Mich. 756, 764; 631 NW2d
281 (2001) (“[E]vidence of bias is almost always relevant.” [Quotation marks and citation
omitted.]). Although this strategy prompted testimony that Sorrel felt threatened by defendant, it
also elicited testimony indicating that Sorrel’s relationship with defendant was “dysfunctional”
and “strained emotionally[] [and] mentally.” Further, defense counsel’s questioning of Sorrel
prompted her to concede that defendant was already in police custody—and, therefore, was
incapable of harming her—when she called the prosecutor’s office. Thus, while defense
counsel’s line of questioning may have elicited damaging testimony, it is clear from the record
that defense counsel still succeeded in revealing Sorrel’s bias toward defendant and discrediting
her claim that she legitimately felt threatened by defendant.
Thus, defendant has failed to rebut the “strong presumption that counsel’s performance
constituted sound trial strategy.” Petri, 279 Mich. App. at 411. Furthermore, given the
eyewitness testimony presented at trial, there is not a reasonable probability that the outcome of
the trial would have been different but for defense counsel’s alleged error. Vaughn, 491 Mich. at
669-671.
III. OFFENSE VARIABLE SCORING
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Defendant next argues that the trial court erroneously assessed 15 points for offense
variable (“OV”) 10 and 10 points for OV 14. We disagree.
A. STANDARD OF REVIEW
Defendant preserved his challenges to OV 10 and OV 14 by objecting at the sentencing
hearing. See MCL 769.34(10); People v Jackson, 487 Mich. 783, 796; 790 NW2d 340 (2010).
Accordingly,
the circuit court’s factual determinations are reviewed for clear error and must be
supported by a preponderance of the evidence. Whether the facts, as found, are
adequate to satisfy the scoring conditions prescribed by statute, i.e., the
application of the facts to the law, is a question of statutory interpretation, which
an appellate court reviews de novo. [People v Hardy, 494 Mich. 430, 438; 835
NW2d 340 (2013) (footnotes omitted).]
B. OV 10
When scoring OV 10, the trial court must examine whether the defendant engaged in the
exploitation of a vulnerable victim while committing the crime. MCL 777.40; People v Cannon,
481 Mich. 152, 157; 749 NW2d 257 (2008). MCL 777.40(1)(a) provides that the trial court shall
assess 15 points under OV 10 if it finds that “[p]redatory conduct was involved.” At the time of
sentencing, MCL 777.40(3)(a) defined “predatory conduct” as “preoffense conduct directed at a
victim for the primary purpose of victimization.”4 Stated differently, “ ‘[p]redatory conduct’
under the statute is behavior that precedes the offense, directed at a person for the primary
purpose of causing that person to suffer from an injurious action or to be deceived.” Cannon,
481 Mich. at 161.
Fifteen points is properly assessed only for “those forms of ‘preoffense conduct’ that are
commonly understood as being ‘predatory’ in nature, e.g., lying in wait and stalking, as opposed
to purely opportunistic criminal conduct or ‘preoffense conduct involving nothing more than run-
of-the-mill planning to effect a crime or subsequent escape without detection.’ ” People v
Huston, 489 Mich. 451, 462; 802 NW2d 261 (2011), quoting Cannon, 481 Mich. at 162.
Additionally, the Michigan Supreme Court has stated that “the defendant’s preoffense conduct
only has to be directed at ‘a victim,’ not any specific victim, and the victim does not have to be
inherently vulnerable. Instead, a defendant’s ‘predatory conduct,’ by that conduct alone (eo
ipso), can create or enhance a victim’s ‘vulnerability.’ ” Id. at 454. “The timing of an offense,
including watching the victim and waiting until the victim is alone before victimizing him or her,
may be evidence of predatory conduct.” People v Kosik, 303 Mich. App. 146, 160; 841 NW2d
906 (2013).
4
MCL 777.40(3)(a) was amended by 2014 PA 350, effective October 17, 2014, but the
amendment is not relevant to the instant appeal.
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Here, a preponderance of evidence supported the trial court’s finding that defendant
engaged in behavior that qualified as predatory conduct under MCL 777.40. Ramirez testified
that he was alone at work at approximately 8:30 or 9:00 p.m., which was after normal business
hours. Because defendant knew Ramirez, and defendant’s father lived only a few houses away,
it is reasonable to infer that defendant was aware that Ramirez was at the business and knew that
it was likely that he would be alone at that late hour. See People v Witherspoon, 257 Mich. App.
329, 336; 670 NW2d 434 (2003) (stating that inferences from the evidence presented at trial
supported the trial court’s assessment of 15 points for OV 10). Likewise, Ramirez testified that
the men “approached [him] right around the corner of the building” “[a]s soon as [he] came out
of the building,” which indicates that defendant was lying in wait, while armed, for Ramirez to
exit. Most significantly, Ramirez did not testify that defendant and his accomplice demanded
money or valuables that Ramirez had on his person; Ramirez testified that defendant initially
insisted that Ramirez go back inside Broadway Transmission so that they could retrieve some
money. This statement indicates that defendant engaged in preoffense conduct with the intent to
victimize Ramirez based on his connection to Broadway Transmission, which, according to the
stated beliefs of defendant and his accomplice, had money inside. See MCL 777.40(3)(a)
(stating that predatory conduct must have “the primary purpose of victimization”). Thus, by
waiting until Ramirez was alone late at night outside of Broadway Transmission, defendant was
able to exploit and enhance Ramirez’s vulnerability. See Huston, 489 Mich. at 454. Thus, the
evidence presented at trial supported an assessment of 15 points for OV 10.
C. OV 14
OV 14 is scored based on the defendant’s role in the offense. MCL 777.44. A trial court
shall assess 10 points if the defendant “was a leader in a multiple offender situation” and zero
points if the defendant was not a leader. MCL 777.44(1)(a)-(b). MCL 777.44(2)(a) instructs the
trial court to consider the entire criminal transaction when scoring OV 14. People v Apgar, 264
Mich. App. 321, 330; 690 NW2d 312 (2004). We previously recognized the following definitions
of “leader” and “lead” for purposes of MCL 777.44: “[A] ‘leader’ is defined in relevant part as
‘a person or thing that leads’ or ‘a guiding or directing head, as of an army or political group.’
To ‘lead’ is defined in relevant part as, in general, guiding, preceding, showing the way,
directing, or conducting.” People v Rhodes, 305 Mich. App. 85, 90; 849 NW2d 417 (2014).
Evidence indicating that a defendant acted first, provided directions, or exhibited greater
initiative may demonstrate that the defendant was a leader. See id.
A preponderance of evidence supports the trial court’s finding that defendant was the
leader of the robbery and assault against Ramirez. Ramirez testified that defendant was the
offender who placed the weapon under his chin and spoke first, demanding that Ramirez go back
inside Broadway Transmission to retrieve money. Additionally, Ramirez stated that he knew
defendant, but not the accomplice, which supports an inference that defendant was the one who
devised the plan to rob and assault Ramirez. Likewise, when Ramirez begged to be released, he
addressed defendant, not the other man, indicating that Ramirez perceived defendant to be the
leader of the offense and the individual who could stop its commission. Additionally, Tolbert
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testified that defendant was the perpetrator who fired the gunshot that struck Ramirez. Thus, the
trial court did not err in assessing 10 points for OV 14.5
IV. CONCLUSION
Defendant has failed to demonstrate that defense counsel provided ineffective assistance.
Likewise, he has failed to establish that the trial court erroneously scored the sentencing
guidelines.
Affirmed.
/s/ Kathleen Jansen
/s/ William B. Murphy
/s/ Michael J. Riordan
5
We acknowledge that defendant filed a statement of supplemental authority after filing his brief
on appeal, which states, in its entirety, “Defendant-Appellant Dinwiddie calls the Court’s
attention, relative to his Argument II in the brief on appeal, the recent case of People v
Lockridge, ___ Mich ___; ___ NW2d ___ (2015).” In Lockridge, the Michigan Supreme Court
recently held that Michigan’s sentencing guidelines are unconstitutional to the extent that they
“require judicial fact-finding beyond facts admitted by the defendant or found by the jury to
score offense variables (OVs) that mandatorily increase the floor of the guidelines minimum
sentence range . . . .” People v Lockridge, 498 Mich. 358, 364; ___ NW2d ___ (2015).
To the extent that defendant intended to raise a claim on Lockridge grounds, he was not
permitted to do so through a filing of supplemental authority. See MCR 7.212(F)(1) (stating that
a communication of “supplemental authority” “may not raise new issues”). Furthermore,
defendant has abandoned any argument that he intended to advance through the brief statement
in his supplemental authority, as he failed to provide any discussion regarding the application of
the new authority to the issues raised on appeal. See Berger v Berger, 277 Mich. App. 700, 712;
747 NW2d 336 (2008) (“A party abandons a claim when it fails to make a meaningful argument
in support of its position.”); Thompson v Thompson, 261 Mich. App. 353, 356; 683 NW2d 250
(2004) (“An appellant’s failure to properly address the merits of his assertion of error constitutes
abandonment of the issue.”). See also MCR 7.212(F)(2) (stating that supplemental authority
“may only discuss how the new authority applies to the case”). Further, a trial court is still
required to calculate and consider the sentencing guidelines when imposing a sentence,
Lockridge, 498 Mich. at 365, and Lockridge “[did] nothing to undercut the requirement that the
highest number of points possible must be assessed for all OVs, whether using judge-found facts
or not,” id. at 392 n 28.
Thus, we will not consider the effect of Lockridge in this case.
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