People of Michigan v. Wesley Dale Mitchell ( 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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
December 15, 2022
Plaintiff-Appellee,
v No. 359563
Van Buren Circuit Court
WESLEY DALE MITCHELL, LC No. 2019-021991-LH
Defendant-Appellant.
Before: GLEICHER, C.J., and MARKEY and RICK, JJ.
PER CURIAM.
Defendant appeals by leave granted the trial court’s judgment of sentence on a probation
violation sentencing hearing. At his original sentencing for one count of methamphetamine
possession, MCL 333.7403(2)(b)(i), defendant received a sentence of six months in jail, with credit
for 91 days previously served. Defendant was also placed on probation for two years, subject to
conditions including in person reporting, random drug testing, and payment of court ordered costs
and fees. After his placement into the Swift and Sure Sanctions Probation Program (SSSPP)1 and
following a series of probation violations, including absconding from in-patient substance abuse
treatment, the trial court revoked defendant’s probation and sentenced him to 24 months to 10
years’ imprisonment, with credit for 242 days served. We affirm.
Defendant entered a plea agreement with the prosecution dismissing several other charges
unrelated to this appeal. Initially, defendant failed to attend the sentencing hearing for this
conviction in June 2019. A presentence investigation report (PSIR) was prepared before defendant
failed to appear at sentencing, recommending a minimum sentencing range of 10 to 23 months’
imprisonment.
Defendant eventually appeared for sentencing on September 3, 2019. The trial court did
not immediately sentence defendant to prison, but instead placed him on two years’ probation,
1
MCL 771A.1, et seq.
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subject to certain terms and conditions, including that he successfully complete the Swift and Sure
Sanctions Probation Program (SSSPP)2. Defendant received a jail sentence of six months, with
credit for ninety-one (91) days. Defendant was ordered to serve the remainder of his jail sentence
beginning November 1, 2019, due to his medical condition.
Thereafter, on September 24, 2019, the trial court authorized a bench warrant based on
allegations that defendant violated his probation. Defendant subsequently pleaded guilty to the
violation. On November 18, 2019, the trial court sentenced defendant to serve an additional 30
days in jail for the violation, with an out date of January 1, 2020. The trial court continued
defendant in SSSPP. The trial court scheduled defendant’s orientation into SSSPP for
December 16, 2019. In advance of that hearing, defendant and his probation officer reviewed the
SSSPP participation agreement, the consent and release of information form, the SSSPP rules and
conditions form, the drug testing instructions form, the approved medications list, and the SSSPP
sanctions schedule. Defendant signed the documents on December 11, 2019.
Defendant struggled tremendously in SSSPP. After committing substance abuse related
probation violations in January 2020 and February 2020, the trial court kept defendant in the
program. The court then sent defendant to a residential treatment facility to address his severe
substance abuse disorder. Defendant subsequently absconded from the facility in March 2020.
The police eventually located him a year later. He was arrested. Defendant tested positive for
marijuana, methamphetamines, and amphetamines, triggering another probation violation. While
that matter was pending, defendant was cited for another violation, arising out of defendant’s being
charged with a new felony. Thereafter, on April 16, 2021, the trial court arraigned defendant on
the newest violation. Defendant’s matters were scheduled for hearing on April 26, 2021, to
address the probation violation sentencing on the absconder charge, a status conference on the
probation violation allegations related to the positive drug test (marijuana, methamphetamines,
and amphetamines), and a status conference related to the new felony drug charge. Ultimately,
the trial court revoked defendant’s probation under SSSPP. The trial court sentenced defendant to
twenty four (24) months to ten (10) years’ incarceration with the Michigan Department of
Corrections. The trial court gave defendant credit for 242 days previously served, waived the late
2
“The swift and sure sanctions probation program (SSSPP) is an intensive probation supervision
program that targets high-risk felony offenders with a history of probation violations or failures.
Governed by MCL 771A.1 et seq., SSSPP is modeled on Hawaii’s Opportunity Probation with
Enforcement (HOPE) program, which studies have shown to be very successful in improving the
rate of successful completion of probation among high-risk probationers.
SSSPP participants are closely monitored, including being subjected to frequent random testing
for drug and alcohol use and being required to attend frequent meetings with probation and/or case
management staff. SSSPP aims to improve probationer success by promptly imposing graduated
sanctions, including small amounts of jail time, for probation violations. Judges in Michigan’s
SSSPP courts have reported a reduction in positive drug tests and failures to appear at scheduled
meetings with probation officers among their SSSPP participant population.”
https://www.courts.michigan.gov/administration/court-programs/swift-and-sure-sanctions-
probation-program/
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fee and imposition of attorney fees, and reaffirmed imposition of statutory costs and the crime
victim fee assessment.
At the sentencing hearing when the trial court revoked his probation, defendant had
objected to the court’s rescoring 10 points for OV 19. The trial court added these points due to
defendant’s failure to attend the original sentencing hearing in July, 2019. When asked why he
missed his court date, defendant testified that the only reason he missed the court date was that he
relied on his brother for transportation to court and his brother mixed up the court date. The trial
court then asked why defendant did not turn himself in on the bench warrants when he realized he
had missed the sentencing hearing, defendant stated that he did not know. The trial court found
by a preponderance of evidence that defendant interfered or attempted to interfere with the
administration of justice for failing to appear for his original sentencing in 2019. The trial court
noted
The evidence preponderates in favor of the notion that Mr. Mitchell
intentionally failed to appear for sentencing when compared to his statements today
that he just doesn't remember what happened. I've got the report that he had to be
picked up by sheriff's department deputies on this bench warrant as well as other
matters, so this does not (inaudible) where someone is in the hospital or otherwise
legitimately unable to appear for a sentencing event. By not showing we had to
delay the sentencing of that and therefore he delayed the Court's ability to
administer my judgement of sentence.
Thereafter, the trial court assessed 10 points for OV 19, which resulted in a guidelines
range of 19 to 38 months as a minimum guideline range. The trial court then sentenced defendant
to 24 months to 10 years’ imprisonment.
Defendant now appeals.
On appeal, defendant argues that the trial court erred when it assessed 10 points for OV 19
and that zero points should have been assessed for OV 19. Defendant argues that the trial court
could not consider the failure to appear at sentencing because it was unrelated to the underlying
conviction. Further, he argues that the trial court committed error when it determined that
defendant intentionally failed to appear at his sentencing hearing. Instead, he argues that the
evidence in the record establishes that defendant’s health problems and reliance on others for
transportation prevented him from attending his sentencing. We disagree, and find that the trial
court properly assessed 10 points for OV 19.
Under the sentencing guidelines, this Court reviews the trial court’s factual determinations
for clear error. People v Hardy, 494 Mich 430, 438; 835 NW2d 340 (2013). “Clear error occurs
if the reviewing court is left with a definite and firm conviction that the trial court made a mistake.”
People v Johnson, 502 Mich 541, 565; 918 NW2d 676 (2018) (quotation marks and citation
omitted). “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.” Hardy, 494 Mich at 438.
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Under MCL 777.49(c), a trial court should score 10 points for OV 19 if it determines that
“[t]he offender otherwise interfered with or attempted to interfere with the administration of
justice, or directly or indirectly violated a personal protection order”. By default, “[o]ffense
variables must be scored 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 19 specifically provides for the consideration of conduct after completion of the
sentencing offense, conduct that occurred after an offense was completed may be considered when
scoring the offense variable.” People v Smith, 488 Mich 193, 202; 793 NW2d 666 (2010)
(quotation marks and citation omitted).
For the purposes of OV 19, the plain and ordinary meaning of interfering with the
administration of justice means “to hamper, hinder, or obstruct the act or process of administering
judgment of individuals or causes by judicial process.” People v Hershey, 303 Mich App 330,
343; 844 NW2d 127 (2013). Interfering with the administration of justice “is a broad phrase that
can include acts that constitute ‘obstruction of justice,’ ” but “is not limited to only those acts that
constitute obstruction of justice.’ ” People v Barbee, 470 Mich 283, 286; 681 NW2d 348 (2004).
Further, “OV 19 is generally scored for conduct that constitutes an attempt to avoid being caught
and held accountable for the sentencing offense.” People v Sours, 315 Mich App 346, 349; 890
NW2d 401 (2016).
By failing to appear at the June 24 sentencing hearing, defendant attempted to avoid being
held accountable for the sentencing offense. Such conduct falls squarely within the purview of
OV 19. See Sours, 315 Mich App at 349. In this case, the conduct alleged to have interfered with
the administration of justice was defendant’s failure to attend sentencing for the possession
conviction. Defendant’s failure directly impacted the trial court’s ability to sentence defendant for
the underlying conviction. He did not show up late for sentencing. He did not present himself to
the court or law enforcement when he learned the court had issued a bench warrant for his failure
to appear. Rather, he remained out in the community until the law caught up with him. Judicial
proceedings could not continue until defendant was picked up on the bench warrants months after
the trial court was scheduled to sentence defendant. Defendant succeeded in avoiding being held
accountable for the offense during that time, and this conduct is, therefore, appropriately
considered under OV 19. See id. Defendant’s argument that the trial court erred by assessing 10
points for OV 19 because defendant’s act of missing a sentencing hearing was unrelated to the
underling conviction is unpersuasive.
Defendant argues that it was not established on the record that he was able to comply with
the requirement that he appear at sentencing because of his poor health and lack of transportation.
At the sentencing hearing, the trial court reasoned that 10 points must be assessed for OV 19
because defendant had to be picked up on bench warrants and other new charges in order to be
sentenced. At sentencing, defendant testified that he missed the sentencing hearing because his
brother mixed up his court date. Defendant stated that he could not remember why he did not turn
himself in on the warrants in the intervening weeks before he was arrested. Defendant himself
asserted he was not hospitalized during the time between his sentencing and arrest. Defendant’s
inability to recall why he missed the hearing, in combination with his eventual arrest on two bench
warrants and a new charge, comport with the trial court’s findings that defendant intentionally
failed to appear at sentencing. Therefore, defendant has failed to show that the trial court’s factual
determinations were in clear error. See Hardy, 494 Mich at 438.
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To the credit of this trial court, it could have sentenced defendant to prison at his original
sentencing in September 2019. Recognizing defendant’s significant history of substance abuse
disorder, the trial court elected to divert defendant to its SSSPP program in the hope of helping
defendant. This is evident by the trial court’s compassionate comments made at defendant’s
probation violation sentencing hearing at issue.
Mr. Mitchell I'm certainly mindful of substance use disorders and how
extraordinarily difficult it is to get into a life of recovery and make it your priority
for the rest of your life. That's why people are given so many opportunities to adopt
that lifestyle. It's not easy, it's hard, and people make mistakes and they side-step
and then they back-step. But when I look through your case I'm just not seeing
someone who is fighting tooth and nail for recovery and making some mistakes
here and there. I'm seeing someone who got on Swift and Sure and just continued
not only using, but just criminogenic thinking, the same life you were living.
You've had tons of violations, you absconded K-Pep when they found a package
delivered to you under the pretense of a bag of sugar that had a syringe in it, rather
than faced [sic] that you absconded. You've been gone a year on this last round and
another time police found you hiding in a house again, not someone who is
struggling mightily for their own recovery and needs more help from us, it's
someone who is trying to not in fact be supervised and continue the life that you've
been leading and it's sad because when I look at your photographs you have so
many victims to your use, your own family, your own loved ones are victims of
your unwillingness at this point in your life to truly want and adopt the life of
recovery. You do have a long serious criminal history involving home invasions,
larcenies methamphetamine. Your success on supervision is lacking. So I do
believe you pose a public safety threat at this time and I'm going to focus primarily
on that as well as perhaps another time out will cause you to think about your
recovery and what you want to do with the remainder of your life. I think you still
can turn this around but you've got to want it and I'm not seeing it yet.
This trial court exercised patience and compassion with defendant. Contrary to defendant’s
claimed error, the trial court did not hold defendant’s medical or transportation needs against him.
The trial court did not err when it determined that defendant interfered with the administration of
justice and assessed 10 points for OV 19.
Affirmed.
/s/ Elizabeth L. Gleicher
/s/ Jane E. Markey
/s/ Michelle M. Rick
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