People of Michigan v. Joshua Dale Winans ( 2020 )

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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED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 17, 2020
Plaintiff-Appellee,
v No. 348663
Berrien Circuit Court
JOSHUA DALE WINANS, LC No. 2018-003251-FC
Defendant-Appellant.
Before: RONAYNE KRAUSE, P.J., and MARKEY and BORRELLO, JJ.
PER CURIAM.
Defendant was convicted by guilty plea of assault with intent to do great bodily harm less
than murder (AWIGBH), MCL 750.84, and unlawful imprisonment, MCL 750.349b. The trial
court sentenced him to 67 to 120 months’ imprisonment for the AWIGBH conviction and 100 to
180 months’ imprisonment for the unlawful-imprisonment conviction. Defendant appeals by
delayed leave granted,1 challenging the scoring of multiple offense variables (OVs). We affirm
his sentences.
The victim, JK, lived with her son and her boyfriend, defendant, in defendant’s home.
Defendant and JK engaged in an argument about dinner on the evening at issue, and JK decided
to leave defendant’s home with her son. While JK was in her car with her son preparing to leave,
defendant walked over to the vehicle. JK rolled down her window, and defendant hit her in the
face with an open hand. He then told her that she needed to gather her personal belongings from
his house. JK picked up her son and returned to defendant’s home. She started packing her
possessions in an upstairs bedroom. Defendant then went into the bedroom and grabbed JK by her
hair, pulling her to the bedroom floor. For the next 20 minutes defendant hit and punched JK; he
spit in her face, pulled her hair, ripped out her nose ring, and shoved his fingers down her throat.
At the same time, he grabbed and squeezed JK by the neck with his free hand so that she could not
1
People v Winans, unpublished order of the Court of Appeals, entered October 10, 2019 (Docket
No. 348663).
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breath. Because JK was unable to break free from defendant’s grasp, she tried biting his fingers.
Defendant responded by biting her in the face.
JK’s son was on the landing of the stairs upset and hyperventilating because he heard his
mother screaming, but he did not know what was going on. Both JK and defendant tried to coax
the child away from the altercation. JK was then able to escape to her son’s room, and she started
packing his belongings. Defendant, however, followed JK into that room and continued to assault
her. While assaulting JK, defendant blamed her for what was happening and threatened to kill her.
At some point, defendant stopped, and the police arrived. Defendant was arrested, and JK was
taken to the hospital by police for treatment of various injuries.
Defendant was charged as a second-offense habitual offender, MCL 769.10, with
AWIGBH, unlawful imprisonment, assault with intent to commit murder, MCL 750.83, and
aggravated domestic violence, MCL 750.81a. He eventually pleaded guilty to AWIGBH and
unlawful imprisonment. Defendant’s total OV score was 140 points as to both offenses, placing
him at OV level VI (75+ points), which is the highest OV level for the two crimes. See MCL
777.64 and MCL 777.65. At the sentencing hearing, defense counsel expressly indicated that there
was no challenge to the scores assessed for the OVs.
On appeal, defendant argues that the trial court improperly scored OVs 3, 4, 7, 8, 9, 10, 12,
and 13, and that he is entitled to resentencing. Defendant also contends that trial counsel was
ineffective for failing to object to the OV scores being challenged on appeal.
Under the sentencing guidelines, the trial court’s findings of fact are reviewed for clear
error and must be supported by a preponderance of the evidence. People v Hardy, 494 Mich. 430,
438; 835 NW2d 340 (2013); People v Rhodes (On Remand), 305 Mich. App. 85, 88; 849 NW2d
417 (2014). Clear error is present when the appellate court is left with a firm and definite
conviction that an error occurred. People v Fawaz, 299 Mich. App. 55, 60; 829 NW2d 259 (2012).
This Court reviews de novo “[w]hether the facts, as found, are adequate to satisfy the scoring
conditions prescribed by statute . . . .” Hardy, 494 Mich. at 438; see also Rhodes, 305 Mich. App.
at 88. In scoring OVs, a court may consider all record evidence, including the contents of a
presentence investigation report (PSIR), plea admissions, and testimony presented at a preliminary
examination. People v Johnson, 298 Mich. App. 128, 131; 826 NW2d 170 (2012). “[D]ue process
bars sentencing courts from finding by a preponderance of the evidence that a defendant engaged
in conduct of which he was acquitted.” People v Beck, 504 Mich. 605, 629; 939 NW2d 213 (2019).
Of course, defendant was not acquitted in this case of any charges because there was no trial; the
dismissed charges were not acquittals.
With respect to the direct challenge of the scoring of the OVs, we note defendant waived
his arguments when trial counsel indicated at sentencing that he had “no . . . additions, corrections,
or deletions.” “When defense counsel clearly expresses satisfaction with a trial court's decision,
counsel's action will be deemed to constitute a waiver.” People v Kowalski, 489 Mich. 488, 503;
803 NW2d 200 (2011). The Kowalski Court further explained:
Defendant, however, argues that defense counsel merely forfeited the error
because counsel did not state that he “approved” of the instructions. The distinction
defendant attempts to make between counsel stating, “I approve of the
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instructions,” and counsel stating, “I have no objections,” is unavailing. Counsel's
statements were express and unequivocal indications that he approved of the
instructions. To hold otherwise would allow counsel to harbor error at trial and then
use that error as an appellate parachute. [Id. at 504-505 (quotation marks, citations,
and ellipses omitted).]
But, while not very well developed in the body of his brief on appeal, defendant bootstraps
a claim of ineffective assistance of counsel based on his attorney’s failure to challenge the various
OV scores. Whether counsel was ineffective presents a mixed question of fact, which is reviewed
for clear error, and constitutional law, which we review de novo. People v LeBlanc, 465 Mich.
575, 579; 640 NW2d 246 (2002). Our Supreme Court in People v Carbin, 463 Mich. 590, 599-
600; 623 NW2d 884 (2001), set forth the basic principles governing a claim of ineffective
assistance of counsel:
To justify reversal under either the federal or state constitutions, a convicted
defendant must satisfy [a] two-part test . . . . First, the defendant must show that
counsel’s performance was deficient. This requires showing that counsel made
errors so serious that counsel was not performing as the counsel guaranteed by the
Sixth Amendment. In so doing, the defendant must overcome a strong presumption
that counsel’s performance constituted sound trial strategy. Second, the defendant
must show that the deficient performance prejudiced the defense. To demonstrate
prejudice, the defendant must show the existence of a reasonable probability that,
but for counsel’s error, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the
outcome. Because the defendant bears the burden of demonstrating both deficient
performance and prejudice, the defendant necessarily bears the burden of
establishing the factual predicate for his claim. [Citations and quotation marks
omitted.]
An attorney’s performance is deficient if the representation falls below an objective standard of
reasonableness. People v Toma, 462 Mich. 281, 302; 613 NW2d 694 (2000).
The trial court assessed 10 points for OV 3, which is the proper score when “[b]odily injury
requiring medical treatment occurred to a victim.” MCL 777.33(1)(d). Defendant maintains that
although JK actually received medical treatment, there was no proof that JK “required” the medical
treatment.2 There was evidence presented at the preliminary examination that defendant hit and
punched JK, pulled her by the hair, ripped out her nose ring, and choked JK. Also, JK testified
that defendant bit her. Moreover, JK indicated that her injuries consisted of bruises, scratches, and
swelling. The police took JK to the hospital for medical treatment after the attack.3 “The trial
2
We note that defendant’s arguments on each of the challenged OVs are cursory and without any
citation of legal authority, including the statutory provision at issue for a particular OV.
Nonetheless, we address defendant’s challenges.
3
The PSIR contained the following details:
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court may rely on reasonable inferences arising from the record evidence to sustain the scoring of
an offense variable.” People v Earl, 297 Mich. App. 104, 109; 822 NW2d 271 (2012). Considering
the nature and characteristics of the assault, the injuries suffered and described, and the fact that
the police transported JK to the hospital for examination, it is reasonable to infer that JK “required”
medical treatment. Accordingly, the trial court did not err in assessing 10 points for OV 3. And
therefore trial counsel’s performance in waiving a challenge to the scoring of OV 3 was not
deficient. “Failing to advance a meritless argument or raise a futile objection does not constitute
ineffective assistance of counsel.” People v Savage, 327 Mich. App. 604, 617; 935 NW2d 69 (2019)
(quotation marks and citation omitted).
The trial court assessed 10 points for OV 4, which is the proper score when “[s]erious
psychological injury requiring professional treatment occurred to a victim.” MCL 777.34(1)(a).
Defendant argues that “[t]here is no evidence in the PSIR or in the victim’s oral and written
statements that psychological injuries occurred that required professional treatment.” In the
prosecution’s brief on appeal, it states that it does not contest defendant’s argument regarding OV
4. We note that JK expressed at the sentencing hearing that she and her son suffered “emotional
damage” as a result of defendant’s actions. We thus question whether trial counsel’s failure to
challenge the scoring of OV 4 fell below an objective standard of reasonableness, especially
considering that had counsel challenged the 10-point assessment for OV 4, JK may have elaborated
on her statement of “emotional damage.” Regardless, we accept the prosecution’s concession.
The trial court assessed 50 points for OV 7, which is the proper score when “[a] victim was
treated with sadism, torture, excessive brutality, or similarly egregious conduct designed to
substantially increase the fear and anxiety a victim suffered during the offense.” MCL
777.37(1)(a). “A trial court can properly assess 50 points under OV 7 if it finds that a defendant's
conduct falls under one of the four categories of conduct listed in subsection (1)(a).” Hardy, 494
Mich. at 439-440. Defendant merely argues that there was no evidence that his “conduct was
designed to increase fear and anxiety.” Defendant ignores the other three categories listed in MCL
777.37(1)(a) even though we cannot determine from the record that OV 7 was actually scored on
the basis of defendant’s conduct being designed to substantially increase the fear and anxiety
suffered by JK. Additionally, as reflected in footnote 3 of this opinion (PSIR excerpt), the record
The officer observed multiple injuries on [JK]. Both hands appeared to be
swollen and bruised and [JK] advised she was bitten by [defendant] on both hands
and wrists. She had bruising on her face and abrasions on both cheeks. She said she
also had a nose ring in her right nostril which was ripped out during the assault. Her
lip was swollen on the left side and there was bruising on her left arm consistent
with being grabbed. She also had scratches on her back which went from side to
side and appeared to be fingerprints. [JK] reported [defendant] bit her multiple
times on the face, hands and left wrist breaking the skin. She said she was punched
at least a dozen times with a closed fist to her face. The officer noted the bruising
supported her report. [JK] reported she had hair ripped out of her scalp from
[defendant] grabbing her and throwing her around the rooms. She said he also
choked her throughout the assault and she had bruising under her chin along with
red marks on her neck and throat area.
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fully supported a conclusion that defendant treated JK with “excessive brutality.” Moreover,
contrary to defendant’s argument, the record supported a determination that defendant’s conduct
was designed to substantially increase JK’s fear and anxiety. While she was being restrained and
viciously assaulted for an extended period of time through biting, punching, spitting, hair-pulling,
and choking, defendant repeatedly threatened to kill JK. One can reasonably infer from this
evidence that defendant’s conduct was designed to substantially increase JK’s fear and anxiety.
Therefore, trial counsel’s performance in waiving a challenge to the scoring of OV 7 did not fall
below an objective standard of reasonableness.
The trial court assessed 15 points for OV 8, which is the proper score when “[a] victim was
asported to another place of greater danger or to a situation of greater danger or was held captive
beyond the time necessary to commit the offense.” MCL 777.38(1)(a). Defendant contends that
there was no asportation or captivity because the events occurred where JK and defendant lived
and because JK voluntarily returned to the house after first going to her car. First, the fact that
defendant and JK lived together does not mean that there could be no asportation or that JK could
not be held captive. Second, and similarly, assuming that JK willingly left her car after defendant
had punched her in the face to go back into the house to collect belongings, she certainly could
have been moved and held captive after returning to the house. Indeed, after she did so, defendant
pulled JK’s hair and forced her to the floor, holding her down and captive and brutally assaulting
her for at least 20 minutes, which was beyond the time necessary to commit unlawful
imprisonment. See MCL 750.349b(3)(a) (“The restraint [for unlawful imprisonment] does not
have to exist for any particular length of time and may be related or incidental to the commission
of other criminal acts.”). The trial court properly assessed 15 points for OV 8. Therefore, trial
counsel’s performance in waiving a challenge to the scoring of OV 8 was not deficient.
Jumping ahead, the trial court assessed 25 points for OV 13, which is the proper score when
“[t]he offense was part of a pattern of felonious criminal activity involving 3 or more crimes
against a person.” MCL 777.43(1)(c). Additionally, MCL 777.43(2)(a) provides that “[f]or
determining the appropriate points under this variable, all crimes within a 5-year period, including
the sentencing offense, shall be counted regardless of whether the offense resulted in a conviction.”
Defendant argues that “[t]his variable must be proven by a preponderance of the evidence by the
prosecutor” and that trial counsel “failed to challenge the scoring and force the prosecutor to prove
this category.” This is simply not a developed or substantive argument; defendant does not contend
that OV 13 was improperly scored. Moreover, unlawful imprisonment and AWIGBH are crimes
against a person. MCL 777.16q and MCL 777.16d. And the record further indicated that in August
2017, defendant pleaded guilty to attempted AWIGBH, which is also an offense against a person.
MCL 777.16d; MCL 777.19(2). This means that in 2017 and 2018 defendant pleaded guilty to
three crimes that constituted offenses against a person. Accordingly, the trial court properly
assessed 25 points for OV 13. Therefore, trial counsel’s performance in waiving a challenge to
the scoring of OV 13 did not fall below an objective standard of reasonableness.
At this point in our analysis we have upheld the assessment of 100 total OV points, which
would keep defendant at OV level VI, reflecting no change in the minimum sentence guidelines
range and precluding resentencing. MCL 777.64; MCL 777.65; People v Francisco, 474 Mich. 82,
89 n 8; 711 NW2d 44 (2006) (“Where a scoring error does not alter the appropriate guidelines
range, resentencing is not required.”). Accordingly, it is unnecessary to address the scoring of
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OVs 9, 10, and 12. In sum, we conclude that resentencing is unwarranted on the basis of ineffective
assistance of counsel.
We affirm.
/s/ Amy Ronayne Krause
/s/ Jane E. Markey
/s/ Stephen L. Borrello
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