People of Michigan v. Keyshon Degon Dotson ( 2021 )


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  •             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    PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
    February 18, 2021
    Plaintiff-Appellee,
    v                                                                   Nos. 349971 and 349973
    Wayne Circuit Court
    KEYSHON DEGON DOTSON, also known as                                 LC Nos. 18-006607-01-FC and
    KEYSHON BRANCH,                                                             18-007215-01-FC
    Defendant-Appellant.
    Before: CAVANAGH, P.J., and SERVITTO and CAMERON, JJ.
    PER CURIAM.
    Defendant appeals as of right the sentences imposed following his bench trial convictions
    in two consolidated cases. In lower court number 18-006607-01-FC, defendant was convicted of
    two counts of armed robbery, MCL 750.529, and two counts of possession of a firearm during the
    commission of a felony, MCL 750.227b. In lower court number 18-007215-01-FC, defendant was
    convicted of one count of armed robbery, and one count of felony-firearm. The trial court
    sentenced defendant, as a fourth-offense habitual offender, MCL 769.12, to serve 35 to 70 years’
    imprisonment for each armed robbery conviction (concurrently), and 2 years for each felony-
    firearm conviction (concurrently to each other but consecutively with and preceding the robbery
    sentences). We remand for resentencing, and for ministerial corrections to the sentencing
    documents.
    I. FACTS
    Both cases arise from defendant’s practice of pretending, on Facebook, to have a car for
    sale in order to lure prospective victims into bringing cash to a location of defendant’s choosing,
    ostensibly to show them the car and complete the purchase. When his plan succeeded, he robbed
    the victims at gunpoint. In lower court number 18-006607-01-FC, a friend drove the intended
    victim to the assigned location, where they waited for defendant for some time before he arrived
    and robbed them both. In lower court number 18-007215-01-FC, the single victim did not have a
    means of transportation, so defendant sent his girlfriend to the victim’s apartment and she drove
    the victim to a vacant house, where defendant robbed him. Defendant used the name “East Warren
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    Berry” on his Facebook page. With information subpoenaed from Facebook, the investigating
    officers were able to link the page to defendant’s e-mail account and phone. All three victims
    identified him from a photo array. Once in jail, defendant asked his girlfriend in a monitored
    phone call to erase his e-mail address information, but the police had already obtained the above-
    described information as well as other evidence needed to prove defendant’s guilt.
    Two sentencing hearings were held in this case. At the first hearing, the trial court scored
    the sentencing guidelines for these consolidated cases as one. At the second hearing, however, the
    court held that the two cases must be scored separately, and the parties reviewed the scoring of
    disputed offense variables (OVs) for a second time.
    II. SCORING OF OFFENSE VARIABLES
    Defendant first argues that he is entitled to resentencing because OVs 8, 10, and 19 were
    scored incorrectly. We agree that OV 10 was scored incorrectly, but hold that OVs 8 and 19 were
    scored correctly.
    Michigan trial courts “must consult the advisory sentencing guidelines and assess the
    highest number of possible points for each offense variable.” People v Urban, 
    321 Mich App 198
    ,
    214-215; 908 NW2d 564 (2017), vacated in part on other grounds 
    504 Mich 950
     (2019). Whether
    the undisputed facts support a scoring decision requires statutory interpretation and application,
    and therefore calls for review de novo. People v Dickinson, 
    321 Mich App 1
    , 21; 909 NW2d 24
    (2017). The applicable facts in this case are not disputed.
    A. OV 8
    MCL 777.38(1)(a) directs that 15 points be assessed for OV 8 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.” Any movement of the victim to a place of
    greater danger qualifies as asportation, even when it is “incidental to the commission of a crime.”
    People v Barrera, 
    500 Mich 14
    , 21; 892 NW2d 789 (2017). A location at which the crime is less
    likely to be discovered is a place “of greater danger” under the statute. Id. at 21-22. Asportation
    can occur for purposes of OV 8 when the victim is transported voluntarily to the location of greater
    danger. People v Spanke, 
    254 Mich App 642
    , 647; 658 NW2d 504 (2003), overruled in part on
    other grounds by Barrera, 500 Mich at 17 (“to the extent that . . . Spanke ha[s] been interpreted to
    have created an incidental-movement exception to OV 8, we hold that [it was] wrongly decided
    and we therefore overrule [it]”). In Spanke, “the victims were moved, even if voluntarily, to
    defendant’s home where the criminal acts occurred.” Id. at 648. Because the defendant moved
    the victims “to a location where they were secreted from observation by others” before sexually
    assaulting them, Spanke upheld the trial court’s decision to score OV 8 at 15 points. Id.
    Here, the trial court initially scored OV 8 at 15 points in connection with lower court
    number 18-007215-01-FC. In that case, defendant caused his girlfriend to drive to the victim’s
    home and transport him to a place of defendant’s choosing. The victim was clearly in greater
    danger at that location, not only because the only house that would have provided a direct and
    unobstructed view of the crime as it occurred was abandoned, but also because defendant was
    waiting there with a gun for the victim to be delivered to him. Defendant does not argue that the
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    robbery location was not a place of greater danger, but only that points should not have been
    assessed because defendant went voluntarily. Defendant’s argument is meritless. See Spanke, 254
    Mich App at 647. The trial court did not err in assessing 15 points under OV 8 in lower court
    number 18-007215-01-FC.1
    B. OV 10
    OV 10 concerns whether a vulnerable person was exploited. People v Cannon, 
    481 Mich 152
    , 157-158; 749 NW2d 257 (2008), citing MCL 777.40. The trial court assessed 15 points for
    this variable for both cases, which MCL 777.40(1)(a) prescribes when “[p]redatory conduct was
    involved.” MCL 777.40(3)(a) defines “predatory conduct” as “preoffense conduct directed at a
    victim, or a law enforcement officer posing as a potential victim, for the primary purpose of
    victimization.”
    Our Supreme Court has clarified that the predatory conduct must be directed at vulnerable
    persons, as defined by the statute, in order to be scored at 15 points. Cannon, 481 Mich at 158.
    The Court explained as follows:
    [P]oints should be assessed under OV 10 only when it is readily apparent that a
    victim was “vulnerable,” i.e., was susceptible to injury, physical restraint,
    persuasion, or temptation. MCL 777.40(3)(c). Factors to be considered in deciding
    whether a victim was vulnerable include (1) the victim’s physical disability, (2) the
    victim’s mental disability, (3) the victim’s youth or agedness, (4) the existence of a
    domestic relationship, (5) whether the offender abused his or her authority status,
    (6) whether the offender exploited a victim by his or her difference in size or
    strength or both, (7) whether the victim was intoxicated or under the influence of
    drugs, or (8) whether the victim was asleep or unconscious. MCL 777.40(1)(b)
    and (c). The mere existence of one of these factors does not automatically render
    the victim vulnerable. MCL 777.40(2). [Id. at 158-159.]
    In this case, the parties and court focused on whether defendant engaged in predatory
    conduct. But predatory conduct must be directed at vulnerable persons, as defined by the statute,
    in order to be scored. Id. at 158. None of the victims in this case exhibited any of the factors to
    be considered in determining vulnerability, nor does plaintiff attempt to argue otherwise on appeal.
    Plaintiff argues instead, without citation of legal authority, that they were vulnerable because
    defendant’s predatory conduct made them vulnerable. This argument is meritless, and is actually
    an admission that the victims were not vulnerable under the statute when defendant chose to prey
    upon them. Because these victims were not vulnerable under MCL 777.40, this variable should
    have been scored at 0 points in both cases.
    1
    No such facts occurred in lower court number 18-006607-01-FC, in which the victims drove
    themselves to the meeting place and waited 50 minutes for defendant to appear. The trial court
    properly determined that OV 8 should be scored at 0 points in connection with lower court number
    18-006607-01-FC because there was no asportation.
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    Because of this error, the trial court believed that defendant was at OV Level VI, along
    with PRV Level E, as a fourth-offense habitual offender, for which the grid applicable to armed
    robbery, a Class A offense, sets forth a range of 225 to 750 months. Scoring the variables correctly
    places defendant at OV Level V, which adjustment brings the range down to 171 to 570 months.
    Defendant’s minimum sentences of 420 months were within the original range as well as the
    corrected range. The Supreme Court has held that, when the recommended range for a minimum
    sentence is adjusted to account for a scoring error, resentencing is required even where the
    minimum sentence originally imposed remains within the corrected range, because such a
    “misapprehension of the guidelines range” constitutes a sentencing decision “in reliance upon
    inaccurate information.” People v Francisco, 
    474 Mich 82
    , 88, 89 n 7; 711 NW2d 44 (2006). See
    also People v McGraw, 
    484 Mich 120
    , 131; 771 NW2d 655 (2009) (“A sentence is invalid when
    a sentencing court relies on an inappropriate guidelines range.”). Because defendant was
    sentenced under incorrect guidelines ranges in both cases, he is entitled to resentencing in both
    cases. 
    Id.
    C. OV 19
    MCL 777.49(c) directs that 10 points be assessed for OV 19 if the offender “interfered with
    or attempted to interfere with the administration of justice.” The trial court assessed 10 points for
    OV 19 on the sole basis that defendant directed another person “to wipe out an iCloud account.”
    The phrase “interfered with or attempted to interfere with the administration of justice” is
    broad; it includes acts that amount to obstruction of justice, but is not limited to such chargeable
    acts. People v Barbee, 
    470 Mich 283
    , 286-287; 681 NW2d 348 (2004). Nor is the phrase limited
    to acts that interfere with the actual judicial process, encompassing also acts that interfere with
    police investigations, because “[l]aw enforcement officers are an integral component in the
    administration of justice.” 
    Id. at 287-288
    .2
    Here, defendant asked his girlfriend to destroy digital evidence in an attempt to prevent the
    police from obtaining evidence that linked him to the Facebook account from which he lured
    victims to him in order to rob them by pretending to have a car for sale. This was sufficient to
    score OV 19 at 10 points. See People v Ericksen, 
    288 Mich App 192
    , 204; 793 NW2d 120 (2010)
    (2011) (asking a companion to dispose of the weapon used in the crime was an attempt to interfere
    with the administration of justice). Defendant’s sole argument on appeal—that he did not interfere
    with the police, but merely attempted to interfere—is unavailing because the statute plainly states
    that it applies to attempts at interference as well as successful interference. Barbee, 
    470 Mich at 286-287
    . The trial court did not err in scoring OV 19 at 10 points.
    D. PROCEEDINGS ON REMAND
    For the above reasons, we remand this case for resentencing. Although neither party raised
    the following issues on appeal, we take this opportunity to direct the trial court to undertake
    additional actions on remand. This Court has the authority to address errors sua sponte pursuant
    2
    Specifically, Barbee held that providing a false name to a police officer is an act of interference
    with the administration of justice for purposes of OV 19. 
    Id. at 288
    .
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    to MCR 6.435(A), which provides, in relevant part, that “[c]lerical mistakes . . . and errors arising
    from oversight or omission may be corrected by the court at any time on its own initiative.” See
    also MCR 7.216(A)(1) (this Court has “the power to “exercise any or all of the powers of
    amendment of the trial court”); People v Cain, 
    238 Mich App 95
    , 127; 605 NW2d 28 (1999) (this
    Court has the inherent authority to look beyond the issues raised and reach and decide any issue it
    identifies, in the interests of justice).
    First, the sentencing information reports must be updated to reflect the scoring decisions
    as they stand after trial and appeal, as part of defendant’s right to have an accurate presentence
    investigation report on file. See People v Hemphill, 
    439 Mich 576
    , 579; 487 NW2d 152 (1992).
    Further, it is clear that the trial court sentenced defendant as a fourth-offense habitual offender, but
    that fact is not reflected on the judgments of sentence. We direct the trial court to correct this
    oversight on remand. See People v Katt, 
    248 Mich App 282
    , 311-312; 639 NW2d 815 (2001)
    (when there is a mistake in a judgment of sentence, it is appropriate for this Court to remand to
    allow the trial court to correct it).
    II. PROPORTIONALITY
    With little analysis or legal support, defendant also urges us to hold that his armed robbery
    sentences were disproportionate because none of the victims was physically injured, and because
    those sentences exceed some imposed for even homicide offenses. We need not decide this issue,
    in light of our decision to remand for resentencing. We would be obliged to forgo proportionality
    review in any event.
    Sentences that depart from the guidelines are reviewed for reasonableness under the abuse
    of discretion standard. People v Lockridge, 
    498 Mich 358
    , 392; 870 NW2d 502 (2015); People v
    Steanhouse, 
    500 Mich 453
    , 471; 902 NW2d 327 (2017). Reasonableness is determined under the
    principle of proportionality set forth in People v Milbourn, 
    435 Mich 630
    ; 461 NW2d 1 (1990),
    and its progeny. Steanhouse, 500 Mich at 472. However, a sentence that falls within the legislative
    guidelines is presumptively proportionate. People v Odom, 
    327 Mich App 297
    , 315; 933 NW2d
    719 (2019). Because of that presumption, we are not required to review sentences for
    reasonableness when they fall within the statutory guidelines range. People v Anderson, 
    322 Mich App 622
    , 636; 912 NW2d 607 (2018). Further, MCL 769.34(10) directs that “[i]f a minimum
    sentence is within the appropriate guidelines sentence range, the court of appeals shall affirm that
    sentence and shall not remand for resentencing absent an error in scoring the sentencing guidelines
    or inaccurate information relied upon in determining the defendant’s sentence”).3 The exception
    to this rule occurs when a case presents an “unusual circumstances” that would overcome the
    presumption that a sentence within the guidelines is proportionate. Milbourn, 
    435 Mich at 661
    .
    This is not such a case, nor does defendant argue otherwise. Because defendant’s minimum
    sentences fall within the guidelines, both as originally scored and as this Court now directs be
    3
    We note that the constitutionality of MCL 769.34(10) has been called into question since
    Lockridge was decided. However, we are bound by our published decisions, among which we
    have noted that “Lockridge did not alter or diminish MCL 769.34(10).” Schrauben, 314 Mich App
    at 196 n 1.
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    corrected, and he has failed to show unusual circumstances sufficient to overcome the presumption
    that the sentences are proportionate, we decline to review his sentences for reasonableness.
    Remanded for resentencing and corrections consistent with this opinion. We do not retain
    jurisdiction.
    /s/ Mark J. Cavanagh
    /s/ Deborah A. Servitto
    /s/ Thomas C. Cameron
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Document Info

Docket Number: 349973

Filed Date: 2/18/2021

Precedential Status: Non-Precedential

Modified Date: 2/19/2021