People of Michigan v. Gordon Doyle Diehl ( 2023 )

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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED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 14, 2023
Plaintiff-Appellee,
v No. 361551
Wexford Circuit Court
GORDON DOYLE DIEHL, LC No. 2021-012992-FH
Defendant-Appellee.
Before: REDFORD, P.J., and SHAPIRO and YATES, JJ.
PER CURIAM.
Defendant, Gordon Doyle Diehl, was convicted by a jury of unlawful imprisonment, MCL
750.349b, second-degree home invasion, MCL 750.110a(3), unlawful use of a self-defense spray
device, MCL 750.224d(2), and assault and battery, MCL 750.81(1). The trial court then sentenced
defendant to serve 5 to 15 years in prison for the unlawful-imprisonment conviction, 5 to 15 years
in prison for the second-degree home invasion conviction, 330 days in jail for the unlawful use of
a self-defense spray device conviction, and 93 days in jail for the conviction for assault and battery.
In response to defendant’s motion to correct an invalid sentence, the trial court decided that OV 8
had been improperly scored, so the trial court resentenced defendant to serve 55 months to 15 years
in prison for the unlawful-imprisonment conviction, but the trial court left unchanged the sentences
for the other convictions. Defendant appeals of right, challenging his convictions and sentences.
We affirm.
I. FACTUAL BACKGROUND
The conflict that led to defendant’s crimes arose from defendant’s affair with the victim’s
wife. After the affair ended, defendant first confronted the victim’s wife and then, on January 23,
2021, confronted the victim, who was defendant’s neighbor. On that date, the victim arrived home
from his job at approximately 2:30 a.m. When the victim opened his back door and turned around
to take his keys out of the door, defendant attacked him from behind. Defendant tried to cover the
victim’s mouth, and defendant told the victim that he had a gun. The victim could not see the gun,
but the victim could feel the end of a gun at the top of his head. The victim grabbed the gun and
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forced it away from the top of his head, and defendant started punching the victim on the top of
the head to get him to let go of the gun.
The victim and defendant struggled with one another, and they eventually ended up in the
victim’s kitchen. Defendant handcuffed the victim’s wrist to the handle of the oven door and then
maced the victim on the right side of his face while the victim attempted to break off the oven door
handle to get free. The victim could not get back on his feet because his ankle had been broken in
the struggle, so the victim yelled for his wife, but she did not hear him because she was sleeping
in another room on the same floor with a fan on. When defendant had his back turned to the victim,
the victim reached into his pocket, retrieved his own can of pepper spray, and sprayed defendant.
Defendant ran toward the victim’s back door. Defendant began to turn around again, so the victim
sprayed defendant a second time, and defendant ran out of the house.
At a jury trial in June and July 2021, defendant was found guilty of unlawful imprisonment,
second-degree home invasion, unlawful use of a self-defense spray device, and assault and battery,
but he was acquitted of assault with a pistol and felony firearm. On August 9, 2021, the trial court
sentenced defendant to serve concurrent prison terms of 5 to 15 years for the offenses of unlawful
imprisonment and second-degree home invasion as well as concurrent jail terms for unlawful use
of a self-defense spray device and assault and battery. In addition, the judgment ordered defendant
to pay $2,071.96 in restitution to the victim. On January 21, 2022, defendant moved to correct an
invalid sentence. The trial court thereafter issued an order granting relief with regard to the scoring
of offense variable (OV) 8, agreeing to resentence defendant, and promising to “allow for argument
on the issue of restitution.”
At the resentencing hearing on April 25, 2022, the trial court took testimony regarding the
victim’s medical expenses for the purpose of determining the amount of restitution due, arrived at
a total amount of $2,071.96, but then agreed to postpone entering an award of restitution because
defendant demanded to see “the receipts of actual payments.” Turning to sentencing, the trial court
noted that the rescoring of OV 8 had reduced the sentencing guidelines range from 43 to 86 months
down to 36 to 71 months for unlawful imprisonment, so the trial court imposed a new and reduced
sentence of 55 months to 15 years’ imprisonment for that offense. But the trial court left in place
the sentences for the other three offenses of conviction, including the prison term of 60 months to
15 years for second-degree home invasion. Defendant now appeals his convictions and sentences.
II. LEGAL ANALYSIS
Defendant’s brief filed by appointed counsel raises only sentencing issues, challenging the
scoring of OV 9 and OV 10. In contrast, defendant has submitted a Standard 4 brief in which he
contests the validity of his felony convictions and the restitution amount.1 We shall first address
the sentencing guidelines issues advanced by defendant’s attorney, and then we shall consider the
arguments made by defendant in his Standard 4 brief.
1
“A ‘Standard 4’ brief refers to a brief filed on behalf of an indigent criminal defendant pursuant
to Michigan Supreme Court Administrative Order No. 2004-6, Standard 4, 471 Mich c, cii (2005).”
People v Lowrey, 342 Mich App 99, 103 n 1; 993 NW2d 62 (2022).
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A. OFFENSE VARIABLE SCORING
Defendant, through his attorney, challenges the trial court’s scoring of OV 9 and OV 10.
“This Court reviews for clear error a trial court’s findings in support of a particular score under
the sentencing guidelines but reviews de novo whether the trial court properly interpreted and
applied the sentencing guidelines to the findings.” People v McFarlane, 325 Mich App 507, 531-
532; 926 NW2d 339 (2018). Clear error exists when this Court is “left with a definite and firm
conviction that a mistake was made.” People v Abbott, 330 Mich App 648, 654; 950 NW2d 478(2019). “Under the sentencing guidelines, the circuit court’s factual determinations . . . must be
supported by a preponderance of the evidence.” People v Hardy, 494 Mich 430, 438; 835 NW2d
340 (2013).
1. OV 9
Defendant contends that the trial court erred by assessing 10 points for OV 9 because the
victim’s wife was never put in danger when she was asleep in a different room and did not witness
defendant’s attack against the victim. OV 9 addresses the “number of victims.” MCL 777.39(1).
A sentencing court must assess 10 points for OV 9 if “[t]here were 2 to 9 victims who were placed
in danger of physical injury or death . . . .” MCL 777.39(1)(c). According to OV 9, “each person
who was placed in danger of physical injury or loss of life” should be counted “as a victim.” MCL
777.39(2)(a). “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 threatening situation may suffice to count the person as a victim.”
People v Baskerville, 333 Mich App 276, 294; 963 NW2d 620 (2020) (quotation marks and citation
omitted). “Points assessed under OV 9 must be based solely on the defendant’s conduct during
the sentencing offense.” People v Rodriguez, 327 Mich App 573, 581-582; 935 NW2d 51 (2019).
Even though the victim’s wife was in the home at the time, her testimony revealed that she
did not have any idea what was occurring because she was sleeping, and there is no indication that
she was in close proximity to a physically threatening situation because she was in another room.
See Baskerville, 333 Mich App at 294-295 (holding that the trial court erred by assessing 10 points
for OV 9 on the basis that a child was present in a different room of a home during a fatal shooting
in the home, because the child was “not in any potential line of fire”). Because there is no evidence
to suggest that the victim’s wife was placed in danger, the trial court erred by assessing 10 points
for OV 9. But the subtraction of 10 points for OV 9 would not change defendant’s OV level, nor
would it change defendant’s recommended sentencing guidelines range. See MCL 777.64. Thus,
defendant is not entitled to resentencing based on that scoring error alone. See People v Francisco,
474 Mich 82, 89-91; 711 NW2d 44 (2006).
2. OV 10
Defendant further argues that the trial court erred by assessing 15 points for OV 10 because
the victim was not vulnerable. Specifically, defendant asserts that the victim had no physical or
mental disabilities, that defendant and the victim were nearly the same age, and that defendant and
the victim were not in a domestic partnership or a relationship where defendant could have abused
his authority. Nevertheless, we conclude that OV 10 was properly scored at 15 points.
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OV 10 addresses “exploitation of a vulnerable victim.” MCL 777.40(1). A trial court must
assess 15 points if “[p]redatory conduct was involved.” MCL 777.40(1)(a). “ ‘Predatory conduct’
means preoffense conduct directed at a victim . . . for the primary purpose of victimization.” MCL
777.40(3)(a). To “ ‘[e]xploit’ means to manipulate a victim for selfish or unethical purposes. . . .”
MCL 777.40(3)(b). And “ ‘[v]ulnerability’ means the readily apparent susceptibility of a victim
to injury, physical restraint, persuasion, or temptation.” MCL 777.40(3)(c). “Offense 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). But MCL
777.40 specifically authorizes the consideration of facts outside the sentencing offense. See MCL
777.40(3)(a) (defining predatory conduct to include certain “preoffense conduct”).
In People v Cannon, 481 Mich 152, 158-159; 749 NW2d 257 (2008), our Supreme Court
identified factors a sentencing court should consider to determine whether a victim was vulnerable
in the context of OV 10:
(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.
“The mere existence of one of these factors does not automatically render the victim vulnerable.”
Id. at 159. In People v Huston, 489 Mich 451, 466; 802 NW2d 261 (2011), our Supreme Court
expanded on the definition of vulnerability provided in Cannon:
[T]o assess 15 points for OV 10, a court must find that an offender engaged in
predatory conduct and exploited a vulnerable victim, using only the statutory
definition of “vulnerability.” . . . MCL 777.40(3)(c) defines “vulnerability” as the
“readily apparent susceptibility of a victim to injury, physical restraint, persuasion,
or temptation,” and such vulnerability may or may not arise from the explicitly
listed characteristics, relationships, and circumstances set forth in subdivisions (b)
and (c). The statute does not mandate that this “susceptibility” be inherent in the
victim. Rather, the statutory language allows for susceptibility arising from
external circumstances as well.
The Supreme Court concluded that “the victim does not have to be inherently vulnerable” and “a
defendant’s ‘predatory conduct,’ by that conduct alone (eo ipso), can create or enhance a victim’s
‘vulnerability.’ ” Id. at 468.
Here, consistent with Huston, defendant’s conduct could have, and did, create the victim’s
vulnerability. Defendant admitted that he watched the victim from his kitchen window and waited
for the victim to return home. That, coupled with the fact that defendant brought pepper spray and
handcuffs when he approached the victim, supports the inference that defendant was lying in wait
for the victim so that he could unlawfully enter the victim’s home and commit the charged crimes.
Even though the victim may not be considered inherently vulnerable, defendant’s conduct of lying
in wait until the victim returned home from work at 2:30 a.m. gave rise to the victim’s vulnerability
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and constituted predatory conduct. Indeed, as our Supreme Court explained in Huston, 489 Mich
at 464, “lying in wait constitutes quintessential ‘predatory conduct.’ ” Therefore, in light of those
facts, the trial court properly assessed 15 points for OV 10 because defendant engaged in predatory
conduct toward the victim “for the primary purpose of victimization.” MCL 777.40(3)(a).
B. STANDARD 4 BRIEF
In a two-page Standard 4 brief, defendant makes three arguments in cursory fashion. First,
he argues that his convictions for unlawful imprisonment and second-degree home invasion violate
double-jeopardy standards. Second, he asserts that the trial court engaged in judicial misconduct.
Third, he contests the trial court’s approach to restitution. Those arguments are all meritless.
1. DOUBLE JEOPARDY
Defendant’s Standard 4 brief merely mentions the term “double jeopardy” in passing, but
that reference suggests that defendant’s convictions for unlawful imprisonment and second-degree
home invasion contravene double-jeopardy principles. The Double Jeopardy Clauses of the United
States Constitution and the Michigan Constitution prohibit placing a defendant twice in jeopardy
for the “same offense.” US Const, Am V; Const 1963, art 1, § 15. One safeguard of the guarantee
against double jeopardy “protect[s] the defendant from having more punishment imposed than the
Legislature intended.” People v Dickinson, 321 Mich App 1, 10; 909 NW2d 24 (2017) (quotation
marks omitted). To decide whether the Legislature intended multiple punishments for violations
of more than one statute arising from the same transaction or incident, courts must apply the “same
elements” test. Id. at 11. Under that test, “a court must inquire whether each offense contains an
element not contained in the other offense.” Id. If “two distinct statutes cover the same conduct
but each requires proof of an element the other does not, a presumption exists that the Legislature
intended multiple punishments unless the Legislature expressed a contrary intent.” Id. (quotation
marks and citation omitted).
Defendant’s convictions and concurrent sentences for the crimes of unlawful imprisonment
and second-degree home invasion easily pass muster under the “same elements” test because each
offense contains an element that the other offense does not. Specifically, unlawful imprisonment
under MCL 750.349b requires “ ‘restrain[ing] another person,’ ” People v Kosik, 303 Mich App
146, 151; 841 NW2d 906 (2013), which second-degree home invasion under MCL 750.110a(3)
does not require. People v Jackson (On Reconsideration), 313 Mich App 409, 421-422; 884 NW2d
297 (2015). Similarly, second-degree home invasion requires unlawful entry into a dwelling, see
id., while unlawful imprisonment does not. See Kosik, 303 Mich App at 151. Therefore, the trial
court did not violate defendant’s constitutional protection against double jeopardy when it allowed
defendant’s convictions for unlawful imprisonment and second-degree home invasion to stand or
when it imposed concurrent prison terms for those convictions.
2. JUDICIAL MISCONDUCT
Next, defendant accuses the trial court of judicial misconduct at the resentencing hearing
because the trial court: (1) disparaged defendant’s status as a disabled veteran; (2) asked only for
the prosecutor’s argument on restitution; and (3) made inappropriate comments regarding prison.
“A criminal defendant is entitled to a neutral and detached magistrate,” but “[a] defendant claiming
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judicial bias must overcome a heavy presumption of judicial impartiality.” People v Jackson, 292
Mich App 583, 597-598; 808 NW2d 541 (2011) (quotation marks and citations omitted). We find
no merit in any of defendant’s claims of judicial misconduct.
Despite defendant’s claim, the trial court did not disparage defendant’s status as a disabled
veteran. The trial court considered the nature of the charged offenses and opined that defendant
“might . . . have some disability,” but the court further noted that “whatever that disability might
be, [defendant] was able to attack this victim inside of his house and chain him up.” At most, this
comment was critical of defendant’s contention that he was a “disabled military combat veteran,”
so the court should reduce his prison term to enable him to receive medical assistance somewhere
other than a facility run by the Michigan Department of Corrections.
Defendant insists that the trial court asked only for the prosecutor’s arguments concerning
restitution, but defendant fails to acknowledge that the court first asked defense counsel if she had
any objections to the amount of restitution. The trial court also asked defense counsel if she wanted
to question the victim after he testified about the injuries and expenses that he sustained as a result
of defendant’s conduct. Finally, the trial court asked defense counsel if she wanted to make any
further statements after the victim testified. In sum, the trial court afforded defense counsel ample
opportunity to comment on restitution concerns at the resentencing hearing.
Finally, defendant has failed to demonstrate how the trial court’s comment about restitution
influenced the sentencing or adversely affected his right to a fair hearing. Defense counsel argued
that “there is a hardship on [defendant] to take anything over the $50” and requested that the trial
court “rescind that order either for a year or for the remainder of his prison sentence, . . . so that he
can pay when he gets out.” The trial court acknowledged that “it’s difficult for an inmate” to have
“restitution paid for out of the Defendant’s account,” but the court stated, “I’m sorry, that’s what
a prison is for.” The trial court offered that single, innocuous comment in response to defendant’s
argument against restitution. Therefore, defendant has failed to overcome the heavy presumption
of judicial impartiality, so defendant is not entitled to relief on the basis of judicial misconduct.
3. RESTITUTION
Defendant’s final challenge concerns the trial court’s order to remit prisoner funds to cover
restitution. Defendant complains: “It’s cruel and unusual punishment by the trial judge to keep an
order of $2071.96 for victim restitution still in abeyance putting my prison fund at no more than
$50 a month during an economic national inflation.” But the trial court did not resolve the issue
of restitution as part of the resentencing hearing, and the trial court did not include any restitution
amount in the amended judgment of sentence. The trial court issued an order to remit defendant’s
prisoner funds to pay court costs after his first sentencing hearing, but defendant acknowledges in
his Standard 4 brief that “I have paid my court cost[s] of $384 as ordered on Apr[il] 25, 2022,” so
we cannot tell what defendant’s concerns are at this point. A defendant “may not leave it to this
Court to search for a factual basis to sustain or reject his position.” People v Traylor, 245 Mich
App 460, 464; 628 NW2d 120 (2001) (quotation marks and citation omitted). Given defendant’s
failure to establish the factual predicate for his argument that the order to remit prisoner funds to
pay restitution amounts to cruel or unusual punishment, we need not consider that claim. People
v Petri, 279 Mich App 407, 413; 760 NW2d 882 (2008).
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Affirmed.
/s/ James Robert Redford
/s/ Douglas B. Shapiro
/s/ Christopher P. Yates
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