People v. Norfleet ( 2016 )

STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, FOR PUBLICATION
November 8, 2016
Plaintiff-Appellee, 9:05 a.m.
v No. 328968
Grand Traverse Circuit Court
RONALD KENNETH NORFLEET, LC No. 15-12072-FC
Defendant-Appellant.
Before: SHAPIRO, P.J., and HOEKSTRA and SERVITTO, JJ.
PER CURIAM.
Defendant was convicted of multiple drug offenses and sentenced to five consecutive
sentences. We affirm his convictions but remand for further proceedings as to sentencing.
This case presents an issue of first impression regarding appellate review of a trial court’s
decision to impose consecutive sentences where such an action is not mandatory. We hold that
where a statute grants a trial court with discretion to impose a consecutive sentence, the trial
court’s decision to do so is reviewed on an abuse of discretion standard, i.e., whether the trial
court’s decision was outside the reasonable and principled range of outcomes. See People v
Babcock, 469 Mich. 247, 269; 666 NW2d 231 (2003). Accordingly, trial courts imposing one or
more discretionary consecutive sentences are required to articulate on the record reasons for each
consecutive sentence imposed.
I. FACTUAL AND PROCEDURAL BACKGROUND
Defendant was charged with and convicted of seven drug-related offenses. The charges
were based on activities conducted by defendant in concert with two other individuals, Bryan
and Alysha Nerg, and several of the sales involved Angela Bembeneck. Officers observed
Alysha Nerg delivering what they believed to be heroin to Bembeneck on February 13, 2015.
Bembeneck and Alysha both testified at trial that Bembeneck had ordered the heroin by calling
defendant who in turn called Alysha and told her to make the delivery. Officers conducted a
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traffic stop on Bembeneck shortly after the suspected exchange.1 Bembeneck consented to a
search and admitted to the officer who pulled her over that she had heroin in her possession.
Bembeneck then agreed to serve as a confidential informant and, on police direction, called
defendant to order more heroin. Alysha testified that defendant called her to have her deliver
more heroin to Bembeneck. Bembenck made the purchase with “controlled buy funds” provided
by the police and received heroin from Alysha in exchange for those funds. In addition to these
two exchanges, Bryan testified that on the same date he delivered cash to defendant, who was in
his car, in exchange for heroin.
Following the controlled buy, search warrants were executed at both defendant’s
residence and the motel where Bryan and Alysha Nerg were residing. Heroin was found in the
Nergs’ motel room, but no heroin was found at defendant’s residence or in his Jeep. Police
testified that during the search of defendant’s residence they found large amounts of cash,
including the “controlled buy funds” that Bembeneck used in the exchange with Alysha, safe
deposit box keys, two BB gun pistols, and baggies. Officers testified that, while no heroin was
found in defendant’s home, a drug dog did alert to drugs at several locations in the house and
that the drug dog was not able to search defendant’s kitchen due to the presence of an evidence
tabulation station that had been set up there.
Defendant’s ex-girlfriend, Desseray Richey, testified that after learning that officers had
searched defendant’s home, she went there and took what she “suspected could have been drugs”
out of the kitchen and flushed them down the toilet. Richey also testified that she had previously
picked up cash and made deliveries for defendant including deliveries to the Nergs. Richey
testified that defendant told her the deliveries were “protein powder,” which he claimed to sell as
part of his business as a personal trainer.2
Defendant was charged with three counts of delivery of less than fifty grams of heroin,
MCL 333.7401(2)(a)(iv), based upon the two deliveries to Bembeneck by Alysha Nerg, as to
which the prosecution alleged defendant acted as an aider and abettor, and his direct delivery in
his Jeep to Bryan Nerg the same day. He was also charged with one count of possession with
intent to deliver less than 50 grams of heroin, MCL 333.7401(2)(a)(iv), based upon his control
over the heroin found in the Nergs’ motel room, one count of conspiracy to deliver less than 50
grams of heroin, MCL 333.7401(2)(a)(iv) and MCL 750.157a, one count of maintaining a drug
house, MCL 333.7405(d), and one count of maintaining a drug vehicle, MCL 333.7405(d).
1
The officer who conducted the traffic stop testified that the stop was predicated on her
observance that Bembeneck was not wearing a seat belt and was driving with her license plate
partially covered.
2
Richey testified that at one point she thought the substance was crack cocaine but that when she
asked defendant he got upset and told her it was “dope.” The parties vigorously dispute whether
Richey ever identified the substance as heroin prior to being told to use that word by the police
and prosecutor.
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Defendant was convicted on all charges and was sentenced as a habitual offender, fourth
offense, MCL 769.12, at the top of the recommended guideline range on each charge. He was
sentenced to five terms of 134 months to 40 years, one for each of the three counts of delivery of
less than fifty grams of heroin, one for the count of possession with intent to deliver less than
fifty grams of heroin, and one for conspiracy to deliver less than 50 grams of heroin. He was
also sentenced to two terms of 46 months to 15 years; one for maintaining a drug house and one
for maintaining a drug vehicle. The trial court directed that each of the sentences for the first
five counts be served consecutively to the other four. Thus, defendant will first become eligible
for parole consideration after 55 years.
II. DEFENDANT’S CHALLENGE TO HIS CONVICTIONS
Defendant raises several issues that he claims merit reversal of some or all of his
convictions. The first three arguments were raised in the brief submitted by appellate counsel,
and the final three were raised in defendant’s Standard IV brief. Defendant is not entitled to
relief on any of these grounds.
First, defendant argues that his trial counsel was ineffective for failing to move for a
mistrial when the jury heard an audio recording of defendant’s phone call where defendant
allegedly made references to his prior murder conviction and violent past. Allowing the jury to
hear such references could have had a prejudicial impact. However, contrary to defendant’s
claim, there is no indication in the record that this portion of the audio recording was ever played
to the jury. Defendant offers no evidence, other than his own affidavit to support his claim that
the statements were in fact played to the jury. In that affidavit defendant states that the entire
recording of this phone call was played for the jury, a contention the record clearly rebuts. The
record shows that differing portions of this phone call were played to the jury, not that the tape
was played in its entirety. Additionally, because no Ginther3 hearing was held, “review is
limited to mistakes apparent on the record.” People v Hurst, 205 Mich. App. 634, 641; 517
NW2d 858 (1994). Because we find no mistake on the part of trial counsel apparent on the
record, we conclude that defendant is not entitled to relief on his ineffective assistance of counsel
claim.
Second, defendant argues that the trial court erred in instructing the jury on the elements
of the charges for keeping and maintaining a drug house and keeping and maintaining a drug
vehicle. Specifically, defendant argues that the jury was not instructed on the Supreme Court’s
construction of the phrase “keep or maintain” as requiring controlled substance use to be both
continuous and a substantial purpose for which the house or vehicle was used. People v
Thompson, 477 Mich. 146, 156-157; 730 NW2d 708 (2007). However, the Supreme Court has
held that “jury instructions that were somewhat deficient may nonetheless, when viewed as a
whole, have sufficed to protect a defendant’s rights when the jury would have convicted the
defendant on the basis of the evidence regardless of the instructional error.” People v Kowalski,
489 Mich. 488, 506; 803 NW2d 200 (2011).
3
People v Ginther, 390 Mich. 436; 212 NW2d 922 (1973).
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While defendant is correct that the jury was not instructed on the definition of “keep or
maintain” or on the requirement of continuous use, there is no error because the jury would have
convicted defendant on the basis of the evidence at trial even if the jury had been more fully
instructed on the intricacies of the “keep or maintain” element. Defendant relies on the fact that
no heroin was found by the police in either his home or his Jeep. However, had such evidence
been found and presented it would not be direct evidence that the keeping or selling was
continuous or that the keeping or selling was a substantial purpose of the home or Jeep. The
evidence of continuous use of his home and Jeep to keep and sell heroin and the evidence that a
substantial purpose of his home and Jeep was to keep and sell heroin was the testimony of
various witnesses indicating that the Jeep was used to make heroin deliveries and that the home
was used to store both the heroin and the proceeds of the heroin’s sale. Therefore, defendant
cannot show that the alleged instructional error prejudiced him in any way because the alleged
lack of evidence does not correspond to the alleged instructional omission; he would have been
convicted on the basis of the evidence admitted regardless of the instructional error. See
Kowalski, 489 Mich. at 504-506.
Third, defendant argues that there was insufficient evidence to support his conviction of
possession with the intent to deliver less than 50 grams of heroin. Defendant argues that there
was insufficient evidence to convict him of possession with intent to deliver because there was
no evidence that he possessed the heroin recovered in the Nergs’ motel room. However, “[a]
person need not have actual physical possession of a controlled substance to be guilty of
possessing it.” People v Wolfe, 440 Mich. 508, 519-520; 489 NW2d 748 (1992), amended on
other grounds 441 Mich. 1201 (1992). “Possession is a term that signifies dominion or right of
control over the drug with knowledge of its presence and character.” People v Nunez, 242 Mich
App 610, 615; 619 NW2d 550 (2000) (internal citations and quotations omitted). Both Bryan
and Alysha testified that the substance recovered from their motel room by the police was heroin
and that defendant had control over it at the time because he was the one that directed them who
to deliver it to. This testimony was corroborated by Bembeneck who testified that defendant was
the one whom she would call to request the heroin from and that Bryan and Alysha simply
delivered it. There was clear evidence of a sufficient nexus between defendant and the
contraband for the jury to conclude that under the totality of the circumstances, defendant had
constructive possession of the heroin.
Fourth, defendant argues that the prosecutor did not timely serve defendant with notice of
its intent to enhance defendant’s sentence. The felony information in this case, dated March 24,
2015, contains a Fourth Habitual Offender Notice listing the prior convictions that would be
relied upon for purposes of sentence enhancement. The arraignment took place on March 26,
2015. MCL 769.13(2) states that notice of intent to seek a sentencing enhancement “may be
personally served upon the defendant or his or her attorney at the arraignment on the information
charging the underlying offense.” Defendant had notice of the prosecution’s intent to seek
sentencing enhancement at his arraignment, and this argument is without merit.
Fifth, defendant argues that the prosecution knowingly used the testimony of his ex-
girlfriend, Richey, which he alleges was false and perjured. Defendant did not raise this issue
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below and it is unpreserved.4 Attached to defendant’s standard 4 brief is an affidavit of Richey
signed several days after trial, in which she attests that she lied in her trial testimony and that she
was told to stress certain alleged falsehoods such as that defendant told her he sold heroin and
that she flushed drugs down the toilet. “As a rule the court is not impressed by the recanting
affidavits of witnesses who attempt to show that they perjured themselves at the trial.” People v
Smallwood, 306 Mich. 49, 55; 10 NW2d 303 (1943). Moreover, Richey’s trial testimony did not
stand alone, defendant’s guilt was demonstrated by the testimony of numerous other witnesses
including, the Nergs, Bembeneck, and police officers. Additionally, physical evidence in the
form of the recovered buy funds supported defendant’s conviction.
Sixth, defendant argues that he is entitled to reversal because the trial court failed to
suppress documents seized during a search of his jail cell, which he claims included notations
concerning trial strategy that he drafted at the direction of his attorney. We disagree. A hearing
revealed that most of the documents with which defendant was concerned had not been seized
and that only a few pages were transmitted to the prosecutor. In addition, there is no indication
on the documents that they were prepared for counsel, and there is no testimony or affidavit so
asserting. Also, the prosecutor agreed on the record that the materials would not be used at trial
as either substantive evidence or for purposes of impeachment, and there is no indication in the
record that they were used in any fashion to aid the prosecution.5 Finally, the court granted leave
to defense counsel to schedule a further hearing if it appeared that additional documents had
been reviewed though not seized, and no further hearing was sought.
Defendant’s convictions are affirmed.
III. DEFENDANT’S SENTENCING CHALLENGES
Defendant raises several issues in regard to his sentencing. First, defendant argues that
the trial court abused its discretion in ordering consecutive sentences for his conviction of
conspiracy to deliver heroin, his conviction of possession with intent to deliver heroin, and his
three convictions of delivery of heroin. Second, in his standard 4 brief, defendant argues that his
sentence violates his Sixth Amendment rights as articulated by the Supreme Court’s decision in
People v Lockridge, 498 Mich. 358, 388-392; 870 NW2d 502 (2015). Finally, defendant argues
that the trial court abused its discretion in allowing his Presentence Investigation Report (PSIR)
to contain statements asserting that defendant is affiliated with a major Detroit street gang.
A. THE IMPOSITION OF CONSECUTIVE SENTENCES
In People v Milbourn, 435 Mich. 630, 635-636; 461 NW2d 1 (1990),6 the Supreme Court
held that appellate review of sentences imposed by the trial court must ensure that the sentences
4
Unpreserved claims of prosecutorial misconduct are reviewed for plain error affecting
substantial rights. People v Bennett, 290 Mich. App. 465, 475; 802 NW2d 627 (2010).
5
See, Bishop v Rose, 701 F 2d 1150, 1151, 1154-1157 (CA 6, 1982).
6
Milbourn was overruled on other grounds by statute as recognized in People v Armisted, 295
Mich. App. 32, 51; 811 NW2d 47 (2011) (stating that it did not appear the “rule of Milbourn,
survived the Legislature’s enactment of the statutory sentencing guidelines”). However, the
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imposed comply with the principle of proportionality. Milbourn held that the principle of
proportionality requires that “given sentence[s] . . . imposed by the trial court [] be proportionate
to the seriousness of the circumstances surrounding the offense and the offender.” Id. at 636. A
central proposition to the holding of Milbourn was that discretionary sentencing decisions are
subject to review by the appellate courts to ensure that the exercise of that discretion has not
been abused. See id. at 662, 664-665.7
We recognize that each sentence is to be reviewed on its own merits. We held in People
v Warner, 190 Mich. App. 734, 735-736; 476 NW2d 660 (1991), that a proportionality challenge
to a given sentence must be based on the individual term imposed and not on the cumulative
effect of multiple sentences.
No case has held, however, that the decision to impose a consecutive sentence rather than
a concurrent one is unreviewable. In People v Miles, 454 Mich. 90, 92, 95; 559 NW2d 299
(1997), the Supreme Court rejected the defendant’s proportionality challenge to the cumulative
term resulting from a discretionary sentence and a consecutive two year felony-firearm sentence.
However, the trial court in Miles could not and did not exercise any discretion as to whether to
impose a consecutive sentence because the legislature has mandated that felony-firearm
sentences be imposed consecutive to any other. MCL 750.227b(3). By contrast to the felony-
firearm statute at issue in Miles, the decision of a sentencing court to impose a consecutive
sentence under MCL 333.7401(3), the statute under which the consecutive sentences were
imposed in this case, is discretionary. People v Doxey, 263 Mich. App. 115, 117; 687 NW2d 360
(2004). Therefore, although the combined term is not itself subject to a proportionality review,
the decision to impose a consecutive sentence where not mandated by statute, is reviewable for
an abuse of discretion.
In People v Babcock, 469 Mich. 247, 269; 666 NW2d 231 (2003), the Supreme Court
stated that:
At its core, an abuse of discretion standard acknowledges that there will be
circumstances in which there will be no single correct outcome; rather, there will
be more than one reasonable and principled outcome. . . . When the trial court
selects one of these principled outcomes, the trial court has not abused its
Supreme Court recently determined that the mandatory application of the statutory sentencing
guidelines was in violation of the Sixth Amendment of the United States Constitution.
Lockridge, 498 Mich. at 364-365, 389, 391-392. Additionally, in People v Steanhouse, 313 Mich
App 1, 47-48; 880 NW2d 297 (2015) lv gtd 499 Mich. 934 (2016), this Court held that “a
sentence that fulfills the principle of proportionality under Milbourn and its progeny, constitutes
a reasonable sentence under Lockridge.”
7
In responding to the dissent, the Milbourn Court stated that “[t]he gravamen of the dissent is
that the enormous sentencing discretion which the Legislature left to the judiciary is, in sharp
contrast to every other discretionary sphere of judicial activity,” and that under the dissent’s
rationale, a sentencing court’s discretion could “be exercised at will in the trial court to the extent
that appellate courts may do nothing more than assure themselves that the trial court has not
exceeded the statutory maximum.” 435 Mich. at 662.
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discretion and, thus, it is proper for the reviewing court to defer to the trial court’s
judgment. An abuse of discretion occurs, however, when the trial court chooses
an outcome falling outside this principled range of outcomes.
We find the standard for reviewing a trial court’s decision for an abuse of discretion
articulated in Babcock to be the appropriate vehicle by which to review a sentencing court’s
discretionary decision to impose consecutive sentences under MCL 333.7401(3). The Supreme
Court has referred to the Babcock articulation as the “default” abuse of discretion standard.
Maldonado v Ford Motor Co, 476 Mich. 372, 388; 719 NW2d 809 (2006).
Review of a discretionary decision requires that the trial set forth the reasons underlying
its decision. See People v Broden, 428 Mich. 343, 350-351; 408 NW2d 789 (1987) (holding that
in order to aid the appellate review of whether an abuse of discretion has occurred at sentencing
the trial court is required to articulate on the record reasons for imposing a particular sentence).
Further, MCL 333.7401(3) provides discretion to impose “A term of imprisonment . . . to run
consecutively.” Thus, a trial court may not impose multiple consecutive sentences as a single act
of discretion nor explain them as such. The decision as to each consecutive sentence is its own
discretionary act and must be separately justified on the record. The statute clearly provides that
a discretionary decision must be made as to each sentence and not to them all as a group.
Moreover, this is in accord with the Supreme Court’s statement that Michigan has a “clear
preference for concurrent sentencing” and that the imposition of “a consecutive sentence is
strong medicine.” People v Chambers, 430 Mich. 217, 229, 231; 421 NW2d 903 (1988) (internal
quotations and citation omitted).8 While imposition of more than one consecutive sentence may
be justified in an extraordinary case, trial courts must nevertheless articulate their rationale for
the imposition of each such sentence so as to allow appellate review. As the Milbourn Court
aptly stated, “[d]iscretion, however, is a matter of degree, not an all or nothing proposition.” 435
Mich. at 664. Additionally, we believe that requiring trial courts to justify each consecutive
sentence imposed will help ensure that the “strong medicine” of consecutive sentences is
reserved for those situations where so drastic a deviation from the norm is justified.
In the instant case, the trial court spoke only in general terms stating that it took into
account defendant’s “background, his history, [and] the nature of the offenses involved.”
Moreover, it did not speak separately as to each consecutive sentence, each of which represents a
separate exercise of discretion. Therefore, it did not give particularized reasons to impose each
sentence under MCL 333.7401(2)(a)(iv) consecutive to the other, with reference to the specific
offenses and the defendant. Remand is therefore necessary so that the trial court can fully
articulate its rationale for each consecutive sentence imposed. We retain jurisdiction so that after
8
Chambers concerned a question of whether the statutory authorization of consecutive sentences
for defendants who commit felonies while on bond for a prior felony, MCL 768.7b(2), allowed
“the trial court first in time to render sentence” the authority to impose the consecutive sentence
or whether that statute afforded the authority to impose the consecutive sentence solely “to the
court last in time to impose sentence.” 430 Mich. at 219. The Court held that the “first-in-time
sentencing court lacked discretionary consecutive sentencing authority.” Id. at 231-232.
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being apprised of the trial court’s rationales we may review its decisions for an abuse of
discretion.
B. DEFENDANT’S LOCKRIDGE CHALLENGE
In order to determine whether defendant is entitled to relief under Lockridge, it is
necessary to determine whether or not facts admitted by defendant and facts found by the jury
were sufficient to assess the minimum number of OV points necessary for “defendant’s score to
fall in the cell of the sentencing grid under which he . . . was sentenced.” 498 Mich. at 394. If
the facts defendant admitted and the facts found by the jury “were insufficient to assess the
minimum number of OV points necessary for the defendant’s score to fall in the cell of the
sentencing grid under which he or she was sentenced” then defendant is entitled to have the case
“remanded to the trial court to determine whether that court would have imposed a materially
different sentence but for the constitutional error.” Id. at 395, 397 (emphasis in original).
Defendant’s sentencing information report shows that he received a total of 50 OV points
placing him in OV level V. Because 50 points is the minimum number of points in OV level V,
MCL 777.65, if any of the OV points were the result of judicial fact-finding, as opposed to facts
admitted by defendant or found by the jury, then defendant’s guideline minimum range was
impermissibly increased in violation of Lockridge. Defendant first alleges that OV 12 was an
instance where his OV range was increased as the result of judicial fact-finding.9 OV 12 states
that if “[t]hree or more contemporaneous felonious criminal acts involving other crimes were
committed” then 10 points should be scored. MCL 777.42(1)(c). Zero points are to be scored if
“[n]o contemporaneous felonious criminal acts were committed.” MCL 777.42(1)(g). The
statute defines a felonious criminal act as contemporaneous if “[t]he act occurred within 24 hours
of the sentencing offense” and if “[t]he act has not and will not result in a separate conviction.”
MCL 777.42(2)(a). Defendant was scored 10 points for OV 12.
The scoring of 10 points for OV 12 was supported by the testimony of Bryan Nerg who
stated that on the evening of February 12, 2015 he received about 20 grams of heroin from
defendant and that he packaged up this heroin and sold it to 10-12 people on February 13, 2015.
This testimony was corroborated by police officers who testified to seeing Bryan’s van coming
and going from his motel room throughout the day. While this evidence was sufficient to
support the trial court’s scoring on OV 12,10 because the variable specifically states that it cannot
9
In addition to his Lockridge challenge, defendant argues on appeal that the trial court’s scoring
of 10 points for OV 12 was not supported by the record.
10
This evidence is sufficient to defeat defendant’s argument on appeal that the trial court erred in
scoring OV 12 at 10 points. “Under the sentencing guidelines, the circuit court’s factual
determinations 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). “Clear error exists
when the reviewing court is left with the definite and firm conviction that a mistake has been
made.” People v Kurylczyk, 443 Mich. 289, 303; 505 NW2d 528 (1993). Given that witness
testimony supported the scoring, we are not left with a definite and firm conviction that the
scoring was erroneous. Defendant’s argument that trial counsel was ineffective for raising this
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be scored for criminal acts for which there was a conviction, it stands that any criminal act
scored under OV 12 would not be a criminal act found by the jury. Additionally, there is no
indication in the record that defendant has ever admitted to these other criminal acts that Bryan
and Alysha testified to. Once the 10 points for OV 12 are removed from defendant’s sentencing
information report, he falls from OV level V to level IV. Therefore, the facts admitted by
defendant and found by the jury are insufficient for his score to fall in the cell of the sentencing
grid under which he was sentenced. Defendant is entitled to a Crosby remand for “the trial court
to determine whether [it] would have imposed a materially different sentence but for the
constitutional error.” Lockridge, 498 Mich. at 395, 397.
C. REFERENCES TO GANG AFFILIATION IN THE PSIR
Defendant’s PSIR states that defendant “is affiliated with the major street gang in Detroit,
MI called Young Boys, Inc.” At sentencing, defendant asked that this gang reference be stricken
from the PSIR. The trial court found the reference to be accurate relying solely on the
prosecutor’s assertions that a previous PSIR from 1987 referenced a contact defendant had with
Detroit police where defendant was found with heroin in gang packaging, that Richey had stated
during an interview with police that defendant told her he had been an enforcer for this Detroit
gang while showing her the block that he used to control, and that a cell phone seized from
defendant’s residence showed an entry to the gang’s Wikipedia page.
The PSIR “is presumed to be accurate unless the defendant effectively challenges the
accuracy of the factual information.” People v Grant, 455 Mich. 221, 233-234; 565 NW2d 389
(1997). The prosecution “has the burden to prove the [challenged] fact by a preponderance of
the evidence” upon an effective challenge by a defendant. People v Waclawski, 286 Mich. App.
634, 690; 780 NW2d 321 (2009). We find that the trial court abused its discretion in finding that
the prosecution met its burden to prove the challenged statement in the PSIR. No evidence was
submitted to support those allegations. Even assuming the truth of the prosecutor’s assertions,11
they at most established that defendant was at one time affiliated with this gang. They do not
establish that defendant was affiliated with it at the time of the alleged crimes or thereafter, as the
PSIR suggests. Accepting the conclusion in the PSIR based solely on the prosecutor’s
statements suggesting defendant had past gang affiliations was an abuse of discretion. On
remand, we direct the trial court to remove these statements in the PSIR unless a preponderance
of the evidence supports their accuracy.
IV. CONCLUSION
We remand this case to the trial court for a Crosby hearing to determine whether or not it
would have imposed a materially different sentence if it had not been bound by the sentencing
guidelines. If the trial court concludes that it would not have imposed a materially different
issue is also without merit. See People v Snider, 239 Mich. App. 393, 425; 608 NW2d 502 (2000)
(stating that “[t]rial counsel is not required to advocate a meritless position”).
11
While we note that the rules of evidence are not applicable at sentencing, Waclawski, 286
Mich. App. at 690, it cannot go unnoticed that the prosecutor’s statements contained multiple
levels of hearsay and that the prosecutor did not provide any independent verification for the
truth of his assertions.
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sentence, then we direct the trial court to articulate its rationale for imposing each of the five
consecutive sentences that it ordered in this case. However, if the trial court concludes that it
would have imposed a materially different sentence had it not been bound by the guidelines, then
it should re-sentence defendant. If the trial court does re-sentence defendant, it must provide a
rationale for each sentence that it, in its discretion, determines should be served consecutively.
We also direct the trial court to remove references in defendant’s PSIR that are not supported by
a preponderance of the evidence. In all other respects we affirm.
Affirmed in part and remanded for further proceedings consistent with this opinion. We
retain jurisdiction.
/s/ Douglas B. Shapiro
/s/ Joel P. Hoekstra
/s/ Deborah A. Servitto
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Court of Appeals, State of Michigan
ORDER
Douglas B. Shapiro
People or Michigan v Ronald Kenneth Norfleet Presiding Judge
Docket No. 328968 Joel P. Hoekstra
LC No. 15-12072 FC Deborah A. Servitto
Judges
Pursuant to the opinion issued concu1Tently with this order, this case is REMANDED for
further proceedings consistent with the opinion or this Court. We retain jurisdiction.
Proceedings on remand in this matter shall commence within 42 days or the Clerk's
certification of this order, and they shall be given priority on remand until they urc concluded.
The parties shall promptly file with this Court a copy of all papers filed on remand.
Within seven days after entry, appellant shall file with this Court copies of all orders entered on remand.
The transcript of all proceedings on remand shall be prepared and filed within 21 days
after completion of the proceedings.
A true copy entered and certified by Jcromc W. Zimmer Jr., Chief Clerk, on
NOV 0 8 2016
Date