People of Michigan v. Christopher Earl Kline

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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
March 17, 2022
Plaintiff-Appellee,
V No. 355206
Shiawassee Circuit Court
CHRISTOPHER EARL KLINE, LC No. 17-001073-FH
Defendant-Appellant.
Before: REDFORD, P.J., and SAWYER and MURRAY, JJ.
PER CURIAM.
Defendant appeals by delayed leave granted1 the trial court’s denial of his motion for relief
from judgment. We affirm.
In 2017, defendant pleaded guilty to a charge of witness intimidation, MCL 750.122(7)(b),
and the trial court sentenced defendant, as a second habitual offender, MCL 769.10, to serve a
departure sentence of 96 to 180 months in prison. After the trial court denied his motion to
withdraw his plea or for resentencing, defendant filed an application for delayed leave in this
Court, which denied the application for “lack of merit in the grounds presented.” People v Kline,
unpublished order of the Court of Appeals, issued March 4, 2019 (Docket No. 347318).
Defendant’s motion for relief from judgment, which raised additional sentencing issues and
asserted ineffective assistance of counsel, and this appeal of the trial court’s denial of the motion,
followed.
I. STANDARDS OF REVIEW
This Court reviews for an abuse of discretion the decision of a trial court regarding a motion
for relief from judgment. People v Swain, 288 Mich App 609, 628; 794 NW2d 92 (2010).
Likewise, a trial court’s decision whether to hold an evidentiary hearing is also reviewed for an
1
People v Kline, unpublished order of the Court of Appeals, entered March 18, 2021 (Docket No.
355206).
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abuse of discretion. People v Unger, 278 Mich App 210, 216-217; 749 NW2d 272 (2008). “An
abuse of discretion occurs when the trial court’s decision is outside the range of principled
outcomes.” Swain, 288 Mich App at 628. “[T]he proper interpretation and application of a court
rule is a question of law that is reviewed de novo.” Id. at 646-647. A trial court’s findings of facts
supporting its decision on a motion for relief from judgment are reviewed for clear error. People
v Kasben, 324 Mich App 1, 7; 919 NW2d 463 (2018). A factual finding is clearly erroneous if it
leaves the Court with a firm and definite conviction that a mistake was made. People v Steele, 292
Mich App 308, 313; 806 NW2d 753 (2011).
“A sentence that departs from the applicable guidelines range will be reviewed by an
appellate court for reasonableness.” People v Lockridge, 498 Mich 358, 392; 870 NW2d 502
(2015). Review of a departure sentence for reasonableness calls for application of the
proportionality test. People v Steanhouse, 500 Mich 453, 471; 902 NW2d 327 (2017). The trial
court’s factual determinations at sentencing are reviewed for clear error, and the findings must be
supported by a preponderance of the evidence. People v Hardy, 494 Mich 430, 438; 835 NW2d
340 (2013).
II. SENTENCING
Defendant first argues that the trial court erred by stating that it could not properly grant
relief from judgment in connection with defendant’s sentencing issues because defendant had
previously raised the same issues on appeal, which this Court rejected on their merits. The court
cited MCR 6.508(D)(2), which states in part that a trial court “may not grant relief to the
defendant” when the motion “alleges grounds for relief which were decided against the defendant
in a prior appeal . . . .” We agree with defendant that his current sentencing issues differ
substantially from those he raised in his earlier appeal, and thus that MCR 6.508(D)(2) is of
questionable applicability. However, we conclude that any error in the trial court’s invocation of
that rule was harmless, because the court went on to consider and decide defendant’s new
sentencing issues.
The recommended range for defendant’s minimum sentence under the sentencing
guidelines was 29 to 71 months, and thus the defendant’s minimum sentence of 96 months
constituted an upward departure. Defendant argues that the trial court erred by basing the departure
sentence on inaccurate information.
A sentencing court must consult the sentencing guidelines, calculate the recommended
sentencing range, and take that range into account. MCR 6.425(D); Lockridge, 498 Mich at 391-
392. However, the court is not compelled to impose a minimum sentence within the guidelines
range. Id. at 365. A sentencing court departing from the guidelines range need not state substantial
and compelling reasons for doing so, but the resulting sentence must be reasonable. Id. at 392.
“A defendant is entitled to be sentenced by a trial court on the basis of accurate
information.” People v Francisco, 474 Mich 82, 88; 711 NW2d 44 (2006). “[A] sentence is
invalid if it is based on inaccurate information.” People v Miles, 454 Mich 90, 96; 559 NW2d 299
(1997). See also People v Sharp, 192 Mich App 501, 509-510; 481 NW2d 773 (1992) (“the use
of inaccurate information at sentencing may violate defendant’s right to due process”).
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Defendant’s first claim of inaccuracy concerns the trial court’s statement “that it could have
sentenced [defendant] to an additional ‘2,511 days in jail, or nearly seven years’ for repeated acts,
which the Court regarded as contempt of court.” The trial court was referring to the 27 times that
defendant violated a personal protection order by telephoning a witness from jail. Defendant
correctly notes that concurrent sentencing is the norm unless there is specific statutory
authorization for consecutive sentencing. See People v Chambers, 430 Mich 217, 222; 421 NW2d
903 (1988). The contempt statute, MCL 600.1715, does not provide for consecutive sentencing.
Therefore, if defendant were in fact facing 27 convictions of contempt of court, he would not be
facing 27 consecutive sentences as a result. Accordingly, to the extent that the trial court suggested
that a calculation of days from hypothetical consecutive contempt sentences was relevant to
defendant’s sentence, it clearly erred.
However, the trial court did not state that it was basing its sentence on its calculation of
contempt of court sentences, and in fact clarified that its reference to multiple contempt sentences
was “rhetorical flourish.” The court’s observation that each contempt conviction could have
subjected defendant to additional incarceration was a part of the trial court’s discussion of
defendant’s extensive history of legal entanglements, and how the guidelines account for other
convictions. The sentencing offense was witness intimidation, and the trial court was discussing
how the seriousness of other crimes indicated defendant’s lack of regard for the judicial system.
The court explained as follows:
The court reached its chosen sentence by noting the multiple instances of
defendant’s conduct that attempted to interfere with the administration of justice.
The guidelines assess this conduct at OV 19, MCL 777.49. Under this variable
(and at the time of sentencing), the Court assesses 10 points when the offender
otherwise interfered with or attempted to interfere with the administration of
justice. The guidelines do not assess points for repeated instances of conduct.
Thus, whether a Defendant engaged in such conduct once or multiple times, the
Court may only assess 10 points regardless of the underlying circumstances. Given
the number of defendant’s efforts to interfere with the justice system, the Court
found the guidelines recommendation unreasonable as applied to OV 19. If the
Court could have scored points for each act relevant to OV 19, defendant would
have placed into the highest level of the offense variables. This suggested to the
Court a range of sentences it found more proportionate to Defendant and his
criminal activity.
The trial court well explained how it considered defendant’s contemptuous conduct. The
court acknowledged that “[t]he guidelines generally consider each offender’s criminal history and
the circumstances of the sentencing offense,” but that “the general nature of that consideration can
introduce distortions when applied to a particular Defendant.” The court than went on to discuss
defendant’s criminal history, including his contacting a witness in violation of a protection order.
The court detailed 23 prior misdemeanor convictions, three felony convictions, the charges
dismissed in the plea deal, defendant’s violating bond by not appearing at his sentencing,
defendant’s misrepresenting his substance abuse, and the sentencing offense of witness
intimidation in connection with 27 calls from jail. After that recitation, the court reiterated the
purpose of listing defendant’s legal indiscretions, including the 27 instances of contacting the
witness despite a protection order, as follows:
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The guidelines only permit the Court to score ten (10) points for that
conduct, and ten (10) points isn’t enough. I’m not sure one hundred (100) points
would be enough to account for your massive, repeated, persistent contempt of this
legal system.
[Defendant], you think the rules don’t apply to you, and you demonstrate
that with nearly every action that you take. Those factors are not accounted for in
the guidelines, and the Court finds that they warrant an upward departure.
Therefore, even though the trial court exaggerated the number of days of incarceration that
defendant might have earned if he had been prosecuted for contempt over his phone calls to a
witness in violation of a protection order, it is apparent that the court did not rely on any such
calculation when determining defendant’s sentence. Instead, the court was thorough when
detailing its reasoning for the departure sentence, emphasizing the extent that defendant’s behavior
had interfered with the administration of justice. For these reasons, we are satisfied that the court
determined its sentence on the basis of the sentencing offense, rather than in relation to any actual
or hypothetical sentences for other crimes defendant had committed.
Defendant also asserts that the trial court erred when it announced that its departure
sentence was “consistent with what you would see had you maxed out on the offense variables,
which the court considers appropriate and reasonable under these facts.” Defendant protests that
his harshest guidelines sentence with all offense variables scored at their maximums would have
been 95 months, rather than the 96-month sentence that the trial court imposed.
The trial court addressed defendant’s claim as follows:
Defendant also argues the court’s statement that its chosen sentence is
“consistent with” what the guidelines would recommend if Defendant had scored
into the highest level of the Offense Variables (OVs). Defendant correctly notes
that the Court imposed a sentence of 96 months of incarceration, while the ceiling
of defendant’s guideline range (as a second-offense habitual offender) was only 95
months. This is the reason the Court said “consistent” and not “equal.”
The court then went on to discuss how the offense variables were inadequate to reflect the extent
that defendant’s behavior interfered with the administration of justice.
Our review of the sentencing transcript leaves us assured that the trial court did not rely on
the highest possible sentence that could be assessed if each offense variable had the maximum
score in order to determine defendant’s sentence. As discussed, the trial court was clear that its
sentence was based largely on the extent of defendant’s illegal conduct, and how the offense
variables did not adequately address some of defendant’s behavior. After discussing defendant’s
conduct, and referencing the offense variables, the trial court provided the following additional
reasoning:
It’s clear to the court that you’ve had numerous opportunities at
rehabilitation and they’ve all failed.
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The court wants this sentence to emphasize punishment and deterrence to
others similarly situated.
The court can best achieve its goals by imposing a prolonged period of
separation from society.
But, before imposing sentence, the court notes that it would depart upward
to reach its chosen sentence even if the guidelines were scored differently, or only
if one of the factors listed by the Court were present.
It is thus apparent that the trial court did not strictly rely on the guidelines, including what
they would have recommended had all variables had maximum scores, to determine defendant’s
minimum sentence. The trial court referenced a theoretical 95-month guidelines sentence, but also
determined that the guidelines were inadequate to address defendant’s circumstances. The trial
court did not promise a sentence equal to the referenced 95-month one, but rather explained that
its 96-month sentence was near what the guidelines would have recommended in different
circumstances. It was not error to consider instructive what the guidelines would have indicated
if all offense variables were scored at their maximums.
The reasonableness of a sentence is determined by evaluating whether a sentence violated
the principle of proportionality, which requires “ ‘sentences imposed by the trial court to be
proportionate to the seriousness of the circumstances surrounding the offense and the offender.’ ”
Steanhouse, 500 Mich at 474, quoting People v Milbourn, 435 Mich 630, 636; 461 NW2d 1 (1990).
This Court recited several factors for consideration regarding the proportionality of a sentence:
(1) the seriousness of the offense, (2) factors not considered by the guidelines, such
as the relationship between the victim and the aggressor, the defendant’s
misconduct while in custody, the defendant’s expressions of remorse, and the
defendant’s potential for rehabilitation, and (3) factors that were inadequately
considered by the guidelines in a particular case. [People v Steanhouse, 313 Mich
App 1, 46; 880 NW2d 297 (2015) (citations omitted).]
A trial court should also take “ ‘into account the nature of the offense and the background of the
offender.’ ” Id. at 45, quoting Milbourn, 435 Mich at 651.
In this case, as detailed, the trial court justified its sentence with lengthy discussion of the
circumstances of this case, as well as of defendant’s interactions with the court system, and did
not attempt to justify its sentence on the basis of hypothetical sentences that could be imposed in
other circumstances. The trial court discussed factors mentioned in Steanhouse, 313 Mich App at
46, such as the seriousness of the offense, as well as factors not accounted for in the guidelines,
relating in part to defendant’s low potential for rehabilitation, as well as defendant’s repeated
violations of the trial court’s orders. For these reasons, the court justified its departure sentence
as proportionate under the circumstances.
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III. INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant argues that the trial court should have held a hearing to develop defendant’s
claim that his appointed trial attorney provided ineffective assistance because he acted unethically
by requesting money from defendant’s family. In order to prevail on a claim of ineffective
assistance of counsel, a defendant must show (1) “that counsel’s performance was deficient” and
(2) “that counsel’s deficient performance prejudiced the defense.” People v Taylor, 275 Mich App
177, 186; 737 NW2d 790 (2007) (quotation marks and citation omitted). An attorney’s
performance is deficient if “it fell below an objective standard of professional reasonableness.”
People v Jordan, 275 Mich App 659, 667; 739 NW2d 706 (2007). The performance will be
deemed to have prejudiced the defense if it is reasonably probable that, but for counsel’s error,
“the result of the proceeding would have been different.” Id. The same legal standards apply for
evaluating ineffective assistance claims regarding trial counsel and appellate counsel. People v
Lopez, 305 Mich App 686, 693; 854 NW2d 205 (2014).
In defendant’s motion for relief, he wrote that he
was denied his right [to] effective assistance of counsel where his court appointed
trial attorney refused to perform tasks that trial counsel himself deemed appropriate
for [defendant’s] representation, on the grounds that [defendant’s] family was
unable to compensate counsel above and beyond the amount provided by the
County of Shiawassee. Trial counsel’s grossly unethical conduct in demanding
payment from a court appointed client undermines any claim that his advice to
[defendant] was borne out of sound trial strategy.
Attached to defendant’s motion was a notarized letter from his grandmother which detailed that
she provided $500 in cash to defendant’s trial attorney, and informed him that she did not have
any more money. The grandmother stated that defendant’s trial attorney responded that “more
money would always help,” and failed to provide a receipt for the original payment despite her
requests for one at each court appearance. Defendant also provided an affidavit stating that he did
not initially know that his grandmother provided money to his trial attorney. Defendant further
explained as follows:
[Trial counsel] did advise me that the more money I could come up with, the better
the outcome would be at court. I was left with the impression that my attorney
didn’t even want to talk to me unless I would tell him I would get money to him
next time we go to court. I conveyed this sentiment to my Grandmother who was
then exploited by my attorney. For [i]nstance, there was a total lack of interests in
my case. He never took notes and had me go get statements from witnesses for my
defense. The day I was bonded out, the first time I’ve ever talked to [trial counsel],
he said “meet me at my office and bring money.”
Defendant added that he told both of his appellate attorneys about the payment:
After conviction, I also specifically told my first appellate attorney . . . that [trial
counsel] had taken money off the record, and she made it seem like that was an
important issue. Yet, appellate counsel never utilized this as a reason for appeal.
In addition, I informed my second appellate attorney . . . and he was adamant that
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[trial counsel’s] taking money as a public defender and member of the trial court’s
drug court program was grossly unethical and morally wrong. In fact, appellate
counsel stated he was going to help me file a grievance on [trial counsel]. All in
all, both attorneys on my first tier of appeal knew about the money taken by trial
counsel but each attorney neglected to develop a record on it.
The trial court denied defendant’s motion for relief from judgment and an evidentiary
hearing on the grounds that defendant had not established good cause for not raising the issue in
his direct appeal, or that he was prejudiced by trial counsel’s representation. Following an appeal,
a trial court may not grant relief from judgment for reasons, other than jurisdictional defects, that
“could have been raised on appeal” unless the defendant demonstrates “good cause” for the failure
to do so, along with “actual prejudice.” MCR 6.508(D)(3); People v Clark, 274 Mich App 248,
253-254; 732 NW2d 605 (2007).
“A defendant may establish good cause for not raising an argument for relief sooner by
showing that his appellate attorney rendered ineffective assistance by failing to raise the issue in a
proper post-trial motion or first-tier appeal.” People v Gardner, 482 Mich 41, 49 n 11; 753 NW2d
78 (2008). Defendant’s affidavit asserted that he informed his appellate counsel that his grand-
mother had paid his appointed trial attorney additional funds, but neither appellate advocate made
issue of whether anything related to trial counsel’s alleged demand of money from defendant’s
family compromised counsel’s plea negotiations or legal advice, or otherwise negatively impacted
counsel’s performance for defendant. Regardless, we agree with the trial court that defendant has
failed to show that he was prejudiced by the alleged impropriety.
“Actual prejudice” in a case involving a guilty plea occurs when “the defect in the
proceedings was such that it renders the plea an involuntary one to a degree that it would be
manifestly unjust to allow the conviction to stand.” MCR 6.508(D)(3)(b)(ii). In this case,
defendant argued in his motion for relief from judgment that there was a “reasonable probability”
that he would not have relied on trial counsel’s advice if he had known about counsel’s unethical
conduct. However, defendant does not argue in his brief on appeal that his plea was involuntary
because of the alleged misconduct of his trial attorney, nor does he assert in his brief or affidavit
that the alleged misconduct caused him to accept a plea that he now disavows. Further, defendant
has provided no offer of proof in support of any contention that his plea was involuntary. Thus,
defendant has failed to satisfy the prejudice requirement for either his claim for relief under MCR
6.508(D)(3), or in his underlying claim of ineffective assistance.
Affirmed.
/s/ James Robert Redford
/s/ David H. Sawyer
/s/ Christopher M. Murray
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