20250116_C363151_52_363151.Opn_Order.Pdf

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, FOR PUBLICATION

January 16, 2025

Plaintiff-Appellee, 10:53 AM

v No. 363151

Monroe Circuit Court

DARIUS ANTHONY HINES, LC No. 2021-246321-FH

Defendant-Appellant.

Before: MALDONADO, P.J., and PATEL and N. P. HOOD, JJ.

N. P. HOOD, J.

Defendant, Darius Anthony Hines, appeals as of right his jury trial convictions of

possession with intent to deliver methamphetamine, MCL 333.7401(2)(b)(i), second or subsequent

offense, MCL 333.7413(1) (Count 1); possession with intent to deliver less than 50 grams of

fentanyl, MCL 333.7401(2)(a)(iv), second or subsequent offense, MCL 333.7413(1) (Count 2);

and possession of an imitation controlled substance with intent to distribute, MCL 333.7341(3),

second or subsequent offense, MCL 333.7413(1) (Count 6). The trial court sentenced Hines as a

fourth-offense habitual offender, MCL 769.12, to 120 to 480 months’ (10 to 40 years)

imprisonment for the methamphetamine conviction, 114 to 480 months’ (9½ to 40 years)

imprisonment for the fentanyl conviction, and 32 to 48 months’ (2⅔ to 4 years) imprisonment for

the imitation-controlled-substance conviction. The trial court amended the judgment to provide

that Hines’s sentences were to run concurrent to each other but consecutive to his parole and

sentences in another case (Monroe Circuit Court case number 20-245722-FH).

On appeal, Hines challenges a warrantless search of his residence, the admission of

purportedly impermissible drug-profile testimony, and numerous sentencing issues. We find no

reversible error related to the evidentiary issues, so we affirm Hines’s convictions. But we vacate

Hines’s sentence and remand in order for the trial court to make specific findings regarding the

extent to and manner in which OV 19 applies, to articulate its reasoning for imposing discretionary

consecutive sentences, and to resentence Hines in light of our conclusion that People v Lockridge,

498 Mich 358; 870 NW2d 502 (2015) effectively overturned People v Williams, 268 Mich App

416; 707 NW2d 624 (2005).

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I. BACKGROUND

This case started with the seizure of controlled substances following a warrantless search

of Hines’s house during his period of parole and a later search of his person following his arrest in

June 2021. Hines was previously convicted of delivery of heroin less than 50 grams and possession

with intent distribute less than 50 grams of heroin in 2016. He was paroled in 2019. As a condition

of his parole, he was required to allow certain searches of his property related to his status as a

parolee. In June 2021, Hines was also on bond in a separate case involving drug charges arising

from conduct in early 2020.1

Suspecting Hines of drug trafficking, a drug task force began surveilling Hines’s apartment

at least as early as May 2021. On June 15, 2021, during and in coordination with that surveillance,

Michigan State Police (MSP) Trooper Andrew Dayfield stopped Hines for driving on a suspended

license shortly after he left his apartment complex. Trooper Dayfield arrested him, searched him,

put him in the front seat of the MSP patrol vehicle. During the search, Trooper Dayfield discovered

that Hines was carrying a knife but he did not find any drugs or drug paraphernalia on Hines’s

person. Nor did he find any drugs, drug paraphernalia, or evidence indicative of drug trafficking

in Hines’s car.

After Hines’s arrest but before transporting him to the Monroe County Jail, Trooper

Dayfield took Hines back to his residence, where task force members searched Hines’s apartment.

During the search, there were times when the police left Hines unattended in the front seat of the

patrol car, albeit handcuffed and secured in place with a seatbelt. The police did not seek or obtain

a warrant to search Hines’s residence because he was on parole. During the search, police located

lottery tickets (presumably Keno tickets or slips) that had not been filled out or played. The lottery

tickets had residue that field-tested positive for cocaine. During the search of Hines’s residence,

Captain Brent Cathey, a Monroe Police Department captain assigned to the task force, recovered

a clear plastic bag “containing another torn-off clear plastic baggie, knotted, containing a white

rock substance.” Captain Cathey testified that he believed the substance was crack cocaine (i.e.,

cocaine base), but did not submit it to a laboratory for forensic testing. He also recovered a clear

plastic bag containing cocaine residue from the trash.

Trooper Dayfield eventually transported Hines from his residence to the Monroe County

Jail where a corrections officer searched Hines again. Trooper Dayfield testified that he asked

Hines several times if “he had anything else on him,” following the initial search, and Hines said

he did not. Nonetheless, Trooper Dayfield believed he may have overlooked something in the first

search because, in his view, Hines was acting suspiciously. During the search at the jail, a

corrections officer located controlled substances and other contraband in Hines’s “inner groin

area.” Specifically, the corrections officer found a clear plastic bag containing 36 white tablets

1

In the 2020 case, Hines was eventually convicted of two counts of delivery of less than 50 grams

of cocaine, MCL 333.7401(2)(a)(iv), and one count of maintaining a drug house, MCL

333.7405(1)(d), again as second or subsequent drug-related offenses under MCL 333.7413(1).

People v Hines, unpublished per curiam opinion of the Court of Appeals, issued September 7, 2023

(Docket No. 358479).

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and 31 “bindles,” which Trooper Dayfield described as “a lottery ticket cut up into pieces, folded

up, usually containing some type of narcotics.” There was no evidence of Hines making a

statement during the search.

At trial, in addition to evidence of Hines’s surveillance, arrest, and searches, as well as the

seizure of the contraband, the prosecution presented a forensic analysis regarding the contraband.

Lauren Tenglin, who was qualified to testify as an expert in forensic controlled substance analysis,

described her testing and findings related to three items she received related to this case. The first

item contained 0.97 grams of a mixture of methamphetamine and cocaine. This underpinned the

methamphetamine conviction. The second item consisted of 31 small folded paper packets with

tan powder inside. Tenglin tested the powder from one packet and determined it to be fentanyl

mixed with diphenhydramine (Benadryl). The fentanyl and paper packet that was tested

collectively weighed 0.3092 grams. She testified that she did not test the remaining 30 packets in

accordance with the MSP forensic science division’s policy not to test “redundant samples.” The

tested substance and envelope, along with the 30 untested envelopes, were the “bindles” seized

from Hines that underpinned the fentanyl conviction. The third and final item contained 36

rectangular white tablets. Tenglin testified that she believed the tablets were alprazolam

(commonly, Xanax), but her testing indicated that the tablets did not contain any form of controlled

substance.

At trial, Captain Bren Cathey and Commander Derek Lindsey, Monroe Police Department

officers previously assigned to the drug task force, testified about common features and methods

of drug trafficking and drug use. This is sometimes called “drug profile evidence.” Captain Cathey

testified that his investigatory experience allowed him to differentiate between “user amounts of

narcotics and delivery amounts of narcotics.” He testified that, in his experience, fentanyl is

usually sold in 0.1 or 0.2-gram amounts, and methamphetamine is usually sold in 0.2-gram

amounts. Captain Cathey, who helped search Hines’s residence, testified that the police found

lottery tickets that matched the evidence later found on Hines. He explained that drug dealers

commonly use lottery tickets that have not been filled out or played to package drugs like heroin

and fentanyl. Captain Cathey also testified that he could distinguish paraphernalia associated with

use from that associated with trafficking. He testified that police did not find pipes, needles, or

straws—items associated with drug use—during the search of Hines’s residence.

On cross-examination, Captain Cathey acknowledged that there were items commonly

associated with drug trafficking that the police did not locate during their investigation. For

example, he agreed that drug dealers commonly carry large quantities of currency but the police

did not locate cash on Hines or during the search of Hines’s residence. Likewise, he acknowledged

that MSP searched Hines’s cell phone for evidence of text messages related to drug deals, but there

were not any messages indicative of drug transactions.

The prosecution also introduced drug-profile evidence through the testimony of

Commander Lindsey, who the trial court qualified to testify as an expert in controlled substance

enforcement. He testified about the common packaging, sale amounts, and methods of use for

methamphetamines and fentanyl. According to Linsey, methamphetamine is commonly sold in

quantities of half a gram to one gram, though most users only consumed approximately 0.2 grams

at a time. He usually saw methamphetamine packaged in the corners of plastic bags or folded into

paper packets. Commander Lindsey explained that fentanyl can be snorted but the majority of the

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time is injected with a needle intravenously. Fentanyl was usually sold in 0.1 to 0.2-gram packets.

It was commonly packaged in lottery ticket papers from a party store or in small ziplock bags. He

opined that the 31 bindles of fentanyl recovered from Hines were indicative of packaging for

delivery because of their number. He explained that addicts tended to go through heroin or

fentanyl “like candy” and ordinarily only had one to three packets in their possession at a time. A

user with the financial means might purchase more at one time, but “you’re very rarely gonna

come across users with 30 packets, 31 packets.”

Commander Lindsey also testified about imitation controlled substances and diluted

controlled substances. He stated that “pill pressing”—creation of imitation prescription pills—

had become increasingly common in the last several years since the federal government began

regulating prescription drugs more heavily. When that happens, a drug dealer may pack and sell

the imitation substance like genuine substances. According to Commander Lindsey, it was also

common for drug dealers to dilute controlled substances with other products to increase profits.

Commander Lindsey recalled “a stretch there where we were getting’ a lot of Benadryl being sold

as heroin and fentanyl . . . .”

Finally, Commander Lindsey indicated that some drug dealers sometimes, but not always,

carry cash. Lindsey speculated that if Hines did not have any money with him, it could be because

“he’d recently re-upped and used his money to purchase a quantity that he packaged up for sale or

he hadn’t made any sales yet.”

Hines was convicted on each count submitted to the jury: one count of possession with

intent to deliver methamphetamine, one count of possession with intent to deliver less than 50

grams of fentanyl, and one count of possession with intent to deliver imitation controlled

substances. Three previously-charged counts, including driving with a suspended license, were

dismissed prior to trial.

The trial court sentenced Hines in August 2022. At the sentencing hearing, defense counsel

objected to scoring 25 points for Offense Variable (OV) 19 because the circumstances of the case

did not suggest that Hines meant to bring drugs or contraband into the jail. Instead, defense counsel

argued that Hines happened to be in possession of the drugs at the time of his arrest, and the

substances were only discovered during the second search at the jail. The prosecution argued that

scoring 25 points for OV 19 was appropriate because police searched Hines earlier, asked him

multiple times if he possessed any contraband, and advised that he could face an additional charge

if he tried to bring contraband into the jail. The trial court agreed with the prosecution and scored

25 points for OV 19 over defense counsel’s objection. This and other enhancements resulted in

an advisory guidelines range of 84 to 140 months’ imprisonment for the methamphetamine

convictions (Count 1) and 29 to 57 months’ imprisonment for the fentanyl conviction (Count 2).

At sentencing, the prosecution argued that the trial court could double the sentencing guidelines

for the fentanyl conviction, pursuant to the controlled substance second offense notice, which

would increase them to 57 to 114 months’ imprisonment.

As stated, the trial court sentenced Hines to 120 to 480 months’ imprisonment for the

methamphetamine conviction, 114 to 480 months’ imprisonment for the fentanyl conviction, and

32 to 48 months’ imprisonment for the imitation-controlled-substance conviction. The sentence

for the fentanyl conviction appears to reflect that the trial court imposed a minimum sentence that

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was double the high end of the advisory guidelines range. When pronouncing sentence, the trial

court stated:

In this matter, the sentencing guidelines are 84 to 140. They can be doubled

as a result of . . . controlled substance second offense. There are seven felonies and

four misdemeanors. Mr. Hines was on parole for the very same offense at the time

this happened.

As the prosecutor pointed out, sentence must be consecutive as to count two

because he was on parole and he committed . . . a major controlled substance

offense while the case was pending. The other cases are discretionary, although

they are mandatory as it pertains to parole.

The trial court then addressed defense counsel’s argument regarding a withdrawn plea agreement

and noted that Hines was “within his rights” to demand a trial. It then pronounced sentence, stating

that it found the sentence to be reasonable and proportionate. Aside from noting that the sentencing

guidelines could be doubled, it did not explain its decision to double the guidelines when imposing

Hines’s sentence for the fentanyl conviction. It entered a judgment and commitment consistent

with its pronouncement.

By the time of sentencing, Hines was already serving a prison sentence for a 2020 case.

As stated, the conduct underpinning this case occurred while Hines was on bond for the 2020 case.

Therefore, at the time of sentencing, there was a question as to whether the trial court would

sentence Hines concurrently or consecutively with his 2020 conviction. The trial court concluded

that it had discretion to order the methamphetamine conviction and the imitation-controlled-

substance convictions to run consecutively or concurrently to the 2020 conviction under MCL

768.7b(2)(a), but found that the fentanyl conviction carried a mandatory consecutive sentence

because it was a major controlled substance offense under MCL 768.7b(2)(b). In September 2022,

the trial court entered an amended judgment that was identical with the first, with the exception of

a notation stating that all counts were to run concurrent to each other, but consecutive to Hines’s

parole stemming from case no. 20-245722.

This appeal followed. During oral argument, we asked the parties where the trial court

derived this authority to double the sentencing guidelines instead of doubling the statutory

minimum sentence as indicated by the plain text of the statute. See MCL 333.7413(1). Following

oral argument, Hines, through counsel, moved to file a supplemental brief (with the proposed brief

attached). Hines also requested that we expand the scope of the appeal to address whether

Williams, 268 Mich App 416, “which reads MCL 333.7413 to empower trial courts to double an

individual’s guidelines, is wrongly decided because the sentencing guidelines are now advisory.”

The prosecution responded, arguing that Williams was not wrongly decided. We granted the

motion to expand the scope of the appeal.

II. WARRANTLESS SEARCH

Hines argues for the first time on appeal that the warrantless search of his residence violated

his rights under the United States Constitution and Michigan Constitution to be free from

unreasonable searches and seizures. He also argues that his trial counsel was ineffective for failing

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to move to suppress the fruits of that search. Both arguments fail because Hines cannot

demonstrate outcome-determinative prejudice.

The underlying search-and-seizure claim is unpreserved and therefore subject to plain-error

analysis. People v Hughes, 506 Mich 512, 523; 958 NW2d 98 (2020). As stated in People v

Brown, ___ Mich App ___, ___; ___ NW3d ___ (2024), slip op at 3 (N. P. HOOD, J., concurring):

To obtain relief under the plain-error rule, a defendant must prove that (1) an error

occurred, (2) the error was plain, and (3) that the plain error affected substantial

rights—in other words, the error affected the outcome of the proceedings. People

v Anderson, 341 Mich App 272, 280; 989 NW2d 832 (2022). If a defendant

satisfies these three requirements, we must determine whether the plain error

warrants reversal, in other words, whether it seriously affected the fairness,

integrity, or public reputation of the judicial proceedings independent of the

defendant’s innocence. [People v Carines, 460 Mich 750, 763-764; 597 NW2d 130

(1999).] Sometimes identified as a fourth prong of plain-error analysis, this last

step conceptually overlaps with the third prong. [People v Davis, 509 Mich 52, 75-

76; 983 NW2d 325 (2022).]

Hines, however, preserved his ineffective-assistance-of-counsel claim by moving before

this Court to remand for a Ginther2 hearing. People v Abcumby-Blair, 335 Mich App 210, 227;

966 NW2d 437 (2020). Whether trial counsel’s conduct denied a defendant effective assistance

of counsel is a mixed question of fact and constitutional law. People v Muhammad, 326 Mich App

40, 63; 931 NW2d 20 (2018). We review constitutional issues de novo. Id. We review the trial

court’s findings of fact, if any, for clear error. Id. Where, like here, there was not an evidentiary

hearing on the ineffective-assistance claim, our review is limited to mistakes apparent on the

record. Id.

“The Fourth Amendment of the United States Constitution and its counterpart in the

Michigan Constitution guarantee the right of persons to be secure against unreasonable searches

and seizures.” People v Kazmierczak, 461 Mich 411, 417; 605 NW2d 667 (2000). See also US

Const, AM IV; Const 1963, art 1, § 11. Our courts, however, have interpreted the right to be free

from unreasonable searches and seizures absent a warrant based upon probable cause to be “subject

to several specifically established and well-delineated exceptions.” Kazmierczak, 461 Mich

at 417. One such exception to the warrant requirement is for searches covered by the so-called

“governmental special needs” or “regulatory” exception. See People v Woods, 211 Mich App 314,

317; 535 NW2d 259 (1995). In the context of searches performed pursuant to this exception,

neither a warrant nor probable cause are required as long as the search meets “reasonable

legislative or administrative standards.” Id., citing Griffin v Wisconsin, 483 US 868, 873; 107 S

Ct 3164, 3168; 97 L Ed 2d 709 (1987). As this Court observed in Woods, the special needs

exception has generally provided a basis for the search of a parolee’s residence where there were

reasonable grounds to believe that the probationer was in possession of contraband See Woods,

211 Mich App at 317 (addressing “special needs” exception in the context of a warrantless

2

People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).

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administrative search of the home of a defendant who was placed in a community residential

program, MCL 791.265g(e), a type of preparole release for Michigan Department of Corrections

(MDOC) inmates).

Hines argues that the warrantless search of his residence was unreasonable and

unconstitutional because there was no connection between the search and the “parole process.”

He contends it was the product of an “inchoate hunch” following his arrest for driving on a

suspended license. The record tells a different story. Prior to his arrest, the police had reason to

believe he was distributing controlled substances. A confidential informant had purchased what

he believed to be heroin (later identified as fentanyl) from Hines three weeks before his arrest.

After his arrest on June 15, an MDOC agent went with task force officers to Hines’s residence to

conduct a compliance search, which is when they discovered the evidence at the residence. Put

simply, there was more than an inchoate hunch that Hines had controlled substances at his

residence. At a minimum, this would violate standard terms of parole, such as not committing

other crimes and prohibitions on possession and use of controlled substances without lawful

authority. See People v Idziak, 484 Mich 549, 571; 773 NW2d 616 (2009) (explaining that the

purpose of parole is to keep an individual in legal custody while permitting them to live outside of

prison so they may have the opportunity to show that they can refrain from committing other

crimes). As such, this would satisfy the reasonable legislative and regulatory needs contemplated

by the “special needs” exception to the warrant requirement. See Woods, 211 Mich App at 317.

We acknowledge that satisfying this requirement can be a low hurdle. See Samson v California,

547 US 843; 126 S Ct 2193; 165 L Ed 2d 250 (2006) (holding that a suspicionless search of a

parolee, conducted pursuant to a California statute requiring parolees to agree in writing to be

subject to search and seizure with or without a warrant or cause, satisfied the requirements of the

Fourth Amendment).

For this reason, Hines argues that we should not follow United States Supreme Court

precedent on the “special needs” exception to the warrant requirement, arguing that Michigan’s

constitution provides broader protection. We also acknowledge, without deciding, that Michigan’s

constitution may provide more extensive protections than the federal constitution when it comes

to “special needs” searches. See People v Montgomery, 508 Mich 978, 979 (2021) (WELCH, J.,

concurring) (“At least for purposes of Michigan law, it remains unsettled what privacy interests a

parolee retains and whether a parole search is lawful when it is not ‘directly and closely related’

to the administration of the parole supervision system.”). But Hines’s argument still fails because

he cannot demonstrate that the evidence obtained during the search of the residence affected the

outcome at his trial. Captain Cathey described the evidence seized during the search of Hines’s

residence. He testified that the police discovered white residue on the kitchen table that field-

tested positive for cocaine, blank lottery tickets that were commonly used to package drugs like

heroin and fentanyl, a white rock substance that was believed to be crack cocaine, and a plastic

bag with cocaine residue. The discovery and seizure of drugs from Hines’s person were unrelated

to the search of the residence. So, suppression of the evidence seized during the search of the

residence would not impact the most critical evidence in this case.

Nonetheless, Hines argues that without this evidence, it is probable that the jury would not

have found sufficient evidence of his intent to deliver. We disagree. In addition to the evidence

seized at Hines’s residence, the prosecution presented evidence that Hines was arrested with nearly

a gram of methamphetamine, 31 bindles of fentanyl, and 36 tablets of imitation alprazolam.

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Commander Lindsey explained the significance of these quantities, indicating that the amounts of

methamphetamine and fentanyl were far in excess of the amounts an average user would consume

at once.3 More critically, Hines did not have any paraphernalia in his possession that could

facilitate personal use. Especially coupled with the individual packaging of the fentanyl in discrete

bindles, this evidence substantially undermined any suggestion that Hines was carrying the drugs

for personal use. Consequently, Hines cannot establish that admission of the evidence discovered

in his home affected the outcome of his case.

For this same reason, i.e., failure to establish prejudice, Hines’s claim of ineffective

assistance of counsel also fails. See People v Randolph, 502 Mich 1, 9; 917 NW2d 249 (2018)

(“establishing ineffective assistance requires a defendant to show (1) that trial counsel’s

performance was objectively deficient, and (2) that the deficiencies prejudiced the defendant.

Prejudice means a reasonable probability that, but for counsel’s unprofessional errors, the result

of the proceeding would have been different.” (quotation marks and citation omitted)). Even if he

could establish that counsel was deficient for failing to move to suppress the warrantless search,

he cannot establish that it would have affected the outcome.

III. DRUG PROFILE EVIDENCE

Hines also argues that the trial court improperly allowed the prosecution to use drug profile

evidence as substantive evidence of guilt. We agree that some of the drug profile evidence was

inadmissible, but some of the evidence was proper. Captain Cathey and Commander Lindsey both

came close to crossing the line into opining on Hines’s guilt or making direct comparisons between

Hines’s conduct and their stated “drug profile” conduct. But Hines cannot establish that the

improper drug profile evidence affected the outcome of the trial.

This Court uses harmless-error analysis to measure the effect of improperly admitted drug

profile evidence. Williams, 240 Mich App at 321. When assessing a defendant’s nonconstitutional

allegation of error, the test is whether “ ‘after an examination of the entire cause, it shall

affirmatively appear’ that it is more probable than not that the error was outcome determinative.”

Id., quoting People v Lukity, 460 Mich 484, 496; 596 NW2d 607 (1999).4

We have previously described “drug profile evidence” as an “ ‘informal compilation of

characteristics often displayed by those trafficking in drugs.’ ” People v Murray, 234 Mich App

3

Even if we exclude the impermissible drug profile evidence described below, the prosecution

offered permissible drug profile testimony to support this conclusion.

4

Hines argues that he preserved this issue for appeal through defense counsel’s objections at trial.

A granular review of the transcript indicates that the defense, though consistently objecting, may

not have objected to the most damning portions of Captain Cathey or Commander Lindsey’s

profile evidence testimony. If that is the case, plain-error analysis would apply to the unpreserved

claim of evidentiary error. People v Lowrey, 342 Mich App 99, 108; 993 NW2d 62 (2022). We

need not resolve the preservation issue because even under the more permissive harmless-error

standard, Hines cannot demonstrate a likely impact on the outcome. See Williams, 240 Mich App

at 321-322.

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46, 52; 593 NW2d 690 (1999), quoting People v Hubbard, 209 Mich App 234, 239; 530 NW2d

130 (1995). Because these characteristics involve what can also be innocuous behavior, like

possessing large amounts of currency, two cell phones, or a digital scale, drug profile evidence is

inherently prejudicial in that it “may suggest that innocuous events indicate criminal activity.”

Murray, 234 Mich App at 52 (quotation marks and citation omitted). Trickier still is when these

characteristics indicate not innocuous conduct, but criminal conduct that does not amount to drug

trafficking, such as drug residue in a kitchen or on a Keno ticket, which may indicate illegal use,

trafficking, or both. Cf. id. For these reasons, drug profile evidence is generally inadmissible as

substantive evidence of guilt, but trial courts may admit it to explain the significance of other

evidence. Id. at 53. We have recognized that “there is often a very fine line between the probative

use of profile evidence as background or modus operandi evidence and its prejudicial use as

substantive evidence[.]” Id. at 54. “[O]nce the profile is found to be relevant to the case, the court

will often be faced with a gray area in which it may be obvious that the criminal profile

circumstances and characteristics closely resemble those of the defendant, yet also in which the

use of the profile may be the only way to explain to the jury the circumstantial evidence in the

case.” Id. at 55.

Trial courts therefore must make a case-by-case determination to allow drug profile

testimony that “aids the jury in intelligently understanding the evidentiary backdrop of the case,

and the modus operandi of drug dealers, but stop short of enabling profile testimony that purports

to comment directly or substantively on a defendant’s guilt.” Id. at 56. To assist in this analysis,

we have identified four nonexhaustive factors that bear on this issue:

First, the drug-profile evidence must be offered as background or modus operandi

evidence, and not as substantive evidence of guilt, and the distinction must be

carefully maintained by the attorneys and the court. Second, something more than

drug profile evidence must be admitted to prove a defendant’s guilt; multiple pieces

of profile do not add up to guilt without something more. Third, the trial court must

make clear to the jury what is and is not an appropriate use of the drug-profile

evidence by, e.g., instructing the jury that drug-profile evidence is properly used

only as background or modus operandi evidence and should not be used as

substantive evidence of guilt. Fourth, the expert witness should not be permitted

to express an opinion that, on the basis of the profile, defendant is guilty, and should

not expressly compare the defendant’s characteristics to the profile in a way that

implies that the defendant is guilty. [Williams, 240 Mich App at 320-321, citing

Murray, 234 Mich App at 56-57.]

Hines’s challenge implicates the fourth factor: whether the drug profile testimony

amounted to opinion testimony on his guilt. Captain Cathey and Commander Lindsey both

provided drug profile testimony. Both witnesses provided permissible drug profile testimony and

testimony that crossed the line into impermissible comments on Hines’s guilt. Considering the

total body of evidence, we conclude that Hines cannot established that but for the impermissible

testimony, the trial would have had a different result.

We start with the impermissible testimony. Captain Cathey testified that the police did not

find pipes, needles, or items associated with drug use (as opposed to trafficking) during the search

of Hines’s residence. This likely crossed the line into opinion testimony because it directly linked

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general characteristics to the evidence identified in this case. He also vaguely opined that the

quantity of drugs Hines had was not indicative of personal use.5

Parts of Commander Lindsey’s testimony was more clearly inadmissible. Commander

Lindsey opined that the 31 bindles of fentanyl recovered from Hines were indicative of packaging

for delivery because of the number. This was inadmissible because it was essentially an opinion

of Hines’s guilt. See Williams, 240 Mich App at 320. Likewise, his comment that a user might

purchase more than one bindle but “you’re very rarely gonna comma across users with 30 packets,

31 packets” was impermissible. It linked common traits directly to the facts of this case. See id.

Finally, Lindsey speculated on why Hines might not have money with him suggesting that he

“recently re-upped.” This too was impermissible. See id. at 321.

To assess whether this erroneously-admitted drug profile testimony affected the outcome,

we consider what other evidence remained for the jury to consider. Separate from the

impermissible drug profile evidence, both Captain Cathey and Commander Lindsey provided

admissible drug profile evidence. Both testified about the typical amounts of fentanyl and

methamphetamine users possess: between 0.1 and 0.2 grams. Both testified about drug packaging

and the use of lottery tickets to package heroin and fentanyl. A jury could rely on this evidence

and find that Hines’s possession of numerous packets of small amounts of drugs was evidence of

trafficking. Likewise, a jury could rely on the drug profile information about lottery tickets being

used as trafficking vessels. It is difficult to say that the impermissible drug profile evidence made

a difference. Though inadmissible, under the facts of this case, it arguably made explicit

connections a reasonable jury would have already made. Hines has not established that but for

this evidence there probably would have been a different outcome.

IV. OV 19

Hines argues that the mere possession of drugs at the time of his arrest was an insufficient

basis to assess 25 points under OV 19 for purportedly threatening the security of a penal institution.

We agree with this principle and remand for the trial court to apply it to this case. We therefore

vacate the sentence and remand to the trial court to making findings on whether there was sufficient

evidence of Hines’s intent to bring controlled substances inside the penal facility as opposed to

incidental possession during his arrest and intake.

We review factual findings concerning the sentencing variables for clear error. People v

Sours, 315 Mich App 346, 348; 890 NW2d 401 (2016). Such findings must be supported by a

preponderance of the evidence. Id. “Clear error exists when we are left with a definite and firm

conviction that a mistake was made.” People v Abbott (On Remand), 330 Mich App 648, 654; 950

NW2d 478 (2019). “Whether the facts, as found, are adequate to satisfy the scoring conditions

prescribed by statute, i.e., the application of the facts to the law, is a question of statutory

5

We note that Captain Cathey also provided opinion testimony that benefited the defense. In his

testimony, he acknowledged that the police did not recover paraphernalia indicative of drug

trafficking such as scales or large amounts of currency.

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interpretation, which an appellate court reviews de novo.” People v Hardy, 494 Mich 430, 438;

835 NW2d 340 (2013).

The trial court erred by assessing 25 points for OV 19 because, on the record before us,

there was no evidence that Hines possessed the controlled substances inside the penal facility, or

otherwise engaged in conduct that threatened the security of a penal institution.

OV 19 concerns a “threat to the security of a penal institution or court or interference with

the administration of justice or the rendering of emergency services.” MCL 777.49. A trial court

may properly assess 25 points for OV 19 when “[t]he offender by his or her conduct threatened

the security of a penal institution or court.” MCL 777.49(a). MCL 777.49(a) requires a court to

find “(1) that the defendant engaged in some conduct and (2) that conduct threatened the security

of the prison.” People v Dixon, 509 Mich 170, 177; 983 NW2d 385 (2022). Possession of a

dangerous item or substance alone can satisfy the first requirement (i.e., conduct) and, depending

on the nature of the item possessed, satisfy the second requirement (i.e., a threat to the security of

the facility) as well. Id. at 179-180.

Neither this Court, nor our Supreme Court, has directly addressed whether mere possession

of controlled substances during intake at a penal institution (as opposed to possession inside an

institution) satisfies this enhancement under OV 19. We have held that smuggling a controlled

substance into a prison satisfies this enhancement. People v Dickinson, 321 Mich App 1, 23; 909

NW2d 24 (2017) (recognizing that intentionally bringing a controlled substance into a prison

“inherently puts the security of the penal institution at risk.”). See also People v Carpenter, 322

Mich App 523, 528-532; 912 NW2d 579 (2018). Indeed, “delivery of an unquestionably

dangerous drug like heroin into the confines of [a] prison threaten[s] the safety and security of

both the guards and the prisoners . . . .” Id. at 23-24. And our Supreme Court has held that

possession of certain items within a penal institution, without more, can trigger the 25-point

enhancement. See Dixon, 509 Mich at 178-180 (concluding that possession of a cell phone inside

a penal institution satisfied the first prong (conduct) of OV 19 but holding that OV 19 was

improperly scored because mere possession of a cell phone was not inherently a threat). But see

Dixon, 509 Mich at 194 (BERNSTEIN, J., dissenting) (questioning whether it would be more

appropriate to focus on intent, rather than conduct). Though not requiring intent, in each case, the

conduct at issue necessarily included an action (if not intent) to have the dangerous item inside the

penal institution. Cf. id. at 174-175. See also Dickinson, 321 Mich App at 23 (involving attempt

to bring controlled substances into a prison). See also Carpenter, 322 Mich App at 528-532

(same).

Here, there was no finding that Hines possessed the drugs inside the penal institution or

attempted to bring them inside. The prosecution opined that OV 19 was properly scored because

police previously search Hines, asked him multiple times whether he had any contraband in his

possession, and advised him that he could face an additional charge if he tried to bring contraband

into the jail. Despite these warning, Hines remained silent. The trial court agreed with the

prosecution and overruled Hines’s objection to the scoring of OV 19. This was incorrect.

Recognizing our prior holdings that the presence of controlled substances in jails poses an inherent

threat to the security of those institutions, Dickinson, 321 Mich App at 23-24, we focus our inquiry

on possession. Here, there was no evidence that Hines possessed or attempted to possess

controlled substances inside the jail, as opposed to being caught with drugs and not providing a

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self-incriminating statement when the police did not initially find them. He possessed the drugs

at intake, but police found them before he was incarcerated. This is far from the conduct

contemplated by Dickson, Carpenter, or the plain text of the statute, see MCL 777.49(a). To affirm

the scoring of OV 19 on the record before us would essentially amount to requiring a defendant

caught with drugs to either accept a sentencing enhancement or give up their rights against self-

incrimination. It would also create a moral hazard by potentially incentivizing law enforcement

personnel to refrain from finding drugs until an individual was processed at a jail. The simpler

solution is to apply the enhancement as written: did Hines through his conduct threaten a penal

institution. See MCL 777.49(a). This would require an inquiry of whether the evidence shows

that Hines possessed the drugs inside the penal institution or attempted to do so. We remand for

the trial court to make findings on this issue and determine whether OV 19 actually applies. If the

evidence is only that Hines incidentally possessed drugs at the time of his arrest and there is not a

preponderance of the evidence of his possession or attempted possession inside the facility, then

OV 19 does not apply.

V. DOUBLING THE AUTHORIZED SENTENCE AND DOUBLING THE GUIDELINES

Hines argues that the trial court abused its discretion by doubling his authorized sentence,

arguing that the trial court was required to articulate its reasons for doing so to comply with the

principle of proportionality. This is essentially two related arguments. First, Hines asks us to

extend the principles outlined in People v Norfleet, 317 Mich App 649, 662-666; 897 NW2d 195

(2016), to discretionary sentencing decisions under MCL 333.7413(1). Second, he argues that the

trial court did not sufficiently articulate its reasoning under those principles. The prosecution does

not appear to challenge extending Norfleet to discretionary increases in sentences under MCL

333.7413(1), but rather the prosecution argues that the trial court adequately explained its

reasoning. We agree that the principles outlined in Norfleet apply to discretionary sentencing

decisions under MCL 333.7413(1). But applying those principles to this case, we conclude that

the trial court did not abuse its discretion by choosing to double the statutory maximum term.

Whether to enhance a sentence for a second or subsequent drug offense under MCL

333.7413 is within the trial court’s discretion. People v Green, 205 Mich App 342, 345-346; 517

NW2d 782 (1994). This Court reviews such decisions for an abuse of discretion. See People v

Fetterley, 229 Mich App 511, 525; 583 NW2d 199 (1998).

In relevant part, MCL 333.7413(1) provides that “an individual convicted of a second or

subsequent offense under [the controlled substances article, MCL 333.7101 et seq., of the Public

Health Code, MCL 333.1101 et seq.,] may be imprisoned for a term not more than twice the term

otherwise authorized . . . .” Our Supreme Court has construed this language as permitting the trial

court to double both the minimum and maximum terms of imprisonment. People v Lowe, 484

Mich 718, 731-732; 773 NW2d 1 (2009).6 The trial court did just this to Hines’s statutory

6

At the time Lowe was decided, the quoted language appeared in MCL 333.7413(2). It was since

moved to MCL 333.7413(1) when the statute was amended by 2017 PA 266.

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maximum when it sentenced him to 114 to 480 months’ imprisonment for the fentanyl conviction.7

His unenhanced statutory maximum sentence was 20 years. See MCL 333.7401(2)(a)(iv). The

trial court increased it to 40 years. Hines does not dispute that MCL 333.7413(1) authorizes this.

Instead, he argues that he is entitled to resentencing because the trial court failed to sufficiently

articulate its reasons for exercising its discretion under MCL 333.7413(1) or otherwise explain

why its chosen sentence was proportionate.

Hines’s claim of error is premised on the argument that the principles discussed in Norfleet,

317 Mich App 662-666, ought to be extended to MCL 333.7413. Norfleet involved MCL

333.7401(3), another statutory sentencing provision relating to drug offenses. Id. at 664. More

specifically, MCL 333.7401(3) provides that the sentence for certain drug offenses “may be

imposed to run consecutively with any term of imprisonment imposed for the commission of

another felony.” Norfleet observed that “appellate review of sentences imposed by the trial court

must ensure that the sentences imposed comply with the principle of proportionality” outlined in

People v Milbourn, 435 Mich 630; 461 NW2d 1 (1990), and that the ability to review discretionary

sentencing decisions to ensure a trial court has not abused its discretion was a central proposition

in Milbourn. Norfleet, 317 Mich App at 662-663. We reasoned that because the decision to

impose consecutive sentences under MCL 333.7401(3) was a discretionary matter, that decision

was likewise reviewable for an abuse of discretion. Id. at 664. Norfleet then adopted the “default”

abuse of discretion standard articulated in People v Babcock, 469 Mich 247, 269; 666 NW2d 231

(2003)—that is, whether the decision was within the range of reasonable and principled

outcomes—as the controlling standard in reviewing a trial court’s imposition of a discretionary

consecutive sentence. Norfleet, 317 Mich App at 664. Norfleet further held that “[r]eview of a

discretionary decision requires that the trial court set forth the reasons underlying its decision.” Id.

There is no binding authority extending Norfleet’s analysis to the discretionary doubling

of the authorized sentence term under MCL 333.7413(1) or directly addressing how exercise of

such discretion should be reviewed. But in a two-justice concurrence, our Supreme Court

implicated the issue in People v Kuieck, 507 Mich 1002 (2021) (CAVANAGH, J., concurring).

There, Justice Cavanagh (joined by Justice Welch) concurred in the Court’s denial of an

application for leave to appeal. Although the justices ultimately agreed with the majority’s denial

of leave to appeal because the defendant did not raise the sentencing issue before the Supreme

Court, Justice Cavanagh agreed that Norfleet’s reasoning was equally applicable in the context of

MCL 333.7413(1). Id. at 1003. She explained:

The statute states that “an individual convicted of a second or subsequent [drug-

related] offense under this article may by imprisoned for a term not more than twice

the term otherwise authorized . . . .” MCL 333.7413(1) (emphasis added).

Therefore, a defendant’s prior drug-related conviction allows, but does not require,

a trial judge to double a sentence, leaving the decision to the sentencing judge’s

discretion. As with discretionary consecutive sentences, the principle of

7

As discussed later, the trial court also “doubled the guidelines.” It imposed a minimum sentence

of twice the high end of Hines’s guidelines range. It did this instead of doubling the minimum

allowed sentence. This implicates an issue the Court permitted the parties to add to this appeal.

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proportionality suggests that this sentencing decision should be reviewed for an

abuse of discretion. Norfleet, 317 Mich App at 663. If that were so, continuing the

logic of Norfleet, the sentencing court would be required to set out the reasons for

its decision to impose a double sentence. Id. at 664. The trial court would need to

go beyond simply stating that a defendant has a prior drug-related conviction. Prior

drug-related convictions vest the sentencing court with the discretion to impose a

double sentence, but the rationale for doing so would need to be specific to the

“seriousness of the circumstances surrounding the offense and the offender.”

Milbourn, 435 Mich at 636. [Kuieck, 507 Mich at 1003 (alteration in original).]

We are persuaded. Relying on this reasoning, we conclude that (1) a trial court must

explain its reasons for opting to double the authorized sentencing terms under MCL 333.7413(1)

in order to facilitate appellate review of that discretionary decision, and (2) appellate review of

that decision must consider whether the decision fell within the range of reasonable and principled

outcomes. Moreover, as suggested by Justice Cavanagh, because the existence of previous drug-

related convictions is what opens the door to discretionary doubling under MCL 333.7413(1) and

will therefore be true in every case involving this issue, that fact alone is an insufficient basis to

double the authorized sentence terms. Instead, “the rationale for doing so would need to be specific

to the ‘seriousness of the circumstances surrounding the offense and the offender.’ ” Id., quoting

Milbourn, 435 Mich at 636.

Having extended Norfleet’s principles to MCL 333.7413(1), we nonetheless conclude that

the trial court sufficiently articulated its reasoning for doubling Hines’s statutory maximum

sentence. Although the trial court’s explanation at sentencing was streamlined, it noted two factors

that it deemed compelling in this instance: Hines’s criminal history, which included seven felonies

and four misdemeanors, and the fact that he was “on parole for the very same offense at the time

this happened.” The trial court’s reasoning did not fall outside the range of reasonable and

principled outcomes because it involved the specifics of Hines’s offense and personal

circumstances. Here, the trial court specifically observed that Hines committed the present

offenses while on parole for an earlier possession-with-intent-to-deliver conviction, demonstrating

an unwillingness to comply with the law even while still under the supervision of the MDOC.

Under these circumstances, the trial court did not abuse its discretion by choosing to double

Hines’s statutory maximum term.

The trial court’s handling of the minimum sentence is a different story. In addition to

doubling the statutory maximum from 20 years to 40 years, the trial court also set the minimum

sentence for Hines’s fentanyl conviction at twice the high end of his unenhanced sentencing

guidelines range. His unenhanced guidelines range was 29 to 57 months. The court imposed a

minimum sentence of 114 months. It described this as “doubling” his guidelines. The trial court

did this instead of doubling the minimum allowed sentence, which would have been 320 months,

or ⅔ of 40 years, the new statutory maximum. See MCL 769.34(2)(b) (“The court shall not impose

a minimum sentence, including a departure, that exceeds ⅔ of the statutory maximum sentence).

See also MCL 333.7413(1) (providing that “an individual convicted of a second or subsequent

[drug] offense . . . may be imprisoned for a term not more than twice the term otherwise

authorized.” (emphasis added)); MCL 333.7401(2)(a)(iv) (providing an unenhanced statutory

maximum of 20 years).

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The trial court derived its authority from People v Williams, where this Court interpreted

MCL 333.7413 to allow trial courts to double a defendant’s guidelines range. Williams, 268 Mich

App at 423-430. There, we affirmed a trial court’s decision to “double the guidelines range and

choose the minimum sentence from within that range under MCL 333.7413(2)” when the

defendant had two prior qualifying convictions. Williams, 268 Mich App at 726. We

acknowledged that MCL 333.7413 empowered a sentencing court to double the statutory

maximum and statutory minimum sentences. Williams, 268 Mich App at 428-431. Because, at

the time, the sentencing guidelines were mandatory, we read MCL 333.7413 as allowing the trial

court to double the guideline range and choose a sentence from within that range. See id. at 430

(concluding that this interpretation fit the plain meaning of the statute, “because the inclusion of

authorized minimum sentences for doubling purposes, which necessarily includes a sentence

imposed under the mandatory guidelines, falls within the clear language of the statute.”). We

appeared to acknowledge this limitation. Cf. id. In other words, when the guidelines were

mandatory, the minimum permitted sentence was a sentence within the guidelines. See id. So,

any authority to double the minimum sentence had to include doubling the guidelines. See id.

Under the sentencing framework at the time Williams was decided, this was a reasonable,

if not the correct conclusion. However, the portion of the opinion that permitted doubling the

guidelines range under MCL 333.7413 has been overruled by Lockridge and subsequent laws. The

sentencing guidelines are no longer mandatory. Lockridge, 498 Mich at 365. And the Legislature

has redefined the minimum permitted sentence as ⅔ of the statutory maximum. See MCL

769.34(2)(b). Thus, the backdrop against which we decided Williams no longer exists.

Through this lens, we again consider the statutory language. MCL 333.7413(1) provides,

“an individual convicted of a second or subsequent offense under this article may be imprisoned

for a term not more than twice the term otherwise authorized or fined an amount not more than

twice that otherwise authorized, or both.” Post-Lockridge, the minimum allowed sentence is no

longer limited to twice the sentencing guidelines range. Rather, the enhanced minimum could be

up to ⅔ of the new statutory maximum. See MCL 769.34(2)(b). The trial court would just be

required to articulate its reasoning for increasing the statutory maximum, its reasoning for

departing from the guidelines, and its reasoning supporting the extent of the departure. We,

therefore, conclude that the trial court erred by “doubling the guidelines.”

In sum, we conclude that the principles stated in Norfleet apply to a trial court’s decision

to increase the statutory maximum under MCL 333.7413. The trial court adequately stated its

reasons for increasing the statutory maximum in Hines’s case. The trial court, however, erred by

doubling the guidelines. Post-Lockridge, MCL 333.7413 has no effect on the advisory sentencing

guidelines. It does, however, potentially increase the statutory minimum. See MCL 769.34(2)(b).

We remand for resentencing under these terms.

VI. DISCRETIONARY CONSECUTIVE SENTENCING

Hines argues that the trial court abused its discretion by failing to adequately explain its

decision to impose discretionary consecutive sentences for his fentanyl conviction (Count 1) and

his imitation-controlled-substance conviction (Count 2) under MCL 768.7b(2). We agree.

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We review a trial court’s decision to impose discretionary consecutive sentences for an

abuse of discretion. People v Baskerville, 333 Mich App 276, 290; 963 NW2d 620 (2020). An

abuse of discretion occurs when “the trial court’s decision was outside the range of reasonable and

principled outcomes.” Norfleet, 317 Mich App at 654.

The trial court did not identify its rationale for ordering Hines’s methamphetamine (Count

1) and imitation-controlled-substance (Count 6) sentences to be served consecutive to his

sentences stemming from other felony charges that were pending at the time he committed these

offenses. The failure to state its reasoning for imposing a discretionary consecutive sentence

amounted to an abuse of discretion. See Norfleet, 317 Mich App at 654. We therefore remand for

the trial court to explain its reasoning.

“In Michigan, concurrent sentencing is the norm, and a consecutive sentence may be

imposed only if specifically authorized by statute.” Baskerville, 333 Mich App at 289 (quotation

marks and citation omitted). One such statute is MCL 768.7b, which, includes the following

provisions:

(2) Beginning January 1, 1992, if a person who has been charged with a

felony, pending the disposition of the charge, commits a subsequent offense that is

a felony, upon conviction of the subsequent offense or acceptance of a plea of

guilty, guilty but mentally ill, or nolo contendere to the subsequent offense, the

following shall apply:

(a) Unless the subsequent offense is a major controlled substance offense,

the sentences imposed for the prior charged offense and the subsequent offense may

run consecutively.

(b) If the subsequent offense is a major controlled substance offense, the

sentences imposed for the prior charged offense and the subsequent offense shall

run consecutively. [Emphasis added.]

Use of the permissive term “may” in a statute signals the Legislature’s intent to leave the

permissive action to the discretion of the trial court. Davis, 337 Mich App at 77.

At the time of the instant offenses, Hines was on bond in connection with additional drug

charges arising from his criminal activities in early 2020. He was subsequently convicted of two

counts of delivery of less than 50 grams of cocaine, MCL 333.7401(2)(a)(iv), and one count of

maintaining a drug house, MCL 333.7405(1)(d), again as second or subsequent drug-related

offenses under MCL 333.7413(1). People v Hines, unpublished per curiam opinion of the Court

of Appeals, issued September 7, 2023 (Docket No. 358479). Hines acknowledges that his

methamphetamine and imitation-controlled-substance convictions were subject to discretionary

consecutive sentences pursuant to MCL 768.7b(2)(a) because he committed those felonies while

the 2020 felony charges were pending. But as he did with respect to the previous issue, Hines

maintains that he should be resentenced because the trial court did not adequately explain its

reasons for ordering that the methamphetamine and imitation-controlled-substances convictions

be served consecutive to his sentences for the 2020 convictions.

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As noted earlier, Norfleet involved a consecutive sentencing challenge that arose under a

different statute authorizing discretionary sentences. Norfleet, 317 Mich App at 664. Nonetheless,

this Court has already recognized Norfleet as broadly extending to other discretionary consecutive

sentencing decisions. See Baskerville, 333 Mich App at 290 (considering violation of a human-

trafficking statute). As such, the trial court was required to articulate its reasons for ordering each

consecutive sentence. Id.; Norfleet, 317 Mich App at 665.

The record does not reflect the trial court’s reasoning. The prosecution argues that the trial

court’s reasons for doubling Hines’s fentanyl sentence applied to its consecutive sentencing as

well. We disagree. After noting the sentencing guidelines range, the trial court said:

They [the guidelines] can be doubled as a result of . . . controlled substance second

offense. There are seven felonies and four misdemeanors. Mr. Hines was on parole

for the very same offense at the time this happened.

As the prosecutor pointed out, sentence must be consecutive as to count two

[the fentanyl conviction] because he was on parole [sic: had a pending felony

charge] and he committed a major criminal substance—a major controlled

substance offense while the case was pending. The other cases [sic: convictions]

are discretionary, although they are mandatory as it pertains to parole.

The trial court’s reference to Hines’s criminal history and parole status were mentioned in the

context of its discretion to double Hines’s authorized terms of imprisonment under MCL 333.7413,

and there is no indication that it applied the same reasoning to the discretionary consecutive

sentences imposed under MCL 768.7b(2)(a). Rather, the trial court only noted its discretion in

relation to this issue without further comment concerning its exercise of that discretion. We

therefore remand to allow the trial court to articulate its rationale for imposing consecutive

sentences and retain jurisdiction so we may properly review the trial court’s reasoning for an abuse

of discretion. Norfleet, 317 Mich App at 666.

VII. IS MANDATORY CONSECUTIVE SENTENCING CRUEL OR UNUSUAL?

Finally, Hines argues that the mandatory consecutive sentence required by MCL

768.7b(2)(b) constituted cruel or unusual punishment. We disagree.

The previous issue concerned the discretionary consecutive sentencing provision of MCL

768.7b, while this issue concerns mandatory consecutive sentences required by the same statute.

More specifically, under MCL 768.7b(2)(b), “[i]f the subsequent offense is a major controlled

substance offense, the sentences imposed for the prior charged offense and the subsequent offense

shall run consecutively.” (Emphasis added.) A major controlled substance offense includes a

violation of MCL 333.7401(2)(a). See MCL 761.2(a). Hines’s fentanyl conviction satisfied this

definition because it involved a violation of subdivision (iv) of MCL 333.7401(2)(a). As such, the

trial court was required to order the sentence for his fentanyl conviction to be served consecutive

to his sentences for the felony charges that were pending at the time the fentanyl conviction was

committed. See Lockridge, 498 Mich at 387 (“As we have stated many times, ‘shall’ indicates a

mandatory directive.”). See also People v Chambers, 430 Mich 217, 226; 421 NW2d 903 (1988)

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(discussing legislative intent to deny discretion concerning consecutive sentences when a major

controlled substance offense is committed while free on bond for an earlier felony offense).

The punishment provision of the Michigan Constitution is broader than its federal

counterpart inasmuch as it prohibits cruel or unusual punishment. People v Parks, 510 Mich 225,

241; 987 NW2d 161 (2022). “[U]nder the Michigan Constitution, the prohibition against cruel or

unusual punishment include[s] a prohibition on grossly disproportionate sentences.” People v

Burkett, 337 Mich App 631, 636; 976 NW2d 864 (2021) (quotation marks and citation omitted;

alterations in original). In assessing this issue, courts consider four factors:

(1) the harshness of the penalty compared to the gravity of the offense, (2) the

penalty imposed for the offense compared to penalties imposed for other offenses

in Michigan, (3) the penalty imposed for the offense in Michigan compared to the

penalty imposed for the same offense in other states, and (4) whether the penalty

imposed advances the goal of rehabilitation. [People v Jarrell, 344 Mich App 464,

484; 1 NW3d 359 (2022) (quotation marks and citation omitted).]

Concerning the first factor, consecutive sentencing has been recognized as “strong

medicine” that should be exercised only with full awareness of the punitive effect it will have.

Chambers, 430 Mich at 231. Its purpose is to enhance the punishments of those individuals who,

because of repeated criminal activity, pose an unusual safety risk to the public. See id. at 229 & n

15. Hines has committed multiple offenses for which the trial court could impose consecutive

sentences, suggesting that his criminality is more severe than other offenders. Committing a

subsequent felony offense while an earlier felony charge is pending is especially concerning

because it undermines the bond system; absent the deterrent of consecutive sentencing, “a person

could be assured of ‘one free crime’ because of the usual policy of concurrent sentencing.” People

v Smith, 423 Mich 427, 450; 378 NW2d 384 (1985). This factor weighs against Hines’s requested

relief.

Concerning the second factor, i.e., the penalty imposed for the offense compared to

penalties imposed for other offenses in this state, Jarrell, 344 Mich App at 484, Hines identifies

several other situations in which mandatory consecutive sentencing is required in Michigan: (1)

when a person commits a crime while incarcerated or upon escaping from incarceration, MCL

786.7a(1), (2) when a person commits a felony while on parole, MCL 768.7a(2), (3) when a person

breaks or escapes prison, or attempts to do so, MCL 750.193(1), (4) when a person breaks or

escapes jail, or attempts to do so, MCL 750.195(2), (5) when an imprisoned person takes another

person as a hostage, MCL 750.349a, (6) when a person escapes incarceration while awaiting

examination, trial, arraignment, or sentence for a felony, MCL 750.197(2), and (7) when a person

possesses a firearm during the commission of a felony (felony-firearm), MCL 750.227b(3). Apart

from felony-firearm, these circumstances all involve a common theme, namely, a prior relationship

with the criminal justice system—a theme shared by the mandatory consecutive sentencing

required by MCL 768.7b(2)(b). This factor weighs against Hines’s requested relief as well.

Hines argues that MCL 768.7b(2)(b) is distinguishable because it requires consecutive

sentencing based on conduct that occurred while he still had a presumption of innocence with

respect to the earlier offenses, whereas the majority of the circumstances outlined above involve a

person who has been convicted and sentenced for the earlier offense. We find Hines’s distinction

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unpersuasive because MCL 768.7b(2)(b) mandates consecutive sentencing with respect to “the

sentences imposed for the prior charged offense and the subsequent offense.” By necessity, then,

it can only ever apply when the person subject to its terms is in fact convicted and sentenced for

both offenses. As our Supreme Court confirmed in the context of discretionary consecutive

sentencing under the former MCL 768.7b, the ability to impose consecutive sentences is given to

“the court last in time to impose sentence.” Chambers, 430 Mich at 231. Thus, if Hines was not

actually convicted of the earlier offenses, the mandatory consecutive sentencing provision would

be a moot issue.

Concerning the penalty imposed in Michigan compared to the penalty imposed in other

states, Jarrell, 344 Mich App at 484, Hines emphasizes that many states have reduced the

punishments for “drug convictions” by eliminating mandatory minimum penalties for “some drug

offenses,” diverting drug users to “problem-solving courts,” and declining to increase penalties for

fentanyl-related crimes. His position lacks merit because it does not speak to the availability or

requirement of consecutive sentences, which is the precise issue he challenges in this claim of

constitutional error. In contrast, at least one other jurisdiction requires consecutive sentences under

analogous circumstances. See, e.g., Tenn R Crim P 32(c)(3)(C).8

Lastly, Hines argues that the goal of rehabilitation is not advanced by punishing him more

severely under these circumstances because research has shown no evidence that increased prison

sentences lead to higher capacity for rehabilitation. Even accepting the assertions outlined in the

various articles Hines cites, we are not persuaded that this factor favors Hines’s requested relief.

The consecutive sentencing scheme does not completely undermine the goals of rehabilitation. By

Hines’s calculations, he will be eligible for parole in approximately 16 years. During this period

of incarceration, he will presumably have access to positive programming through the MDOC.

Nor will the cumulative total of the minimum consecutive sentences expire at such a late stage in

Hines’s life that he will have no incentive to reform his ways.9 Furthermore, it remains true that

rehabilitation is not the only pertinent factor in sentencing. Rather, other policies are worthy of

consideration as well, including general deterrence, specific deterrence, punishment, and

incapacitation, and these considerations “may suffice to deflect a cruel and unusual punishment

challenge.” People v Adamowicz (On Second Remand), 346 Mich App 213, 231; 12 NW3d 35

(2023), quoting People v Fernandez, 427 Mich 321, 339; 398 NW2d 311 (1986). Hines has proven

that the lesser penalties he received for past offenses did not have a sufficient rehabilitative effect

on him. The fact that Hines committed a major controlled substance offense while nearly identical

charges were pending against him is, indeed, concerning and suggests that the fear of traditional

8

The prosecution also suggests that Illinois has an analogous requirement, but the statutory

provision cited by the prosecution, Ill Comp Stat 5/5-8-4(d)(8), no longer exists. Another

provision of that statute, however, seems to authorize permissive consecutive sentencing. See Ill

Comp State 5/5-8-4(c)(5) (“If a person admitted to pretrial release following conviction of a felony

commits a separate felony while released pretrial . . . then any sentence following conviction of

the separate felony may be consecutive to that of the original sentence for which the defendant

was released pretrial or detained.”).

9

Hines was 31 years old at the time of sentencing.

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sentencing would not deter him from engaging in such activities. Most critically, his repeated

conduct also underscores the potential need for incapacitation.

Considering the totality of these factors, Hines has not demonstrated that the mandatory

consecutive sentence required by MCL 768.7b(2)(b) constituted cruel or unusual punishment. He

is, therefore, not entitled to relief with respect to this unpreserved claim of error.

VIII. CONCLUSION

We affirm Hines’s convictions but vacate the trial court’s amended judgment of sentence

and remand for resentencing. On remand, the trial court must reassess OV 19 and make specific

findings on whether there was sufficient evidence of Hines’s intent to bring controlled substances

inside a penal facility as opposed to mere incidental possession during his arrest and intake. It

must also resentence in light of our conclusion that, post-Lockridge, MCL 333.7413 no longer

permits a trial court to double the sentencing guidelines. Finally, the trial court must reassess its

discretionary decision to impose consecutive sentences under MCL 768.7b(2)(a) and, if it does so,

must articulate its reasoning for imposing consecutive sentences. We retain jurisdiction.

/s/ Noah P. Hood

/s/ Allie Greenleaf Maldonado

/s/ Sima G. Patel

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Court of Appeals, State of Michigan

ORDER

Allie Greenleaf Maldonado

PEOPLE OF MI V DARIUS ANTHONY HINES Presiding Judge

Docket No. 363151 Sima G. Patel

LC No. 2021-246321-FH Noah P. Hood

Judges

For the reasons stated in the opinion issued with this order, we REMAND this case for

further proceedings. We retain jurisdiction. After the remand proceedings conclude, we will review the

decisions that the trial court made during those proceedings and consider any remaining issues in this

appeal. Any challenges to the trial court’s decisions on remand must be raised in this appeal. Therefore,

the parties and the trial court must not initiate a new appeal from an order entered on remand within the

scope of this appeal. The Clerk of the Court is directed to reject the initiation of a new appeal from such

an order.

Appellant must initiate the proceedings on remand within 56 days of the Clerk’s

certification of this order, and the trial court must prioritize this matter until the proceedings are concluded.

As stated in Part IV of accompanying opinion, the trial court shall reconsider whether it is appropriate to

assess 25 points for OV 19. If it continues to assess 25 points for OV 19, it shall identify how Appellant

possessed or attempted to possess the controlled substances inside the penal facility. If it concludes that

the controlled substances were possessed only during intake, it shall articulate how the possession was a

threat to the facility. As stated in Part V of the accompanying opinion, the trial court shall recalculate the

sentencing guidelines range with the understanding that the maximum potential punishment is doubled

but the guidelines are not. To the extent the trial court’s sentence results in a departure from the sentencing

guidelines range, it shall articulate the reasons for such departure. As stated in Part VI of the

accompanying opinion, the trial court shall articulate its decision to impose discretionary consecutive

sentences for Appellant’s convictions for possession with intent to deliver methamphetamine, MCL

333.7401(2)(b)(i), second or subsequent offense, MCL 333.7413(1) (Count 1), and possession of an

imitation controlled substance with intent to distribute, MCL 333.7341(3), second or subsequent offense,

MCL 333.7413(1) (Count 6), under MCL 768.7b(2). The proceedings on remand are limited to these

issues.

The parties must serve copies of their filings in the trial court on this Court. Appellant

must file with this Court copies of all orders entered on remand within seven days of entry.

Appellant must ensure the transcript of all proceedings on remand is filed in the trial court

and this court within 21 days after completion of the proceedings.

_______________________________

Presiding Judge

A true copy entered and certified by Jerome W. Zimmer Jr., Chief Clerk, on

January 16, 2025

Date Chief Clerk