People of Michigan v. Daniel J Saarela

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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED

October 13, 2022

Plaintiff-Appellee,

v No. 356440

Gogebic Circuit Court

DANIEL J. SAARELA, LC No. 20-000095-FH

Defendant-Appellant.

Before: K. F. KELLY, P.J., and BORRELLO and CAMERON, JJ.

PER CURIAM.

Defendant Daniel J. Saarela appeals as of right his jury trial convictions of possession with

intent to deliver methamphetamine, MCL 333.7401(2)(b)(i); possession with intent to deliver less

than 50 grams of heroin, MCL 333.7401(2)(a)(iv); possession of a dangerous weapon (metallic

knuckles), MCL 750.224(1); possession of a firearm during the commission of a felony (felony-

firearm), MCL 750.227b; felon in possession of a firearm (felon-in-possession), MCL 750.224f;

and operating a motor vehicle without a valid license (OWL), MCL 257.904a. Defendant was

sentenced as a fourth-offense habitual offender, MCL 769.12, to 15 to 30 years’ imprisonment for

his possession with intent to deliver methamphetamine conviction, 10 to 20 years’ imprisonment

for his possession with intent to deliver heroin conviction, 2 to 5 years’ imprisonment for his

possession of a dangerous weapon and felon-in-possession convictions, 2 years’ imprisonment for

his felony-firearm conviction,1 and 90 days’ imprisonment for his OWL conviction. We affirm.

1

The two-year sentence for the felony-firearm conviction was ordered to be served consecutive

and prior to the sentences for the remaining convictions.

-1-

I. BACKGROUND FACTS AND PROCEDURAL HISTORY

This case arises from an April 21, 2020 early-morning traffic stop and search of defendant’s

vehicle. While on patrol at 2:30 a.m., Gogebic County Deputy Sheriff Cody Smith2 observed a

dark-colored SUV traveling in the opposite lane of traffic with a nonfunctioning headlight. The

SUV was outfitted with a brush guard that was “tilted forward.” About a week before the traffic

stop, Deputy Smith had received an anonymous tip that defendant would be traveling through

Gogebic County in a similar vehicle. The tipster said that defendant would have with him a large

amount of methamphetamine and that he was possibly armed. Deputy Smith opened an

investigation and found defendant’s social media account that displayed an SUV with a brush

guard installed improperly, causing it to tilt forward.

Deputy Smith executed a traffic stop of the vehicle. During the stop, he observed a loaded

syringe on the passenger-side floorboard. He also noticed a “torch” sticking out of a black camera

bag in the backseat. On the basis of this evidence, Deputy Smith and other officers conducted a

search of defendant’s vehicle where they discovered a number of drug-related items. These

included: six bindles3 of suspected heroin, a bag of suspected methamphetamine, a

methamphetamine pipe, two “hot rails,”4 a dollar bill on top of one of the scales, a silver scoop, a

“bubble,”5 packaging material, a Pyrex container containing crumbs of partially burned suspected

methamphetamine or heroin, multiple loaded and unloaded syringes, $100 bills, $20 bills, and

prescription bottles containing marijuana. Field and laboratory tests confirmed that the substances

were methamphetamine and heroin. The officers also discovered a .22-caliber revolver and a pair

of metallic knuckles.

Deputy Smith interviewed Destiny Caudill, defendant’s passenger, who admitted the pair

had spent the day before the stop selling methamphetamine to various individuals in and around

Gogebic County. Defendant was arrested and, in a separate interview, he admitted to possessing

the metallic knuckles, but denied knowledge of the revolver and the drug paraphernalia. Defendant

was convicted and sentenced as noted. This appeal followed.

II. INEFFECTIVE ASSISTANCE OF COUNSEL

Defendant raises several arguments contending that defense counsel was ineffective. We

disagree with each.

2

Deputy Smith is a member of the Gogebic Iron Area Narcotics Team (“GIANT”). GIANT is

tasked with investigating narcotic-related crimes in the Gogebic County area. Its ranks include

officers from a number of local law enforcement agencies.

3

A bindle is a small piece of aluminum foil or cellophane containing a small amount of heroin.

4

A hot rail is a glass tube used for cooking methamphetamine.

5

A bubble is a type of pipe used for smoking methamphetamine.

-2-

A. STANDARD OF REVIEW

Because defendant did not raise the issue of ineffective assistance of counsel through a

motion for new trial or a Ginther6 hearing, our review is limited to mistakes apparent from the

record. People v Heft, 299 Mich App 69, 80; 829 NW2d 266 (2012). The question of ineffective

assistance of counsel is “a mixed question of fact and constitutional law.” People v LeBlanc, 465

Mich 575, 579; 640 NW2d 246 (2002). The trial court’s factual findings are reviewed for clear

error and questions of constitutional law are reviewed de novo. Id.

B. LAW AND ANALYSIS

“The defendant has the burden of establishing the factual predicate of his ineffective

assistance claim.” People v Douglas, 496 Mich 557, 592; 852 NW2d 587 (2014). To establish

the right to a new trial premised on ineffective assistance of counsel, “a defendant must show that

(1) counsel’s performance fell below an objective standard of reasonableness and (2) but for

counsel’s deficient performance, there is a reasonable probability that the outcome would have

been different.” People v Trakhtenberg, 493 Mich 38, 51; 826 NW2d 136 (2012). “ ‘A reasonable

probability is a probability sufficient to undermine confidence in the outcome.’ ” People v

Randolph, 502 Mich 1, 9; 917 NW2d 249 (2018), quoting Strickland v Washington, 466 US 668,

694; 104 S Ct 2052; 80 L Ed 2d 674 (1984). It is presumed that defense counsel was effective,

and a defendant must overcome the strong presumption that counsel’s performance was sound trial

strategy. Trakhtenberg, 493 Mich at 52.

1. DEPUTY SMITH’S TESTIMONY

Defendant first argues that he was denied the effective assistance of counsel because

defense counsel did not object to what he alleges is Deputy Smith’s “expert testimony” without

first being qualified as an expert. Specifically, defendant challenges Deputy Smith’s testimony

that the weight of the drugs, the presence of drug paraphernalia such as scales, the packaging of

the drugs, and the additional packaging materials found in the vehicle were indicative of

defendant’s intent to deliver the drugs to others.

Defendant is correct that the prosecutor did not move to qualify Deputy Smith as an expert

in the area of street-level narcotics distribution and trafficking. However, defendant does not argue

that Deputy Smith was not qualified to provide expert testimony, nor does he argue that the trial

court would not have properly qualified Deputy Smith as an expert. Indeed, citing People v Boyd,

65 Mich App 11, 14-15; 236 NW2d 744 (1975), he acknowledges that an expert can be qualified

on the basis of academic training or practical experience. Rather, defendant merely argues that

because the prosecutor did not move under MRE 7027 to qualify Deputy Smith as an expert in

6

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

7

MRE 702 governs the admissibility of opinion testimony from an expert witness:

If the court determines that scientific, technical, or other specialized

knowledge will assist the trier of fact to understand the evidence or to determine a

-3-

what constitutes possession with intent to deliver as opposed to simple possession, defense

counsel’s lack of objection to Deputy Smith’s testimony did not constitute reasonable trial strategy.

While defense counsel could have objected to Deputy Smith’s testimony under MRE 702,

declining to raise an objection can often be considered sound trial strategy. A reviewing court

should not substitute its judgment or second-guess defense counsel’s strategy with the benefit of

hindsight. People v Unger, 278 Mich App 210, 242-243; 749 NW2d 272 (2008). Defense

counsel’s theory was that defendant was merely present and that defendant happened to be

associated with those who committed the crimes in this case. “The fact that defense counsel’s

strategy may not have worked does not constitute ineffective assistance of counsel.” People v

Stewart, 219 Mich App 38, 42; 555 NW2d 715 (1996). Defense counsel’s failure to object to

Deputy Smith’s opinion of the evidence appears in line with counsel’s trial strategy of implicating

others in the distribution scheme and does not amount to ineffective assistance of counsel.

It is also noteworthy that defendant does not assert ineffective assistance of counsel with

respect to defense counsel’s failure to object to the testimony of Officer Josiah Hewitt, another

officer involved in the search of defendant’s vehicle. Like Deputy Smith, Officer Hewitt testified

that he could distinguish simple possession from possession with intent to deliver and that, on the

basis of what he observed—scales, packaging material, and substances wrapped in packaging

material—he would characterize this case as one involving possession with intent to deliver.

Although the officers’ testimonies were similar, defendant’s failure to assert error with respect to

Officer Hewitt’s testimony undermines his argument that defense counsel was ineffective.

2. CAUDILL’S TESTIMONY

Next, defendant argues that defense counsel was ineffective when counsel failed to raise

an objection that Caudill’s testimony was unreliable. In defendant’s view, Caudill’s testimony

was unreliable because (1) she lacked personal knowledge of any drug transactions; and

(2) Caudill “had worked out a dela [sic] in exchange for her testimony.”8

MRE 602 states in part: “[a] witness may not testify to a matter unless evidence is

introduced sufficient to support a finding that the witness has knowledge of the matter. Evidence

to prove personal knowledge may, but need not, consist of the witness’ own testimony.”

According to defendant, Caudill lacked personal knowledge of any drug transactions by defendant,

fact in issue, a witness qualified as an expert by knowledge, skill, experience,

training, or education may testify thereto in the form of an opinion or otherwise if

(1) the testimony is based on sufficient facts or data, (2) the testimony is the product

of reliable principles and methods, and (3) the witness has applied the principles

and methods reliably to the facts of the case.

8

On appeal, defendant impermissibly asks this Court to consider testimony from Caudill’s plea

hearing in her criminal case as evidence of Caudill’s lack of credibility. This testimony was not

presented during the trial court proceedings; therefore, this evidence is an improper expansion of

the record, and we decline to consider it. See People v Powell, 235 Mich App 557, 561 n 4; 599

NW2d 499 (1999).

-4-

and any assertion by Caudill that defendant conducted a drug transaction was on the basis of

Caudill’s “assumption” that a drug transaction had occurred.

In making this argument, defendant points to Caudill’s statements that she had received

drugs from another party and that she only assumed some of the paraphernalia belonged to

defendant. Yet, in addition to these statements, Caudill also reported defendant’s role in the drug

transactions—specifically, that defendant would “weigh[] . . . up” the methamphetamine before

each sale and Caudill would deliver it to the customer. Although Caudill’s testimony could be

construed as demonstrating some ambiguity as to the source of the drugs, it is the jury’s role to

determine “the weight of evidence or the credibility of witnesses.” People v McRunels, 237 Mich

App 168, 181; 603 NW2d 95 (1999). It is clear the jury resolved any ambiguity in favor of the

prosecution, and we decline to second-guess that decision on appeal.

Regarding defendant’s assertion that Caudill’s credibility was damaged because she had

“worked out” a deal with the prosecutor, Caudill testified that, in exchange for her testimony, the

prosecutor would drop some of her pending charges. Although this may have undermined

Caudill’s credibility, it does not necessarily mean she lacked all credibility. Again, the jury is

tasked with assessing a witness’s credibility. Id. The fact that Caudill had an agreement with the

prosecutor does not, by itself, demonstrate that Caudill’s testimony was unreliable.

Because defendant’s objections to Caudill’s testimony are meritless, defense counsel was

not ineffective for failing to challenge Caudill’s testimony on these bases. See People v Ericksen,

288 Mich App 192, 201; 793 NW2d 120 (2010) (“Failing to advance a meritless argument or raise

a futile objection does not constitute ineffective assistance of counsel.”).

3. MOTION TO SUPPRESS AND TO DISMISS

Defendant next argues that the traffic stop was illegal because Deputy Smith did not have

reasonable suspicion to initiate the traffic stop. According to defendant, any evidence seized as a

result of this purportedly illegal stop was fruit of the poisonous tree, and therefore inadmissible in

the case against him. On this basis, defendant argues that defense counsel was ineffective for

failing to move to suppress the evidence and to dismiss the charges.9

“[T]he Fourth Amendment protects citizens from unreasonable searches and seizures.”

People v Stevens, 460 Mich 626, 634; 597 NW2d 53 (1999); see also US Const, Am IV; Const

1963, art 1, § 11. Although an officer generally needs a warrant to search and seize, there are

several exceptions to the warrant requirement. People v Barbarich, 291 Mich App 468, 472; 807

NW2d 56 (2011). One such exception is for an investigative or Terry10 stop. Id. at 473. A routine

9

Again, defendant’s argument is premised on evidence not presented in the trial court. On appeal,

defendant presents pictures of different dark-colored SUVs, which he contends are evidence the

vehicle he was driving on April 21, 2020, had a working headlight. This evidence is an improper

expansion of the record, and we decline to consider it. See Powell, 235 Mich App at 561 n 4.

10

Terry v Ohio, 392 US 1; 88 S Ct 1868; 20 L Ed 2d 889 (1968).

-5-

traffic stop is a brief encounter that is similar in nature to a Terry stop. People v Campbell, 329

Mich App 185, 197; 942 NW2d 51 (2019).

“A traffic stop is justified if the officer has an articulable and reasonable suspicion that a

vehicle or one of its occupants is subject to seizure for a violation of law,” including “a violation

of a traffic law.” People v Simmons, 316 Mich App 322, 326; 894 NW2d 86 (2016) (quotation

marks and citations omitted). The test is objective, People v Champion, 452 Mich 92, 98-99; 549

NW2d 849 (1996), and the stop is justified “even if the officer’s subjective intent for stopping the

car is based on other factors.” People v Kavanaugh, 320 Mich App 293, 299; 907 NW2d 845

(2017). “Reasonable suspicion entails something more than an inchoate or unparticularized

suspicion or ‘hunch,’ but less than the level of suspicion required for probable cause.” Champion,

452 Mich at 98. “In order to justify an investigative stop, the police must have a particularized

suspicion, based on objective observations, that the person stopped has been, is, or is about to

engage in some type of criminal activity.” People v Coscarelli, 196 Mich App 724, 727; 493

NW2d 525 (1992).

Deputy Smith testified that he stopped defendant’s vehicle because he observed that the

vehicle had a nonfunctioning headlight. In Michigan, it is illegal to drive in the dark without

operational headlights. MCL 257.683(1); MCL 257.684(a). “A police officer on reasonable

grounds shown may stop a motor vehicle and inspect the motor vehicle, and if a defect in

equipment is found, the officer may issue the driver a citation for a violation of a provision of

sections 683 to 711.” MCL 257.683(2). An officer’s subjective opinions are irrelevant to the

question of whether police action was objectively justifiable. Whren v United States, 517 US 806,

812; 116 S Ct 1769; 135 L Ed 2d 89 (1996). Defendant’s argument that the traffic stop was illegal

lacks merit, and he was not prejudiced by defense counsel’s failure to challenge the basis of the

stop because the failure to raise a meritless argument does not amount to ineffective assistance of

counsel. Ericksen, 288 Mich App at 201.

III. SUFFICIENCY OF THE EVIDENCE

Defendant next argues that the evidence was insufficient to support his convictions of

possession with intent to deliver methamphetamine, possession with intent to deliver less than 50

grams of heroin, felony-firearm, and felon-in-possession. We disagree.

A. STANDARD OF REVIEW

Challenges to the sufficiency of the evidence are reviewed de novo. People v Bailey, 310

Mich App 703, 713; 873 NW2d 855 (2015). “To determine whether the prosecutor has presented

sufficient evidence to sustain a conviction, we review the evidence in the light most favorable to

the prosecutor and determine whether a rational trier of fact could find the defendant guilty beyond

a reasonable doubt.” People v Smith-Anthony, 494 Mich 669, 676; 837 NW2d 415 (2013)

(quotation marks and citation omitted). In reviewing the sufficiency of the evidence, this Court

must draw reasonable inferences and assess witness credibility in favor of the jury verdict. People

v Nowack, 462 Mich 392, 400; 614 NW2d 78 (2000). “[C]ircumstantial evidence and reasonable

inferences arising from th[e] evidence can constitute satisfactory proof of the elements of a crime.”

People v Harverson, 291 Mich App 171, 175; 804 NW2d 757 (2010) (quotation marks and citation

omitted; alteration in original).

-6-

B. LAW AND ANALYSIS

1. POSSESSION WITH INTENT TO DELIVER

Defendant first challenges the sufficiency of his convictions of possession with intent to

deliver methamphetamine and possession with intent to deliver less than 50 grams of heroin. In

his view, the evidence did not demonstrate that he had the requisite intent to deliver.

To prove a defendant possessed an illegal substance with intent to deliver, the prosecution

must demonstrate: “(1) that the recovered substance is a narcotic, (2) the weight of the substance,

(3) that the defendant was not authorized to possess the substance, and (4) that the defendant

knowingly possessed the substance intending to deliver it.” People v McGhee, 268 Mich App 600,

622; 709 NW2d 595 (2005). At issue is the fourth element—whether defendant intended to deliver

the illegal substances.

“Just as proof of actual possession of narcotics is not necessary to prove possession, actual

delivery of narcotics is not required to prove intent to deliver.” People v Wolfe, 440 Mich 508,

524; 489 NW2d 748 (1992), amended 441 Mich 1201 (1992). “[B]ecause it can be difficult to

prove a defendant’s state of mind on issues such as knowledge and intent, minimal circumstantial

evidence will suffice to establish the defendant’s state of mind, which can be inferred from all the

evidence presented.” People v Kanaan, 278 Mich App 594, 622; 751 NW2d 57 (2008). Therefore,

intent to deliver may be inferred from circumstantial evidence, including “the quantity of narcotics

in a defendant’s possession, from the way in which those narcotics are packaged, and from other

circumstances surrounding the arrest.” Wolfe, 440 Mich at 524.

Here, the prosecutor presented sufficient evidence for a jury to rationally infer that

defendant intended to deliver methamphetamine and heroin. Police found a bag in the backseat of

defendant’s vehicle that contained a clear plastic zipper baggie with a large amount of a white,

chalky, crystalline substance that tested positive for methamphetamine. In the bag was a tinfoil

pouch containing six smaller tinfoil bindles containing a substance that tested positive for heroin.

The bag also contained a digital scale and packaging material. Defendant had approximately

$2,000 in cash in his wallet, and $600 in his pants pocket. The quantity and nature of this evidence

was sufficient for the jury to reasonably conclude that defendant had the requisite intent to deliver

methamphetamine and heroin.

Defendant’s other insufficiency argument is unconvincing. In addition to challenging the

physical evidence, defendant also challenges the propriety of Deputy Smith’s and Caudill’s

testimonies as insufficient to show his intent to deliver methamphetamines and heroin. Having

already determined that defendant’s objections to the witnesses’ testimonies were meritless, and

that the jurors were free to decide for themselves the witnesses’ relative credibility, we conclude

that defendant’s argument fails.

2. FELONY-FIREARM AND FELON-IN-POSSESSION

Defendant also contends there was insufficient evidence to convict him of felony-firearm

and felon-in-possession. “The elements of felony-firearm are that the defendant possessed a

firearm during the commission of, or the attempt to commit, a felony.” People v Avant, 235 Mich

App 499, 505; 597 NW2d 864 (1999). And, a defendant is guilty of felon-in-possession where the

-7-

evidence shows: “(1) the defendant is a felon who possessed a firearm (2) before his right to do so

was formally restored under MCL 28.424.” People v Bass, 317 Mich App 241, 267-268; 893

NW2d 140 (2016). Defendant claims there was not sufficient evidence presented showing that

defendant possessed the revolver.

Possession of a firearm can be actual or constructive. People v Johnson, 293 Mich App

79, 83; 808 NW2d 815 (2011). “Constructive possession exists if the defendant knew that [the

contraband] was present and had the right to exercise control over it. Put differently, constructive

possession exists if the totality of the circumstances indicates a sufficient nexus between the

defendant and the contraband.” People v Williams, 268 Mich App 416, 421; 707 NW2d 624 (2005)

(quotation marks and citation omitted).

Defendant argues that there “was no evidence presented that [defendant] could reasonably

access the weapon from where he was at in the car.” He also contends that he did not know the

revolver was in the vehicle at the time of the traffic stop. Testimony was presented that the gun

was inside the vehicle that defendant was operating at the time of the traffic stop. The loaded .22-

caliber six-shot revolver was found in a cargo pocket behind the driver’s seat of defendant’s

vehicle. Deputy Smith testified that when he asked defendant about the gun, defendant was able

to accurately describe the gun; he explained that there are numerous styles of guns, yet defendant

was able to describe the gun as “an older revolver.” According to Deputy Smith, defendant’s

description of the revolver “hit it on the head.” Deputy Smith took that to mean that defendant

knew that the gun was in the vehicle, even though defendant denied that the gun was his and said

that the gun belonged to someone else. A gun holster was found beneath the driver’s seat that was

consistent in size and shape to the revolver. Another officer testified that, in his opinion, defendant

had quick access to the gun and would have been able to reach his arm around the driver’s seat

into the pocket on the back of the driver’s seat. Additionally, Caudill testified that the day before,

while the drug deliveries were being made, defendant was sitting in the backseat of the vehicle

near where the revolver was found. Taken together, and viewed in the light most favorable to the

prosecution, the circumstantial evidence was sufficient for a jury to reasonably infer that defendant

was in constructive possession of the gun.

IV. SENTENCING ISSUES

Defendant next challenges the trial court’s scoring of offense variables (OVs) 14 and 15.

According to defendant, there was no evidence presented at trial to support the trial court’s scoring

of these variables. Defendant also argues that his sentence was not proportionate and was

unreasonable. We disagree.

A. STANDARD OF REVIEW

“We review for clear error the trial court’s factual determinations used for sentencing under

the sentencing guidelines, facts that must be supported by a preponderance of the evidence.”

People v Dickinson, 321 Mich App 1, 20-21; 909 NW2d 24 (2017). “We will hold the trial court’s

factual determinations clearly erroneous only if we are left with a definite and firm conviction that

the trial court made a mistake.” Id. at 21. This Court reviews de novo the trial court’s application

and interpretation of statutory sentencing guidelines. People v Jackson, 487 Mich 783, 789; 790

NW2d 340 (2010).

-8-

B. LAW AND ANALYSIS

1. OFFENSE VARIABLE 14

OV 14 considers a defendant’s role in a crime. MCL 777.44(1). The trial court scores 10

points under OV 14 when it finds a defendant to be “a leader in a multiple offender situation.”

MCL 777.44(1)(a). This Court has defined “leader” as “ ‘a person or thing that leads’ or ‘a guiding

or directing head, as of an army or political group.’ ” People v Rhodes, 305 Mich App 85, 90; 849

NW2d 417 (2014), quoting Random House Webster’s College Dictionary (2001). We defined the

verb “lead” as, “guiding, preceding, showing the way, directing, or conducting.” Rhodes, 305

Mich App at 90. In deciding whether a defendant was a “leader” for purposes of OV 14, “a trial

court should consider whether the defendant acted first or gave directions or was otherwise a

primary causal or coordinating agent.” Dickinson, 321 Mich App at 22 (quotation marks and

citations omitted). “The entire criminal transaction should be considered when scoring this

variable.” MCL 777.44(2)(a). “The trial court may rely on reasonable inferences arising from the

record evidence to sustain the scoring of an offense variable.” People v Earl, 297 Mich App 104,

109; 822 NW2d 271 (2012), aff’d 495 Mich 33 (2014), overruled in part on other grounds in

People v White, 501 Mich 160, 164 n 2; 905 NW2d 228 (2017).

In scoring OV 14, the trial court reasoned: “The facts are evident from this case that

[defendant] does in fact constitute a leader, as he traveled from Minnesota into this county with

drugs, packaging materials, scales, syringes, and so forth, and then went through both Gogebic and

Ontonagon Counties distributing methamphetamine.” There is no clear error in these factual

conclusions because there was testimony presented at trial that defendant indeed brought drugs

and other paraphernalia from Minnesota to distribute in the Gogebic County area. The trial court’s

conclusion that defendant was a “leader” for purposes of OV 14 was reasonable because there was

testimony that defendant coordinated a group of individuals to assist in his distribution efforts.

On appeal, defendant argues the trial court erred in scoring OV 14 because there was

evidence that other individuals played a far greater role in the distribution scheme than defendant.

Defendant is correct that there was testimony that others coordinated some of the drug transactions.

For example, Caudill stated that she arranged for defendant to sell drugs to some people she knew.

Although there was evidence supporting defendant’s assertion that others could be considered

“leaders” in the distribution scheme, that does not necessarily diminish defendant’s leadership role.

Considering the entire criminal transaction, there was evidence that defendant directed and guided

the distribution of the drugs. Therefore, the trial court did not err in scoring OV 14 at 10 points.

2. OFFENSE VARIABLE 15

OV 15 considers “aggravated controlled substance offenses.” MCL 777.45(1). A trial

court must assess 50 points if:

The offense involved traveling from another state or country to this state

while in possession of any mixture containing a controlled substance classified in

schedule 1 or 2 that is a narcotic drug or a drug described in section 7212 or 7214

with the intent to deliver that mixture in this state. [MCL 777.45(1)(d).]

-9-

Methamphetamine is described in MCL 333.7214(c)(ii).

The trial court assessed 50 points for OV 15 because defendant “traveled from Minnesota

and stayed at a motel in Ashland and then subsequently came into Gogebic County and Ontonagon

County distributing methamphetamine.” Defendant challenges this conclusion, stating there was

no evidence showing he traveled from Minnesota to Michigan with drugs in his vehicle. During

trial, Deputy Smith testified that he had received an anonymous tip that defendant would be

traveling from Minnesota to Michigan with a large amount of methamphetamine using a dark-

colored SUV. Defendant testified that he lived in Minnesota. Defendant was driving an SUV with

Minnesota plates—and registered to defendant’s mother at an address in Minnesota—when he was

pulled over. Methamphetamine was seized during a search of the vehicle. On this record, it was

reasonable for the trial court to conclude that defendant traveled from Minnesota with

methamphetamine. To the extent defendant argues the trial court engaged in “impermissible

judicial fact[-]finding,” we note that the trial court is entitled to rely on “reasonable inferences

arising from the record evidence to sustain the scoring of an offense variable.” Earl, 297 Mich

App at 109.

3. PROPORTIONALITY

Defendant next argues that his in-guidelines sentence was not proportionate and was

unreasonable. The trial court thoroughly articulated its reasons for sentencing defendant within

the guidelines for the conviction of possession with intent to deliver methamphetamine, and a

within-guidelines sentence is presumptively proportionate. People v Powell, 278 Mich App 318,

323; 750 NW2d 607 (2008). Moreover, MCL 769.34(10) states: “[i]f a minimum sentence is

within the appropriate guidelines sentence range, the court of appeals shall affirm that sentence

and shall not remand for resentencing absent an error in scoring the sentencing guidelines or

inaccurate information relied upon in determining the defendant’s sentence.” This Court must

affirm his sentence because defendant has not identified any error in the scoring of the sentencing

guidelines or directed this Court to any inaccurate information relied upon by the trial court when

determining his sentence. See People v Schrauben, 314 Mich App 181, 196 n 1; 886 NW2d 173

(2016); see also People v Anderson, 322 Mich App 622, 635-637; 912 NW2d 607 (2018), People

v Posey, 334 Mich App 338, 357; 964 NW2d 862 (2020),11 MCL 769.34(10).

11

Posey is pending before our Supreme Court, which ordered the parties to brief the issue “whether

the requirement in MCL 769.34(10) that the Court of Appeals affirm any sentence within the

guidelines range, absent a scoring error or reliance on inaccurate information, is consistent with

the Sixth Amendment, the due-process right to appellate review, and People v Lockridge, 498

Mich 358; 870 NW2d 502 (2015).” People v Posey, 508 Mich 940, 940; 964 NW2d 362 (2021).

However, until our Supreme Court issues a decision, this Court is bound by existing precedent,

because “a Supreme Court order granting leave to appeal does not diminish the precedential effect

of a published opinion of the Court of Appeals.” MCR 7.215(C)(2).

-10-

V. BRADY ISSUES

Next, defendant argues the prosecution violated his due-process rights under Brady v

Maryland, 373 US 83; 83 S Ct 1194; 10 L Ed 2d 215 (1963), because the prosecution did not

correct Caudill’s testimony regarding the terms of her plea agreement. We disagree.

A. PRESERVATION AND STANDARD OF REVIEW

Defendant incorrectly argues this issue is preserved because he alleges a constitutional

violation. Alternatively, he contends this issue is preserved because he moved this Court for

remand to the trial court for an evidentiary hearing. However, to preserve an allegation of a Brady

violation, a defendant must move the trial court for a new trial or for relief from judgment. People

v Burger, 331 Mich App 504, 516; 953 NW2d 424 (2020). Thus, this issue is unpreserved because

defendant did not move the trial court for a new trial or for relief from judgment. Id.

In general, “[t]his Court reviews due process claims, such as allegations of a Brady

violation, de novo.” People v Dimambro, 318 Mich App 204, 212; 897 NW2d 233 (2016)

(quotation marks and citation omitted). But because defendant did not preserve this issue, our

review is for plain error affecting substantial rights. Burger, 331 Mich App at 516. “To establish

plain error, the defendant must establish that (1) an error occurred, (2) the error was ‘plain’—i.e.,

clear or obvious, and (3) the error affected substantial rights—i.e., the outcome of the lower court

proceedings was affected.” Id. (quotation marks and citation omitted). “Reversal is warranted

only when plain error resulted in the conviction of an actually innocent defendant or seriously

affected the fairness, integrity, or public reputation of judicial proceedings.” Unger, 278 Mich

App at 235.

B. LAW AND ANALYSIS

Defendant’s arguments regarding this issue are based on the transcript of the plea hearing

in Caudill’s criminal case in which the terms of her plea agreement were explained to the trial

court. According to defendant, the actual terms of Caudill’s plea agreement differ from her

testimony in this case explaining the plea agreement. In his view, the prosecutor’s failure to correct

Caudill’s testimony in this case amounts to a due-process violation under Brady. This argument

is meritless.

As we explained above, the transcript of Caudill’s plea hearing was not evidence in this

case. Thus, defendant’s attempt to present the transcript as evidence on appeal amounts to an

improper expansion of the record, which this Court cannot consider. People v Powell, 235 Mich

App 557, 561 n 4; 599 NW2d 499 (1999). Furthermore, if defendant thought the prosecutor

committed a Brady violation when he failed to correct Caudill’s testimony, then the proper course

of action was to move the trial court for a new trial or for relief from judgment. People v Cox, 268

Mich App 440, 448; 709 NW2d 152 (2005). Indeed, it was then that defendant could have

presented evidence of the purported Brady violation to the trial court, and defendant cannot

circumvent this requirement by presenting on appeal evidence that was not admitted below.

On the record before us, there is no plain error demonstrating defendant’s due-process

rights were violated. Caudill testified at length about her plea agreement with the prosecutor and

there is no evidence properly in front of this Court showing that this testimony amounted to a

-11-

violation of defendant’s due-process rights. Indeed, defendant did not object to, or otherwise voice

his disagreement towards Caudill’s recitation of her plea agreement during the trial court

proceedings.

Affirmed.

/s/ Kirsten Frank Kelly

/s/ Stephen L. Borrello

/s/ Thomas C. Cameron

-12-