Opinion

People of Michigan v. Martin Dale Lozon

Court
Michigan Court of Appeals
Filed
Mar 14, 2024
Status
Unpublished
Cited by
0 cases
Authority
More cited than 15.6%

“Where a sentence is partially invalid, only the invalid part is to be vacated for resentencing[.]”

How later courts described this case

  • “Where a sentence is partially invalid, only the invalid part is to be vacated for resentencing[.]”

Written by the judges who cited it.

The opinion

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to

revision until final publication in the Michigan Appeals Reports.

STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED

March 14, 2024

Plaintiff-Appellee,

v No. 365713

Crawford Circuit Court

MARTIN DALE LOZON, LC No. 2022-004983-FH

Defendant-Appellant.

Before: PATEL, P.J., and K. F. KELLY and RIORDAN, JJ.

PER CURIAM.

Defendant, Martin Dale Lozon, entered a guilty plea to possession of methamphetamine,

MCL 333.7403(2)(b)(i). The trial court initially sentenced defendant to 12 months in jail followed

by 24 months’ probation, expressing the intention to hold the jail sentence “in abeyance” and to

refer defendant to drug-court programming in Otsego County, over the objection of the

prosecution. However, after the trial court learned that defendant was not eligible for the drug-

court program, the court sua sponte resentenced defendant to serve 28 months to 10 years’

imprisonment. Defendant appeals by leave granted.1 We affirm.

I. BACKGROUND FACTS AND PROCEDURAL HISTORY

On September 16, 2021, defendant was jailed after he tested positive for methamphetamine

while on parole for 2018 convictions of operating while intoxicated, third offense, MCL

257.625(1); MCL 257.625(9)(c), and delivering and manufacturing marijuana, MCL

333.7401(2)(d)(iii). On September 17, 2021, while defendant was in jail, he called a friend and

asked him to remove “important papers” from the glove box of his car. Defendant’s parole agent

listened to the recorded phone call, and the agent concluded that defendant had narcotics in the

glove box of his car and that defendant had called his friend to remove them from his car before

1

People v Lozon, unpublished order of the Court of Appeals, entered May 18, 2023 (Docket No.

365713).

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police found them. During the ensuing search of defendant’s car, a baggie containing

approximately one ounce of methamphetamine was found in the glove box.

Defendant was charged with possession of methamphetamine, second offense, MCL

333.7403(2)(b)(i); MCL 333.7413(1). Defendant ultimately pleaded guilty to one count of

possession of methamphetamine, and the prosecution dismissed a habitual-offender-enhancement

notice and an additional charge of possession of methamphetamine, second offense, in a separate

file.

At the initial sentencing, the prosecution explained that the Otsego County Prosecutor had

rejected defendant as a candidate for the drug-court program, and the prosecution argued that

defendant was not an appropriate candidate for the drug-court program “given that his guidelines

are a prison sentence” and that he had “done terrible on felony probation.” Defense counsel

responded that she was not aware that defendant was “denied to participate in Drug Court.”

Defense counsel asserted that she had spoken with a representative from “Otsego County Drug

Court” and that the representative “was excited to have [defendant] participate in Drug Court.”

The trial court indicated that it believed that defendant would be accepted, or already had been

accepted, into the drug-court program. The trial court imposed a sentence of 12 months in jail

followed by 24 months of probation, adopting “all the standard conditions of probation along with

the primary condition that [defendant] participate in and successfully complete the Otsego County

Drug Program,” and further stating that the jail sentence would be held “in abeyance to be used at

the discretion of the Drug Court Program.” The prosecution objected that “[MCL] 600.1062 does

not allow sentencing into Drug Court without the prosecutor’s acceptance of the case by both the

prosecutor of the case and the funding court.” The trial court responded that it was “going to let

Drug Court deal with that” and that the presiding judge of the drug-court program had indicated

that defendant was accepted and qualified for the program.

On September 19, 2022, the trial court issued a notice to appear to the prosecution and

defense counsel for “re-sentencing due to the non-acceptance into sobriety court program.” At the

resentencing hearing on October 17, 2022, the trial court noted that defendant was sentenced in

September, and that “[i]t was the Court’s intention at that time to sentence him into the Drug Court

Program in Otsego County,” but defendant was not accepted into the program. The trial court

resentenced defendant to serve 28 months to 10 years’ imprisonment.

II. AUTHORITY TO RESENTENCE

A. STANDARD OF REVIEW

Whether a trial judge’s understanding was a misapprehension of the law is a question of

law that is reviewed de novo. People v Moore, 468 Mich 573, 579; 664 NW2d 700 (2003).

However, because defendant failed to preserve his argument, “this Court’s review is limited to

plain error affecting defendant’s substantial rights.” People v Solloway, 316 Mich App 174, 197;

891 NW2d 255 (2016). “To obtain relief, it must be found that (1) an error occurred, (2) the error

was plain or obvious, and (3) the plain error affected the defendant’s substantial rights. The

defendant bears the burden of establishing that his substantial rights were affected.” Id. (citations

omitted).

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B. ANALYSIS

Defendant argues that the trial court should have conducted a probation-violation

proceeding rather than a resentencing. In the alternative, defendant argues that the trial court did

not have the authority to resentence him because his inability to fulfill a term of his probation,

specifically successful completion of the drug-court program, was not enough to render his

sentence invalid. We disagree.

MCR 6.429(A) provides:

The court may correct an invalid sentence, on its own initiative after giving

the parties an opportunity to be heard, or on motion by either party. But the court

may not modify a valid sentence after it has been imposed except as provided by

law. Any correction of an invalid sentence on the court’s own initiative must occur

within 6 months of the entry of the judgment of conviction and sentence.

“[T]rial courts possess the power to review and correct an invalid sentence.” People v

Comer, 500 Mich 278, 295; 901 NW2d 553 (2017). “A sentence is invalid when it is beyond

statutory limits, when it is based upon constitutionally impermissible grounds, improper

assumptions of guilt, a misconception of law, or when it conforms to local sentencing policy rather

than individualized facts.” People v Miles, 454 Mich 90, 96; 559 NW2d 299 (1997). In addition,

“sentences based on inaccurate information are invalid.” Id. For example, a sentence is invalid

when the trial court “sentence[s] the defendant on the basis of inaccurate information regarding

the value of the stolen property.” Id. at 97.

We first note that defendant’s argument that he was entitled to a probation-violation

proceeding, as opposed to resentencing, is unpersuasive because the trial court did not rely on

defendant’s alleged probation violations after his initial sentencing as a basis for resentencing.

Rather, the reason for resentencing was that defendant was not eligible to participate in the drug-

court program, as discussed at the initial sentencing. Generally, probation-violation proceedings

are only warranted when the trial court must render “a discretionary determination of whether the

violation warrants revocation.” People v Laurent, 171 Mich App 503, 505; 431 NW2d 202 (1988).

That did not occur here.

More importantly, defendant’s initial sentence was invalid because it was imposed on the

basis of the trial court’s misapprehension that defendant was eligible for the drug-court program.

Defendant’s recommended guidelines range was 19 to 38 months’ imprisonment. At the initial

sentencing, the trial court departed downward from the applicable guidelines range and sentenced

defendant to 24 months of probation “with the primary condition that [defendant] participate in

and successfully complete the Otsego County Drug Program.” The trial court erred in this regard

because the prosecution did not approve of defendant’s admission to the drug-court program. See

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MCL 600.1062; MCL 600.1068.2 Thus, the term of probation regarding the drug-court program

was invalid.

Ordinarily, the proper remedy in this case would be a remand to the trial court to strike the

invalid term of probation. See People v Parish, 282 Mich App 106, 108; 761 NW2d 441 (2009)

(“Where a sentence is partially invalid, only the invalid part is to be vacated for resentencing[.]”).

However, as noted, our Supreme Court has stated that “sentences based on inaccurate information

are invalid.” Miles, 454 Mich at 96. Here, defense counsel informed the trial court at the initial

sentencing that a representative of the drug-court program “was excited to have [defendant]

participate in Drug Court,” that the representative “would want him to start immediately,” and that

she was “not aware [defendant] was denied to participate in Drug Court.” In addition, the trial

court noted that it “did get confirmation from Judge Cooper that you have been accepted over the

objection of the prosecutor there.” Further, the trial court indicated that it departed downward

specifically because it believed that defendant would be, or already had been, admitted to the drug-

court program, recognizing “the benefit that we’re going to get as a community to sending you to

prison versus the benefit that we could get by giving you an opportunity in Drug Court.”

Simply put, the trial court had inaccurate information, provided by defense counsel, that

defendant would be able to enroll in the drug-court program. The trial court relied upon this

inaccurate information, and the trial court decided to depart downward at defendant’s initial

sentencing. This rendered the downward departure invalid, and the trial court was permitted to

correct it.

Accordingly, because defendant’s initial sentence was invalid, the trial court had the

authority to correct the judgment of sentence sua sponte pursuant to MCR 6.429(A) after giving

the parties an opportunity to be heard. No plain error occurred.

III. OV 19

Defendant argues that offense variable (OV) 19 is unconstitutionally vague and that the

trial court improperly scored OV 19. We disagree.

A. STANDARD OF REVIEW

2

Because defendant’s initial sentence was a deviation from the recommended guidelines range,

the prosecution was required to approve defendant’s admission into the drug-court program. See

People v Baldes, 309 Mich App 651, 654; 873 NW2d 338 (2015), citing MCL 600.1068(2) (“If

admission into drug treatment court would deviate from a defendant’s recommended sentence

under the sentencing guidelines, the prosecutor must approve that defendant’s admission into drug

court[.]”). Further, because the drug-court program was in a different county, and not the county

in which the sentencing offense occurred, both the Crawford County and the Otsego County

prosecutors were required to approve defendant’s admission into the drug-court program under

MCL 600.1062(4)(c) and (d). However, the record demonstrates that neither prosecutor approved

defendant’s admission into the drug-court program.

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This Court reviews “de novo constitutional challenges and questions of statutory

interpretation.” People v Hrlic, 277 Mich App 260, 262; 744 NW2d 221 (2007) (citations

omitted). However, because defendant failed to challenge the constitutionality of OV 19 during

the proceedings below, this issue is unpreserved. Consequently, “this Court’s review is limited to

plain error affecting defendant’s substantial rights.” Solloway, 316 Mich App at 197.

Defendant did, however, preserve his objections to the scoring of OV 19 by offering

objections at the initial sentencing, in a sentencing memorandum, and at resentencing. See People

v Sours, 315 Mich App 346, 348; 890 NW2d 401 (2016). “This Court reviews for clear error a

trial court’s findings in support of particular score under the sentencing guidelines but reviews de

novo whether the trial court properly interpreted and applied the sentencing guidelines to the

findings.” People v McFarlane, 325 Mich App 507, 531-532; 926 NW2d 339 (2018). Clear error

exists when this Court is “left with a definite and firm conviction that a mistake was made.” People

v Abbott, 330 Mich App 648, 654; 950 NW2d 478 (2019). “Under the sentencing guidelines, the

circuit court’s factual determinations . . . must be supported by a preponderance of the evidence.”

People v Hardy, 494 Mich 430, 438; 835 NW2d 340 (2013), superseded by statute on other

grounds as stated by People v Rodriguez, 327 Mich App 573, 579 n 3; 935 NW2d 51 (2019).

B. ANALYSIS

OV 19 applies if there was 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 sentencing court must assess 10 points for OV 19 if, in relevant part, “[t]he offender . . .

interfered with or attempted to interfere with the administration of justice[.]” MCL 777.49(c).

Interference with the administration of justice “encompasses more than just the actual judicial

process,” and the conduct need not “necessarily rise to the level of a chargeable offense” or

constitute obstruction of justice. People v Barbee, 470 Mich 283, 287-288; 681 NW2d 348 (2004).

First, defendant challenges the constitutionality of MCL 777.49(c) for failure to provide

fair notice. Defendant contends that “[t]here is no consistency, and certainly no limitation, as to

what conduct constitutes ‘interference’ and what does not,” and defendant argues that, because the

statute does not define the word “interfere,” “there is simply no notice about what conduct will

increase punishment after police come to one’s door to make an arrest.” We disagree.

“Statutes and ordinances are presumed to be constitutional and are so construed unless their

unconstitutionality is clearly apparent.” People v Gratsch, 299 Mich App 604, 609; 831 NW2d

462 (2013), vacated in part on other grounds 495 Mich 876 (2013) (quotation marks and citation

omitted). “The party challenging the statute has the burden of proving its unconstitutionality.” Id.

“A statute may be challenged as unconstitutionally vague when (1) it is overbroad and impinges

on First Amendment freedoms; (2) it does not provide fair notice of the conduct proscribed[;] or

(3) it is so indefinite that it confers unstructured and unlimited discretion on the trier of fact to

determine whether the law has been violated.” Id. at 610. “A statute provides fair notice when it

gives a person of ordinary intelligence a reasonable opportunity to know what is prohibited.” Id.

“To determine whether a statute is unconstitutionally vague, this Court examines the entire text of

the statute and gives the words of the statute their ordinary meanings.” People v Lockett, 295 Mich

App 165, 174; 814 NW2d 295 (2012). “[A] statute is sufficiently definite if its meaning can fairly

be ascertained by reference to judicial interpretations, the common law, dictionaries, treatises, or

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the commonly accepted meanings of words.” People v Mesik (On Reconsideration), 285 Mich

App 535, 545; 775 NW2d 857 (2009) (quotation marks and citation omitted).

Although the phrase “interfered with or attempted to interfere with the administration of

justice” is not defined by MCL 777.49, this Court has determined that “the plain and ordinary

meaning of ‘interfere with the administration of justice’ for purposes of OV 19 is to oppose so as

to hamper, hinder, or obstruct the act or process of administering judgment of individuals or causes

by judicial process.” People v Hershey, 303 Mich App 330, 343; 844 NW2d 127 (2013). Further,

our Supreme Court has held that “[c]onduct that occurs before criminal charges are filed can form

the basis for interference, or attempted interference, with the administration of justice, and OV 19

may be scored for this conduct where applicable.” Barbee, 470 Mich at 288. Because this Court

and our Supreme Court have previously interpreted and applied the phrase “interfered with or

attempted to interfere with the administration of justice,” MCL 777.49, a person of ordinary

intelligence would be aware of the conduct that is properly considered under OV 19.3

Consequently, defendant had fair notice of the sort of conduct that is contemplated by OV 19, and

MCL 777.49 is not unconstitutionally vague for failure to provide fair notice. No plain error

occurred as to the constitutionality of the statute.

Second, defendant argues that the trial court erred by assessing 10 points for OV 19 because

his conduct of calling his friend from jail occurred before the sentencing offense was committed.

We disagree.

Defendant’s argument suggests that he did not possess methamphetamine when he called

his friend from jail. However, at his plea hearing, defendant acknowledged that he possessed

methamphetamine on September 17, 2021, while he was “here in Crawford County.” Thus, the

sentencing offense was already completed at the time of his phone call to his friend from jail. The

fact that defendant’s possession of methamphetamine had not yet been discovered at the time that

he called his friend from jail is inconsequential as to whether OV 19 could be scored. See Barbee,

470 Mich at 288. Therefore, the trial court correctly scored OV 19.

IV. CONCLUSION

There were no errors warranting relief. We affirm.

/s/ Sima G. Patel

/s/ Kirsten Frank Kelly

/s/ Michael J. Riordan

3

In Hershey, this Court defined the word “interfere” by reference to a layperson dictionary. See

Hershey, 303 Mich App at 342-343. Thus, the meaning of the word “interfere” may be ascertained

not only by judicial interpretations, but by a dictionary as well.

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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