PEOPLE v. JONES (2012)

Defendant, Jeffrey Lamar Jones, appeals as of right his jury convictions of two counts of assault with intent to do great bodily harm less than murder, MCL 750.84, one count of assaulting, resisting, or obstructing a police officer, causing serious impairment of bodily function, MCL 750.81d(3), one count of carjacking, MCL 750.529a, one count of second-degree fleeing and eluding a police officer, MCL 750.479a(4)(a), one count of third-degree fleeing and eluding a police officer, MCL 750.749a(3), one count of felonious driving, MCL 257.626c, one count of assaulting, resisting, or obstructing a police officer, MCL 750.81d(1), one count of failure to stop at the scene of a personal injury accident, MCL 257.617a, one count of operating a motor vehicle with a suspended or revoked license, MCL 257.9041(B), and one count of possession of marijuana, MCL 333.7403(2).

Defendant was sentenced, as an habitual offender, third offense, MCL 769.11, to 10 to 20 years' imprisonment for each count of assault with intent to do great bodily harm less than murder, 15 to 30 years' imprisonment for assaulting, resisting, or obstructing a police officer, causing serious impairment of bodily function, 30 to 50 years' imprisonment for carjacking, 10 to 20 years' imprisonment for second-degree fleeing and eluding a police officer, 5 to 10 years' imprisonment for third-degree fleeing and eluding a police officer, two to four years' imprisonment for felonious driving, and two to four years' imprisonment for assaulting, resisting, or obstructing a police officer. Defendant was sentenced to time served for failure to stop at the scene of a personal injury accident, operating a motor vehicle with a suspended or revoked license, and possession of marijuana.

Because we conclude that the enhancement of defendant's sentence was not error and that there was sufficient evidence to support defendant's carjacking conviction, we affirm.

I. SENTENCING ENHANCEMENT

Defendant argues that the trial court erred when it sentenced him pursuant to MCL 769.11, as an habitual offender, third offense, because one of the predicate felonies relied on by the trial court was committed by defendant when he was a juvenile, and despite having jurisdiction waived from juvenile court to the circuit court, defendant ultimately was sentenced as a juvenile for the offense.

Claims of scoring error or inaccurate information must be preserved by raising the issue at sentencing, in a motion for resentencing, or in a “proper motion to remand” filed with this Court. MCL 769.34(10). Defendant filed a motion to remand; however, the motion was not timely filed with this Court. Accordingly, defendant's motion to remand was not a “proper motion to remand,” and this issue is unpreserved. See People v. Kimble, 470 Mich. 305, 312; 684 NW2d 669 (2004). We review unpreserved, constitutional error for plain error affecting defendant's substantial rights. People v. Carines, 460 Mich. 750, 752–753, 764; 597 NW2d 130 (1999). Substantial rights are affected when the defendant is prejudiced, meaning the error affected the outcome of the trial. Id. at 763.

Resolution of the issue on appeal requires interpretation of the statutory provision allowing for enhancement of defendant's sentence based on his habitual offender status, MCL 769.11(1). Pursuant to MCL 769.11(1), upon conviction of a felony, a defendant may be subject to an enhanced sentence if he has already been “convicted of any combination of 2 or more felonies or attempts to commit felonies.”

The proper construction of a statute is an issue that we review de novo. People v. Weeder, 469 Mich. 493, 497; 674 NW2d 372 (2004). The goal of statutory construction is “to ascertain and give effect to the intent of the Legislature.” Id. (citation and quotation omitted). We assume that the Legislature intended the plain meaning of clear and unambiguous language, and we enforce the statute as written. Id.

In 1996, after being waived from juvenile court to the circuit court for prosecution as an adult,¹ defendant entered a nolo contendere plea to assault with intent to murder, MCL 750.83. The events giving rise to defendant's plea occurred in 1994, when defendant was 16 years old. The trial court accepted defendant's plea. At the time defendant pleaded, trial courts had discretion regarding whether to sentence a juvenile waived to circuit court as an adult or a juvenile pursuant to MCL 769.1(3).² In this case, the trial court exercised its discretion and sentenced defendant as a juvenile.³

On appeal, defendant argues that the peculiar circumstances of this case do not permit the use of his admitted felony conviction as a predicate offense for sentencing as an habitual offender because a juvenile sentence was imposed as a result of his felony conviction. Whether an adult conviction resulting in a juvenile sentence can be used as a predicate offense for sentencing as an habitual offender pursuant to MCL 769.11 is an issue of first impression.⁴

Here, it is not disputed that the circuit court accepted defendant's nolo contendere plea to assault with intent to murder. Pursuant to MCL 750.83, “[a]ny person who shall assault another with intent to commit the crime of murder, shall be guilty of a felony, punishable by imprisonment in the state prison for life or any number of years.” Thus, it is clear that following his waiver from juvenile court, defendant was convicted in the circuit court of a felony when the trial court accepted his plea to assault with intent to murder.

We find the fact that MCL 769.11(1) focuses only on whether a defendant has been convicted, and does not contain any language regarding a defendant's sentence, controlling. This Court “will not read anything into a statute that is not within the manifest intention of the Legislature as gathered from the act itself; rather, the Legislature is presumed to have intended the meaning it plainly expressed.” People v. St John, 230 Mich.App 644, 648; 585 NW2d 849 (1998). MCL 769.11(1) permits sentence enhancement if a defendant has been “convicted of any combination of 2 or more felonies or attempts to commit felonies.” MCL 769.11(1). Therefore, we conclude that because defendant was convicted of two felonies before he was convicted of the instant offenses,⁵ the trial court did not err when it enhanced his sentence pursuant to MCL 769.11(1).

II. SUFFICIENCY OF THE EVIDENCE

Defendant also argues that there was insufficient evidence to sustain his conviction for carjacking. Specifically, defendant argues that the evidence does not support the conclusion that the police officer involved was present when he gained possession of the officer's vehicle.

We review de novo a claim of insufficient evidence. People v. McGhee, 268 Mich.App 600, 622; 709 NW2d 595 (2005). The evidence is viewed in a light most favorable to the prosecution to determine whether a rational jury could find that each element of the crime was proved beyond a reasonable doubt. People v. Ericksen, 288 Mich.App 192, 196; 793 NW2d 120 (2010).

Defendant's argument on appeal appears to be based on the prior version of Michigan's carjacking statute. In 2004, the Legislature amended the carjacking statute. Under the prior version of the statute, a person was guilty of carjacking if he:

[B]y force or violence, or by threat of force or violence, or by putting in fear robs, steals, or takes a motor vehicle ․ from another person, in the presence of that person or the presence of a passenger or in the presence of any other person in lawful possession of the motor vehicle.” [MCL 750.529a (prior to amendment effective July 1, 2004).]

The current, amended version of the statute, under which defendant was charged, states:

[A] person who in the course of committing a larceny of a motor vehicle uses force or violence or the threat of force or violence, or who puts in fear any operator, passenger, or person in lawful possession of the motor vehicle, or any person lawfully attempting to recover the motor vehicle, is guilty of carjacking. [MCL 750.529a(1).]

This Court's goal in construing a statute is “to ascertain and give effect to the intent of the Legislature.” People v. Gardner, 482 Mich. 41, 50; 753 NW2d 78 (2008) (quotation and citation omitted). We determine the Legislature's intent by the plain language of the stature, and clear and unambiguous statutes are enforced as written. Id.

Defendant's argument regarding the officer's presence during the offense is erroneously based on the previous version of the statute. Presence is no longer an element of the offense. When it amended the carjacking statute, the Legislature removed the phrase “in the presence of that person or the presence of a passenger or in the presence of any other person in lawful possession of the motor vehicle” and replaced it with the phrase “any operator, passenger, or person in lawful possession of the motor vehicle, or any person lawfully attempting to recover the motor vehicle.” We assume that when the Legislature removed the word “presence” from the carjacking statute, it did so intentionally. See People v. Auto Serv Councils of Mich, Inc, 123 Mich.App 774, 787; 333 NW2d 352 (1983) (“It is reasonable to presume some intentionality in the insertion of ․ additional [statutory] language.”). Accordingly, that the officer was not present inside the police cruiser at the time defendant took the cruiser is not dispositive because presence at the time of the initial larceny is not a necessary condition for criminal liability under the amended carjacking statute.

Defendant also asserts that the officer was not lawfully attempting to recover the motor vehicle, but does not explain his basis for this assertion. Contrary to defendant's argument, the evidence established that the officer was attempting to remove the keys from the ignition and arrest defendant when defendant put the car into drive and stepped on the gas pedal. Accordingly, when viewed in the light most favorable to the prosecution, the evidence was sufficient to establish that defendant was guilty of carjacking beyond a reasonable doubt.

Defendant also claims that the officer “attacked” him first, and that he was acting in self-defense. Defendant does not cite any controlling authority for the assertion that an arrestee is entitled to respond with force to an officer lawfully attempting to arrest him, nor does defendant point to facts on the record that would suggest the officer was “attacking” him. Indeed, the record establishes the exact opposite. Defendant assumed control of the officer's police vehicle while the officer pursued him on foot, close behind. The officer grabbed defendant's arm and told him to get on the ground; defendant responded by striking the officer in the face with a closed fist. The officer's actions did not constitute an “attack” because the officer was attempting to restrain defendant so that he could be arrested. “If a police officer lawfully arrests an individual, he may use reasonable force if that individual resists.” Tope v. Howe, 179 Mich.App 91, 106; 445 NW2d 452 (1989).

Affirmed.

FOOTNOTES

1.  Juvenile defendants are treated like adult defendants when waived pursuant to MCL 712A.4(1), which provides:If a juvenile 14 years of age or older is accused of an act that if committed by an adult would be a felony, the judge of the family division of circuit court in the county in which the offense is alleged to have been committed may waive jurisdiction under this section upon motion of the prosecuting attorney. After waiver, the juvenile may be tried in the court having general criminal jurisdiction of the offense.

2.  At the time of defendant's sentencing for assault with intent to murder, MCL 769.1(3), prior to 1996 amendment, effective January 1, 1997, provided:A judge of a court having jurisdiction over a juvenile shall conduct a hearing at the juvenile's sentencing to determine if the best interests of the juvenile and the public would be served by placing the juvenile on probation and committing the juvenile to a state institution or agency described in the youth rehabilitation services act ․ or by imposing any other sentence provided by law for an adult offender.

3.  According to defendant's Presentence Investigation Report, defendant was committed to the Department of Social Services for placement until age 19.

4.  In support of his position, defendant relies on People v. McIntire, 7 Mich.App 133, 140; 151 NW2d 187 (1967). The prosecution relies on People v. McGilmer, 95 Mich.App 577; 291 NW2d 128 (1980). Although both cases address peculiar issues regarding the sentencing of juveniles, a close reading of both cases reveals that neither case is directly on point or helpful to the resolution of the issue in this case.

5.  It is not disputed that defendant was also previously convicted of third-degree fleeing and eluding, “a felony punishable by imprisonment for not more than 5 years or a fine of not more than $5,000, or both.” MCL 750.479a(3).

PER CURIAM.