People v. Mouat

194 Mich. App. 482 (1992) 487 N.W.2d 494 PEOPLE v. MOUAT Docket No. 123876. Michigan Court of Appeals. Decided June 1, 1992, at 9:30 A.M. Frank J. Kelley, Attorney General, Gay Secor Hardy, Solicitor General, Carl J. Marlinga, Prosecuting Attorney, and Carole A. Murray, Assistant Prosecuting Attorney, for the people. Richard J. Amberg, Jr. and Dean A. Mouat, in propria persona, for the defendant on appeal. Before: DOCTOROFF, C.J., and MICHAEL J. KELLY and BRENNAN, JJ. BRENNAN, J. Following a jury trial, defendant *484 was convicted of conspiracy to deliver 225 grams or more, but less than 650 grams of cocaine and delivery of the same amount of cocaine, MCL 750.157a; MSA 28.354(1); MCL 333.7401(2)(a)(ii); MSA 14.15(7401)(2)(a)(ii). Defendant was sentenced to concurrent terms of 120 to 360 months of imprisonment. He appeals as of right, and we affirm. Defendant first argues that the trial court committed error requiring reversal admitting testimonial evidence of prior bad acts of the defendant. Codefendant Gary Ciraulo testified regarding defendant's drug-dealing activities during the year before defendant's arrest. The trial court allowed the testimony under MRE 404(b) as proof of defendant's intent to distribute cocaine. Evidence of similar acts may be admitted where: (1) there is substantial evidence that the defendant committed the similar act; (2) some special quality of the act tends to prove the defendant's identity or the motive, intent, absence of mistake or accident, scheme, plan, or system, and opportunity, preparation, and knowledge; (3) one or more of these factors are material to defendant's guilt of the charged offense; and (4) the probative value of the evidence substantially outweighs the danger of unfair prejudice. People v Golochowicz, 413 Mich 298, 307-309; 319 NW2d 518 (1982). In the present case, there was substantial evidence that defendant committed the prior acts. In addition to codefendant Ciraulo's testimony, Mark Rubino testified that he purchased drugs from Ciraulo and that Ciraulo told him that he had received the drugs from defendant. The testimony was credible in light of the fact that it was also damaging to Ciraulo and Rubino. The testimony regarding the prior drug activity showed defendant's intent to distribute cocaine, which was necessary for defendant's convictions. Defendant admitted *485 possession of the drugs, and the only major issue in the case was whether he intended to deliver the drugs to others. Therefore, intent was in issue. Although the evidence was clearly prejudicial to defendant, it was highly probative with regard to the issue of intent. We believe that the probative value of the evidence substantially outweighed the danger of unfair prejudice. Accordingly, we find that the trial court did not abuse its discretion in allowing the evidence. People v Rockwell, 188 Mich App 405, 410; 470 NW2d 673 (1991). Defendant further argues that the trial court abused its discretion in sentencing him to the mandatory ten-year minimum sentence when there were substantial and compelling reasons for departing from the mandated minimum. Defendant alleges that the substantial and compelling circumstances consisted of his act of revealing a fellow prisoner's plan to have several individuals executed. Defendant states that his cooperation ultimately resulted in the fellow prisoner's plea-based conviction of solicitation to murder. We note that the trial court imposed the sentence requested by defense counsel. Moreover, we find that substantial and compelling reasons for departing from the mandatory minimum sentence did not exist. Although the trial court may consider postarrest facts in determining whether substantial and compelling reasons exist, it should do so with greater caution than when considering prearrest facts, given the risk that defendants will create postarrest events to influence the sentencing court. People v Windall Hill, 192 Mich App 102, 115; 480 NW2d 913 (1991). We do not find defendant's case to be exceptional or his cooperation with the authorities to be of such significance that it renders the statutory sentence clearly inappropriate to defendant. People v Krause, 185 Mich App 353, *486 357; 460 NW2d 900 (1990), citing People v Downey, 183 Mich App 405, 416; 454 NW2d 235 (1990). Accordingly, we find that the trial court did not abuse its discretion in sentencing defendant. Krause, supra, p 359. Defendant argues that his trial counsel rendered ineffective assistance at sentencing because counsel was under the illusion that the twenty-year rather than the ten-year mandatory minimum sentence was in effect at the time of sentencing. However, the sentencing transcript clearly reveals that defense counsel was aware that the ten-year mandatory minimum was in effect. Defense counsel argued for a ten-year minimum as opposed to the twenty-year minimum sentence the prosecutor was requesting. In addition, during the sentencing proceeding, the prosecutor addressed the fact that the mandatory minimum sentence was ten years. Defendant further contends that his counsel was ineffective because counsel did no investigatory work pertaining to defendant's cooperation with the authorities in reporting the murder contract initiated by a fellow prisoner. Defendant explains that his attorney merely stated on the record that defendant cooperated with the authorities and, as a result, the sentencing court referred to defendant's "alleged" cooperation and the "alleged" contract to kill. Defendant contends that the court would have had substantial and compelling reasons to depart from the mandatory minimum sentence had it believed that defendant cooperated. However, regardless of whether the trial court believed defendant's claim, we have already found that defendant's claim does not constitute substantial and compelling reasons to depart from the statutory minimum sentence. Therefore, defendant has suffered no prejudice as a result of defense counsel's "omission," and defendant's ineffective *487 assistance of counsel claim is without merit. People v Gist, 188 Mich App 610, 613; 470 NW2d 475 (1991). Finally, defendant argues that the trial court actually resentenced defendant at the hearing on his motion for resentencing without the defendant being present. However, in its opinion regarding defendant's motion for resentencing and to correct judgment of sentence, the trial court merely noted that it had not previously articulated its reasons for defendant's sentences and proceeded to do so. This does not constitute resentencing. Therefore, defendant is not entitled to resentencing. See People v Strunk, 172 Mich App 208, 211; 431 NW2d 223 (1988). Affirmed. DOCTOROFF, C.J., concurred. MICHAEL J. KELLY, J. (dissenting). I respectfully dissent. I believe that the trial court abused its discretion in admitting under MRE 404(b) the testimony concerning prior bad acts. People v Golochowicz, 413 Mich 298; 319 NW2d 518 (1982), requires some special quality or circumstance of the bad act tending to prove the defendant's connection. The circumstances and the manner in which the charged offense and the other bad acts were committed need to be so nearly identical in method as to earmark the charged offense as the handiwork of the accused. Much more is demanded than the mere repeated commission of crimes of the same class, such as repeated burglaries or thefts. Golochowicz, supra at 310. The uncharged act and the crime in question need to be sufficiently alike or similar and involve characteristics so distinctive, unique, peculiar, or special as to justify an ordinarily reasonable juror *488 to infer that both were the handiwork of the same person. Golochowicz, supra at 312. The uncharged offenses in this case are not so nearly identical in method as to earmark the charged offense as the handiwork of the accused. The testimony presented showed merely the repeated commission of crimes of the same class. Because Golochowicz requires more, the testimony concerning prior bad acts should not have been admitted at trial. Further, I believe that defendant's obtaining of information while in the county jail and turning over two handwritten documents signed by an inmate attempting to solicit a murder was objective and verifiable information that was admissible to reduce defendant's sentence under People v Windall Hill, 192 Mich App 102; 480 NW2d 913 (1991).