            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PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    June 18, 2020
               Plaintiff-Appellee,

v                                                                   No. 346972
                                                                    Oakland Circuit Court
DELPHON LOUIS CALHOUN,                                              LC No. 1999-166893-FC

               Defendant-Appellant.


Before: STEPHENS, P.J., and CAVANAGH and SERVITTO, JJ.

PER CURIAM.

       Defendant, Delphon Louis Calhoun, appeals by delayed leave granted the trial court’s order
denying his successive motion for relief from judgement. We affirm.

        In 1999, a jury convicted defendant of one count each of assault with intent to commit
murder, (MCL 750.83); assault with intent to do great bodily harm less than murder, (MCL
750.84); felon-in-possession of a firearm, (MCL 750.224f); and two counts of felony-firearm,
(MCL 750.227b). In October 1999, the court sentenced defendant to 30 to 60 years’ imprisonment
for assault with intent to commit murder, six years and 11 months to 15 years for assault with
intent to commit great bodily harm less than murder, 3 to 7 ½ years for felon-in-possession, and 2
years for each felony-firearm conviction. Relevant to the instant matter, at sentencing, the trial
court sua sponte opined that prior record variable (PRV) 5 was incorrectly scored at 10 points
when, based on defendant’s criminal record, it should have been scored at 15 points. The
prosecutor agreed and defendant lodged no objection.

        After sentencing, defendant moved for a new trial and/or JNOV, which the trial court
denied. Defendant thereafter filed a claim of appeal in which he claimed instructional error,
prosecutorial misconduct, error regarding the court’s handling of a stipulation pertaining to his
previous felony conviction, and abuse of discretion by the trial court in permitting the prosecutor
to question him about an alleged threat of a witness. This Court rejected defendant’s arguments
and affirmed his convictions. People v Calhoun, unpublished per curiam opinion of the Court of
Appeals, issued February 19, 2002 (Docket No. 227622).




                                                -1-
        Defendant next moved for relief from judgment in the trial court asserting newly
discovered evidence. Defendant also asserted ineffective assistance of trial counsel and ineffective
assistance of appellate counsel. The court denied that motion and Defendant unsuccessfully sought
leave to appeal the denial of his motion in this Court. People v Calhoun, unpublished order of the
Court of Appeals, entered November 22, 2011 (Docket No. 303767).

        On June 22, 2018, defendant filed a successive motion for relief from judgment in the trial
court, which resulted in the opinion and order that is the subject of the current appeal. In the
motion, defendant asserted that in calculating his sentencing guidelines, specifically with respect
to PRV 5, the sentencing court counted four misdemeanor convictions that were obtained in the
absence of counsel or a valid waiver of the right to counsel. He argued that even though he did
not satisfy the exceptions to the prohibition on successive motions for relief from judgment—a
retroactive change in the law or new evidence—he could file such a motion based on a
jurisdictional defect in his sentence, which he claims existed here. Defendant also argued that trial
counsel was ineffective for failing to object to the scoring of PRV 5, and that he was entitled to
resentencing based on the erroneous scoring of PRV 5 and because his sentence was
disproportionate (and made more so by the allegedly incorrect scoring). The trial court denied the
motion on June 26, 2018, concluding that it lacked the authority to grant defendant’s motion under
MCR 6.502.

        Defendant thereafter filed a delayed application for leave to appeal the trial court’s June
26, 2018 opinion and order. This Court granted the application, limiting the appeal to the issues
raised in the application and supporting brief. People v Calhoun, unpublished order of the Court
of Appeals, issued April 25, 2019 (Docket No. 346972).

        On appeal, defendant first asserts that the trial court erred in denying his motion for relief
from judgment because four of his prior misdemeanor convictions that the trial court counted for
purposes of scoring PRV 5 were obtained without counsel or a valid waiver of counsel and should
therefore not have been counted. We disagree.

        We review a trial court's decision on a motion for relief from judgment for an abuse of
discretion, and its findings of facts supporting its decision for clear error. People v McSwain, 259
Mich App 654, 681; 676 NW2d 236 (2003). A trial court abuses its discretion when it makes an
error of law, People v Giovannini, 271 Mich App 409, 417; 722 NW2d 237 (2006), or its decision
falls outside the range of reasonable and principled outcomes. People v Unger, 278 Mich App
210, 217; 749 NW2d 272 (2008). The interpretation of a court rule is a question of law that we
review de novo. People v Hawkins, 468 Mich 488, 497; 668 NW2d 602 (2003).

        Motions for relief from judgment are governed by MCR 6.502. The interpretation of a
court rule is governed by the same principles governing statutory construction. People v Buie, 285
Mich App 401, 416; 775 NW2d 817 (2009). The goal of rule interpretation is to give effect to the
intent of the author of the rules—here, our Supreme Court. Id.; People v Orr, 275 Mich App 587,
595; 739 NW2d 385 (2007).

       Relevant to the instant matter, MCR 6.502 provides:

       (G) Successive Motions.



                                                 -2-
       (1) Except as provided in subrule (G)(2), regardless of whether a defendant has
       previously filed a motion for relief from judgment, after August 1, 1995, one and
       only one motion for relief from judgment may be filed with regard to a conviction.
       The court shall return without filing any successive motions for relief from
       judgment. A defendant may not appeal the denial or rejection of a successive
       motion.

       (2) A defendant may file a second or subsequent motion based on a retroactive
       change in law that occurred after the first motion for relief from judgment or a claim
       of new evidence that was not discovered before the first such motion. The clerk
       shall refer a successive motion that asserts that one of these exceptions is applicable
       to the judge to whom the case is assigned for a determination whether the motion
       is within one of the exceptions.

        There is no dispute that this is defendant’s second, and thus successive, motion for relief
from judgment. Thus, pursuant to the plain language of MCR 6.502(G)(1), “defendant may not
appeal the denial” of that motion to this Court. Defendant’s argument thus fails in this Court from
the outset.

        Moreover, pursuant to MCR 6.502(G)(2), a successive motion for relief from judgment is
permissible only where such motion is premised upon either a retroactive change in law that
occurred after the first motion for relief from judgment, or a claim of new evidence that was not
discovered before the first such motion. Defendant has not asserted that either circumstance
applies to his case. That being so, defendant was not and is not permitted to file the successive
motion for relief from judgment and the trial court properly denied the motion pursuant to MCR
6.502.

        Defendant, nevertheless, contends that jurisdictional defects may be raised at any time and
that the erroneous calculation of PRV 5 is such a jurisdictional defect. Because the trial court
denied defendant’s current motion for relief from judgment based on its determination that he did
not establish one of the exceptions for filing a successive motion pursuant to MCR 6.502,
defendant asserts that the court erred because it was allowed to, and indeed, should have found
that meeting one of the exceptions was not necessary for him to assert his jurisdictional defect
claim. Defendant relies primarily upon MCR 6.508(D)(3) to support his position.

         MCR 6.508(D)(3) states, in relevant part, that the court may not grant a defendant’s motion
for relief from judgment if it:

       alleges grounds for relief, other than jurisdictional defects, which could have been
       raised on appeal from the conviction and sentence or in a prior motion under this
       subchapter, unless the defendant demonstrates

              (a) good cause for the failure to raise such grounds on appeal or in the prior
       motion, and

                 (b) actual prejudice from the alleged irregularities that support the claim for
       relief . . . .



                                                 -3-
        Defendant argues that the language “other than jurisdictional defects” in MCR 6.508(D)(3)
creates an exception from the general rules prohibiting relief from judgment. Notably, however,
6.508(D)(3) concerns the procedure for motions for relief from judgment in general, whereas MCR
6.502(G) specifically address successive motions for relief from judgment and does not contain
the jurisdictional language relied upon by defendant. MCR 1.103 provides that, “[r]ules stated to
be applicable only in a specific court or only to a specific type of proceeding apply only to that
court or to that type of proceeding and control over general rules.” Thus, an argument could be
made that MCR 6.508(D)(3) does not apply to successive motions for relief from judgment.

         Defendant cites to People v Washington, 321 Mich App 276, 286-287; 908 NW2d 924
(2017), to suggest that he may raise his issue as a jurisdictional defect, even in a successive motion
for relief from judgment. However, our Supreme Court vacated the Washington decision (People
v Washington, 503 Mich 1030; 926 NW2d 806 (2019)) and remanded the matter to this Court for
reconsideration. This Court’s decision on remand does not support defendant’s position.

         On remand, this Court noted that the defendant appealed his trial court convictions and
sentences to this Court, and this Court remanded the matter to the trial court for resentencing, but
affirmed his convictions. People v Washington, __ Mich App__; __NW2d __ (2019). Thereafter,
defendant filed an application for leave to appeal this Court’s decision with our Supreme Court.
Id., slip op at 2. While the application was still pending, the trial court resentenced defendant in
response to this Court’s remand order. Id. slip op at 2.

       The trial court therefore acted in response to a judgment from this Court that was
       not yet effective. MCR 7.215(F)(1)(a). Although defendant did not make issue of
       this irregularity in his first motion for relief from judgment, several years later
       defendant persuaded the trial court to vacate his sentence for that reason in a
       successive motion for relief from judgment. [Id.]

“Defendant challenged his sentences on jurisdictional grounds, arguing that the trial court’s
October 4, 2006 order after resentencing was invalid because the court lacked jurisdiction to
resentence defendant while his application remained pending before the Michigan Supreme
Court.” Id., slip op at 2. This Court disagreed, noting:

       There is a wide difference between a want of jurisdiction in which case the court
       has no power to adjudicate at all, and a mistake in the exercise of undoubted
       jurisdiction in which case the action of the trial court is not void although it may be
       subject to direct attack on appeal. This fundamental distinction runs through all the
       cases. [Id., slip op at 4, quoting Buczkowski v Buczkowski, 351 Mich 216, 222; 88
       NW2d 416 (1958)]


       Ultimately, this Court concluded:

       . . . the timing error at issue was not a structural error occasioned by a lack of
       subject-matter jurisdiction. Rather, the error was merely procedural in nature,
       occasioned by premature activity. We further conclude that this error was rendered
       harmless by the lack of any objection. Such an unpreserved error is not grounds



                                                 -4-
       for granting posttrial relief, either in the form of relief from judgment under MCR
       6.502(G), or an order effectuating the court’s jurisdiction or judgments under MCL
       600.611.” [Id., slip op at 5.]

Defendant has not asserted a timing issue such as that addressed in Washington, supra. Moreover,
Washington appears to suggest that even an act undertaken by a trial court without current authority
to do so does not rise to the level of a jurisdictional issue.
        Defendant also relies on People v Carpentier, 446 Mich 19, 23; 521 NW2d 195, 197
(1994). However, in Carpentier, the asserted jurisdictional defect stemmed from the use of
juvenile adjudications for purposes of subsequent recidivist sentencing where the juvenile records
had been expunged. Id. at 23. That is not the factual scenario before this Court. More
significantly, Carpentier dealt with a first motion for relief from judgment pursuant to MCR 6.508,
while the instant matter deals with a successive motion for relief under MCR 6.502.

        Carpentier relied heavily upon Gideon v Wainwright, 372 US 335; 83 S Ct 792 (1963).
Gideon stands for the long-recognized principle that in all criminal prosecutions, the accused has
the right to the assistance of counsel. In that case, the defendant was charged with a felony. He
appeared in court and, having no funds to obtain a lawyer at his own expense, requested that the
trial court appoint counsel to him. Id. at 336-337. The trial court refused to appoint counsel. Id.
at 337. After a jury trial, at which the defendant represented himself, the defendant filed a habeas
corpus petition attacking his conviction and sentence on the ground that the trial court's refusal to
appoint counsel for him denied him rights “guaranteed by the Constitution and the Bill of Rights
by the United States Government.” Id. at 337. The Supreme Court agreed and reversed his
conviction.

         The instant matter differs from Gideon in several respects. First, after his jury trial
conviction the defendant in Gideon immediately sought habeus relief for his constitutional
violation of the right to have counsel present. Here, in contrast, defendant filed a motion for a new
trial, a motion for relief from judgment, and appealed his convictions to this Court. In none of
these proceedings did defendant ever raise the issue of a potential Gideon violation. Instead, it is
not until 20 years later that defendant raises an alleged Gideon violation in a successive motion for
relief from judgment. Second, and most importantly, where it is and was obvious and plain through
the transcripts provided that the defendant in Gideon was specifically denied his request for
counsel, the same is not at all apparent here.

        The Due Process Clause of US Const, Am XIV forbids a trial court from enhancing a
defendant’s sentence based on convictions for which the court violated the defendant’s right to
trial counsel. United States v Tucker, 404 US 443, 593; 92 S Ct 589; 30 L Ed 2d 592 (1972);
People v Moore, 391 Mich 426, 438; 216 NW2d 770 (1974). A court may not use a prior
misdemeanor conviction, where a jail sentence was imposed, to enhance a defendant’s new
sentence, unless the defendant had or waived counsel for the prior conviction. People v
Reichenbach, 459 Mich 109, 124-125; 587 NW2d 1 (1998).




                                                -5-
         In Carpentier, our Supreme Court held that defendants collaterally challenging prior
convictions allegedly procured in violation of Gideon1 bear the initial burden of proof and may
satisfy this burden by presenting prima facie proof that previous conviction was violative of
Gideon, such as docket entry showing absence of counsel or transcript evidencing the same, or
evidence that defendant requested such records from sentencing court and court either failed to
reply to request or refused to furnish copies of records. Id. at 31. Unlike in Carpentier, defendant
here presented neither (1) prima facie proof that his prior juvenile adjudications were procured in
violation of Gideon, nor (2) evidence that his request for such proof was refused by the sentencing
court, or that the sentencing court failed to reply to his request. He has thus failed to satisfy his
initial burden of showing that the circuit court erred by relying on prior adjudications in which he
was allegedly not represented by counsel for purposes of sentencing.

        In People v Alexander, 207 Mich App 227, 230; 523 NW2d 653 (1994), this Court accepted
as sufficient evidence for a hearing the defendant’s presentence investigation report (PSIR)
“contain[ing] a notation” that one of his juvenile adjudications was obtained when the defendant
“was without counsel.” While defendant similarly presents his PSIR as prima facie evidence to
support his claim that several of the prior misdemeanor convictions that the court considered in
scoring PRV 5 were obtained without the benefit of counsel, there is no affirmative notation
anywhere in his PSIR that defendant “was without counsel” for his convictions. Defendant’s PSIR
merely lists defendant’s misdemeanor convictions and indicates whether an attorney was “present”
for each of his convictions. Contrary to defendant’s assertion, the PSIR did not establish
“definitively” that he did not have counsel present. An indication that no counsel was present does
not necessarily mean that defendant, like the defendant in Gideon, requested the appointment of
counsel and was denied. The “not present” connotation could mean that defendant waived his
right to counsel, or that counsel was appointed and defendant waived the right to have counsel
present during certain proceedings. There is simply no way to tell. Further, defendant has offered
no affidavit stating that he was denied counsel or otherwise unrepresented for purposes of the prior
convictions, nor any court records to establish his claims. Again, defendant bears the burden of
proof in presenting prima facie proof that the previous convictions were violative of Gideon and a
Gideon violation occurs when one is denied the right to counsel, not simply when counsel was not
“present.”

        In People v Swain, 288 Mich App 609, 626; 794 NW2d 92 (2010), this Court specifically
addressed “whether the trial court erroneously concluded that MCR 6.508(D)(3) provides a
‘limited additional exception’ for when a defendant may file a successive motion for relief from
judgment.” Ultimately, this Court held “that MCR 6.502(G)(2) provides the only two exceptions
to the prohibition of successive motions.” Id. at 632. We acknowledge that the Court in Swain
focused on the “good cause” and “actual prejudice” requirements of MCR 6.508(D)(3) and
determined that they do not provide an exception to the prohibition on successive motions for relief
from judgment. Id. at 632, 635. However, the Swain Court also affirmatively stated:

       There are only two exceptions to the general prohibition: the successive motion (1)
       is “based on a retroactive change in the law that occurred after the first motion for




                                                -6-
       relief from judgment” or (2) is based on “a claim of new evidence that was not
       discovered before the first such motion.” MCR 6.502(G)(2). Only after the trial
       court has determined that the successive motion falls within one of the two
       exceptions do MCR 6.508 and the “good cause” and “actual prejudice”
       requirements of MCR 6.508(D)(3) become relevant. [Id. at 635-636]

Thus, the very first step in evaluating any successive motion or relief from judgment is to
determine whether it falls within one of the two specifically identified exceptions. Moreover, in
Swain, the defendant argued the merits of his successive motion for relief from judgement under
MCR 6.502(G)(2), and alleging newly discovered evidence. That is not the case in this matter.
The trial court properly denied defendant’s successive motion for relief from judgment.

        Defendant additionally asserts that trial counsel was ineffective for not objecting to the
assessment 15 of points for PRV 5, and further that the lack of objection prejudiced him. The test
for determining ineffective assistance is: whether “counsel’s performance was deficient,” and if
so, whether his “deficient performance prejudiced the defense.” People v LaVearn, 448 Mich 207,
213; 528 NW2d 721 (1995) (quoting Strickland v Washington, 466 US 668, 687; 104 S Ct 2052;
80 L Ed 2d 674 (1984). Counsel’s performance is deficient if it falls “below an objective standard
of reasonableness under prevailing professional norms.” People v Stanaway, 446 Mich 643, 687;
521 NW2d 557 (1994). The defendant is prejudiced where “there is a reasonable probability that,
but for counsel’s errors, the result of the proceeding would have been different.” Id. at 687.

        Here, because defendant cannot establish that PRV 5 was mis-scored, he cannot establish
ineffective assistance of counsel nor prejudice. “Failing to advance a meritless argument or raise
a futile objection does not constitute ineffective assistance of counsel.” People v Ericksen, 288
Mich App 192, 201; 793 NW2d 120 (2010).

         Defendant also argues that the trial judge violated principles of proportionality in imposing
sentence because it articulated and relied on factors already considered in the guidelines, and also
relied on inaccurate information and that appellate counsel was ineffective for failing to raise this
issue on direct appeal. Defendant raised the issue of proportionality in his successive motion for
relief from judgment in the trial court. The trial court, however, did not consider this issue because
it found that defendant was not entitled to file a successive motion for relief from judgment. The
trial court did not abuse its discretion in this determination, as thoroughly explained above.

       Affirmed.



                                                              /s/ Cynthia Diane Stephens
                                                              /s/ Mark J. Cavanagh
                                                              /s/ Deborah A. Servitto




                                                 -7-
