                          STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     October 22, 2015
               Plaintiff-Appellee,

v                                                                    No. 321934
                                                                     Livingston Circuit Court
DAVID KENNETH RENTSCH,                                               LC Nos. 13-021213-FC
                                                                              13-021292-FC
               Defendant-Appellant.


Before: M. J. KELLY, P.J., and MURRAY and SHAPIRO, JJ.

PER CURIAM.

        Defendant appeals by right from his convictions following a jury trial of one count of
armed robbery, MCL 750.529, of a BP gas station in Brighton (LC No. 13-021213-FC) and one
count of armed robbery of a 7-Eleven in Greek Oak Township (LC No. 13-021292-FC). The
trial court sentenced defendant, as a fourth habitual offender, MCL 769.12, to 37 to 75 years for
each conviction. We affirm.

                              I. MATERIAL WITNESS HEARING

       Defendant first argues that the failure to inform him of a material witness hearing
involving Trina Sevelis1 violated his constitutional right to due process and his Sixth
Amendment right to legal representation at a critical stage in the criminal proceedings against
him.2 We disagree.




1
  Sevelis was in defendant’s truck during one of the robberies. At trial, she testified that he left
her alone in the truck for 10 to 15 minutes after putting on a bandana, sunglasses, and a hat. She
said he was frantic when he returned, changed his clothes, and threw a gun out the window. She
added that he then told her he had to go back and find the gun because he threw it on school
grounds. Defendant was apprehended on school grounds approximately seven to ten feet from
what appeared to be a disassembled gun.
2
 The issue is unpreserved because defendant did not raise the issue before the trial court. People
v Dupree, 486 Mich 693, 703; 788 NW2d 399 (2010). We review unpreserved constitutional

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         The core of the Sixth Amendment right to counsel in a criminal prosecution is the
opportunity to consult with a lawyer and have him or her “investigate the case and prepare a
defense for trial.” Kansas v Ventris, 556 US 586, 590; 129 S Ct 1841; 173 L Ed 2d 801 (2009).
The right extends to every critical stage of the proceeding. People v Williams, 470 Mich 634,
641; 683 NW2d 597 (2004). A critical stage is one where a defendant “is confronted, just as at
trial, by the procedural system, or by his expert adversary, or by both.” People v Buckles, 155
Mich App 1, 6; 399 NW2d 421 (1986). The complete denial of counsel at a critical stage of a
criminal proceeding is a structural error mandating automatic reversal. People v Buie (On
Remand), 298 Mich App 50, 61-62; 825 NW2d 361 (2012). However, a material witness
hearing is not a critical stage in cases where no substantive evidence against the defendant is
taken from the witness. People v Parker, 230 Mich App 677, 689; 584 NW2d 753 (1998).
Accordingly, because the material witness hearing only concerned the likelihood that Sevelis
would appear for trial and because Sevelis did not provide substantive evidence against
defendant, defendant’s constitutional rights due process and to counsel were not violated.

                               II. OFFENSE VARIABLE (OV) 19

       Defendant next argues that the trial court erroneously scored OV 19 at 15 points.3

        OV 19 addresses threats to the security of a penal institution or an interference with the
administration of justice or the rendering of emergency services. MCL 777.49. Under OV 19, a
court must assess 15 points if “[t]he offender used force or the threat of force against another
person or the property of another person to interfere with, attempt to interfere with, or that results
in the interference with the administration of justice or the rendering of emergency services.”
MCL 777.49(b). In assessing points under OV 19, a court may consider the defendant’s conduct
after the completion of the sentencing offense. People v Smith, 488 Mich 193, 202; 793 NW2d
666 (2010).

        Here, the trial court scored OV 19 at 15 points based on recorded jailhouse calls between
defendant and other individuals. Portions of the calls were played for the jury, but were not
transcribed. At sentencing, the trial court recalled:

       [O]ne of the statements he made I wrote it down. Make sure she’s not coming to
       court. All you have to do is holler at her. That reference was used multiple times
       about hollering at witnesses. I agree I think different people could interpret that
       different ways. But in light of all the evidence presented to this Court this Court
       does interpret that to mean the use or the threat of force or to attempt to not have

error for plain error affecting substantial rights. People v Carines, 460 Mich 750, 763-764; 597
NW2d 130 (1999).
3
  “Under the sentencing guidelines, the circuit court’s factual determinations are reviewed for
clear error and must be supported by a preponderance of the evidence.” People v Hardy, 494
Mich 430, 438; 835 NW2d 340 (2013). “Whether the facts, as found, are adequate to satisfy the
scoring conditions prescribed by statute, i.e., the application of the facts to the law, is a question
of statutory interpretation, which an appellate court reviews de novo.” Id.



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       witnesses come to court. All you have to do is holler at her. Getting [ahold]—I
       think I wrote down another comment get ahold of that broad and holler at her. I
       do recall the reference to you want her to just to disappear, yeah. I do find by
       preponderance of the evidence based on that evidence alone that that supports the
       scoring of 15 points.

        We have affirmed a 15-point score for OV 19 in cases where a defendant used force
against or directly threatened a victim. See People v Passage, 277 Mich App 175, 179-180; 743
NW2d 746 (2007) (the defendant threatened and struggled with store personnel who were trying
to stop him from stealing merchandise); People v Endres, 269 Mich App 414, 420-421; 711
NW2d 398 (2006), overruled in part on other grounds by Hardy, 494 Mich at 438 n 18
(affirming scoring 15 points where the defendant personally threated to kill the victim of his
crime). However, in this case, there is no evidence that Sevelis was actually threatened with
force or that force was actually used against her. Accordingly, the trial court erred in scoring OV
19 at 15 points.

        Nevertheless, the phone calls support a score of 10 points for OV 19. A court must
assess 10 points if “[t]he offender otherwise interfered with or attempted to interfere with the
administration of justice.” MCL 777.49(c) (emphasis added). The phone calls, as recounted by
the trial court, show that defendant asked someone to “holler” at Sevelis so that she would not
come to court. This shows that defendant attempted to interfere with the administration of
justice by preventing a witness from testifying. Accordingly, resentencing is unnecessary
because defendant’s minimum sentence range is not affected by scoring OV 19 at 10 points
instead of 15 points. See People v Francisco, 474 Mich 82, 88-91; 711 NW2d 44 (2006).

                       III. INEFFECTIVE ASSISTANCE OF COUNSEL

        Next, in his Standard 4 brief, defendant argues that he was denied his Sixth Amendment
Right to effective assistance of counsel because defense counsel failed to investigate and present
expert testimony regarding Sevelis’s mental capacity to testify and because defense counsel
failed to object to allegedly inaccurate and misleading expert testimony regarding the use of cell
phone records.4 We disagree.

       The right to counsel guaranteed by the United States and Michigan Constitutions, US
Const, Am VI; Const 1963, art 1, § 20, is the right to the effective assistance of counsel. People
v Pubrat, 451 Mich 589, 594; 548 NW2d 595 (1996). “In order to obtain a new trial, 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


4
  This issue is unpreserved because defendant did not move for a new trial or an evidentiary
hearing. See People v Johnson, 144 Mich App 125, 129; 373 NW2d 263, lv den 424 Mich 854
(1985). “However, the absence of a motion for new trial or an evidentiary hearing is not fatal to
appellate review where the details relating to the alleged deficiencies of the defendant’s trial
counsel are sufficiently contained in the record to permit this Court to reach and decide the
issue.” Id.


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would have been different.” People v Trakhtenberg, 493 Mich 38, 51; 826 NW2d 136 (2012).
“Effective assistance of counsel is presumed, and the defendant bears a heavy burden of proving
otherwise.” People v Solmonson, 261 Mich App 657, 663; 683 NW2d 761 (2004).

        Defendant argues that defense counsel should have consulted an expert witness. He
asserts that the witness could have testified about how Sevelis’s mental illnesses could affect her
memory, about how her substance abuse and alcohol issues could have affected her memory, and
about how withdrawal from various substances could affect her memory. He asserts that if the
jury had that information it would have cast considerable doubt on the reliability of her
testimony.

        Defense counsel has wide discretion as to matters of trial strategy. People v Heft, 299
Mich App 69, 83; 829 NW2d 266 (2012). “We will not substitute our judgment for that of
counsel on matters of trial strategy, nor will we use the benefit of hindsight when assessing
counsel’s competence.” People v Unger, 278 Mich App 210, 242-243; 749 NW2d 272 (2008).
Decisions about what evidence to present and on what to focus in closing argument are presumed
to be matters of trial strategy. People v Horn, 279 Mich App 31, 39; 755 NW2d 212 (2008). In
this case, review of defense counsel’s closing argument shows that the defense strategy was to
present Sevelis as a liar who was implicating defendant in order to protect her boyfriend.
Defense counsel highlighted how the evidence presented was, for the most part,5 tied to
defendant by Sevelis and his truck. She also spent considerable time on how the inconsistencies
in Sevelis’s testimony, as highlighted by defense counsel’s extensive cross-examination,
negatively affected Sevelis’s credibility. Moreover, defense counsel also pointed out how
Sevelis’s extensive drug and alcohol use on the night of the BP robbery would affect her
memory; again, this was a subject that was exhaustively covered during cross-examination of
Sevelis. “A failed strategy does not constitute deficient performance.” People v Petri, 279 Mich
App 407, 412; 760 NW2d 882 (2008).

        Defendant also argues that defense counsel was ineffective because she did not challenge
the admissibility of cell phone evidence tying defendant to the scene of the crime. Although
defendant refers us to a Washington Post article that indicates that the use of cell phone records
can be inaccurate, there is nothing on the record in this case to suggest that the cell phone records
used in this case were inaccurate, nor does defendant make an offer of proof as to the accuracy or
inaccuracy of the cell records in this case. “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). Accordingly, on this record we cannot conclude that defense counsel was
ineffective for failing to object to the admission of testimony based on the use of cell phone
records.




5
  Defense counsel conceded that the manager at the BP had identified defendant as the person
who robbed her; however, she spent a considerable amount of time arguing why the
identification was unreliable and should be discounted by the jury.


                                                -4-
                                IV. SEPARATION OF POWERS

       Finally, defendant argues in his Standard 4 Brief on Appeal that the 25-year mandatory
minimum sentence for armed robbery, as enhanced by MCL 769.12(1)(a),6 is unconstitutional
because it violates the separation of powers by precluding a trial court from exercising any
sentencing discretion with regard to the minimum sentence.7

        “[T]he ultimate authority to provide for penalties for criminal offenses is constitutionally
vested in the Legislature.” People v Hegwood, 465 Mich 432, 436; 636 NW2d 127 (2001).
Although the judiciary has the power to exercise discretion when it imposes a sentence, that
discretion can be “limited by the Legislature, which has the power to establish sentences.”
People v Conat, 238 Mich App 134, 147; 605 NW2d 49 (1999). A statute does not violate the
separation of powers doctrine simply because the Legislature chooses to limit the discretion



6
  Defendant directs this Court to MCL 769.14; however, that statute pertains to the ability of a
judge to vacate a previous sentence and impose a lesser sentence under circumstances not present
in this case. It is likely that defendant actually intended to challenge the constitutionality of
MCL 769.12(1)(a), which provides in pertinent part:

                (1) If a person has been convicted of any combination of 3 or more
       felonies or attempts to commit felonies, whether the convictions occurred in this
       state or would have been for felonies or attempts to commit felonies in this state if
       obtained in this state, and that person commits a subsequent felony within this
       state, the person shall be punished upon conviction of the subsequent felony and
       sentencing under section 13 of this chapter as follows:

               (a) If the subsequent felony is a serious crime or a conspiracy to commit a
       serious crime, and 1 or more of the prior felony convictions are listed prior
       felonies, the court shall sentence the person to imprisonment for not less than 25
       years. Not more than 1 conviction arising out of the same transaction shall be
       considered a prior felony conviction for the purposes of this subsection only.

                                              * * *

               6) As used in this section:

               (a) "Listed prior felony" means a violation or attempted violation of any of
       the following:

                                              * * *

               (iii) Section . . . [MCL] 750.529 [armed robbery].
7
 We review de novo challenges to the constitutionality of a statute. People v Garza, 469 Mich
431, 433; 670 NW2d 662 (2003).


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available to sentencing courts. See People v Garza, 469 Mich 431, 434; 670 NW2d 662 (2003)
(noting that for certain offenses, such as first-degree murder, MCL 750.316, and possession of a
firearm while committing a felony, MCL 750.227b, “the judiciary has no sentencing
discretion”); People v Hall, 396 Mich 650, 657-658; 242 NW2d 377 (1976) (holding that a
mandatory term of life imprisonment for felony murder does not violate the separation of powers
doctrine). Moreover, the mandatory minimum sentence provided by MCL 769.12(1)(a) can only
be triggered by the repeated commission of serious felonies. Accordingly, although the 25-year
mandatory minimum set forth in MCL 769.12(1)(a) restricts the trial court’s sentencing
discretion, it is a “permissible legislative limitation on the sentencing discretion of [the] courts.”
Conat, 238 Mich App at 148.

       Affirmed.



                                                              /s/ Michael J. Kelly
                                                              /s/ Christopher M. Murray
                                                              /s/ Douglas B. Shapiro




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