            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PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     August 29, 2019
               Plaintiff-Appellee,

v                                                                    No. 341688
                                                                     Jackson Circuit Court
HOWARD KERMIT MEAD,                                                  LC No. 16-004746-FH

               Defendant-Appellant.


Before: STEPHENS, P.J., and GLEICHER and BOONSTRA, JJ.

PER CURIAM.

       Defendant appeals by right his conviction and sentence for operating a motor vehicle
while intoxicated, third offense (OWI-III) under MCL 257.625(1), (9)(c). The trial court
sentenced defendant, as a fourth-offense habitual offender, to a prison term of 36 to 180 months.
We affirm defendant’s conviction but vacate his sentence and remand for resentencing.

                                       I. BACKGROUND

         Defendant and his girlfriend attended a party. In the early morning hours after the party,
their vehicle entered a ditch alongside the roadway. Sergeant Rick Gillespie and Officer Chad
Root of the Blackman-Leoni Township Department of Public Safety (BLPDS) responded. Both
testified that defendant was in the driver’s seat when they arrived, and that defendant’s girlfriend
sat in the passenger seat. When questioned, defendant initially admitted that he was driving
before the accident. Later he claimed he had merely arrived on the scene to help the people in
the vehicle get out of the ditch. Still later he maintained that his girlfriend had been driving and
lost control of the vehicle while he was a passenger. Defendant’s girlfriend asserted her Fifth
Amendment right against self-incrimination when asked whether defendant was driving the
vehicle when they left the party, whether she moved to the passenger seat after the vehicle left
the roadway, and whether she had had anything to drink before the accident.

       The officers perceived a strong odor of intoxicants and noticed that defendant slurred his
words and had glassy eyes. Defendant eventually told them that he had had “a lot” to drink that
night. Defendant refused to perform field sobriety tests and was then arrested for operating a
vehicle under the influence of alcohol. A blood alcohol test performed pursuant to a search


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warrant yielded an alcohol content of 0.370 grams per 100 milliliters of blood. The jury found
defendant guilty of operating a motor vehicle while intoxicated.

       The trial court determined that defendant’s sentencing guidelines variables resulted in a
Prior Record Variable (PRV) score of 22 and an Offense Variable (OV) score of 20. These
scores placed defendant in PRV Level C and OV Level II, resulting in a guidelines minimum
sentence range of 0 to 11 months’ imprisonment. MCL 777.66. As a fourth-offense habitual
offender, the upper limit of defendant’s recommended minimum sentence range increased by
100% to 0 to 22 months’ imprisonment. MCL 777.21(3)(c). The trial court imposed a minimum
sentence of 36 months, adding one year and two months to the statutorily enhanced, guideline-
recommended sentence. Although the court offered several reasons for departing from the
enhanced guidelines, it did not address the extent of the departure and did not refer to the
guidelines.

                 II. REASONABLENESS OF THE DEPARTURE SENTENCE

        Defendant argues that the trial court abused its discretion and violated the principle of
proportionality when it imposed a sentence in excess of the recommended minimum sentencing
guidelines range. Specifically, defendant argues that the trial court sentenced him on the basis of
its subjective opinion or speculation regarding his criminal propensity, rather than on the basis of
the seriousness of the offense. Additionally, defendant argues that the trial court did not
adequately articulate reasons for the length of the sentence imposed.

       We review departure sentences for reasonableness. People v Lockridge, 498 Mich 358,
392; 870 NW2d 502 (2015). When assessing reasonableness, we consider whether the trial court
abused its discretion by violating the principle of proportionality set forth in People v Milbourn,
435 Mich 630; 461 NW2d 1 (1990).

         To implement the principle of proportionality, a sentencing court must evaluate “where,
on the continuum from the least to the most serious situations, an individual case falls
and . . . sentence[e] the offender in accordance with that determination.” Id. at 654. The
statutory guidelines are “a useful tool” in selecting a proportionate sentence, as they “embody the
principle of proportionality.” People v Dixon-Bey, 321 Mich App 490, 524; 909 NW2d 458
(2017).      Nevertheless, a departure sentence may be “more proportionate” based on
considerations including “(1) whether the guidelines accurately reflect the seriousness of the
crime; (2) factors not considered by the guidelines; and (3) factors considered by the guidelines,
but given inadequate weight.” Id. at 525 (citations omitted).

         When a trial court elects to impose a departure sentence, it must “justify the sentence
imposed to facilitate appellate review, which includes an explanation of why the sentence
imposed is more proportionate to the offense and the offender than a different sentence would
have been.” Id. (quotation marks and citations omitted). “A sentence cannot be upheld when the
connection between the reasons given for the departure and the extent of the departure is
unclear.” People v Smith, 482 Mich 292, 304; 754 NW2d 284 (2008). In other words, a
sentencing court validates a departure sentence by explaining why the sentence it selected better
fits the crime and the offender than would a sentence within the guidelines. If an appellate court
determines that the “trial court has abused its discretion in applying the principle of

                                                -2-
proportionality by failing to provide adequate reasons for the extent of the departure sentence
imposed, it must remand to the trial court for resentencing.” People v Steanhouse, 500 Mich
453, 476; 902 NW2d 327 (2017) (Steanhouse II).

        In Dixon-Bey, 321 Mich App at 526-527, 529, this Court identified several signals of
potential disproportionality, including a sentence based on factors already accounted for in the
guidelines and a sentencing court’s reliance on factors “not unique” to the defendant. Both are
present here. Additionally, Dixon-Bey stressed that if the reasons for a particular departure are
unclear, an appellate court is not empowered to fill in the gaps by substituting its own
proportionality judgment. Id. at 529.

        At sentencing, the parties agreed that defendant’s minimum sentencing range was 0 to 22
months, reflecting an enhancement based on defendant’s status as an habitual fourth offender.
Had this been defendant’s first OUIL conviction, his sentencing range would have been 0 to 11
months. Defendant’s conviction record bumped up the top end of his minimum sentence range
by nearly a year. But the trial court went even further. The trial court justified its decision to
depart from the enhanced guidelines as follows:

               The court has taken into consideration the information contained within
       the presentence report as well as the comments today. The court has reviewed the
       presentence report, your prior history. I will note that the author noted that
       you’ve been afforded virtually every resource available through the State of
       Michigan in the County of Jackson, yet continues to abuse alcohol and drive a
       motor vehicle.

               I also noted that you’ve had multiple attempts at treatments and services:
       Harbor Hall, Scram, SAI, KPEP, CPI and yet this as your seventh drunk driving
       with a .33 blood alcohol level. It’s unfortunate. I understand this is all about
       alcohol and this is all about your substance abuse disorder and where it has led
       you. But I also know for certain that the community isn’t safe if you’re out in it.
       So I think the sentence warranted today is in excess of the guidelines.

        The trial court expressed three reasons for departing: this was defendant’s seventh drunk
driving offense, defendant had failed multiple attempts at rehabilitation, and “the community
isn’t safe if you’re out and about in it.” Defendant’s repeat-offender status and the extent of his
intoxication were legitimate reasons to impose an upwardly departing sentence. “[S]pecific
characteristics of an offense and an offender that strongly presage future criminal acts” may
justify an out-of-guidelines sentence, especially “if they are not already adequately contemplated
by the guidelines.” People v Horn, 279 Mich App 31, 45; 755 NW2d 212 (2008). A court may
also consider a defendant’s criminal history, failure to rehabilitate, and the concern for the
protection of society. Id. at 45-46; see also Dixon-Bey, 321 Mich App at 525 n 9.

       However, the trial court did not fulfill its duty to justify on the record the specific
sentence imposed. The court offered no explanation for the length of the departure it selected.
Nor did the court reference the guidelines, which penalized defendant’s recidivism. Defendant’s
PRV score was 22, representing 20 points under PRV 2 (three or more low severity felony
convictions) and 2 points under PRV 5 (one prior misdemeanor conviction). His OV score of 20

                                                -3-
derived from his score of 20 points under OV 18, for operating a vehicle with a blood alcohol
content of greater than 0.20. And, as we have noted, defendant’s guideline score was then
enhanced by his fourth habitual offender status. While we share the trial court’s concern that
defendant repeatedly offended by driving while intoxicated, the guidelines took this into
consideration in two ways: through his PRV score of 22, and through the fourth habitual offender
enhancement.

        The trial court did not explain how or why the guidelines inadequately accounted for the
defendant’s recidivism and his interrelated failure to benefit from sobriety programming (a
circumstance shared by every repeat drunk-driving offender). Nor did the court differentiate
defendant from every other drunk driver when declaring “the community isn’t safe if you’re out
in it.” The trial court was similarly silent regarding why a sentencing range of 36 to 180 months’
incarceration was more proportionate than the guidelines sentence of 0-22 months. Because the
court failed to address the reasons underlying the extent of the departure sentence it imposed, we
vacate the sentence and remand for further record consideration.

                            III. FIFTH AMENDMENT VIOLATION

       Defendant argues in his Standard 4 brief1 that his statements to police officers at the
scene of the accident were improperly admitted at trial because they were the product of a
custodial interrogation for which the police officers did not provide him Miranda2 warnings.

         Generally, to properly preserve the issue of whether evidence obtained from a search and
seizure was erroneously admitted, a defendant must timely move the trial court to suppress the
evidence. People v Snider, 239 Mich App 393, 406; 608 NW2d 502 (2000). Dfendant did not
file a suppression motion and did not raise the issue of its admissibility before the trial court. We
review unpreserved issues for plain error affecting substantial rights. See People v Carines, 460
Mich 750, 763; 597 NW2d 130 (1999).

        The trial court did not err by admitting defendant’s statements to police, because
defendant was not in custody at the time he made them. See People v Steele, 292 Mich App 308,
316-317; 806 NW2d 753 (2011). Police officers may investigate suspicious circumstances
without placing a suspect in custody. Id. at 318. Further, a police officer may question a driver
regarding his or her consumption of intoxicants and may ask the driver to perform field sobriety
tests without taking him or her into custody. See Berkemer v McCarty, 468 US 420, 441-442;
104 S Ct 3138; 82 L Ed 2d 317 (1984).

       The officers’ questions and request that defendant undergo a field sobriety test were
reasonably related to their investigation of an accident which appeared to involve alcohol.
Defendant voluntarily answered the officers’ brief questioning in a public environment near the


1
 A supplemental appellate brief filed pro se by a criminal defendant pursuant to Michigan
Supreme Court Order 2004-6, Standard 4.
2
    Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).


                                                -4-
motor vehicle. The officers’ questioning did not subject defendant to a custodial interrogation or
a custodial environment and, therefore, the officers were not required to provide Miranda
warnings. See Steele, 292 Mich App at 319.

      IV. SUPPRESSION OF/FAILURE TO PRESERVE EXCULPATORY EVIDENCE

        Defendant also argues in his Standard 4 brief that the prosecution suppressed footage
from a police officer’s body camera filmed at the scene of the accident, in violation of
defendant’s due-process rights, and that the prosecution and police failed to preserve this footage
in bad faith. Because defendant did not raise this alleged constitutional error before the trial
court, we review it for plain error affecting defendant’s substantial rights. Heft, 299 Mich App at
78; see also Carines, 460 Mich at 763.

        Criminal discovery is governed by MCR 6.201. See People v Phillips, 468 Mich 583,
588; 663 NW2d 463 (2003). There is no general constitutional right to discovery. However, the
prosecution violates a defendant’s due-process rights when, in the face of a discovery request, it
“withholds from a criminal defendant evidence that is material to his guilt or punishment.” Cone
v Bell, 556 US 449, 469; 129 S Ct 1769; 173 L Ed 2d 701 (2009). Further, the prosecution must
disclose exculpatory material and impeachment evidence regardless of whether the defendant
requests the evidence. See Brady v Maryland, 373 US 83, 87; 83 S Ct 1194; 10 L Ed 2d 215
(1963); People v Jackson, 292 Mich App 583, 590-591; 808 NW2d 541. The Rules of
Professional Conduct obligate the prosecution to timely disclose to the defense all known
evidence and information that tends to negate the defendant’s guilt or mitigates the degree of the
offense. MRPC 3.8(d); People v Aldrich, 246 Mich App 101, 111; 631 NW2d 67 (2001). If a
party fails to comply with MCR 6.201, the court has the discretion to fashion a remedy,
including ordering that testimony or evidence be excluded. MCR 6.201(J);People v Greenfield
(On Reconsideration), 271 Mich App 442, 453; 722 NW2d 254.

       To establish a violation of a defendant’s due-process right to the disclosure of
information, the defendant must show that: (1) the prosecution has suppressed evidence; (2) the
evidence is favorable to the accused; and (3) the evidence, when viewed in its totality, is
material, regardless of the prosecution’s good or bad faith. People v Chenault, 495 Mich 142,
150, 155; 845 NW2d 731 (2014). In assessing the materiality of the evidence, “[t]he question is
whether, in the absence of the suppressed evidence, the defendant ‘received a fair trial,
understood as a trial resulting in a verdict worthy of confidence.’ ” Id. at 150-151 (citation
omitted).

        With regard to an alleged failure to preserve evidence, rather than to disclose that
evidence, a defendant must generally show that the police acted in bad faith unless a defendant
can demonstrate that the lost evidence was actually exculpatory. Arizona v Youngblood, 488 US
51, 57; 109 S Ct 333; 102 L Ed 2d 281 (1988); see also People v Hanks, 276 Mich App 91, 95;
740 NW2d 530 (2007). “Defendant bears the burden of showing that the evidence was
exculpatory or that the police acted in bad faith.” People v Johnson, 197 Mich App 362, 365;
494 NW2d 873 (1992). “If the defendant cannot show bad faith or that the evidence was
potentially exculpatory, the state’s failure to preserve evidence does not deny the defendant due
process.” Heft, 299 Mich App at 79.


                                                -5-
        Sergeant Gillespie testified at trial that he had activated his body camera during the stop
and had followed standard procedures to upload and store that video on an outside company’s
network system, but that his video recording was not later downloaded to the storage network
used by BLPDS. He hypothesized that Officer Root’s body camera video from the same incident
was downloaded instead. But Sergeant Gillespie testified that the only difference between the
two recordings was that his recording would have reflected contact with defendant in the driver’s
seat of the vehicle, whereas the other recording commenced with defendant was standing next to
the vehicle.

        Defendant has failed to show that the allegedly suppressed or lost video footage was
exculpatory. Assuming that the video recording showed that defendant was in the driver’s seat,
the evidence would have supported the jury’s verdict. Moreover, and wholly apart from the
officers’ testimony, the jury could have relied solely on defendant’s own statements as
evidencing that he was driving at the time of the accident. Therefore, we conclude that
defendant has failed to show that the video recording was favorable to him or that there was a
reasonable probability that the outcome of the trial might have been different had the evidence
been disclosed to the defense. Chenault, 495 Mich at 150-151; see also Kyles v Whitley, 514 US
419, 441; 115 S Ct 1555; 131 L Ed 2d 490 (1995) (holding that disclosure of the evidence at
issue would have resulted in a weaker case for the prosecution and a stronger case for the
defense and would have made a different result reasonably probable).

        For the same reasons, defendant’s argument that the government failed to preserve
potentially exculpatory evidence fails. Defendant has provided no basis on which to conclude
that potentially exculpatory evidence ever existed. Further, defendant has failed to demonstrate
bad faith. Sergeant Gillespie testified that he followed proper procedures to secure the storage of
the video recording. There was no evidence presented that Sergeant Gillespie knew (if true) that
the video recording was not retained on the storage network. There was also no evidence or
indication that Sergeant Gillespie acted to delete the video recording, apart from defendant’s
unsubstantiated assertion that the officers committed misconduct and attempted to hide the
evidence and that the prosecution intentionally suppressed the evidence. See Johnson, 197 Mich
App at 365-366 (holding that the defendant’s assertion that the police officers destroyed
evidence regarding his arrest was not supported by anything other than the defendant’s own
testimony and that defendant failed to show the police officers acted in bad faith). Because
defendant did not establish any factual support for his claims, we conclude that defendant has not
demonstrated plain error with regard to evidence preservation or suppression. See Carines, 460
Mich at 763-764.

                       V. INEFFECTIVE ASSISTANCE OF COUNSEL

        Finally, defendant argues that he was denied the effective assistance of defense counsel,
who failed to file a motion to suppress defendant’s statements to the officers, to pursue sanctions
for discovery violations, and to effectively cross-examine witnesses. We disagree.

        Because no evidentiary hearing was held on this issue, our review of this issue is limited
to errors apparent on the record. People v Matuszak, 263 Mich App 42, 48; 687 NW2d 342
(2004).


                                                -6-
        “Effective assistance of counsel is presumed, and the defendant bears the heavy burden of
proving otherwise.” People v Solmonson, 261 Mich App 657, 663; 683 NW2d 761 (2004). In
order to overcome this presumption, a defendant must show that: (1) defense counsel’s
performance did not meet an objective standard of reasonableness under the circumstances and
according to prevailing professional norms and (2) there was a reasonable probability that, but
for defense counsel’s errors, the results of the proceeding would be different. Strickland v
Washington, 466 US 668, 687-688; 104 S Ct 2052; 80 L Ed 2d 674 (1984); People v Pickens,
446 Mich 298, 312-313; 521 NW2d 797 (1994). Additionally, a defendant must show that the
result that occurred was fundamentally unfair or unreliable. People v Lockett, 295 Mich App
165, 187; 814 NW2d 295 (2012).

        “Defense counsel must be afforded broad discretion in the handling of cases.” Pickens,
446 Mich at 325. Defense counsel’s decisions regarding what evidence he or she presents on
behalf of the defense is presumed to be a matter of trial strategy. People v Dixon, 263 Mich App
393, 398; 688 NW2d 308 (2004). How defense counsel questions a witness is also presumed to
be a matter of trial strategy. People v Horn, 279 Mich App 31, 39; 755 NW2d 212 (2008). And
“[d]eclining to raise objections can often be consistent with sound trial strategy.” People v
Unger, 278 Mich App 210, 242, 253; 749 NW2d 272 (2008).

        Regarding defendant’s claim that his trial counsel should have moved to suppress
defendant’s statements to police, the police did not violate defendant’s Fifth Amendment Rights,
as discussed earlier, and counsel was not ineffective for failing to raise a futile objection. People
v Fike, 228 Mich App 178, 182; 577 NW2d 903 (1998). Similarly, because defendant has not
demonstrated that Sergeant Gillespie’s video was exculpatory or that there was bad faith on the
part of the police, defense counsel was not ineffective for failing to request a remedy for a
discovery violation because such a request would have been futile. See Greenfield, 271 Mich
App at 454 n 10.

         Further, it is not apparent from the record that defense counsel failed to use the
information contained in the police report to effectively cross-examine and impeach police
witnesses. Defense counsel questioned the police officers regarding the differences between
their testimony, the body camera video recording that was admitted at trial, and the police report.
Defense counsel also elicited testimony on cross-examination that defendant’s girlfriend claimed
to have been driving the vehicle when it left the roadway. Defendant has not overcome the
presumption that defense counsel’s decisions regarding the questioning of witnesses was sound
trial strategy. See Dixon, 263 Mich App at 398; Horn, 279 Mich App at 39. Finally, defendant
has failed to demonstrate that, had defense counsel more strongly emphasized to the jury the
alleged discrepancies among the police officers’ testimonies, the police report, and the video
recording admitted at trial, the result of the trial would have been different. See People v Petri,
279 Mich App 407, 412; 760 NW2d 882 (2008). We conclude that defendant has failed to show
that defense counsel provided ineffective assistance or that a different result was reasonably
probable. See Strickland, 466 US at 687-688; Solmonson, 261 Mich App at 663.




                                                -7-
       We affirm defendant’s conviction but vacate his sentence and remand for further
proceedings consistent with this opinion. We do not retain jurisdiction.



                                                    /s/ Cynthia Diane Stephens
                                                    /s/ Elizabeth L. Gleicher




                                         -8-
