Waiver of right to counsel; MCR 6.005(D)(1); People v Anderson; Substantial compliance; People v Adkins (After Remand); Subsequent proceedings & reaffirmance; MCR 6.005(E); Whether a waiver was knowingly, intelligently, & voluntarily made; People v Williams; Prejudice; Challenge to information in the presentence investigation report (PSIR); MCL 771.14(6); Sentencing; Scoring of OV 4; MCL 777.34(1)(a); People v Wellman; Departure sentencing; Reasonableness & proportionality; People v Steanhouse; Department of Corrections (DOC)

The court held that defendant was not entitled to reversal related to his waiver of his right to counsel, that the content of his PSIR was accurate, and that the scoring of OV 4 was proper. However, it found that the trial court’s upward departure sentence was erroneous. He was convicted of AWIGBH and assaulting, resisting, or obstructing a police officer, causing injury for assaulting a Michigan conservation officer. The trial court departed from the guidelines range and sentenced him as a second-offense habitual offender to 5 to 15 years for the former and 4 to 6 for the latter. On appeal, he argued the trial court did not ensure he validly made his initial waiver of counsel, and failed to revisit his waiver of counsel and adhere to MCR 6.005(E) at the beginning of each subsequent proceeding. “The trial court substantially complied with the requirements of MCR 6.005 and Anderson by ensuring the validity of defendant’s initial waiver of counsel.” Although the trial court “did not explicitly find that defendant’s waiver was knowingly, intelligently, and voluntarily made, the trial court’s extensive dialogue with defendant, defendant’s repeated acknowledgment of the risks inherent in self-representation, and [his] acknowledgment of the trial court’s warnings indicate that [he] knowingly, intelligently, and voluntarily waived his right to counsel.” And while the trial court failed “to obtain defendant’s reaffirmance of his waiver of counsel at each subsequent proceeding, reversal is not required because defendant cannot establish that he suffered prejudice from the trial court’s error because he cannot show that the error affected the outcome of the lower court proceedings.” The court also rejected his claim that the reference to gang affiliation in his PSIR was inaccurate and should be omitted. “Contrary to defendant’s assertion the record contains evidence of his gang affiliation.” As to his contention the trial court incorrectly assessed 10 points for OV 4, even if the court accepted “that the trial court erred in assessing points for OV 4, because correction would not impact defendant’s sentencing guidelines minimum range, resentencing on these grounds is not required.” However, it found that the outside guidelines sentence was improper. “By definition, in the facts of this case,” defendant’s escalation of a minor traffic offense “was taken into consideration by the sentencing guidelines. As a result, relying on this as a basis to upward depart was error.” Affirmed in part, vacated in part, and remanded. The court retained jurisdiction.