Ineffective assistance of counsel; Failure to object to the scoring of OV 13; MCL 777.43(1)(c); “Pattern”; People v Carll; Sentencing; Proportionality of a within-guidelines sentence; People v Ventour; Waiver of challenge to the scoring of OVs 13 & 17

The court held that (1) defendant’s trial counsel was not ineffective for failing to make a futile objection to the scoring of OV 13 and (2) he failed to show “any unusual circumstances sufficient to rebut the presumption of proportionality” accorded to his within-guidelines sentence. He was convicted of carjacking, felonious assault, third-degree fleeing and eluding, and resisting or obstructing a police officer. He was sentenced to concurrent terms of 14-1/2 to 30 years for carjacking, 3 to 8 for felonious assault, 4 to 10 for fleeing and eluding, and 2 to 4 for resisting or obstructing. On appeal, the court first found that his challenges to the scoring of OVs 13 and 17 were waived. It rejected his claim that his trial counsel was ineffective for not objecting to the 25-point score for OV 13. He asserted his carjacking, felonious assault, and resisting or obstructing “offenses arose from a single criminal act and therefore cannot establish a ‘pattern’ under” Carll. However, his “conduct involved three distinct acts: (1) attempting to stab [victim-L] with a sharp wooden dowel (felonious assault); (2) taking and driving away in [L’s] truck (carjacking); and (3) resisting a police officer during arrest (resisting or obstructing).” While they took place “close in time, they involved different conduct, legal elements, and victims. They were distinct both in nature and effect, and therefore qualify as separate crimes for” OV 13 purposes. Thus, “the trial court did not err in scoring OV 13,” making any objection futile. As to his proportionality challenge to his carjacking sentence, he did not identify any unusual circumstances. Rather, he asserted it was disproportionate because of the alleged error in scoring OVs 13 and 17, and “that the trial court improperly relied on juvenile adjudications from 2006 in sentencing him. Both contentions lack merit.” He could not circumvent his waiver of the OV scoring issue by presenting it as a proportionality challenge. And “the trial court did not reference” his 2006 juvenile adjudications in sentencing him. “Given the violent nature of the offense—a carjacking involving a dangerous weapon, a high-speed pursuit, and resistance to law enforcement—the sentence was proportionate to the offense and the offender. It fell near the lower end of the guidelines and reflected the [trial] court’s consideration of both aggravating and mitigating factors.” Affirmed.