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People v. Rodriguez

Court of Appeals of Michigan

April 18, 2019

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee,
v.
RICARDO RODRIGUEZ, JR., Defendant-Appellant.

          Oakland Circuit Court LC No. 2016-259759-FC

          Before: Murray, C.J., and Gadola and Tukel, JJ.

          Murray, C.J.

         Defendant appeals as of right his jury trial convictions for possession of less than 25 grams of cocaine, MCL 333.7403(2)(a)(v), possession of marihuana, MCL 333.7403(2)(d), and unarmed robbery, MCL 750.530. Defendant was sentenced, as a fourth-offense habitual offender, MCL 769.12, to 2 to 15 years' imprisonment for the possession of less than 25 grams of cocaine conviction, 249 days, time served, [1] for the possession of marihuana conviction, and 8 to 20 years' imprisonment for the unarmed robbery conviction. We affirm defendant's convictions, vacate his sentence for unarmed robbery, and remand for resentencing.

         This case arises out of the unarmed robbery of Adrian Valentin. Valentin was inside Arnolfo Rojas's truck that was parked in front of Rojas's apartment. Codefendant Tonya Tique-Diaz approached the truck and attempted to break the truck's windows with a tire iron. After she was unsuccessful, defendant took the tire iron from Tique-Diaz and broke three of the truck's windows. Defendant then demanded that Valentin give him everything he had, or else defendant would take out his knife and stab Valentin. Valentin threw defendant $200 and his bracelet before defendant left.

         Defendant's appeal challenges his sentences, as well as to the trial court's conclusion that he provided police consent to search the home. We now turn to those challenges.

         I. OFFENSE VARIABLES

         With respect to sentencing, defendant argues that the trial court erred because offense variables (OVs) 2, 7, 9, and 12 should all be assessed zero points. We agree with respect to OVs 7 and 12, but conclude that no errors were made with respect to OVs 2 and 9.

         We first recognize the always important standards of review. "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. 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." People v Hardy, 494 Mich. 430, 438; 835 N.W.2d 340 (2013) (citations omitted).

         A. OV 2

         Defendant argues that OV 2 should be assessed zero points, instead of one point, because MCL 777.32 requires that a defendant possess or use a potentially lethal weapon, and here, there is no evidence that defendant possessed or used a knife. Defendant is correct that there was no evidence he used or possessed a knife. But there was evidence he possessed and used a tire iron during the robbery, and that clearly suffices for the scoring of one point under OV 2.

         "MCL 777.32 scores the 'lethal potential of the weapon possessed or used.'" People v Hutcheson, 308 Mich.App. 10, 16; 865 N.W.2d 44 (2014), quoting MCL 777.32(1). "If [t]he offender possessed or used any other potentially lethal weapon, besides a harmful biological substance or device, a harmful chemical substance or device, an incendiary or explosive device, a fully automatic weapon, a firearm, or a cutting or stabbing weapon, one point should be assessed." Hutcheson, 308 Mich.App. at 16. (quotation marks and citations omitted; alteration in original). "If '[t]he offender possessed or used no weapon,' zero points should be assessed." Id. at 17, quoting MCL 777.32(1)(f) (alteration in original). This Court has said before that a tire iron is a potentially lethal weapon, People v Rollins, 33 Mich.App. 1, 10; 189 N.W.2d 716 (1971), so the trial court did not err by assessing one point under OV 2 based on defendant's use of a tire iron during the robbery.

         B. OV 7

         We next turn to defendant's argument that the trial court erred in assessing 50 points under OV 7 because his conduct toward Valentin during the robbery did not rise to the level of sadism, ...


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