Ineffective assistance of counsel; Failure to object to the scoring of OVs 5, 9, & 13; MCL 777.35(1)(a); MCL 777.39(1)(b); People v McGraw; MCL 777.43(1)(c); Failure to raise a futile objection; Sentencing; Proportionality; People v Steanhouse; Operating a vehicle while intoxicated (OUI)

The court rejected defendant’s claims that defense counsel was ineffective for failing to object to the scoring of OVs 5, 9, and 13. It also held that his sentences were not disproportionate and unreasonable. He was convicted of involuntary manslaughter, OUI causing death, and failure to remain at the scene of an accident when at fault and the accident resulted in death. He was sentenced to concurrent terms of 100 months to 15 years for each conviction. As to his claim that defense counsel was ineffective for failing to object to the trial court’s scoring OV 5 at 15 points, one of the decedent’s daughters spoke at sentencing “of her father’s positive qualities, and of defendant’s ‘sickening’ behavior.” She also stated that the decedent “‘was supposed to grow old and watch his grandkids and his children grow old, and we don’t get that anymore.’” Another daughter of the decedent “offered a statement, including that defendant had deprived her of the best time of her adult life,” and in addition “that her father told her, on the day that he was killed, ‘to stay positive, focused, and optimistic,’ but that now she ‘can’t do that.’” The court found that a preponderance of the evidence supported the trial court’s scoring. As to the assessment of 25 points for OV 9, the trial record showed “that the prosecution and the driver of the delivery truck both referred to defendant passing not only the truck (which contained the driver and the passenger) but other vehicles before striking the decedent.” And witness testimony indicated “there were numerous open businesses near the area of the accident.” The court also upheld the scoring of 25 points for OV 13, concluding that “defendant’s convictions were based on distinct felonious actions.” As to proportionality, it noted that the “trial court explicitly credited defendant at sentencing for having no previous felony convictions, which was accounted for in assessing the sentencing variables; yet [it] concluded that the extreme nature of [his] crime warranted a higher sentence. [It] characterized [his] conduct as ‘horrible,’ and stated its belief that the seriousness of the offense was difficult to overstate. [It] noted that [he] had been traveling at more than double the speed limit while his blood alcohol level was more than three times the legal limit at the time of the accident.” It also noted that he discarded “the decedent’s dismembered arm from his vehicle[.]” Affirmed.