Whether MCL 768.37 (barring defendants from asserting voluntary intoxication as a defense) violates the constitutional right to present a defense; Montana v Egelhoff; People v Soriano (Unpub); “Flight” jury instruction; Sentencing; Scoring of OVs 9 & 14; Whether resentencing was required after the trial court changed the OV 9 score; “Leader in a multiple offender situation”; MCL 777.44(1)(a)

In these consolidated cases arising from an armed confrontation, the court held that defendant-Daniel could not establish plain error as to his right to present a defense. Also, it found that “the trial court did not abuse its discretion by reading the flight instruction to the jury.” As to defendant-David, the court rejected his sentencing challenges. Daniel argued “that MCL 768.37, which bars defendants from asserting voluntary intoxication as a defense, violates his constitutional right to present a defense.” The court noted that this issue was unpreserved. Thus, for him to prevail, it had to “not only conclude that the 1963 Michigan Constitution offers greater due process protection than its United States counterpart regarding the defense of voluntary intoxication; we also must determine that such a conclusion is not subject to reasonable dispute.” The court held that the “trial court’s failure to sua sponte declare MCL 768.37 unconstitutional in spite of the United States Supreme Court’s contrary holding in Egelhoff cannot be described as a clear or obvious error.” It noted that the fact that it recently, in Soriano, “rejected the same argument against the statute’s constitutionality further cements our conclusion that, at a minimum, Daniel’s contention is ‘subject to reasonable dispute.’” The court found that Soriano was “particularly persuasive because the issue is not whether the previous panel was correct but whether its conclusion was reasonable.” Thus, he could not establish plain error. David challenged the scoring of 10 points for OVs 9 and 14. But at a hearing on his “postconviction motion to correct an invalid sentence, the prosecution agreed that OV 9 should have been assessed at zero” and the trial court accepted the parties’ stipulation to do so. This change “lowered David’s guidelines range, as a fourth habitual offender, from 12 to 48 months, to 10 to 46 months, . . . However, the trial court declined to resentence David because the 30-month minimum sentence actually imposed remained within the adjusted guidelines range, and [it] stated it would issue the same sentence despite that adjustment. ‘Thus, resentencing is not required because the trial court has clearly indicated that it would have imposed the same sentence regardless of the scoring error and the sentence falls within the appropriate guidelines range.’” The court also held that the record supported the trial court’s finding that he was a leader for purposes of OV 14. Affirmed.