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STATE OF MICHIGAN 

COURT OF APPEALS 

PEOPLE OF THE STATE OF MICHIGAN, 

 Plaintiff-Appellee, 

UNPUBLISHED 

April 14, 2015 

v No. 319353 

Jackson Circuit Court 

AKEEN RASHEED BROWN, LC No. 11-004120-FH 

 Defendant-Appellant. 

Before: WILDER, P.J., and SERVITTO and STEPHENS, JJ. 

PER CURIAM. 

 Defendant appeals by leave granted1 from the trial court’s denial of his motion for relief 

from judgment. He seeks specific performance of an alleged conditional plea, review of the trial 

court’s decision on an earlier motion to suppress, and resentencing. For the reasons below, we 

remand for resentencing and affirm in all other respects. 

 Defendant pleaded guilty to felon in possession of a firearm, MCL 750.224f; possession 

of a firearm during the commission of a felony, MCL 750.227b; and possession of marijuana 

with intent to deliver, MCL 333.7401(2)(d)(iii). The court sentenced defendant to prison terms 

of 12 to 60 months, 24 months, and 12 to 48 months, respectively. 

 At defendant’s preliminary examination, City of Jackson Police Department Officer Peter 

Postma testified that while on road patrol in the early hours of February 13, 2011, his attention 

was drawn to a silver vehicle, driven by defendant, which kept veering out of its lane without 

signaling. Postma pulled the vehicle over for the lane violation and to investigate whether the 

driver was operating while intoxicated or impaired. As he approached the car, Postma could 

smell a marijuana odor coming from the vehicle and from defendant. Defendant gave Postma 

permission to search his person, and several individual bags of marijuana, a large amount of 

currency, and a loaded gun were found on defendant or in the vehicle. 

 

1 People v Brown, unpublished order of the Court of Appeals, entered January 10, 2014 (Docket 

No. 319353). 
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 Defendant moved to suppress the evidence seized on the ground that the officer did not 

have reasonable suspicion of any criminal activity when he stopped defendant’s vehicle. The 

traffic stop had been captured by the patrol vehicle’s video camera. Defendant argued the 

recording showed that the “swerving” was “very minimal” and “almost non-observable.” 

Defendant asserted that his vehicle “possibly touched the line separating the two lanes at one 

point,” but argued that was insufficient justification for stopping the vehicle. Plaintiff asserted 

that the recording clearly showed defendant’s vehicle had two wheels in the other lane. The trial 

court viewed the recording stated it was “evident” that defendant’s tires “actually crossed the line 

several times, the white line.” The trial court characterized the issue as a close question, but 

concluded that given the totality of the circumstances, there was enough for an officer to make a 

limited intrusion to further investigate the driver. Therefore, the trial court denied defendant’s 

motion to suppress but granted a stay of proceedings to allow an interlocutory appeal. Defendant 

filed a delayed application for leave to appeal, which this Court denied.2

 Defendant did not 

appeal that denial to our Supreme Court. 

 Defendant then entered into a plea. The trial court indicated during the plea hearing that 

it would be willing to allow defendant to reserve the right to appeal. However, the plea form in 

the record does not mention the reservation of any appellate rights. At sentencing, the trial court 

noted that the issue of the stop had been appealed to this Court, but did not make any further 

mention of appellate rights and defendant’s counsel agreed that the court fulfilled and lived up to 

the agreement of the parties. 

 A year later, in May 2013, defendant filed a motion for relief from judgment, arguing that 

he had a right to appeal the stop issue post-sentencing and that counsel was ineffective for failing 

to challenge the scoring of prior record variable (PRV) 7, MCL 777.57. The trial court found 

that there was no conditional plea because there was no evidence on the record that plaintiff 

agreed to allow defendant to appeal the search issue. Further, the trial court concluded it had 

already decided the stop issue at the suppression hearing, and defendant had failed to show good 

cause for failure to file a timely appeal. Regarding the sentencing challenge, the trial court 

concluded that PRV 7 was incorrectly scored at 20 points instead of 10 points and that this 

scoring change lowered defendant’s PRV level from “F” to “E,” which changed the guidelines’ 

minimum range from 12 to 24 months to 10 to 23 months. However, the trial court asserted that 

because defendant’s 12-month minimum remained a valid sentence, defendant was not entitled 

to resentencing. 

 Defendant first argues that his guilty plea was conditional and that he must be allowed to 

appeal the constitutionality of his vehicle stop. A conditional plea requires the consent of the 

defendant, prosecutor, and the court. MCR 6.301(C)(2); People v Reid, 420 Mich 326, 331-332; 

362 NW2d 655 (1984). However, where a plea is not conditional and “where the defense or 

right asserted by defendant relates solely to the capacity of the state to prove defendant’s factual 

guilt, it is subsumed by defendant’s guilty plea.” People v New, 427 Mich 482, 491; 398 NW2d 

 

2 People v Brown, unpublished order of the Court of Appeals, entered February 13, 2012 (Docket 

No. 306848). 
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358 (1986). A guilty plea waives a defendant’s right to challenge the sufficiency of the evidence 

or a trial court’s decision on a motion to suppress because those defenses go only to the state’s 

burden to show factual guilt and do not implicate the authority of the state to bring the defendant 

to trial. Id. at 494-496. 

 The record evidence establishes that defendant’s plea was not conditional. The trial court 

stated it would be “willing to allow” defendant to reserve the right to appeal the issue of the 

validity of the stop “if you ever want to do that,” but defendant never requested the court to do 

so. Nor is there any mention of such an agreement on the plea form, which was signed by 

defendant, plaintiff, and the court. Additionally, when the trial court addressed the issue again at 

sentencing, it did not state that the issue had been preserved; it merely reiterates its opinion that it 

was a close question. Although both defendant and his counsel spoke at sentencing, neither 

indicated an understanding that the stop issue was preserved for further review. And, defense 

counsel did acknowledge that the trial court had fulfilled the agreement of the parties. 

Accordingly, defendant’s unconditional plea waived the issue of the validity of the stop. 

 In any event, the stop was based on a reasonably articulable suspicion. See People v 

Oliver, 464 Mich 184, 192; 627 NW2d 297 (2001). The trial court properly considered the 

totality of the circumstances, including defendant’s driving and the time of night of the incident. 

There was evidence that defendant’s tires touched, if not crossed, the line dividing the lanes 

multiple times. That the trial court thought the issue was a close call does not make it an 

erroneous call on the part of the investigating officer. The officer articulated a reasonable 

suspicion that defendant’s less than perfect driving combined with the time of night called for 

further investigation. Defendant’s state and federal constitutional rights were not violated. 

 Defendant also argues that he is entitled to resentencing because of the error in scoring 

PRV 7. Generally, when, as here, a defendant is sentenced on inaccurate or incorrect 

information, he is entitled to resentencing. People v Jackson, 487 Mich 783, 792; 790 NW2d 

340 (2010). This remains true where the sentence imposed remains within the newly calculated 

guidelines. People v Johnson, 474 Mich 96, 98, 103; 712 NW2d 703 (2006). 

 Defendant moved for relief from judgment in the trial court, arguing in part, that counsel 

was ineffective for failing to challenge the scoring of PRV 7. The prosecution, in response, 

conceded that PRV 7 was improperly scored, given that the statute specifically forbade the use of 

defendant’s felony firearm conviction for purposes of scoring PRV 7. The prosecution left it to 

the trial court’s discretion as to whether to resentence defendant. 

 In its “Order Following Motion for Relief from Judgment” the trial court stated, “. . . 

Defendant had only one eligible concurrent felony conviction which was felon possessing a 

firearm; the language of the statute specifically forbids scoring felony firearm for this PRV MCL 

777.57(2)(b). Therefore, PRV 7 was improperly scored at 20 points and will be rescored 

correctly at 10 points.” The trial court also concluded, however, that even though the corrected 

PRV changed defendant’s minimum guidelines range from 12-24 months to 10-23 months, 

because his sentence of 1-5 years fell within the corrected guidelines range it was a valid 

sentence and “this Court may not modify a valid sentence.” An amended sentence was entered a 

few weeks after the original entry of sentence. 
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 To obtain relief from judgment under MCR 6.508(D)(3), both good cause and actual 

prejudice must be shown. “Good cause” can be established by proving ineffective assistance of 

counsel. People v Kimble, 470 Mich 305, 314; 684 NW2d 669 (2004). While the trial court did 

not explicitly state that counsel was ineffective for failing to note that the relevant statutory 

language explicitly prohibited inclusion of one of defendant’s prior convictions for scoring 

purposes, its finding and the prosecution’s concession of the same could arguably be considered 

a finding that counsel was ineffective. Thus the “good cause” prior necessary for relief from 

judgment has been shown. 

 The Supreme Court has recognized that a defendant is entitled to be scored on the basis 

of accurate information, which includes accurately scored guidelines. People v Francisco, 474 

Mich 82, 88, 89; 711 NW2d 44 (2006). “[W]hen a trial court sentences a defendant in reliance 

upon an inaccurate guidelines range, it does so in reliance upon inaccurate information.” Id. at 89 

n 7, and the resulting sentence is invalid. Id. at 89, quoting People v Miles, 454 Mich 90, 96; 559 

NW2d 299 (1997). Thus, the court’s conclusion that the sentence was valid is incorrect. And 

more importantly, MCR 6.508(D)(3)(b)(iv) explicitly provides that “actual prejudice” exists in a 

sentencing challenge when the sentence is invalid. Having met the second prong necessary for 

relief from judgment, that of actual prejudice, defendant is entitled to relief from the judgment in 

the form of resentencing. 

 Additionally, as explained in People v Jackson, 487 Mich at 792, MCL 769.34(10) 

governs remand for rensentencing: 

If a minimum sentence is within the appropriate guidelines sentence range, the 

court of appeals shall affirm that sentence and shall not remand for resentencing 

absent an error in scoring the sentencing guidelines or inaccurate information

relied upon in determining the defendant's sentence.” (Emphasis added.) The 

clear meaning of this sentence is that the Court shall not remand for resentencing 

unless there was either an error in scoring or defendant's sentence was based on 

inaccurate information. Conversely, this means that the Court is required to 

remand whenever one of these two circumstances is present. Thus, the Court may 

not ignore the two criteria for when a case should be remanded merely because 

the sentence is within the appropriate guidelines range. Jackson, 487 Mich at 

792. 

Here, the trial court relied on inaccurate information in determining the defendant’s sentence. 

Under MCL 769.34(10), resentencing is thus required. We recognize that MCL 769.34(10) also 

provides that: 

A party shall not raise on appeal an issue challenging the scoring of the 

sentencing guidelines or challenging the accuracy of information relied upon in 

determining a sentence that is within the appropriate guidelines sentence range 

unless the party has raised the issue at sentencing, in a proper motion for 

resentencing, or in a proper motion to remand filed in the court of appeals. 

However, this portion of MCL 769.34(10) pertains to merely how a defendant must preserve (1) 

an issue pertaining to scoring of the sentencing guidelines and (2) challenges to the accuracy of 
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information relied upon in determining a sentence within the appropriate guidelines range. On 

appeal, defendant is not challenging the scoring of the sentencing guidelines nor is he 

challenging the accuracy of the information relied upon in determining his sentence which fell 

within the guidelines range. The trial court has already found that the scoring was incorrect and 

corrected it. What it then did, however, was determine that defendant’s sentence was 

nevertheless valid and that it thus could not resentence him, which is an incorrect statement of 

the law.3 Where, as here, a defendant requests remand for resentencing before this Court and the 

defendant’s incorrectly calculated minimum sentence was within the appropriate guidelines 

range, he is nevertheless entitled to resentencing. See Jackson, 487 Mich at 799-800. 

 Remanded for resentencing and affirmed in all other respects. We do not retain 

jurisdiction. 

/s/ Kurtis T. Wilder 

/s/ Deborah A. Servitto 

/s/ Cynthia Diane Stephens 

 

3

 A court “by definition abuses its discretion when it makes an error of law.” People v 

Giovannini, 271 Mich App 409, 417; 722 NW2d 237 (2006)(citation omitted).