If this opinion indicates that it is “FOR PUBLICATION,” it is subject to 

revision until final publication in the Michigan Appeals Reports.

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S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

UNPUBLISHED

February 4, 2021

v No. 349880

Wayne Circuit Court

DWIGHT LEMAR YOUNG, LC No. 15-009000-01-FC

Defendant-Appellant.

Before: FORT HOOD, P.J., and CAVANAGH and TUKEL, JJ.

PER CURIAM.

Defendant appeals as of right his jury convictions of possession with intent to deliver 1,000 

or more grams of cocaine, MCL 333.7401(2)(a)(i), and possession of a firearm during the 

commission of a felony, MCL 750.227b. At sentencing, the trial court departed downward from 

the sentencing guidelines recommended minimum sentence range of 108 to 180 months for the 

cocaine conviction and sentenced defendant to 7 to 20 years’ imprisonment for that conviction, 

and a consecutive two-year term of imprisonment for the felony-firearm conviction. We affirm.

Defendant’s convictions arise from the discovery of cocaine and firearms during the 

execution of a search warrant at his Detroit and Warren houses on August 28, 2015. The

prosecution presented evidence that Detroit Police Officer William Morrison conducted an 

investigation that led to defendant’s arrest after a confidential informant reported that narcotics 

were being sold from a house on Wilshire Drive in Detroit. Defendant owned the Wilshire house 

and was observed using keys to enter the house, which a narcotics officer described as a stash 

house. Defendant and his wife lived at a different residence on Shirley Avenue in Warren. During 

the search of the Wilshire house, the officers found nearly 2,000 grams of cocaine, marijuana, 

narcotics-packaging materials, and firearms. Inside the Warren house, the police found more than 

$100,000 in cash, and firearms. At trial, the defense denied that defendant possessed the drugs 

and firearms found at the Wilshire house, or had any knowledge that drugs and firearms were 

stored there. A defense witness, who lived next door to the Wilshire house, testified that another 

man, Wayne, had keys to the house, was frequently at the house after defendant moved out of the 

house, and was watching the house while defendant was trying to sell it. 
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I. SUFFICIENCY OF THE EVIDENCE

Defendant first argues that the prosecution failed to present sufficient evidence to support 

his convictions. We disagree. We review de novo a challenge to the sufficiency of the evidence. 

People v Bailey, 310 Mich App 703, 713; 873 NW2d 855 (2015). When ascertaining whether 

sufficient evidence was presented at trial to support a conviction, we must view the evidence in a 

light most favorable to the prosecution and determine whether a rational tier of fact could find that 

the essential elements of the crime were proven beyond a reasonable doubt. People v Reese, 491 

Mich 127, 139; 815 NW2d 85 (2012). “[A] reviewing court is required to draw all reasonable 

inferences and make credibility choices in support of the jury’s verdict.” People v Nowack, 462 

Mich 392, 400; 614 NW2d 78 (2000).

A. POSSESSION OF COCAINE

For a conviction of possession with intent to deliver 1,000 or more grams of cocaine, the 

prosecutor must prove the following elements beyond a reasonable doubt: (1) that the recovered 

substance was cocaine; (2) that the cocaine was in a mixture weighing 1,000 grams or more; (3) 

that the defendant was not authorized to possess the cocaine; and (4) that the defendant knowingly 

possessed the cocaine with the intent to deliver. MCL 333.7401(2)(a)(i); People v Wolfe, 440 

Mich 508, 516-517; 489 NW2d 748 (1992), amended 441 Mich 1201 (1992). Defendant argues 

that there was no evidence that he possessed any of the drugs found in the house, and no evidence 

that he delivered any cocaine.

To establish possession, proof of physical possession is unnecessary. People v Konrad, 

449 Mich 263, 271; 536 NW2d 517 (1995). Possession of a controlled substance may be either 

actual or constructive, and may be joint as well as exclusive. Wolfe, 440 Mich at 519-520. Because 

defendant was not found in physical possession of the cocaine discovered during the search, the 

prosecution’s theory at trial was that defendant had constructive possession of the cocaine. 

Constructive possession exists when the totality of the circumstances indicates a sufficient nexus

between the defendant and the contraband. Id. at 520. A person’s presence, by itself, at a location 

where drugs are found is insufficient to prove constructive possession. Id. Instead, some 

additional connection between the defendant and the contraband must be shown. Id. “The 

essential question is whether the defendant had dominion or control over the controlled substance.” 

Konrad, 449 Mich at 271. Possession can be proven by circumstantial evidence and reasonable 

inferences arising from the evidence, and is a factual question for the jury. People v Johnson, 293 

Mich App 79, 83; 808 NW2d 815 (2011); People v Fetterley, 229 Mich App 511, 515; 583 NW2d 

199 (1998). 

Viewed in a light most favorable to the prosecution, the totality of the circumstances 

established a sufficient nexus between defendant and the contraband discovered in the Wilshire 

house. There was evidence that enabled a jury to reasonably infer that defendant had control over 

the premises, and that no other person resided in or had dominion or control over the Wilshire 

house. The defense did not dispute that, although defendant no longer resided at the Wilshire 

house, he owned the property. On both days of the preraid surveillance, August 26 and 27, 2015, 

defendant was observed using keys to enter the house, letting individuals into the house who left 

soon thereafter, and then leaving the house. In addition to defendant using keys to freely enter the 

house, two of defendant’s vehicles were parked on the property—one in the driveway and one in 
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the backyard—on both days of preraid surveillance and on the day of the search, August 28. On 

the day of the search, defendant was arrested at his residence in Warren and no one was present at 

the Wilshire house. The inside of the Wilshire house showed no signs of occupancy. It was dusty, 

did not contain any food, and the furniture was covered. In sum, the evidence showed that 

defendant was an owner of the Wilshire house, he was seen entering and leaving the house with 

keys, defendant had vehicles at the property, and there were no tenants or signs of occupancy. 

Although defendant’s witness claimed that someone named “Wayne” regularly came to check on 

the property, she also testified that defendant came to the house periodically. 

The reasonable inferences arising from this evidence, considered together, were sufficient 

to establish a nexus between defendant and the Wilshire house to enable the jury to find beyond a 

reasonable doubt that defendant had dominion and control of the cocaine at the Wilshire house. 

Defendant’s challenges, including his reliance on the weight and credibility of his defense 

witness’s testimony, do not affect the sufficiency of the evidence. People v Scotts, 80 Mich App 

1, 9; 263 NW2d 272 (1977). Indeed, these same challenges were presented to the trier of fact 

during trial. The jury was free to believe or disbelieve all or any portion of the trial testimony in 

light of the issues explored by the defense. This Court will not interfere with the jury’s role of 

determining issues of weight and credibility. People v Unger, 278 Mich App 210, 222; 749 NW2d 

272 (2008). Further, this Court is required to draw all reasonable inferences and make credibility 

choices in support of the jury’s verdict. Nowack, 462 Mich at 400. There was sufficient evidence 

that defendant possessed the drugs found in the house.

B. INTENT TO DELIVER

To show intent to deliver, proof of actual delivery is not required. Wolfe, 440 Mich at 524. 

“Intent to deliver has been inferred from the quantity of narcotics in a defendant’s possession, from 

the way in which those narcotics are packaged, and from other circumstances surrounding the 

arrest.” Id. Circumstantial evidence and reasonable inferences arising from the evidence are 

sufficient to establish intent to deliver. Fetterley, 229 Mich App at 515. 

There was evidence that a confidential informant told the police that drugs were being sold 

out of the Wilshire house. Subsequently, Officer Morrison observed defendant and a known drug 

dealer both enter the Wilshire house, and the known drug dealer reemerged carrying a bag, which 

he put in his car before leaving. Two days later, the police confiscated 1,997.1 grams of cocaine 

in the form of a compressed brick and chunks in a Ziploc bag. A narcotics officer explained that 

the “kilo” brick was worth $35,000 to $40,000 in 2015, and the value increases by “a couple 

hundred thousand dollars” when broken down and sold. The officers also confiscated a small 

press, Saran wrap, and a hammer, which a narcotics officer explained is consistent with what drug 

dealers use to repress cocaine and heroin into bricks. An officer also found a digital scale, a Pyrex 

glass bowl, and a metallic or stainless-steel press. A narcotics officer explained that digital scales 

are commonly used to weigh narcotics, the press is commonly used for re-rocking or shaping 

narcotics, and the Pyrex bowl is used for mixing items. At defendant’s Warren residence, the 

police found more than 100,000 in assorted bills. Viewed in a light most favorable to the 

prosecution, the circumstantial evidence was sufficient to establish that the cocaine was intended 

for delivery, as opposed to personal use. There was sufficient evidence to sustain defendant’s 

conviction of possession with intent to deliver 1,000 or more grams of cocaine.
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C. FELONY-FIREARM

“The elements of felony-firearm are that the defendant possessed a firearm during the 

commission of, or the attempt to commit, a felony.” People v Avant, 235 Mich App 499, 505; 597 

NW2d 864 (1999); see also MCL 750.227b. As with drug offenses, possession of a firearm may 

be actual or constructive. People v Johnson, 293 Mich App at 83. 

A person has constructive possession if there is proximity to the article, 

together with indicia of control. Put another way, a defendant has constructive 

possession of a firearm if the location of the weapon is known and it is reasonably 

accessible to the defendant. [Id. (quotations and citations omitted).]

With respect to possession and felony-firearm, the time of the offense or felony is what controls, 

not the time of the arrest or search. People v Burgenmeyer, 461 Mich 431, 439; 606 NW2d 645 

(2000). When possession of a controlled substance is the underlying felony, the offense may take 

place over an extended period of time, during which the defendant is variously in proximity to the 

firearm and at a distance from the weapon. Id. 

The same evidence and reasoning that supports that defendant constructively possessed the 

cocaine also supports a sufficient nexus between defendant and the firearms discovered in the 

Wilshire house. Again, viewed in a light most favorable to the prosecution, the evidence showed 

that defendant had exclusive control over the premises where both the cocaine and firearms were 

found. The circumstantial evidence that both cocaine and firearms were found in the Wilshire 

house is sufficient to enable a jury to infer that defendant possessed a firearm at the time he 

committed the offense of possession with intent to deliver 1,000 or more grams of cocaine. 

Fetterley, 229 Mich App at 515. Accordingly, viewed in a light most favorable to the prosecution, 

the evidence was sufficient to sustain defendant’s felony-firearm conviction.1

II. JURY VERDICT

Next, defendant argues that the trial court compromised defendant’s right to a jury trial 

when, after the jury announced its verdict, the court noticed that the jury had marked both boxes 

for the alternative counts and instructed the jury to prepare a new verdict form. We reject this 

claim of error. 

Defendant was charged with alternative counts of possession with intent to deliver 1,000 

or more grams of cocaine and possession of 1,000 or more grams of cocaine in Counts 1 and 2, 

respectively. The jury verdict form consisted of three pages. As relevant here, the first page was 

dedicated to the alternative cocaine counts. As relevant to this issue, the trial court instructed the 

jury on the choices provided on the verdict form for the alternative counts as follows: 

The defendant is charged with one wrongful act in alternative counts. That 

is, that he is guilty of Count 1, unlawful possession with intent to deliver a 

 

1

In addition, as already explained, the evidence was sufficient to establish the underlying felony 

of possession with intent to deliver 1,000 or more grams of cocaine.
-5-

controlled substance, cocaine; that’s Count 1. Or Count 2, possession of a 

controlled substance, cocaine. But not both. 

You should consider these alternatives separately in light of all the 

evidence. You may find the defendant not guilty or guilty of unlawful possession 

of cocaine with intent to deliver, or guilty or not guilty of possession of a controlled 

substance. 

Now, the way that you can handle that—you can handle it any way you 

want to—is you will see on your verdict form that the Court has Counts 1 and 2. 

And I have an instruction on that verdict form, it’s one page. It says mark only one 

box on this page, and it means just that, mark only one box. If you do that, then 

you won’t have any difficulty with this extra instruction. 

When the jury returned to the courtroom to give its verdict, the following exchange 

occurred:

Jury foreperson: Page one? Count 1, guilty.

The court: Guilty of what?

Jury foreperson: Possession to deliver cocaine for 1,000 or more grams. 

Thereafter, the trial court asked for and reviewed the jury’s verdict form. After the court 

realized that the jury had marked guilty verdicts for both alternative counts, it instructed the jury 

as follows:

Give me a fresh verdict form [for page one]. And I’m going to ask you to 

follow the instructions on that page where it says mark only one box. And on this 

form you’ve marked more than one. So I’m going to send you back to the jury 

room and on the fresh form mark only one box on that page. Okay? Whatever that 

box is. 

Minutes later, court resumed with the jury present, and the jury foreperson stated the verdict for 

page one as follows: 

Count 1, controlled substance, possession with intent to deliver cocaine, 

1,000 or more grams, we find the defendant guilty.

Defendant now argues that the jury’s verdict was confusing and “could indicate” that there 

was some disagreement about the verdict. An uncertain jury verdict may provide grounds for 

relief. People v Ullah, 216 Mich App 669, 683; 550 NW2d 568 (1996). However, a jury’s verdict 

is not void for uncertainty where the jury’s intent can clearly be deduced from the record. People 

v Rand, 397 Mich 638, 643; 247 NW2d 508 (1976). 

While the jury apparently made an error when preparing page one of the verdict form, the 

jury’s intent to convict defendant of Count 1, possession with intent to deliver 1,000 or more grams 

of cocaine, can clearly be deduced from the record. Again, before the trial court looked at the 
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verdict form, the jury foreperson had already announced the jury’s verdict on the alternative 

counts, specifically stating: “Count 1, guilty” of “Possession to deliver cocaine for 1,000 or more 

grams.” After discovering that the jury “had marked guilty on Count 1 and then on Count 2 they 

had put an X in the box for guilty and then they put an X over the whole thing,” the trial court 

provided the jury with a “fresh” verdict form and instructed it to resume deliberations in order to 

mark only one box on page one, “Whatever that box is.” Minutes later, the jury returned and the 

foreperson again announced the jury’s verdict on the alternative counts: “Count 1, controlled 

substance, possession with intent to deliver cocaine, 1,000 or more grams, we find the defendant 

guilty.” The final jury verdict form reflects this verdict, as only one box—the box for possession 

with intent to deliver cocaine, 1,000 or more grams—is marked. Despite the apparent error in 

originally preparing the jury verdict form, there is no indication that the jury was confused about 

their verdict, which was twice announced and reflected on the final verdict form. “The judge has 

a right to clarify the form of the verdict if the jury has not been discharged; and the jury can always 

change the form and the substance of the verdict to coincide with its intention, before it is 

discharged.” People v McNary, 43 Mich App 134, 143; 203 NW2d 919, 924, aff'd in relevant part, 

rev'd in part on other grounds, 388 Mich 799; 201 NW2d 845 (1972). While defendant relies on 

the discrepancy with the initial verdict form as an indication that the jury was not in agreement, he 

has not indicated that any juror gave any indication that the verdict was not his or her decision. 

Again, the jurors were individually polled and each agreed with the verdict. Thus, the record belies 

defendant’s claim that the verdict was not unanimous. Viewing the record in its entirety, as 

opposed to focusing only on the error in the initial verdict form, we find no error in the trial court’s 

jury instructions and no ambiguity in the jury’s verdict. Therefore, we reject this claim or error. 

III. PROSECUTORIAL MISCONDUCT

Defendant argues that he is entitled to a new trial because the prosecutor engaged in 

misconduct by making improper remarks and arguments during closing and rebuttal arguments. 

We disagree. Defendant preserved his claims that the prosecutor made an improper civic duty 

argument and argued facts not in evidence by stating that “he’s cutting the lawn.” As defendant 

acknowledges, however, he did not object to the remaining claims of prosecutorial misconduct, 

leaving them unpreserved. 

We review preserved claims of prosecutorial misconduct case by case, reviewing the 

challenged conduct in context to determine whether the defendant received a fair and impartial 

trial. People v Brown, 294 Mich App 377, 382-383; 811 NW2d 531 (2011). Unpreserved claims 

of prosecutorial misconduct are reviewed for plain error affecting defendant’s substantial rights. 

Id. at 382. We will not reverse if the alleged prejudicial effect of the prosecutor’s conduct could 

have been cured by a timely instruction. People v Watson, 245 Mich App 572, 586; 629 NW2d 

411 (2001). 

Prosecutors have great latitude when arguing at trial. People v Fyda, 288 Mich App 446, 

461; 793 NW2d 712 (2010). They may argue the evidence and all reasonable inferences that arise 

from the evidence in relationship to their theory of the case, and they need not state their inferences 

in the blandest possible language. People v Bahoda, 448 Mich 261, 282; 531 NW2d 659 (1995);

People v Dobek, 274 Mich App 58, 66; 732 NW2d 546 (2007). 

A. PRESERVED CLAIMS
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1. CIVIC DUTY ARGUMENT

Defendant argues that the prosecutor made an improper civic duty argument by stating 

during rebuttal argument: “And in this case justice requires for you to find the defendant guilty as 

charged because he is guilty.” “The prosecutor may not inject issues into a trial that are broader 

than the defendant’s guilt or innocence. The prosecutor commits misconduct when he or she 

invites jurors to suspend their powers of judgment and decide the case on the basis of sympathy or 

civic duty.” People v Lane, 308 Mich App 38, 66; 862 NW2d 446 (2014). 

Viewed in context, the prosecutor was not asking the jurors to suspend their powers of 

judgment and convict defendant as part of their civic duty. Before making the “justice”

commentary, the prosecutor asked the jurors to review the evidence and follow the trial court’s 

instructions regarding the law. The prosecutor then argued that, after considering the evidence 

and the law, justice would require a guilty verdict. Thus, the prosecutor was not urging the jury to 

convict defendant as a measure of justice, but because the evidence and the applicable law 

established defendant’s guilt. Accordingly, the prosecutor did not make an improper civic duty 

argument. 

2. ARGUING FACTS NOT IN EVIDENCE

Defendant also argues that the prosecutor argued facts not in evidence by stating during 

closing argument that defendant “was cutting the lawn” at the Wilshire house. Defendant asserts 

that there was no evidence that he cut the grass at the Wilshire house. Prosecutors may not make 

a statement of fact that is unsupported by the evidence, but they may argue reasonable inferences 

arising from the evidence to the extent that the inferences relate to the prosecutor’s theory of the 

case. Dobek, 274 Mich App at 66 (citations omitted). During trial, there was evidence that 

defendant was the owner of the Wilshire house, and neither defendant nor a tenant was living at 

the house. There was also testimony describing the outside of the property as “well kept” and that 

the “grass was taken care of.” Although there was no direct evidence that defendant cut the lawn, 

the evidence supported a reasonable inference that because defendant was the owner and the lawn 

was maintained, he was the person who either cut the lawn or arranged for lawncare. The inference 

from the evidence that defendant “was cutting the lawn” relates to the prosecutor’s theory that 

defendant had dominion and control over the Wilshire house, where the cocaine and firearms were 

found. Accordingly, viewed in context, the prosecutor’s comment was not improper. 

B. UNPRESERVED CLAIMS

1. IMPROPER VOUCHING FOR OFFICER MORRISON

Defendant argues that the prosecutor improperly vouched for Officer Morrison’s 

credibility when he made the following comments during closing argument: 

And then he saw another person who comes up who he knew, based on his 

experience, nine years of working in narcotics, who he knew was involved also in 

drugs. He knew this person was a drug dealer. And that person went into the house. 

* * *
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And then for the stash house, we have these people coming and going. And 

we know that for sure one is a dealer because Officer Morrison knows this person. 

Defendant argues that the prosecutor continued to improperly vouch for the officer during rebuttal 

argument when he remarked: “And Officer Morrison did see things which he put into—inside the 

search warrant.” 

Improper vouching occurs when the prosecutor vouches for the credibility of a witness by 

conveying that the government has some special knowledge of which the jury is unaware that the 

witness testified truthfully. See Bahoda, 448 Mich at 276, and People v Thomas, 260 Mich App 

450, 455; 678 NW2d 631 (2004). Viewed in context, the prosecutor’s remarks did not constitute 

improper vouching, but rather were based on and supported by the evidence presented during trial, 

specifically the testimony of Officer Morrison. The prosecutor’s references to the officer’s 

testimony, including that the officer knew that the man he saw defendant let into the house was a 

drug dealer and that the officer put things that he observed in the search warrant, were merely 

summarizing some of the facts presented during trial. The prosecutor used this factual summary 

as part of a proper argument explaining why the evidence supported the charged offenses. The 

prosecutor did not suggest that he had some special knowledge that the officer was credible, 

beyond the evidence presented at trial. Nor has defendant demonstrated that the remarks affected 

the trial’s outcome because the prosecutor was simply reminding the jury of the testimony they 

had already heard from Officer Morrison. The prosecutor’s remarks were not clearly improper.

2. ARGUING FACTS NOT IN EVIDENCE

Defendant again takes issue with the prosecutor arguing facts not in evidence by 

commenting, “This is a home in which the grass was cut.” As previously mentioned, there was 

testimony that the “grass was taken care of.” Thus, the prosecutor’s remark was supported by 

evidence. Accordingly, the remark was not clearly improper. 

3. DEFENDANT’S GUILT

Defendant also argues that the prosecutor improperly commented on defendant’s guilt 

during closing argument when he stated: “We know that the defendant knowingly possessed the 

controlled substances that were inside of the Wilshire address. So that’s been proven.” 

Prosecutors may not express a personal opinion about a defendant’s guilt, Bahoda, 448 Mich at 

282-283, but their mere use of the words “I believe” and “I think” during closing and rebuttal 

arguments does not render the arguments improper. See People v Cowell, 44 Mich App 623, 628; 

205 NW2d 600 (1973). 

Viewed in context, the prosecutor’s remark did not involve the prosecutor’s personal 

opinion about defendant’s guilt, but rather was based on and supported by the evidence and 

reasonable inferences arising from it as they related to the prosecutor’s theory that defendant 

possessed the marijuana and cocaine found in the Wilshire house. See Bahoda, 448 Mich at 282. 

During closing argument, the prosecutor discussed the elements of the offenses and summarized 

the evidence before making the concluding remark that it had been proven that defendant 

knowingly possessed the controlled substances in the Wilshire house. Thus, the prosecutor’s 

remark was made as part of a proper argument explaining why the evidence supported the 
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possession element of the charged drug offenses. Accordingly, the prosecutor’s remark was not 

plain error. 

C. TRIAL COURT’S INSTRUCTIONS

To the extent that the prosecutor’s remarks exceeded the bounds of proper argument, 

defendant is not entitled to a new trial. In its final instructions, the trial court instructed the jury 

that the lawyers’ statements and arguments are not evidence, that the jury was to decide the case 

only on basis of the properly admitted evidence, that the jury was not be influenced by sympathy 

or prejudice, and that the jury was to follow the court’s instructions. The trial court’s instructions 

were sufficient to dispel any possible prejudice and to protect defendant’s substantial rights. 

People v Long, 246 Mich App 582, 588; 633 NW2d 843 (2001). Juries are presumed to follow 

their instructions. People v Breidenbach, 489 Mich 1, 13; 798 NW2d 738 (2011). Defendant has 

not presented any basis for overcoming the presumption that the jury followed these instructions. 

D. EFFECTIVE ASSISTANCE OF COUNSEL

Within this issue, defendant also argues that defense counsel was ineffective by failing to 

object to the unpreserved instances of improper vouching, arguing facts not in evidence, and 

improperly commenting on defendant’s guilt. Again, we disagree. Because defendant failed to 

raise this ineffective-assistance claim in the trial court in connection with a motion for a new trial 

or request for an evidentiary hearing, our review is limited to mistakes apparent on the record. 

People v Heft, 299 Mich App 69, 80; 829 NW2d 266 (2012). “To demonstrate ineffective 

assistance of counsel, defendant must show that his attorney’s performance fell below an objective 

standard of reasonableness under prevailing professional norms and that this performance caused 

him prejudice.” People v Nix, 301 Mich App 195, 207; 836 NW2d 224 (2013) (citation omitted). 

“To demonstrate prejudice, a defendant must show the probability that, but for counsel’s errors, 

the result of the proceedings would have been different.” Id. 

Because the prosecutor’s remarks were not improper, defense counsel’s failure to object 

was not objectively unreasonable. “Failing to advance a meritless argument or raise a futile 

objection does not constitute ineffective assistance of counsel.” People v Ericksen, 288 Mich App 

192, 201; 793 NW2d 120 (2010). Further, because the trial court’s jury instructions were sufficient 

to dispel any possible prejudice, the record does not support the contention that a reasonable 

probability existed that, but for counsel’s failure to object, the outcome of defendant’s trial would 

have been different. Therefore, defendant has not established a claim of ineffective assistance of 

counsel.

IV. SENTENCING

Next, defendant argues that he is entitled to be resentenced before the judge who presided 

over his trial. We disagree. The sentencing judge denied defendant’s motion to adjourn sentencing 

until the trial judge was available to sentence defendant. We review a trial court’s ruling on a 

motion for an adjournment for an abuse of discretion. People v Snider, 239 Mich App 393, 421; 

608 NW2d 502 (2000).

“Generally, a defendant should be sentenced by the same judge who presided at [the 

defendant’s] trial, provided that the judge is reasonably available.” People v Pierce, 158 Mich 
-10-

App 113, 115; 404 NW2d 230 (1987), citing People v Clemons, 407 Mich 939; 291 NW2d 927 

(1979). Defendant and plaintiff both agree that the trial judge was unavailable for sentencing 

because of a medical issue and that she ultimately retired. In the lower court, the sentencing judge 

explained that it will be “quite a while” before the trial judge would be able to return to the bench 

because she was “out ill” and “having major surgery.” Thus, it is undisputed that the trial judge 

was not reasonably available to preside over defendant’s sentencing proceeding. Further, 

defendant does not argue that the sentencing judge was uninformed about the case, or was unable 

to tailor a sentence to fit the circumstances of the case and the offender. See Pierce, 158 Mich 

App at 115-116. Indeed, at both the hearing on defendant’s motion to adjourn sentencing and at 

the sentencing hearing, defense counsel informed the judge about mitigating facts that should be 

considered at sentencing and justified a downward departure from the sentencing guidelines 

recommended minimum sentence range. The sentencing judge ultimately imposed a sentence that 

represented a 24-month downward departure from the guidelines range, noting that it had 

considered certain facts raised by the defense. Defendant does not contend that his sentence was

based on inaccurate information or invalid for some other reason. Thus, defendant has also failed 

to demonstrate how he was prejudiced by being sentenced by a different judge. Accordingly, we 

find no abuse of discretion in the sentencing judge’s denial of defendant’s motion for an 

adjournment to await the trial judge’s unknown return to the bench. 

Defendant asserts that, despite the trial judge having retired after a medical issue, the judge 

might still be “local” and “reasonably available” for resentencing. He argues that under MCL 

600.226(1), the judge could be recalled to the bench to resentence him. However, defendant offers 

no legal authority that would entitle him to have a retired judge be recalled to the bench for the 

purpose of resentencing him in these circumstances, particularly where there is no indication that 

the sentencing judge was incapable of imposing a valid sentence and defendant has not otherwise 

demonstrated any defects with his sentences. Accordingly, defendant is not entitled to be 

resentenced. 

V. DEFENDANT’S STANDARD 4 BRIEF

Defendant raises additional issues in a pro se supplemental brief filed pursuant to Supreme 

Court Administrative Order No. 2004-6, Standard 4, none of which have merit. 

A. FRAUD UPON THE COURT

Defendant requests that this Court set aside the search warrant, or remand for an evidentiary 

hearing, because Officer Morrison perpetrated fraud upon the court by intentionally or recklessly 

using false information in the affidavit in support of the search warrant. We reject this claim of 

error. 

Preliminarily, in presenting this claim, defendant lists facts that he alleges are false with 

little to no citation or proper analysis. “An appellant may not merely announce his position and 

leave it to this Court to discover and rationalize the basis for his claims, nor may he give only 

cursory treatment with little or no citation of supporting authority.” People v Kelly, 231 Mich App 

627, 640-641; 588 NW2d 480 (1998). In addition, although defendant requests that this Court 

remand for an evidentiary hearing on this issue, he fails to mention that the defense raised the very 

issue of the officer intentionally or recklessly stating false information in the affidavit in support 
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of the search warrant in the trial court, and the court held a Franks2hearing. In sum, defendant 

fails to properly present this claim, Kelly, 231 Mich App at 640-641, and fails to mention that he 

has already received an evidentiary hearing on this very issue, let alone address the propriety of 

the trial court’s determination that “[t]here hasn’t been any evidence here today to definitely say 

that the statements that are in the search warrant are false.” On this record, defendant has not 

established that the officer perpetrated a fraud on the court, or demonstrated that he is entitled to a 

remand for an evidentiary hearing. Thus, defendant is not entitled to any relief with respect to this 

issue. 

B. SUFFICIENCY OF THE EVIDENCE

In his Standard 4 brief, defendant again argues that the evidence was insufficient to support 

his convictions, rehashing the same arguments regarding his felony-firearm conviction that we 

addressed in Section I(C), supra, and making no specific argument regarding his drug conviction. 

As explained earlier, the evidence was sufficient to sustain defendant’s convictions of possession 

with intent to deliver 1,000 or more grams of cocaine and felony-firearm.

C. EFFECTIVE ASSISTANCE OF SUBSTITUTE COUNSEL AT SENTENCING

In his last claim, defendant argues that he was denied his right to counsel because his trial 

counsel was unable to represent him at sentencing and substitute counsel provided ineffective 

assistance. We disagree. 

Preliminarily, we observe that defendant mischaracterizes the record of the sentencing 

hearing. Defendant claims that there was a “dispute about representation,” that substitute counsel 

“admitted” that he did not want to represent defendant, and that substitute counsel actually declined 

to do so. The record does not support these claims. Rather, the record indicates that substitute 

counsel put his appearance on the record and asked for the trial court’s permission to stand in for 

trial counsel. Nothing in the record supports that substitute counsel was averse to representing 

defendant. Likewise, nothing in the record supports defendant’s claim that he did not want to 

proceed with substitute counsel. After counsel asked for permission to represent defendant, 

defendant stated that he “wanted” trial counsel, but after learning that trial counsel was very ill, 

defendant agreed to the trial court proceeding with sentencing, and added: “Well [substitute 

counsel’s] here.” Thus, contrary to how defendant posits this claim, he did not object to being 

represented by substitute counsel, and counsel was ready and willing to represent defendant.

A criminal defendant who faces incarceration has a constitutional right to counsel at all 

critical stages of the criminal process. People v Williams, 470 Mich 634, 640-641; 683 NW2d 597 

(2004). In stating this issue in his Standard 4 brief, defendant implies that he was denied the actual 

right to counsel at sentencing, but in his argument he appears to argue that substitute counsel 

provided ineffective assistance because he offered little assistance other than requesting a sentence 

below the guidelines range. The record belies defendant’s claim. 

 

2 Franks v Delaware, 438 US 154, 155-156; 98 S Ct 2674; 57 L Ed 2d 667 (1978).
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The record demonstrates that substitute counsel clearly understood the case and 

defendant’s circumstances, and vigorously and effectively offered reasons why the court should 

impose a sentence below the guidelines minimum sentence range. At a prior hearing on 

defendant’s motion to adjourn sentencing, defendant’s trial counsel emphasized factors that the 

defense wanted to be considered for sentencing, including defendant’s age, lack of a prior record, 

letters from his family, his conduct while out on bond, and his appearance at every court date. 

Substitute counsel argued each of those factors, in addition to highlighting that defendant has been 

contributing to the community, is a home builder, had significant character references, and had 

taken this matter very seriously. Counsel also attempted to downplay defendant’s offense variable 

(OV) total by arguing that he was only 100 or 200 grams over the amount required to trigger an 

additional 100 OV points. Defendant fails to indicate what additional assistance substitute counsel 

should have been provided, or what additional argument counsel could have made at sentencing. 

Moreover, consistent with counsel’s request, the trial court imposed a sentence that represented a 

24-month downward departure from the low end of the sentencing guidelines range, noting factors 

effectively argued by counsel. Defendant has not demonstrated that he was denied his right to the 

effective assistance of counsel at sentencing. Nix, 301 Mich App at 207. 

Affirmed. 

/s/ Karen M. Fort Hood 

/s/ Mark J. Cavanagh 

/s/ Jonathan Tukel