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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED May 7, 2015

v No. 319593 Wayne Circuit Court TYRONE POSEY, LC No. 07-020042-FH

Defendant-Appellant.

Before: B ECKERING , P.J., and C AVANAGH and S AAD , JJ.

P ER C URIAM

. Defendant appeals his bench tr ial conviction of possession wit h intent to deliver cocaine in violation of MCL 333.7401(2)(a)( iii ). For the reasons stated below, we affirm.

I. FACTS AND PROCEDURAL HISTORY

While making a traffic stop with colleagues, a Detroit Police officer saw defendant, who was a passenger in the vehicle, get out of the car and throw a bag of what appeared to be illegal drugs in the front seat of the car. The driver took the bag an d placed it under the passenger seat. After detaining defendant and his associate, the police took th e bag from under the seat, and saw what appeared to be crack cocaine. A forensic chemist at the d epartment verified that the bag contained cocaine.

The prosecution charged defenda nt with possession of cocaine w ith intent to deliver it, under MCL 333.7401(2)(a)( iii ). After a bench trial, at which defendant testified on his ow n behalf, the court found defendant guilty. 1 On appeal, defendant cla ims that he received ineffective assistance of counsel because his trial attorney di d not challenge the legality of the traffic stop that led to defendant’s prosecution. He also asse rts that the trial court erred when it did not make a downward departure from the sentencing guideline s.

1 The court convicted defendant i n February 2008, but his senten cing hearing did not take place until October 2013. In the interim, defendant supposedly fled to Missouri. He periodically visited Detroit, but did not tur n himself in for sentencing dur ing these visits.-2- II. STANDARD OF REVIEW

Because defendant did not (1) file a motion for a new trial or (2) ask for an evidentiary hearing pursuant to People v Ginther 2 in the trial court, his claim for ineffective assistance of counsel is unpreserved. People v Heft , 299 Mich App 69, 80; 829 NW2d 266 (2012). Accordingly, we review his claim for mistakes apparent on the r ecord. Id . “Whether defendant was denied the effective assistance of counsel presents a mixed question of fact and constitutional law.” People v Vaughn , 491 Mich 642, 650; 821 NW2d 288 (2012). The trial court’s findings of fact are rev iewed for clear error, while ma tters of constitutional law are reviewed de novo. Id

. A trial court’s departure from the legislative sentencing guid elines range is reviewed for clear error, but “we review for an abuse of discretion whether the reasons given for departure are substantial and compelling.” People v Malinowski , 301 Mich App 182, 185; 835 NW2d 468 (2013). Questions of law are reviewed de novo. Id

.

III. ANALYSIS

A. ASSISTANCE OF COUNSEL

Effective assistance of counsel is guaranteed by the United St ates and Michigan constitutions. US Const Am V I; Const 1963, art 1, § 20. “In o rder to obtain a new trial, a defendant must show that (1) counsel’s performance fell below a n objective standard of reasonableness and (2) but for c ounsel’s deficient performance, there is a reasonable probability that the outcome would have been different.” People v Trakhtenberg , 493 Mich 38, 51; 826 NW2d 136 (2012). Defense counsel is “strongly presumed to have rendered adequate assistance and made all significant decisi ons in the exercise of reasonabl e professional judgment.” Vaughn
, 491 Mich at 670. An attorney cannot be held ineffective for fa ilure to make a meritless objection. People v Ericksen , 288 Mich App 192, 201; 793 NW2d 120 (2010).

The Fourth Amendment of the United States Constitution protect s a person against unreasonable searches and seizures. People v Dunbar , 306 Mich App 562, 564; 857 NW2d 280 (2014). However, a police officer’s decision to stop an automo bile does not violate the Fourth Amendment if the police officer h as probable cause to believe t hat a traffic violation occurred. Id

. MCL 257.648(1) provides, “[t]he op erator of a vehicle or bicyc le upon a highway, before stopping or turning from a direct l ine, shall first determine t hat the stopping or turning can be made in safety and shall give a signal as required in this sect ion.” Violation of MCL 257.648 is a civil infraction. MCL 257.648(6). In turn, MCL 257.648(2) m andates that “a signal required under this section shall be given either by means of the hand a nd arm in the manner specified in

2 390 Mich 436; 212 NW2d 922 (1973).-3- this section, or by a mechanical or electrical signal device th at conveys an intelligible signal or warning to other highway traffic.” 3

Here, the traffic stop that led to defendant’s prosecution was legal. Police officers testified at trial that they saw the car in which defendant was a passenger make a left-hand turn without using a left-turn signal, which gave them cause to stop the vehicle pursuant to MCL 257.648. Though defendant testified t hat the driver used a lef t-turn signal when he made the turn, the trial judge did not find defendant’s assertions to be credible. 4 Defendant’s counsel cannot be held ineffective for failure to make a meritless obje ction. Ericksen , 288 Mich App at 201.

B. SENTENCING GUIDELINES

“If the sentence of a trial cour t is within the appropriate se ntencing guidelines range, this Court must affirm that sentence unless the trial court erred by scoring the guidelines or relied on inaccurate information when determining the defendant’s sentenc e.” Malinowski , 301 Mich App at 185. A trial court may depart from the sentencing guideline s if it has a substantial and compelling reason to do so, and those reasons must be stated on the record. Id . at 185-186. The court’s reasons for “a particular departure” from the guideline s range must be “objective and verifiable.” Id . at 186.

Here, the trial court sentenced defendant to a minimum sentenc e of 88 months’ imprisonment, which was within the sentencing guidelines range of 87 to 145 months’ imprisonment. Accordingly, we must affirm the sentence unless “the trial court erred by scoring the guidelines or relied on inaccurate information when determi ning the defendant’s sentence.” Id . at 185. Defendant does not arg ue that the trial court improp erly scored the guidelines “or

3 At the outset, we note that defendant’s argument for ineffecti ve assistance of counsel is premised on the assertion that the district court dismissed the case against the driver of the vehicle. Defendant, who must est ablish the factual predicate f or this claim, has not done so. People v Hoag , 460 Mich 1, 6; 594 NW2d 57 (1999). He failed to provide any record materials to show that the driver’s case was dismissed, or the court’s re asons for the supposed dismissal. Were we nonetheless to assume the existence of such a judgment, defendant fails to explain why the outcome in the driver’s case should dictate the outcome in this case. See People v Payne
, 285 Mich App 181, 195; 774 NW2d 714 (2009) (“[a]n 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 w ith little or no citation of suppo rting authority”).

4 We note that defendant does not argue that the officers improp erly took the cocaine from the car. This is most likely because the officers lawfully stopped the vehicle, and the cocaine was in plain view. See People v Antwine , 293 Mich App 192, 201; 809 NW2d 439 (2011).-4- relied on inaccurate information when determining the defendant ’s sentence.” 5 Accordingly, his appeal on this issu e has no merit.

Affirmed.

/s/ Jane M. Beckering /s/ Mark J. Cavanagh /s/ Henry William Saad

5 Defendant instead asserts that the trial court did not conside r his work history and familial connections during the period from 2008 to 2013, when he evaded sentencing for his conviction. But the trial court heard his attorney make this argument, and did not decide to make a downward departure. Because the trial court’s sentencing deter mination is within the guidelines, it is not appropriate for us t o consider this argument on appea l for the reasons stated above.