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

- Appell ee
, UNPUBLISHED May 4, 2023

v No. 361243

St. Clair Circuit Court

KEITH DAJUAN WILLIAMS

, LC No. 21

- 000094

- FH

Defendant

- Appell ant

.

Before: M. J. K ELLY

, P .J ., and S WARTZLE AND F EENEY

, JJ.

P ER C URIAM

.

Defendant pleaded guilty to one count of possession with intent to deliver less than 50 grams of heroin, MCL 333.7401(2)(a)( iv ), and one count of possession with intent to deliver less than 50 grams of cocaine, MCL 333.7401(2)(a)( iv ) . Defendant was sentenced

, as a third

- offense habitual offender, MCL 769.11, to 3 to 40 years ’ imprisonment for each conviction, to be served concurrently. Defendant now appeals by leave granted. 1 We affirm.

On December 14, 2020, law enforcement executed a search warrant at the address of 903

Griswold S tree t

, Port Huron, M ichigan, after a month

- long narcotics investigation had been

conducted of defendant and the residence. Upon entering the apartment, officers located defendant, and two other residents, Anne

- Marie Gill and Marvin Kern

, Jr. Kern was interviewed on scene and later released. The search of the residence yielded a dealer ’ s quan tity of heroin, cocaine, drug paraphernalia, and U nited S tates currency. Officers discovered a brown bag containing a mixture of narcotics on the left side of a stairwell, which was located directly outside of the apartment

. Defendant and Gill were arres ted , taken in custody, and subsequently

interviewed at the local sheriff ’ s office. Defendant asserted, during his interview with the police, that he had been living in Detroit, and would only visit the Griswold apartment on occasion.

1 See People v Williams , unpublished order of the Court of Appeals, entered June 8, 2022 (Docket No. 361243).- 2

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Defendant advanced t hat he had not been selling narcotics from that residence, and attributed the $237 found on his person to working “ odd jobs. ”

Following the preliminary examination, a pretrial hearing, and a motion hearing, defendant accepted the prosecution ’ s plea agreem ent. The sentenc ing in formation report (SIR)

recommended an assessment of 10 points for Offense Variable (OV) 19, MCL 777.49(c), because defendant allegedly interfered with the administration of justice by lying to law enforcement in the

course of a crimi nal investigation. At sentencing, neither party objected to the information in the presentence investigation report or the scoring of the guidelines , and the trial judge sentenced defendant according to the Michigan Department of Correction ’ s (MDOC) recommendation

. Approximately six months after sentencing, defendant filed a motion for resentencing ; he argued

that the trial court erred by assessing 10 points instead of 0 points for OV 19 because defendant

did not interfere with the administration of justice and was merely maintaining his innocence following the officers ’ successful narcotics raid

. The prosecution responded that defendant explicitly lied to the officers in an attempt to shift responsibility for the drug trafficking to the two

other Gr iswold residents, and he further attempted to hide the brown bag of narcotics in the

stairwell outside of the apartment itself to avoid police detection. The trial court denied

defendant ’ s motion and held that OV 19 was properly assessed at 10 points beca use defendant

took overt action to avoid being held accountable for his actions and ultimately lied to the police despite being advised of his right to remain silent

.

Defendant now argues the trial court erred by assessing 10 points instead of 0 points fo r OV 19 because defendant did not intend to hamper, hinder, or obstruct a police investigation by asserting his innocence following the fruitful execution of the search warrant and his arrest. Moreover, d efendant asserts he was entitled to resentencing because the guidelines range would change after the scoring error was corrected

. We disagree.

For issues pertaining to sentencing guidelines scoring on appeal, “ the circuit court ’ s factual

determinations are reviewed for cl ear error and must be supported by a preponderance of the

evidence. ” People v Hardy , 494 Mich 430, 438; 835 NW2d 340 (2013). “ Whether the facts, as found, are adequate to satisfy the scoring conditions prescribed by statute, i.e., the application of

the facts to the law, is a question of statutory interpretation, which an appellate court reviews de

novo. ” Id

.

“ [I]f a minimum sentence falls within the appropriate guidelines range, a defendant is not

entitled to be resentenced unless there has been a scor ing error or inaccurate information has been relied upon. ” People v Francisco , 474 Mich 82, 88; 711 NW2d 44 (2006). “ Offense v ariables are properly scored by reference only to the sentencing offense except when the language of a particular offense variab le statute specifically provides otherwise. ” People v McGraw , 484 Mich 120, 135; 771 NW2d 655, 664 (2009). The sentencing offense is defined as “ the crime of which the defendant has been convicted and for which he or she is being sentenced. ” Id . at 122 n 3. The instructions for scoring OV 19 are found in MCL 777.49, which requires the assessment of 10 points if “ [t]he offender otherwise interfered with or attempted to interfere with the administration of justice, or directly or indirectly violated a per sonal protection order. ” MCL 777.49(c). “ [T]he plain and ordinary meaning of ‘ interfere with the administration of justice ’ for purposes of OV 19 is to oppose so as to hamper, hinder, or obstruct the act or process of administering judgment of

individual s or causes by judicial process. ” People v Hershey , 303 Mich App 330, 34 3 ; 844 NW2d- 3

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127 (2013) . In scoring OV 19, a court may consider the defendant ’ s conduct after the completion of the sentencing offense. People v Baskerville , 333 Mich App 276, 301; 963 NW2d 620 (2020).

Defendant argues that his statements to the law enforcement on December 14, 2020, addressing (1) defendant ’ s involvement in the sale of narcotics, (2) defendant ’ s current residence, and (3) defendant ’ s source of income, were an attemp t to maintain defendant ’ s innocence, and did not interfere with the administration of justice. Defendant further advanced that while the trial court premised its decision to deny his motion for resentencing by distinguishing his conduct from

the defendant in Hershey , defendant similarly did not intend to hamper, hinder, or obstruct the judicial process.

In Hershey , the defendant advanced that the trial court erred when it assess ed 10 points for

OV 19 because his failure to comply with a court order that r equired him to pay child support, and a violation of his probation terms , did not amount to an interference with the administration of justice. Hershey , 303 Mich App at 342. This Court agreed with the defendant and noted prior

caselaw established that th e following conduct constituted an interference or attempted inference with the administration of justice : “ providing a false name to the police, threatening or intimidating a victim or witness, telling a victim or witness not to disclose the defendant ’ s c onduct, fleeing from police contrary to an order to freeze, [or] attempting to deceive the police during an investigation. ” Id . at 344. Comparatively, the defendant ’ s refusal to pay child support did not impact the lower court ’ s ability to administer jud gment in the applicable divorce and child support proceedings, and the defendant ’ s parole violation did not prevent the lower court from entering a judgment of sentence. Id . at 345. Ultimately, this Court held that because the preponderance of

the eviden ce did not support a finding that the defendant interfered with the administration of justice, the trial court erred by scoring OV 19 at 10 points. Id . at 346.

We conclude defendant ’ s statements to law enforcement constituted an attempt to deceive the police during an investigation, and the context of defendant ’ s conduct is distinguishable from

the circumstances in Hershey . Defendant a rgues that his statements occurred after the criminal investigation concluded mu ch like Hershey when the defendant ’ s failure to pay child support

occurred after the lower court ordered him financially responsible. “ [ T ] he circumstances described in OV 19 expressly include events occurring after the completion of the sentencing offense

, ” and

“ scoring OV 19 necessarily is not limited to consideration of the sentencing offense. ” People v

Smith , 488 Mich 193, 195; 793 NW2d 666 (2010). Moreover, unlike a failure to pay child support or a parole violation, which does not implicate other pa rties, defendant attempted to divert suspicion and responsibility to the two other Griswold residents by denying his involvement in the

sale of narcotics and claiming he lived elsewhere . Defendant also asserted that he only stayed at the Griswold apartmen t on occasion, but a local deputy

, whose department was surveilling the Griswold address for one month prior to executing the search warrant, testified that defendant was living there for at least a week or two before the execution of the search warrant no twithstanding

the fact that defendant ’ s permanent address was in Detroit, Michigan. P roviding false information to a police officer during an investigation necessarily constitutes interference with the administration of justice

, Smith , 488 Mich at 201

- 202

, and the trial court found a preponderance of the evidence supported this conclusion.

Defendant further argues the month

- long investigation of defendant based on a suspicion of narcotics trafficking, in addition to the fruitful execution of the search w arrant, occurred before- 4

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defendant ’ s statements and made it virtually impossible for defendant to impede an investigation that was already complete or otherwise interfere with the administration of justice. Defendant notes that this assertion is supported by the fact he was eventually bound over on the possession charges and pled guilty. T his Court has stated that interference “ with the administration of justice encompasses more than just the actual judicial process. Law enforcement officers are an integr al component in the administration of justice, regardless of whether they are operating directly pursuant to a court order. ” People v Barbee , 470 Mich 283, 287

- 2 88; 681 NW2d 348 (2004). Additionally, attempts to deceive police that result in a hindrance of their investigation , even if those efforts are unsuccessful, may be scored under OV 19

. People v Ericksen , 288 Mich App 192, 204; 793 NW2d 120 (2010)

. Following the execution of the search warrant, officers recovered heroin, cocaine, and various drug p araphernalia that demonstrated that someone in the Griswold

apartment was responsible for narcotics trafficking. Defendant ’ s statements following his arrest

are best characterized as “ self

- serving attempts at deception obviously aimed at leading police

in vestigators astray or even diverting suspicion onto others and away from him, ” and onto Gill and Kern, who were present at the scene when the raid occurred. Ericksen , 288 Mich App at 204.

During the preliminary examination, the deputy noted that he saw o nly the defendant in

the stairwell outside the apartment before uncovering the bags of narcotics ; the deputy saw the defendant continuously peer ing out of the apartment and appeared to be conducting countersurveillance. Moreover, the brown bag found in th e stairwell immediately outside the

apartment contain ed the heroin and cocaine mixture that matched Gill ’ s description of how defendant routinely package d multiple types of narcotics. Based on this information, the trial court could have reasonably infe rred by a preponderance of the evidence that defendant attempted to hide evidence of narcotics trafficking in the stairwell thereby hampering a criminal investigation. See Hershey , 303 Mich App at 344 (stating that deceiving police investigators to

preven t incriminating evidence from being used throughout judicial process constitutes inference with the administration of justice).

Defendant argues that our Supreme Court has expressed concerns with the broad application of OV 19 as Justice Markman argued in his dissent in People v Spangler , 480 Mich 947, 948 (2007) ( M ARKMAN

, J ., dissenting)

. In Spangler , the defendant was assessed 10 points under OV 19 because he hid himself, and various drug paraphernalia, in a closet when the police

arrived at a house to investigate a crime committed by another individual. Id . While a 4 to 3 majority denied leave to appeal, Justice Markman opined

, “ [g]iven that it would be extraordinary for a criminal perpetrator not to attempt to hide evidence of his or her cr ime or to make such crime less detectable, it would seem that OV 19 would almost always be scored under the trial court ’ s interpretation. ” Id . While we recognize Justice Markman ’ s apprehensions about the scoring of OV 19, we must follow published precede nt. See Smith , 318 Mich App at 286 (hiding from the police constituted an interference with the administration of justice because the act intended to hinder the police investigation) ; see also Hershey , 303 Mich App at 344

.

Defendant maintains that charact erizing his conduct as an attempt to interfere with the administration of justice is equivalent to holding that anything a defendant does or says, short of turning himself into law enforcement or making a full confession on the spot, warrants assessing poi nts under OV 19. As the trial court noted, under Miranda v Arizona , 384 US 436, 469; 86 S Ct 1602; 16 L Ed 2d 694 (1966), a defendant has a right to remain silent. I t has long been established

that a Mirandized defendant will be held accountable for what he says, and those words may be- 5

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used against him in a future proceeding. Id . In this particular circumstance, defendant chose to lie to the police during the course of a criminal investigation and attempted to deceive the officers into potentially belie ving that the two other residents were responsible for the drug operations out of the Griswold apartment.

Lastly, defendant argues his trial counsel ’ s failure to object to the improper scoring of OV 19, which resulted in a higher guidelines range, deprived defendant of his Sixth Amendment right

to the effective assistance of counsel. We disagree.

“ To preserve the issue of whether counsel rendered ine ffective assistance, the defendant must move for a new trial or evidentiary hearing in the trial court or move for remand on appeal. ”

In re LT , ___ Mich App ___, ___; ___ NW2d ___ (2022) (Docket No. 356667 ); slip op at 3.

Defendant did not raise the issu e of ineffective assistance of trial counsel at any point in the lower court proceedings or move for remand on appeal ; therefore, our review is “ limited to mistakes apparent on the record. ” See People v Petri , 279 Mich App 407, 410 ; 760 NW2d 882 (2008) (w hen a defendant does not move for a new trial or Ginther 2 hearing, this C ourt ’ s review is limited to the existing record ).

“ Whether a person has been denied effective assistance of counsel is a mixed question of

fact and constitutional law. ” People v J ohnson , 293 Mich App 79, 90; 808 NW2d 815 (2011) (quotation marks omitted) , quoting People v LeBlanc , 465 Mich 575, 579 ; 640 NW2d 246 (2002).

“ A judge must first find the facts, and then must decide whether those facts constitute a violation

of the defend ant ’ s constitutional right to effective assistance of counsel. ” Id

. “ This Court reviews

for clear error a trial court ’ s factual findings, while we review de novo constitutional

determinations. ” Johnson , 293 Mich App at 90.

“ In order to prevail on a claim of ineffective assistance of counsel, the burden is on the

defendant to demonstrate that defense counsel ’ s performance fell below an objective standard of

reasonableness ” and that deficiency prejudiced the defendant. People v Crews , 299 Mich App

381 , 400; 829 NW2d 898 (2013). “ Prejudice occurs if there is a reasonable probability that, but

for defense counsel ’ s error, the result of the proceedings would have been different. ” A n attorney ’ s

“ [f]ail[ure] to advance a meritless argument or raise a futi le objection does not constitute

ineffective assistance of counsel. ” Ericksen , 288 Mich App at 201

. Because the trial court properly scored OV 19 , any objection to the court ’ s assessment of points would have been

meritless. As a result, defendant ’ s coun sel did not provide ineffective assistance by failing to object to the scoring.

Affirmed.

/s/ Michael J. Kelly

/s/ Brock A. Swartzle /s/ Kathleen A. Feeney

2 People v Ginther , 390 Mich 436; 212 NW2d 922 (1973).