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STATE OF MICHIGAN COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee,
V

UNPUBLISHED November 5, 2009

CHRISTOPHER BURNELL THOMPSON, Defendant-Appellant.

No. 287737 Mecosta Circuit Court LC No. 07-005951-FH

Before: Stephens, P.J., and Cavanagh and Owens, JJ. PER CURIAM. Defendant was convicted by a jury of operating a motor vehicle while under the influence of a controlled substance, third offense, MCL 257.625(1)(a) and (9)(c), driving on a suspended operator's license, second offense, MCL 257.904(1) and (3)(b), and third-degree fleeing a police officer, MCL 257.602a(3)(a). The trial court sentenced defendant as a fourth habitual offender, MCL 769.12, to serve concurrent terms of imprisonment of eight to 50 years for the OUIL and fleeing convictions, and to 365 days for the operating on a suspended license conviction. Defendant appeals as of right. We affirm. On the night of December 14, 2006, police officers, in their patrol car, observed defendant driving his vehicle over the centerline. When the officers turned to follow, defendant sped up, and continued driving at approximately 90 miles per hour even after the officers activated their overhead lights and siren, then went off the main road onto a private road, after which defendant left the car while it was still moving and ran away. An officer caught up with defendant and wrestled him to the ground, whereupon defendant fought for a few seconds before being subdued by a Taser. The police found several beer cans in defendant's car. Defendant did not cooperate when the police wished to administer sobriety tests. The police obtained a warrant to have defendant's blood drawn, and the result of the draw was a blood alcohol level of 0.18.1 The presentence investigator reported that defendant accepted no responsibility and showed no remorse for his crimes, and tried to blame others for his extensive criminal history. At sentencing, the prosecuting attorney read from a written statement from defendant asserting
1

Well over the proscribed "0.08 grams or more per 100 milliliters of blood . . . ." MCL 257.625(1)(b).

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defendant's right to drive with impunity, and that defendant "owes nothing to the public as he has . . . injured no one nor trespassed on the private rights of another." An assistant prosecutor testified that in the course of pre-trial proceedings, defendant "indicated that it was his right to travel by way of driving on the roadways and he wasn't going to stop doing that." On appeal, defendant argues that the trial court erred in its scoring of Offense Variable (OV) 12, in imposing the two sentences of eight to 50 years' imprisonment, and in denying defendant sentencing credit for time he spent in jail before sentencing. Defendant frames each issue as violations of his constitutional rights to Due Process and Equal Protection. I. Offense Variable 12 In scoring the offense variables in the sentencing guidelines, the trial court assessed one point for OV 12, which concerns contemporaneous felonies. MCL 777.42(1)(f) prescribes one point when "[o]ne contemporaneous felonious criminal act involving any other crime was committed." Defendant argues that the trial court, in scoring the OUIL offense, used the fleeing offense as the basis for finding a single contemporaneous felony, which is not permitted by MCL 777.42(2)(a)(ii). However, on appeal, a party may not challenge the scoring of the sentencing guidelines or the accuracy of the information used in imposing a sentence within the guidelines range unless the issue was raised at sentencing, in a proper motion for resentencing, or in a proper motion to remand filed with this Court. MCL 769.34(10); MCR 6.429(C); People v Harmon, 248 Mich App 522, 530; 640 NW2d 314 (2001). In this case, these preservation requirements were not satisfied.2 Defendant asks this Court to review this claim of error under the rubric of ineffective assistance of counsel, which this Court has shown a willingness to do. Id. But defendant did not include a challenge to the effectiveness of defense counsel in his statement of the questions presented. This Court is not obliged to entertain arguments that are not germane to the issues set forth in the statement of questions presented. See MCR 7.212(C)(7); People v Albers, 258 Mich App 578, 584; 672 NW2d 336 (2003). For these reasons, we need not consider defendant's substantive challenge to the scoring of OV 12. The argument is without merit in any event. At sentencing, the trial court agreed with the prosecuting attorney that the evidence indicated that defendant resisted arrest after his attempt to flee the police. This constitutes a felony, MCL 750.81d or MCL 750.479(1)(a), apart from the two of which defendant was convicted. Defendant alternatively attacks the scoring decision on the ground that the trial court resorted to facts other than those determined by the jury. Defendant relies on Blakely v

2

Defendant did move this Court to remand this case to the trial court, but this Court denied the motion on the ground that it failed to meet the requirements of the applicable court rule. Unpublished order issued January 13, 2009. Accordingly, it was not a proper motion to remand, and thus could not cure the preservation problem.

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Washington, 542 US 296; 124 S Ct 2531; 159 L Ed 2d 403 (2004), where the United States Supreme Court held that "every defendant has the right to insist that the prosecutor prove to a jury all facts legally essential to the punishment." Id. at 313 (emphasis in the original). Defendant's reliance on Blakely is misplaced. Our Supreme Court has reiterated that "`the Michigan system is unaffected by the holding in Blakely . . . .'" People v Drohan, 475 Mich 140, 164; 715 NW2d 778 (2006), quoting People v Claypool, 470 Mich 715, 730 n 14; 684 NW2d 278 (2004). The Court elaborated, "a defendant does not have the right to anything less than the maximum sentence authorized by the . . . verdict, and, therefore, judges may make certain factual findings to select a specific minimum sentence from within a defined range." Drohan, supra at 159. Accordingly, the trial court was and remains entitled to take into account all the facts and circumstances of the crime, as determined by the court from various sources. See People v Potrafka, 140 Mich App 749, 751-752; 366 NW2d 35 (1985). Defendant acknowledges that our Supreme Court has squarely decided this issue adversely to him in Drohan, but asserts that that case was wrongly decided. However, this Court must apply the precedents of our Supreme Court. See Const 1963 art 6,

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