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STATE OF MICHIGAN
COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v RANSOM MURRAY BUTLER, Defendant-Appellant.

UNPUBLISHED November 17, 2005

No. 255577 Wayne Circuit Court LC No. 04-001458

Before: Murphy, P.J., and Sawyer and Meter, JJ. PER CURIAM. Defendant was convicted of assault with intent to do great bodily harm less than murder, MCL 750.84, possession of less than twenty-five grams of cocaine, MCL 333.7403(2)(a)(v), and possession of a firearm during the commission of a felony, MCL 750.227b. He appeals and we affirm. This appeal is being decided without oral argument pursuant to MCR 7.214(E). Defendant fled from police officers after being ordered to stop, fired a shot at a police officer, and, after being apprehended, was found to have crack cocaine on his person. The trial court convicted defendant of assault with intent to do great bodily harm less than murder as a lesser included offense of assault with intent to commit murder, MCL 750.83, possession of less than twenty-five grams of cocaine, and felony-firearm. The statutory sentencing guidelines recommended a minimum term range of twenty-nine to fifty-seven months for assault with intent to do great bodily harm less than murder. The trial court scored Offense Variable (OV) 19, MCL 777.49, security threat to penal institution or court or interference with administration of justice, at fifteen points on the ground that defendant used force or the threat of force against a person or property to "interfere with or attempt to interfere with the administration of justice." MCL 777.49(a). Defendant did not object to the scoring of OV 19 at fifteen points. The trial court sentenced defendant to concurrent terms of four years, nine months to twelve years and one to four years for assault with intent to do great bodily harm less than murder and possession of less than twenty-five grams of cocaine, respectively, and to a consecutive two-year term for felony-firearm. Defendant received credit for 108 days. Defendant argues that he was denied due process and is entitled to be resentenced on the ground that he was sentenced by a different judge than the judge who presided at trial. We disagree.

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Defendant did not object to the presence of a different judge at sentencing; therefore, review is for plain error. People v Carines, 460 Mich 750, 763-764; 597 NW2d 130 (1999). "Generally, a defendant should be sentenced by the judge who presided at his trial, provided that the judge is reasonably available." People v Pierce, 158 Mich App 113, 115; 404 NW2d 230 (1987). Here, the visiting judge who presided over defendant's trial was not reasonably available to sentence defendant because, apparently, he was no longer assigned to the trial court. See People v Van Auker (After Remand), 132 Mich App 394, 399; 347 NW2d 466 (1984), rev'd in part on other grounds 419 Mich 918 (1984). Moreover, defendant was sentenced within the guidelines as calculated by the trial court. Defendant has not shown that the substitution of judges resulted in prejudice or plain error. Carines, supra; see also People v Wilson, 265 Mich App 386, 389-391; 695 NW2d 351 (2005). Under the sentencing guidelines act, if a minimum sentence is within the appropriate sentencing guidelines range, we must affirm the sentence and may not remand for resentencing absent an error in the scoring of the guidelines or inaccurate information relied upon in determining the sentence. MCL 769.34(10); People v Kimble, 470 Mich 305, 309; 684 NW2d 669 (2004). A party may not raise on appeal an issue challenging the scoring of the guidelines or challenging the accuracy of information relied upon in determining a sentence which is within the appropriate guidelines range unless the party has raised the issue at sentencing, in a proper motion for resentencing, or in a proper motion to remand. Id. To establish ineffective assistance of counsel, a defendant must show that counsel's performance fell below an objective standard of reasonableness under prevailing professional norms. Counsel must have made errors so serious that he was not performing as the "counsel" guaranteed by the federal and state constitutions. US Const, Am VI; Const 1963, art 1,

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