People of Michigan v. Rand Walter Gould ( 2021 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
May 13, 2021
Plaintiff-Appellee,
v No. 350471
Oakland Circuit Court
RAND WALTER GOULD, LC No. 1998-161396-FC
Defendant-Appellant.
Before: K. F. KELLY, P.J., and SERVITTO and TUKEL, JJ.
PER CURIAM.
Defendant appeals by leave granted1 the trial court’s amendment of the judgment of
sentence to reflect that defendant was sentenced as a habitual offender, third offense, MCL 769.11.
Finding no errors warranting reversal, we affirm.
I. BASIC FACTS AND PROCEDURAL HISTORY
In July 1998, the victim was taken to a hospital. The victim’s then-boyfriend, defendant,
went to pick up the victim, but was told the wrong hospital by the police. When defendant made
contact with the victim, he was angry with her because he feared that the police deliberately
provided wrongful information and were searching their home for drugs while he was at the
hospital. The victim went to sleep when they arrived home. However, defendant woke the victim
up when he was looking for money to pay for drugs. The victim argued with defendant and began
to walk down the hall away from defendant when he slammed her head into the wall, causing her
1
On July 23, 2020, the prosecutor filed a motion to dismiss, asserting that this Court lacked
jurisdiction because the prior appeal ordered the correction of the judgment of sentence, and the
ministerial task occurred without resentencing. We denied the prosecutor’s motion to dismiss,
concluding that the amended judgment of sentence was not appealable as of right, but for reasons
of fairness and judicial economy, the claim of appeal was treated as a delayed application for leave
to appeal and delayed leave was granted. People v Gould, unpublished order of the Court of
Appeals, entered August 12, 2020 (Docket No. 350471).
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head to bleed. The victim had a teacup poodle, and defendant kicked the dog. The victim tried to
escape by throwing herself out the window, but defendant grabbed her and dragged her downstairs.
Once downstairs, defendant hit the victim with a baseball bat and kicked her all over her
body. He also gagged her by placing a washcloth in her mouth. Defendant used duct tape to bind
her wrists and her ankles together. Defendant tried to choke or strangle her, and this action left
handprint size bruises on her neck. He cursed at the victim and spoke of ways that he would kill
her and dispose of her body. The victim heard defendant call someone to take her dog. The victim
viewed the dog as her child and was more concerned with the well-being of the dog than herself.
The victim was unaware of how much time she spent in the basement, but estimated it lasted
between hours and days. Eventually, defendant agreed to set the victim free if she promised not
to call the police. The victim took a bath, and then defendant drove her to the methadone clinic
because she was being treated for heroin addiction. When they arrived back home, the dog was
returned, but needed veterinary treatment. The vet advised that the dog needed to be euthanized.
At that time, the victim advised of defendant’s assault upon her and her fear that he would take her
back to the basement. The vet’s office called an ambulance and the police.
A paramedic arrived at the veterinary office and found the victim cringing in the corner
and covered head to toe with bruises. The victim also had skin tears, especially in the location of
her wrists and ankles. The victim reported that she had been assaulted and restrained by defendant,
her boyfriend. She became hysterical when she was taken outside and had to pass defendant.
At the hospital, the victim was treated by an emergency room physician and a nurse. The
victim was dirty and unkempt and suffered from multiple bruises and lesions on her body. On the
back of her head, the victim had a large puncture wound that looked like a skin burst caused by
trauma. Additionally, the victim had a big swollen hematoma under her lip. The victim told
hospital personnel that she was hit in the head with a baseball bat, choked, punched, and kicked.
Her wounds were consistent with her report of an assault by defendant. In fact, the emergency
room physician testified that the only way the injuries could have occurred were from a beating or
assault. The victim also reported that defendant killed her dog and she feared him.
At trial, defendant asserted that the victim’s injuries were self-inflicted. However, the jury
convicted defendant as charged of assault with intent to do great bodily harm less than murder,
MCL 750.84, killing or torturing an animal, MCL 750.50b(2), and kidnapping by secret
confinement, MCL 750.349.
In March 1999, the sentencing hearing occurred. At sentencing, defendant did not dispute
his criminal history that included a breaking and entering offense in 1979, and a controlled
substance offense in 1991. However, defense counsel stated that defendant could not recall
whether or not he was advised of his Jaworski2 rights and questioned the accuracy of the conviction
and its propriety for utilization in sentence enhancement. Despite his Jaworski challenge to a
conviction for purposes of the habitual enhancement, defense counsel acknowledged that there
were no appeals of any of the underlying convicted offenses offered in support of the habitual. At
the conclusion of defendant’s allocution, the prosecutor addressed the convictions offered to
2
People v Jaworski, 387 Mich 21; 194 NW2d 868 (1972).
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support the habitual fourth. The prosecutor presented certified copies of convictions from
Macomb and Oakland Counties and now asserted that defendant was a habitual third offender, not
fourth.
When the trial court asked if there was an agreement with the prosecutor’s representation,
defense counsel stated that defendant “admits that he had those convictions,” but again questioned
whether compliance with Jaworski occurred. The trial court did not comment further, but
proceeded to sentencing. It found that defendant was “an excessively brutal and cruel human
being” and that the jury reached “a true and accurate verdict.” Defendant was sentenced to 13 to
20 years’ imprisonment for the assault conviction, 32 to 96 months’ imprisonment for the killing
an animal conviction, and 25 to 50 years’ imprisonment for the kidnapping conviction.
After the trial court confirmed that defendant was sentenced as a habitual offender, the
following exchange occurred on the record:
[Defense Counsel]. Your Honor, just so the record is clear, I thought I
articulated, if I didn’t, I’m remiss. My client indicated that originally he was
charged with an Habitual Fourth, now the prosecutor concedes it’s an Habitual
Third.
[The Court]. And that is what he was sentenced on.
[Defense Counsel]. He feels that that is somehow—that [sic] a violation of
due process and if they were not able to satisfy the Habitual Third—excuse me, the
Habitual Fourth, that the entire habitual enhancement falls by the wayside.
[The Court]. Let me put it to you this way. First he’s wrong. But even if
he were not wrong, the sentence is based on the underlying charge. The habitual
has nothing to do with my sentence.
Although the trial court orally sentenced defendant as a third offense habitual offender, the
judgment of sentence provided that he was sentenced as a habitual fourth offender, MCL 769.12.
The disparity between the oral pronouncement at sentencing and the written judgment of sentence
was not raised in his claim of appeal as of right. This Court affirmed defendant’s convictions and
sentences. People v Gould, unpublished per curiam opinion of the Court of Appeals (Docket No.
218729), issued November 27, 2001.
However, in Docket No. 347625, defendant appealed the trial court’s order denying his
motion to correct his judgment of sentence. Initially, this Court denied defendant’s application for
leave to appeal. However, on reconsideration, this Court remanded solely for the correction of the
judgment of sentence to reflect a habitual third offender, instead of habitual fourth. Specifically,
the language of the order provides:
The motion for reconsideration is GRANTED.
At sentencing, with the agreement of the prosecutor, the trial court stated
that defendant was convicted and sentenced as a habitual offender, third offense.
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Nevertheless, the judgment of sentence, through what appears to be a clerical error,
stated that defendant was convicted as a habitual offender, fourth offense.
Therefore, we vacate the judgment of sentence, and remand to the trial court
to enter a judgment of sentence setting forth that defendant was convicted and
sentenced as a habitual offender, third offense. In all other respects, the judgment
of sentence shall be unchanged. [People v Gould, unpublished order of the Court
of Appeals, entered July 17, 2019 (Docket No. 347625).]
On July 23, 2019, the trial court’s amended judgment of sentence was filed and provided that
“SENTENCE ENHANCED PURSUANT TO MCL 769.13(3RD).” The ministerial correction of
the judgment of sentence occurred without a hearing. From this corrected judgment of sentence,
defendant appeals.
II. HABITUAL OFFENDER UNDERLYING CONVICTIONS
Defendant contends that the trial court erred in failing to examine whether the prior
convictions listed in the habitual offender charge were infirm, and therefore, a remand for
resentencing or additional fact-finding is warranted. We disagree.
“Whether a trial court followed an appellate court’s ruling on remand is a question of law
that this Court reviews de novo.” People v Lampe, 327 Mich App 104, 111; 933 NW2d 314
(2019). A review of the record reveals that the trial court’s amendment of the judgment of sentence
to reflect that defendant was sentenced as a habitual offender, third offense, comports with our
order remanding the matter for the ministerial task of correcting the judgment. Id.Nonetheless, defendant asserts that the trial court should have further evaluated the
underlying convictions offered in support of the habitual offender, third offense, to determine their
validity. However, the scope of this appeal “is limited by the scope of the remand.” People v
Jones, 394 Mich 434, 435; 231 NW2d 649 (1975). Therefore, the scope of this appeal is limited
to examining the trial court’s compliance with the ministerial task of correcting and amending the
judgment of sentence. See id. at 435-436. “To allow [the defendant] to raise trial related matters
on this second appeal would, in effect, be granting two rights of appeal to the same final
determination” and render the court rules governing the taking of an appeal as of right meaningless.
People v Pickett, 391 Mich 305, 316-317; 215 NW2d 695 (1974). Accordingly, we reject
defendant’s contention that the trial court should have exceeded our directive on remand and
addressed matters that could have been raised in defendant’s prior appeals.
Furthermore, defendant did not present documentary evidence to support his contention
that the underlying convictions were inaccurate, constitutionally infirm, or did not comply with
Jaworski rights. There were no transcripts or affidavits to demonstrate the rights of which
defendant was apprised. Rather, defendant’s sole offer of proof was that he could not recall if
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there was compliance with Jaworski.3 This “lack of recollection” was insufficient to meet
defendant’s prima facie burden and, in turn, impose a burden on the prosecutor to demonstrate the
underlying convictions by a preponderance of the evidence. MCL 769.13(6). Additionally,
defendant did not overcome the trial court’s reliance on the conviction information submitted by
the prosecutor and as delineated in the presentence investigation report. MCL 769.13(5).
III. DEFENDANT’S STANDARD 4 BRIEF4
Defendant filed a Standard 4 brief raising 16 issues pertaining to errors that purportedly
occurred at his trial or in earlier appeals. Because these issues do not pertain to the limited remand,
we do not address them. Jones, 394 Mich at 435-436; Pickett, 391 Mich at 316-317.
Affirmed.
/s/ Kirsten Frank Kelly
/s/ Deborah A. Servitto
/s/ Jonathan Tukel
3
In Jaworski, our Supreme Court concluded that Boykin v Alabama, 395 US 238, 242; 89 S Ct
1709; 23 L Ed 2d 274 (1969), was incorporated into our jurisprudence and required a defendant
be advised of certain rights on the record for a valid guilty plea. Therefore, in Michigan, a record
of the guilty plea proceeding must show that the defendant was advised of his right to trial by jury,
his right to confront his accusers, and the privilege against self-incrimination. Jaworski, 387 Mich
at 24-27, 30-31. In the present case, defendant did not present prima facie evidence that
compliance with Jaworski was lacking.
4
Administrative Order 2004-6, 471 Mich cii.
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