People of Michigan v. Michael Paul Parnell ( 2022 )

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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
September 15, 2022
Plaintiff-Appellee,
v No. 357004
Muskegon Circuit Court
MICHAEL PAUL PARNELL, LC No. 02-047101-FH
Defendant-Appellant.
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v No. 357005
Muskegon Circuit Court
MICHAEL PAUL PARNELL, LC No. 02-048012-FH
Defendant-Appellant.
Before: MURRAY, P.J., and O’BRIEN and REDFORD, JJ.
PER CURIAM.
In Docket No. 357004, defendant, Michael Paul Parnell, appeals as of right his sentences
arising from his jury-trial convictions for fourth-degree criminal sexual conduct (CSC-IV) (sexual
contact by force or coercion), MCL 750.520e(1)(b); resisting and obstructing a police officer,
MCL 750.479(1)(b); and carrying a concealed weapon (CCW), MCL 750.227. The trial court
sentenced defendant as a fourth-offense habitual offender, MCL 769.12, to 10 to 15 years’
imprisonment for the CSC-IV conviction, 2 to 15 years’ imprisonment for the resisting-a-police-
officer conviction, and life imprisonment for the CCW conviction. In Docket No. 357005,
defendant appeals as of right his sentence arising from his jury-trial conviction of witness
intimidation, MCL 750.122(8). The trial court sentenced defendant as a fourth-offense habitual
offender to life imprisonment. Defendant’s convictions in each docket were the result of separate
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jury trials, but he was sentenced for all of his convictions at a single sentencing hearing. This
Court consolidated the cases on appeal.1 We now affirm in both dockets.
I. BACKGROUND
Defendant’s convictions in Docket No. 357004 arise from a sexual assault that occurred on
February 13, 2002, in Muskegon, Michigan. Defendant, who was riding a bicycle, grabbed and
squeezed the buttocks of the victim, KF, as she walked toward her car. KF called 911 and provided
a description of defendant and his bike to the dispatcher. Following a foot chase and struggle,
defendant was arrested and handcuffed. A subsequent search revealed that defendant was carrying
a knife. A police officer also found that defendant had pantyhose with the legs cut off and tied
together. The officer testified that he had seen pantyhose in that condition used as a mask.
Following a two-day trial, the jury found defendant guilty of CSC-IV, resisting a police officer,
and CCW.
Defendant’s witness intimidation conviction in Docket No. 357005 arises from a previous
armed robbery conviction. On February 4, 2002, defendant held 12-year-old CB at knifepoint in
a Kmart bathroom stall and ordered her to remove her underwear. Defendant unzipped his pants,
placed his groin onto CB’s groin, and stuck his tongue down her throat. When he left, he took
CB’s underwear and threatened to kill her if she screamed or told anyone what had happened. CB
testified about the incident at a trial held in June 2002, after which defendant was convicted of
armed robbery, MCL 750.529, and sentenced as a fourth-offense habitual offender to 45 to 100
years’ imprisonment. Defendant appealed that conviction,2 and while his appeal was pending, CB
received a letter in the mail at her home where she lived with her grandmother. The letter, which
was addressed to CB and signed by defendant, contained graphic threats to rape, torture, and
murder CB unless she recanted her testimony against defendant. The letter also contained graphic
hand-drawn pictures. Three of defendant’s fingerprints were discovered on the letter. On the basis
of this letter, a jury convicted defendant of witness intimidation.
Defendant was sentenced for his convictions in Docket Nos. 357004 and 357005 at a single
sentencing hearing. At the hearing, the trial court described defendant’s lengthy criminal history,
which included several assaults against young girls and women. The court found that defendant
was “out of control,” and that there were substantial and compelling reasons to exceed the
sentencing guidelines. The court then sentenced defendant as previously described.
Defendant’s initial appellate counsel failed to pursue an appeal, eventually leading to his
appellate rights being restored in April 2021. Thereafter, defendant filed a motion to correct an
1
People v Parnell, unpublished order of the Court of Appeals, entered May 4, 2021 (Docket Nos.
357004 and 357005).
2
A panel of this Court eventually affirmed defendant’s armed robbery conviction and sentence in
an unpublished, per curiam opinion. People v Parnell, unpublished per curiam opinion of the
Court of Appeals, issued July 29, 2004 (Docket No. 248236).
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invalid sentence in which he raised the claims that he now raises in this appeal. The trial court
denied that motion in a written opinion and order. This appeal followed.
II. ANALYSIS
A. INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant first argues that he was denied the effective assistance of counsel at sentencing
because defense counsel failed to establish that defendant suffered from an intellectual disability.
Defendant further argues that this showing would have prohibited the court from imposing life
sentences on defendant. We disagree.
Generally, whether a person has been denied effective assistance of counsel is a mixed
question of fact and constitutional law—a trial court’s factual findings are reviewed for clear error,
while its constitutional rulings are reviewed de novo. People v LeBlanc, 465 Mich 575, 579; 640
NW2d 246 (2002); People v Cline, 276 Mich App 634, 637; 741 NW2d 563 (2007). In this case,
however, no evidentiary hearing was held, so the trial court never made factual findings, and our
review is accordingly limited to mistakes apparent on the lower court record. See People v Payne,
285 Mich App 181, 188; 774 NW2d 714 (2009).
To prevail on a claim of ineffective assistance of counsel, a defendant must establish that
“(1) the performance of his counsel was below an objective standard of reasonableness under
prevailing professional norms and (2) a reasonable probability exists that, in the absence of
counsel’s unprofessional errors, the outcome of the proceedings would have been different.”
People v Sabin (On Second Remand), 242 Mich App 656, 659; 620 NW2d 19 (2000). “A
defendant must overcome a strong presumption that the assistance of his counsel was sound trial
strategy, and he must show that, but for counsel’s error, the outcome of the trial would have been
different.” Id.Defendant asserts that defense counsel was ineffective during sentencing for failing to
present a social worker evaluation that was prepared in 1993 to show that defendant suffered from
an intellectual disability. “[D]ecisions regarding what evidence to present and which witnesses to
call are presumed to be matters of trial strategy, and we will not second-guess strategic decisions
with the benefit of hindsight.” People v Dunigan, 299 Mich App 579, 589-590; 831 NW2d 243(2013).
We first conclude that defense counsel’s decision to not present the social worker
evaluation did not fall below an objective standard of reasonableness. The report was prepared in
July 1993 when defendant was 15 years old, and defendant was sentenced in 2003 when he was
25 years old. Thus, the report was 10 years old at the time of his sentencing. Defendant has not
presented any evidence that defense counsel was aware of this report or otherwise had reason to
know that defendant suffered from an intellectual disability. This is particularly concerning given
that defendant had an extensive history with the criminal justice system by the time he was
sentenced for these offenses, and nothing in those cases suggests that defendant had—or in some
way asserted that he may have—an intellectual disability. Defendant bears the burden of
establishing the factual predicate of his claim, which in this case includes establishing that defense
counsel knew or should have been known (1) about the 1993 report or (2) that defendant otherwise
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may have an intellectual disability. See People v Hoag, 460 Mich 1, 6; 594 NW2d 57 (1999)
(explaining that a defendant “has the burden of establishing the factual predicate for his claim of
ineffective assistance of counsel”).
Further, as pointed out by the trial court and the prosecution, the report contained the
opinion of a therapist who believed that defendant had a poor prognosis for rehabilitation and
would likely reoffend if released into the community—an opinion that proved accurate, as
demonstrated by defendant’s subsequent criminal history. Additionally, the report detailed
defendant’s juvenile adjudications for criminal sexual conduct, along with other offenses such as
arson, theft, and fighting. Given this damaging information in the 1993 report, even if defense
counsel was aware of the report in February 2003, counsel would have had to decide whether its
potentially mitigating effects outweighed its possible prejudicial effects. On such facts, counsel’s
decision to not present the report would be a typical example of reasonable trial strategy, which
this Court “will not second-guess” on appeal. See Dunigan, 299 Mich App at 589.3
Regardless, even if defendant could establish the first prong of his ineffective assistance
claim, we would conclude that the claim fails because there is not a reasonable probability that,
but for counsel’s failure to present the 1993 report, the outcome of the proceedings would have
been different. At the sentencing hearing, defendant stated that he reviewed the presentence
investigation report and that he did not have any changes or additions. The report states that
defendant completed the eighth grade and had received mental health treatment.4 Thus, the lower
court was aware that defendant possessed a limited education and possibly had a mental illness
when it sentenced defendant, and we do not believe it reasonably probable that defendant’s
sentence would have been different had the trial court also reviewed the 1993 report.
Defendant argues more generally that, if the trial court had evidence of his intellectual
disability, it would have been precluded from imposing life sentences. In support of this assertion,
defendant relies on the United States Supreme Court’s decision in Atkins v Virginia, 536 US 304,
318; 122 S Ct 2242; 153 L Ed 2d 335 (2002), in which the Court held that imposing capital
punishment on a defendant with an intellectual disability violates the Eighth Amendment’s
prohibition of cruel and unusual punishment, US Const, Am VIII. The Court reasoned that
3
On appeal, defendant contends that, on the basis of Strickland v Washington, 466 US 668, 689;
104 S Ct 2052; 80 L Ed 2d 674 (1984), reviewing courts are limited only to explanations for
defense counsel’s conduct given by defense counsel, and cannot “hypothesize[] an after-the-fact
strategy” that “is not grounded in the record.” While it is true that “courts may not indulge post
hoc rationalization for counsel’s decisionmaking that contradicts the available evidence of
counsel’s actions, neither may they insist counsel confirm every aspect of the strategic basis for
his or her actions.” Harrington v Richter, 562 US 86, 109; 131 S Ct 770; 178 L Ed 2d 624 (2011)
(quotation marks and citation omitted). Instead, courts must “affirmatively entertain the range of
possible” reasons that counsel may have had for proceeding as he or she did. Cullen v Pinholster,
563 US 170, 196; 131 S Ct 1388; 179 L Ed 2d 557 (2011). Here, we are affirmatively entertaining
one possible reason for why counsel may have decided to not present the report (assuming that
counsel knew of the report) that does not contradict the available evidence of counsel’s actions.
4
The report also states that defendant does not have any psychological history.
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defendants with intellectual disabilities “have diminished capacities to understand and process
information, to communicate, to abstract from mistakes and learn from experience, to engage in
logical reasoning, to control impulses, and to understand the reactions of others.” Id. The Court
also explained that although defendants with intellectual disabilities are not exempt from criminal
sanctions, such deficiencies “diminish their personal culpability.” Id.As observed by the trial court, this case is distinguishable from Atkins because it does not
involve the death penalty. Defendant was given two life sentences with the possibility of parole
as permitted by the fourth-offense habitual offender statute, MCL 769.12(1)(b). His argument that
the trial court would have been necessarily precluded from imposing life sentences if it had the
1993 report at the time of sentencing is unpersuasive.
B. CRUEL AND UNUSUAL PUNISHMENT
Next, defendant asserts that his life sentences violate the Michigan Constitution’s
prohibition of cruel or unusual punishment. We disagree.
The Michigan Constitution prohibits “cruel or unusual punishment.” Const 1963, art 1,
§ 16. This prohibition encompasses “a prohibition on grossly disproportionate sentences.” People
v Benton, 294 Mich App 191, 204; 817 NW2d 599 (2011) (quotation marks and citations omitted).5
[W]hether a penalty may be considered cruel or unusual is to be determined by a
three-pronged test that considers (1) the severity of the sentence imposed and the
gravity of the offense, (2) a comparison of the penalty to penalties for other crimes
under Michigan law, and (3) a comparison between Michigan’s penalty and
penalties imposed for the same offense in other states. [Id.]
Defendant asserts that it is categorically cruel to sentence an individual with an intellectual
disability to life imprisonment with the possibility of parole.6 Yet Michigan does not have a
categorical rule prohibiting a court from sentencing an individual with an intellectual disability to
life imprisonment with the possibility of parole.
Moreover, because defendant was a fourth-offense habitual offender, it was within the trial
court’s discretion to sentence defendant to life imprisonment for his CCW and witness intimidation
convictions. See MCL 769.12(1)(b). “This Court has previously held that habitual offender
statutes ‘are constitutional and the sentences under them are not cruel and unusual, because the
state has a right to protect itself from individuals who continue to engage in criminal activities.’ ”
5
The constitutional concept of proportionality is distinct from the nonconstitutional principle of
proportionality discussed in People v Milbourn, 435 Mich 630, 650, 461 NW2d 1 (1990). Benton,
294 Mich App at 204.
6
Again, defendant’s support for his assertion that he suffers from an intellectual disability is the
1993 social worker evaluation.
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People v Burkett, ___ Mich App ___, ___; ___NW2d ___ (2021) (Docket No. 351882); slip op
at 3, quoting People v Curry, 142 Mich App 724, 732; 371 NW2d 854 (1985).
Defendant counters that the severity of the sentences imposed (life sentences) and the
gravity of his offenses (which, according to defendant, were “carrying a pocketknife” and “writing
a threatening letter”) are so disproportionate as to be cruel and unusual, and the trial court should
have used its discretion to issue a less harsh punishment. Defendant’s argument fails to actually
consider the gravity of defendant’s offenses and his lengthy criminal record.
The record does not specify the exact length of the knife that defendant was carrying when
he was arrested following the assault, but no one referred to it as a “pocketknife.” The only
description of the knife was provided by an officer, who described the knife as a “large folding
knife,” and said that not many people carried knives as large as the knife that defendant possessed.
The officer also said that defendant was carrying pantyhose with the legs cut off and tied together
in a way that, in the officer’s experience, allowed the pantyhose to be used as a mask. While
defendant’s CCW conviction was for carrying (not using) the knife, he previously committed
violent offenses using a knife. His assault-with-a-dangerous-weapon conviction involved
defendant putting a “bowie-type knife” to the victim’s throat and threatening to kill her. Similarly,
his armed robbery conviction involved defendant holding a knife to the victim’s face and mouth.
Accordingly, defendant’s assertion that he was sentenced to life imprisonment for simply “carrying
a pocketknife” is inaccurate and minimizes the circumstances that led to his sentence to an illogical
extreme.
Similarly, defendant’s assertion that he was sentenced to life imprisonment for simply
“writing a threatening letter” minimizes the circumstances that led to his sentence. Defendant sent
a letter to a 13-year-old victim, threatening to rape, torture, and kill her if she did not retract her
trial testimony. The letter included hand drawn female genitals with red coloring, which was
believed to represent blood. The letter was extremely graphic. Defendant threatened to rape the
child with a baseball bat; to tie her to a tree and beat her; and even to kill her so that she would be
dead like her deceased mother. Sadly, this was not the first time that defendant threatened to kill
the child; he threatened to kill her several times during the armed robbery. Reducing the reason
that defendant received a life sentence to his “writing a threatening letter” wholly ignores the
cruelty with which defendant treated the child victim, as well as the other surrounding
circumstances that, together, resulted in his sentence.
Those other circumstances included defendant’s pattern of escalating assaultive behavior
and violence against young girls and women. Defendant’s earlier offenses involved grabbing his
victims in public. Defendant then started to use weapons in his assaults. In the instant offenses,
defendant committed the CSC-IV while in possession of a knife about two weeks after he
committed the armed robbery. He committed the armed robbery on the day that he was released
from prison for his assault-with-a-dangerous-weapon conviction. Defendant sent the letter
threatening to kill the then-13-year-old victim that testified against him while he was incarcerated
for the armed robbery conviction.
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Given the seriousness of defendant’s offenses and his extensive criminal history,
defendant’s life sentences with the possibility of parole were not so grossly disproportionate as to
constitute cruel or unusual punishment.7
Ultimately, we do not believe that defendant has established even the first prong of the test
for whether his punishment was cruel or unusual under the Michigan Constitution. See Benton,
294 Mich App at 204 (stating that the first prong of the three-prong test is “the severity of the
sentence imposed and the gravity of the offense”).8 Defendant’s sentences reflect the seriousness
of his offenses, and defendant otherwise ignores his escalating criminal behavior and the fact that,
as previously stated, “the state has a right to protect itself from individuals who continue to engage
in criminal activities.” Burkett, ___ Mich App at ___;slip op at 3 (quotation marks and citation
7
We acknowledge that because defendant’s life sentence for witness intimidation is to be served
consecutively to his 45- to 100-year sentence for the armed robbery, defendant—who was 25 years
old at the time of his sentencing—may spend the rest of his life in prison. However, defendant is
not constitutionally entitled to parole. See, e.g., People v Bowling, 299 Mich App 552, 558; 830
NW2d 800 (2013) (rejecting the defendant’s claim that sentencing a 49-year-old to a 100 to 150
years’ imprisonment amounted to cruel or unusual punishment).
8
Defendant does not address other parts of the test for whether his punishment was cruel or
unusual—a comparison of the penalty to penalties for other crimes under Michigan law, and a
comparison between Michigan’s penalty and penalties imposed for the same offense in other
states—so any claim to that effect is abandoned. See Bowling, 299 Mich App at 559 (“[A]n
appellant may not simply announce a position or assert an error and then leave it up to this Court
to discover and rationalize the basis for his claims, or unravel and elaborate for him his arguments,
and then search for authority either to sustain or reject his position.”) (Quotation marks and citation
omitted.)
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omitted). As a result, he has failed to demonstrate that his life sentences constitute cruel or unusual
punishment under the Michigan Constitution.9, 10
9
This Court permitted the filing of an amicus brief in this case, People v Parnell, unpublished
order of the Court of Appeals, entered December 21, 2021 (Docket No. 357004), in which the
amici argues that the trial court’s failure to consider rehabilitation in issuing its sentence amounted
to cruel punishment in violation of the Michigan Constitution. Amici bases this argument on the
following statement made by the trial court during sentencing: “I believe that deterrence,
disciplining the offender, and protection of the public are by far the more important variables in
sentencing.” Two considerations, taken together, lead us to reject amici’s argument. First, in the
statement relied on by amici, the trial court never suggested that it was not considering
rehabilitation as part of its sentencing, only that the court considered other factors to be “by far the
more important variables in sentencing.” Second, there is no requirement either in Michigan
caselaw or the Michigan Constitution that requires a sentencing court to state on the record that it
considered rehabilitation as part of its sentence. See People v Boykin, ___ Mich ___; ___ NW2d
___ (2022) (Docket Nos. 157738; 158695); slip op at 16 (stating that the Michigan Supreme Court
has “never before . . . imposed a requirement that a sentencing court give a detailed on-the-record
explanation of one or more specific factors”); id. at ___; slip op at 13-14 n 7 (stating that “there is
an independent basis for an on-the-record articulation requirement under the Michigan
Constitution”). Accordingly, even if a trial court’s failure to consider rehabilitation in issuing its
sentence amounted to cruel punishment under the Michigan Constitution, we would conclude that
the trial court seemingly considered rehabilitation when issuing its sentence, even though it did
not articulate this consideration on the record. But see People v Girardin, 165 Mich App 264,
268; 418 NW2d 453 (1987) (holding that a trial court’s failure to consider a defendant’s
rehabilitation “does not destroy the propriety of the sentencing court’s rationale”).
10
Defendant filed a supplemental brief following our Supreme Court’s release of People v Kemo
Parks, __ Mich __; __ NW2d __ (2022) (Docket No. 162086), arguing that Kemo Parks supports
his argument that his sentences violate the Michigan Constitution. In Kemo Parks, our Supreme
Court held “that mandatorily subjecting 18-year-old defendants convicted of first-degree murder
to a sentence of life without parole violates the principle of proportionality derived from the
Michigan Constitution, and thus constitutes unconstitutionally cruel punishment under Const
1963, art 1, § 16.” Id. at ___; slip op at 35 (citations omitted). Kemo Parks does not support
defendant’s argument because it explicitly applies to “18-year-old defendants convicted of first-
degree murder,” and its reasoning throughout the opinion is exclusive to such defendants. See,
e.g. id. at ___; slip op at 26 (“Eighteen-year-olds are at the peak of their risk for criminality because
of the neuroplasticity of their brains, causing a general deficiency in the ability to comprehend the
full scope of their decisions as compared with older adults.”); id. at ___; slip op at 28-29 (reasoning
that an 18-year-old defendant will likely serve a longer sentence than an equally culpable older
defendant); id. at 29 (reasoning that an 18-year-old defendant will likely serve a longer sentence
than an equally culpable juvenile defendant); id. at 30-31 (reasoning that numerous other states do
not mandate life without parole for first-degree murder). Moreover, the Kemo Parks Court relied
heavily on studies about the “brain science” of adolescents to reach its conclusion. See id. at ___;
slip op at 18-22. While defendant can selectively quote from Kemo Parks to support his argument,
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C. PROPORTIONALITY
Defendant argues that even if his life sentences are constitutionally proportionate, they
violate the nonconstitutional principle of proportionality discussed in People v Milbourn, 435 Mich
630, 650, 461 NW2d 1 (1990), as a disproportionate upward departure from the sentencing
guidelines. We disagree.
Defendant was sentenced as a fourth-offense habitual offender under MCL 769.12. Under
Michigan precedent, “the sentencing guidelines do not apply to the sentencing of habitual
offenders.” People v Hansford, 454 Mich 320, 323; 562 NW2d 460 (1997). As such, “the
Milbourn proportionality standard need not be reached,” People v Cervantes, 448 Mich 620, 629
n 17; 532 NW2d 831 (1995), and our review is simply “whether there has been an abuse of
discretion.” Hansford, 454 Mich at 323.
When it sentenced defendant, the trial court discussed defendant’s criminal history, starting
with his juvenile adjudications and detailing how defendant’s crimes became gradually more
violent over time. The instant offenses constituted defendant’s fifth, sixth, seventh, and eighth
felony convictions. In the course of describing defendant’s criminal history, the court noted how
defendant’s crimes tended to occur only a short time after he finished serving a sentence for a
previous crime. The court also considered defendant’s misconduct tickets for threatening behavior
that defendant received while incarcerated. The court lastly addressed the circumstances
underlying his current offenses. With respect to defendant’s convictions underlying his appeal in
Docket No. 357004, the court emphasized that although defendant did not display the weapon
during the assault, he was carrying that weapon illegally and he had previously used weapons in
his other crimes. With respect to the witness intimidation conviction, the court noted that the letter
was sent while respondent was imprisoned, and opined that the letter he sent the child victim was
“unusually perverse” and “vile.” The court concluded that defendant was “simply out of control,”
and then imposed the life sentences. In a written statement accompanying its sentence, the trial
court reiterated its reasons for sentencing defendant as it did, and stated that it believed that, based
on its articulated reasons, “the maximum sentences possible should be imposed” in this case.
In determining whether defendant’s sentence was an abuse of discretion, we find
persuasive our Supreme Court’s reasoning in Hansford:
In the instant case, the underlying felony was defendant’s eighth, which was
committed while on parole from prison where he was serving a sentence for the
commission of a different felony. We believe that a trial court does not abuse its
discretion in giving a sentence within the statutory limits established by the
Legislature when an habitual offender’s underlying felony, in the context of his
previous felonies, evidences that the defendant has an inability to conform his
conduct to the laws of society. The sentence in this particular case was within the
we are not persuaded that the holding of Kemo Parks is broader than its clearly demarcated
parameters—it applies only to “18-year-old defendants convicted of first-degree murder,” id. at
___; slip op at 35, and defendant is not that.
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limits authorized by the Legislature for an habitual offender, fourth offense, under
MCL 769.12(1)(a). The serious nature of this crime, defendant’s extensive criminal
history, and his clear inability to reform, convince us that the trial court did not
abuse its discretion in imposing defendant’s sentence. [Hansford, 454 Mich at 352-
326 (second emphasis added).]
Similar to the defendant in Hansford, defendant here was sentenced to his fifth, sixth,
seventh, and eighth felony. And like in Hansford, the trial court here did not abuse its discretion
because its sentences of life in prison were “within the statutory limits established by the
Legislature,” and the court adequately explained why defendant’s “felony, in the context of his
previous felonies, evidences that the defendant has an inability to conform his conduct to the laws
of society.” Id. at 326. Like defendant’s previous convictions, defendant’s convictions for CSC-
IV, resisting a police officer, and CCW were committed just after defendant was released from
prison, which showed a firm probability that defendant would commit similar offenses in the
future. See People v Horn, 279 Mich App 31, 44-45; 755 NW2d 212 (2008) (stating that factors
such as repeated offenses and failures at rehabilitation may constitute an acceptable justification
for an upward departure). For his witness intimidation conviction, defendant was incarcerated as
a result of the armed robbery case at the time that he wrote and sent the “unusually perverse” letter,
again suggesting that incarceration does not deter defendant’s criminal behavior. And all of
defendant’s felonies showed a pattern sexual offenses against women with an escalating course of
violence.
On appeal, defendant argues that the trial court abused its discretion by departing from the
sentencing guidelines, and that the resultant sentence otherwise violated the principle of
proportionality. All such arguments lack merit because, again, neither the sentencing guidelines
nor the Milbourn principle of proportionality apply to habitual offenders. Hansford, 454 Mich at
323; Cervantes, 448 Mich at 629 n 17.
Accordingly, for the reasons explained, the trial court did not abuse its discretion when it
sentenced defendant. Defendant has not shown that he is entitled to resentencing.
D. RIGHT TO JURY TRIAL
Defendant finally asserts that the trial court sentencing him as a fourth-offense habitual
offender violated his constitutional right to a jury trial. We disagree.
Defendant was sentenced as a fourth-offense habitual offender pursuant to MCL 769.12.
MCL 769.12(1)(b) provides that “[i]f the subsequent felony is punishable upon a first conviction
by imprisonment for a maximum term of 5 years or more . . . the court . . . may sentence the person
to imprisonment for life or for a lesser term.” MCL 769.13(1), in pertinent part, states that “the
prosecuting attorney may seek to enhance the sentence of the defendant as provided under
[MCL 769.12] by filing written notice of his or her intent to do so within 21 days after the
defendant’s arraignment on the information charging the underlying offense.” According to
MCL 769.13(5):
The existence of the defendant’s prior conviction or convictions shall be
determined by the court, without a jury, at sentencing, or at a separate hearing
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scheduled for that purpose before sentencing. The existence of a prior conviction
may be established by any evidence that is relevant for that purpose, including, but
not limited to, 1 or more of the following:
(a) A copy of a judgment of conviction.
(b) A transcript of a prior trial or a plea-taking or sentencing proceeding.
(c) A copy of a court register of actions.
(d) Information contained in a presentence report.
(e) A statement of the defendant. [Emphasis added.]
In People v Zinn, 217 Mich App 340, 345; 551 NW2d 704 (1996), this Court explained:
It is well-settled that in a criminal trial the defendant’s conviction must rest
on evidence that proves beyond a reasonable doubt the existence of every fact
necessary to constitute the crime charged and includes the right to a trial by jury.
However, it has long been held that Michigan’s habitual offender statutes are
merely sentence enhancement mechanisms rather than substantive crimes.
[Quotation marks and citation omitted.]
As a result, a “defendant is not entitled to a trial by jury or the right to be proved guilty of being a
habitual offender beyond a reasonable doubt.” Id. at 347.
In this case, the trial court concluded that defendant was a fourth-offense habitual offender
on the basis of his previous convictions of armed robbery, CCW, assault with a dangerous weapon,
and CSC-IV. These convictions were also detailed in defendant’s presentence investigation report.
See MCL 769.13(5)(d). On appeal, defendant does not challenge the existence of these previous
convictions. Instead, he appears to argue that the trial court was not permitted to sentence
defendant as a habitual offender without that determination being made by a jury. However,
defendant is not entitled to a jury to determine whether he is a habitual offender. See Zinn, 217
Mich App at 347. The trial court properly concluded that defendant was a fourth-offense habitual
offender pursuant to MCL 769.13(5). Accordingly, the trial court was permitted to sentence
defendant, as a fourth-offense habitual offender, up to life imprisonment. MCL 769.12(1)(b).
Defendant’s argument that he is entitled to resentencing is without merit.
Affirmed.
/s/ Colleen A. O’Brien
/s/ James Robert Redford
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