People of Michigan v. Dexter Lamar Williams ( 2018 )

STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
February 20, 2018
Plaintiff-Appellee,
v No. 335401
Wayne Circuit Court
DEXTER LAMAR WILLIAMS, LC No. 16-001559-01-FC
Defendant-Appellant.
Before: SAWYER, P.J., and MURRAY and STEPHENS, JJ.
PER CURIAM.
Defendant appeals as of right his jury trial convictions of second-degree murder, MCL
750.317,1 and disinterment, mutilation, defacement, or carrying away of a human body
(mutilation of a human body), MCL 750.160. The trial court sentenced defendant to 50 to 80
years’ imprisonment for his second-degree murder conviction, and 6 to 10 years’ imprisonment
for his mutilation of a human body conviction. We affirm.
This case arises from the death of the victim and the subsequent mutilation of her body
by defendant. Defendant was arrested after police officers were dispatched to the victim’s
apartment after the victim’s employer requested a welfare check on the victim due to her absence
at work. The police officers noticed that the victim’s car was outside her apartment, and when
they looked into one of the apartment’s windows they saw a red stain with white foam in the
hallway. One of the police officers subsequently saw defendant inside the apartment, and they
proceeded to have a conversation at the apartment door. Defendant claimed that he was inside
the apartment to retrieve his personal belongings because he and the victim had just broken up;
however, he refused to let the police officers inside the apartment. He explained his refusal on
the basis that there was a “sick dog” inside. After one of the police officers shined his flashlight
on defendant’s clothing, the police officer noticed that defendant’s pants and shirt were covered
in red stains.
1
Defendant was charged with first-degree murder, MCL 750.316, however, the jury convicted
defendant of second-degree murder.
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Ultimately, defendant was handcuffed and placed in a police patrol car while the police
searched the apartment. The police discovered a severed human finger inside the apartment’s
bedroom. Subsequently they discovered the victim’s body covered in a comforter in a common
storage area for the apartment building and a human leg protruding from a blue plastic container
in the apartment’s kitchen.
The inside of the patrol car that defendant was placed in was equipped with active video
and audio recording equipment. While he was inside the patrol car, defendant was recorded
saying: “I swear I should have just never came back. I should have never came back. F**k.
Well, three meals a day. Son of a b***h. They caught me that fast. I should have never walked
into that f****n’ [sic] house. Yep. Yep.”
Defendant first contends that he was denied the effective assistance of counsel. We
disagree.
To preserve a claim of ineffective assistance of counsel, a defendant must file a motion
for a new trial or a Ginther2 hearing to develop a record to support the claim. People v Sabin
(On Second Remand), 242 Mich. App. 656, 658-659; 620 NW2d 19 (2000). Defendant filed a
postjudgment motion for an evidentiary hearing and a new trial in the trial court, however, the
trial court denied defendant’s motion.
Thus, “because the trial court did not hold an evidentiary hearing, our review is limited to
the facts on the record.” People v Wilson, 242 Mich. App. 350, 352; 619 NW2d 413 (2000),
citing People v Hedelsky, 162 Mich. App. 382, 387; 412 NW2d 746 (1987). See also People v
Fonville, 291 Mich. App. 363, 382-383; 804 NW2d 878 (2011), citing People v Jordan, 275 Mich
App 659, 667; 739 NW2d 706 (2007) (where this Court stated that, absent a hearing, this Court’s
review of counsel’s performance “is limited to errors apparent on the record,” in the context of
an appeal from a denial of a motion for relief from judgment where a claim of ineffective
assistance of counsel was raised). The record on appeal “consists of ‘the original papers filed in
that court or a certified copy, the transcript of any testimony or other proceedings in the case
appealed, and the exhibits introduced.’ ” People v Gingrich, 307 Mich. App. 656, 659 n 1; 862
NW2d 432 (2014), quoting MCR 7.210(A)(1).
Claims of ineffective assistance of counsel are mixed questions of law and fact. People v
Ackley, 497 Mich. 381, 388; 870 NW2d 858 (2015), citing People v Trakhtenberg, 493 Mich. 38,
47; 826 NW2d 136 (2012). “ ‘A judge must first find the facts, then must decide whether those
facts establish a violation of the defendant’s constitutional right to the effective assistance of
counsel.’ ” People v Armstrong, 490 Mich. 281, 289; 806 NW2d 676 (2011), quoting People v
Grant, 470 Mich. 477, 484; 684 NW2d 686 (2004). This Court reviews the trial court’s findings
of fact for clear error, and reviews questions of constitutional law de novo. Trakhtenberg, 493
Mich. at 47. “Clear error exists if the reviewing court is left with a definite and firm conviction
that the trial court made a mistake.” Armstrong, 490 Mich. at 289, citing People v Burrell, 417
Mich. 439, 449; 339 NW2d 403 (1983).
2
People v Ginther, 390 Mich. 436; 212 NW2d 922 (1973).
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This Court evaluates claims of ineffective assistance of counsel using the standard
established in Strickland v Washington, 466 U.S. 668, 687; 104 S. Ct. 2052; 80 L. Ed. 2d 674
(1984). People v Hoag, 460 Mich. 1, 5-6; 594 NW2d 57 (1999), citing People v Pickens, 446
Mich. 298; 521 NW2d 797 (1994). “A defendant seeking relief for ineffective assistance in this
context must meet Strickland’s familiar two-pronged standard by showing (1) ‘that counsel’s
representation fell below an objective standard of reasonableness,’ and (2) ‘that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.’ ” People v Douglas, 496 Mich. 557, 592; 852 NW2d 587 (2014),
quoting Lafler v Cooper, 566 U.S. 156, 162; 132 S. Ct. 1376; 182 L. Ed. 2d 398 (2012). “The
defendant has the burden of establishing the factual predicate of his ineffective assistance claim.”
Douglas, 496 Mich. at 592, citing Hoag, 460 Mich. at 6.
“Failing to advance a meritless argument or raise a futile objection does not constitute
ineffective assistance of counsel.” People v Ericksen, 288 Mich. App. 192, 201; 793 NW2d 120
(2010), citing People v Snider, 239 Mich. App. 393, 425; 608 NW2d 502 (2000). Generally, the
“failure to call witnesses only constitutes ineffective assistance of counsel if it deprives the
defendant of a substantial defense. Similarly, [a] failure to make an adequate investigation is
ineffective assistance of counsel if it undermines confidence in the trial’s outcome.” People v
Russell, 297 Mich. App. 707, 716; 825 NW2d 623 (2012) (quotation marks and citations omitted).
“To show that defense counsel’s performance was objectively unreasonable, the defendant must
overcome the strong presumption that defense counsel’s decisions constituted sound trial
strategy. This Court will not substitute its judgment for that of defense counsel or review
decisions with the benefit of hindsight.” People v Heft, 299 Mich. App. 69, 83; 829 NW2d 266
(2012) (citations omitted). A defendant’s trial counsel is also presumed to be effective, and a
“defendant bears a heavy burden of proving otherwise.” People v Johnson, 315 Mich. App. 163,
174; 889 NW2d 513 (2016) (quotation marks and citation omitted).
Defendant contends that he was denied the effective assistance of counsel during trial
because his trial counsel: (1) failed to investigate his case, (2) failed to object to prosecutorial
misconduct during trial, (3) failed to object to inadmissible evidence, (4) failed to plan a trial
strategy with defendant, (5) failed to call witnesses, and (6) generally rendered deficient
representation. Specifically, defendant contends that “it was unacceptable to fail to plan an
effective trial strategy with [defendant] and to call his witnesses.” Defendant’s contentions are
without merit.
Defendant’s contentions are based on an affidavit authored by defendant that was
attached to defendant’s postjudgment motion for an evidentiary hearing and new trial in the trial
court. However, defendant admits in his brief on appeal that his affidavit “was somewhat
general.” In fact, in defendant’s brief on appeal only two of the preceding six contentions are
advanced by any supporting argument: his trial counsel’s failure to call “his” witnesses, and his
trial counsel’s generally deficient trial strategy. “An appellant may not merely announce his
position and leave it to this Court to discover and rationalize the basis for his claims, nor may he
give only cursory treatment of an issue with little or no citation of supporting authority.” People
v Clark, 315 Mich. App. 219, 234; 888 NW2d 309 (2016) (quotation marks and citation omitted).
Therefore, defendant has abandoned the contentions he raised but did not support with any
authority or supporting argument in his brief on appeal.
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Of defendant’s remaining contentions, defendant argues that his trial counsel was
defective for failing to call defendant’s witnesses. However, defendant does not identify any
witnesses that his trial counsel should have called, nor has he identified any substantial defense
of which he was deprived. Therefore, defendant has failed to carry his burden to demonstrate
any error on part of trial counsel in this regard.
Similarly, defendant contends that his trial counsel was generally deficient in terms of
trial strategy despite the fact he was convicted of the lesser offense of second-degree murder, but
the only support he provides for this argument is his statement that an evidentiary hearing is
needed to further factually develop his claims. As defendant’s motion for an evidentiary hearing
was already denied in the trial court, this Court’s review is limited to mistakes that are apparent
from the record. Therefore, defendant has not only failed to identify any mistakes from the
record, but he has entirely failed to rebut the strong presumption that his trial counsel employed
sound trial strategy and that she was effective.
Defendant also contends that his trial counsel was ineffective for failing to move for the
suppression of the video recording of the statements he made while he was inside a Redford
Township Police Department patrol car on the specific ground that those statements were the
product of an illegal warrantless search of the victim’s apartment. Defendant’s contention is
without merit.
“The Fourth Amendment of the United States Constitution and article 1, § 11 of the
Michigan Constitution protect against unreasonable searches and seizures.” People v Barbarich,
291 Mich. App. 468, 472; 807 NW2d 56 (2011). “Generally, searches or seizures conducted
without a warrant are presumptively unreasonable and, therefore, unconstitutional.” Id., citing
People v Champion, 452 Mich. 92, 98; 549 NW2d 849 (1996). “[E]vidence obtained in violation
of the Fourth Amendment is inadmissible as substantive evidence in criminal proceedings.” In
re Forfeiture of $176,598, 443 Mich. 261, 265; 505 NW2d 201 (1993) (citation omitted). “Thus,
in order to show that a search was legal, the police must show either that they had a warrant, or
that their conduct fell under one of the narrow, specific exceptions to the warrant requirement.”
People v Davis, 442 Mich. 1, 10; 497 NW2d 910 (1993).
The “emergency-aid exception to the warrant requirement allows police officers to enter
a dwelling without a warrant under circumstances in which they reasonably believe, based on
specific, articulable facts, that some person within is in need of immediate aid.” People v
Lemons, 299 Mich. App. 541, 545-546; 830 NW2d 794 (2013) (quotation marks and citations
omitted). “After entering the dwelling, the police may seize any evidence that is in plain view
during the course of their legitimate emergency activities.” Id. at 546 (quotation marks and
citation omitted). “However, the entry must be limited to the justification therefor, and the
officer may not do more than is reasonably necessary to determine whether a person is in need of
assistance, and to provide that assistance.” Id. (quotation marks and citation omitted).
The warrantless search of the victim’s apartment fell within the emergency-aid exception.
Redford Township Police Sergeant Paul Lawrence testified that he and Redford Township Police
Officer Adam Kubrak were sent to the victim’s apartment because there was a “welfare check”
request for the victim that had been called in by the victim’s “boss” because the victim “hadn’t
been at work that night.” Once he and Officer Kubrak arrived, they noticed the victim’s car was
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parked outside the apartment building, and they looked into the apartment’s window and saw a
red stain with white foam in the apartment’s hallway. They also saw that the lights were on
inside the apartment, and they heard music being played inside the apartment. Eventually,
Sergeant Lawrence saw defendant inside the apartment, and he ultimately spoke with defendant
at the apartment’s door.
Defendant claimed that he and the victim had recently “broken up,” and that he was just
in the apartment to retrieve his personal belongings. Defendant did not know where the victim
was, but he refused to let Sergeant Lawrence and Officer Kubrak inside the apartment because
there was a “sick dog inside” it. Sergeant Lawrence then shined his flashlight on defendant, and
he noticed that defendant had red stains on his shirt and “all up and down on his jeans on both
legs.” Sergeant Lawrence informed defendant that they were no longer “asking” to go inside the
apartment to check on the victim’s welfare, and Sergeant Lawrence then asked defendant what
his name was. According to Sergeant Lawrence, defendant replied, “I’m not gonna [sic] tell you
my name.”
Ultimately, Sergeant Lawrence told defendant to “put his hands behind his back,” and
Officer Kubrak handcuffed defendant and walked defendant to Officer Kubrak’s patrol car.
After additional police officers arrived, Officer Kubrak, Sergeant Lawrence, and two other police
officers searched the apartment for the victim, and “the first thing that [Officer Kubrak] notice[d]
was a heavy odor of bleach.” Similarly, Sergeant Lawrence also noticed a heavy smell of fresh
bleach when he entered the apartment.
Officer Kubrak saw that the “white substance in the hallway,” which was previously
uncovered, “had been covered with a blanket at some point.” Officer Kubrak continued
searching the apartment, and inside the bedroom he saw a “severed human finger” on the carpet
that he believed belonged to “a female” because “it had a long fingernail.” Officer Kubrak
communicated his discovery to the other police officers, and he continued to search the
apartment. Ultimately, Officer Kubrak discovered the victim’s body in a common storage area
outside the apartment, and he saw “a human leg sticking out of” a blue plastic “tote” in the
kitchen which was also full of “garbage bags.”
Thus, the police officers entered the apartment to determine whether the victim was
inside the apartment and in need of assistance based on the welfare check request they received
from the victim’s “boss.” Their need to check on the victim’s welfare was emphasized by the
fact that the victim’s car was parked outside the apartment, as well as the red stain with white
foam they saw inside the apartment, defendant’s peculiar explanation for why he refused to let
them enter the apartment, and the red stains on defendant’s shirt and pants.
“ ‘[T]he needs of law enforcement or the demands of public safety’ would not be met in
this case if we were ‘to require officers to walk away from a situation like the one they
encountered here.’ ” Lemons, 299 Mich. App. at 549, quoting Michigan v Fisher, 558 U.S. 45, 49;
130 S. Ct. 546; 175 L. Ed. 2d 410 (2009) (alteration in original). And as explained by this Court in
a similar context in Lemons, where police officers were dispatched to investigate a condominium
that had its door open and blowing in the wind:
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[T]here was a very real possibility that someone could have been inside who
needed police assistance. In such a scenario, there would be consternation in the
community if the officers turned and left the residence without further
investigation. In such a situation, the criticism of the officers would be justified,
as the public relies on the police to help in emergencies. Outrage with such a
scenario would be further proof that the police officers acted reasonably in
entering the condominium in this case. [Lemons, 299 Mich. App. at 549.]
Similarly, it was very possible that the victim was inside the apartment and in need of immediate
police assistance, and therefore, it was reasonable for the police officers to enter the victim’s
apartment. Therefore, defendant’s trial counsel was under no obligation to raise this contention,
as she had no obligation to raise meritless arguments.
Regardless, even when assuming, arguendo, that defendant’s statements should have
been suppressed, defendant has still failed to demonstrate that the suppression of his statements
would have likely resulted in a different outcome during trial. There was overwhelming
evidence of defendant’s guilt: defendant was inside the victim’s apartment immediately before
her mutilated body was discovered by the police, he was wearing pants that contained blood that
matched the victim’s DNA profile, and both his and the victim’s DNA was found on the handle
of an electric reciprocating saw within the apartment, the blade of which contained blood that
matched the victim’s DNA profile. Therefore, defendant’s contention is without merit.
Defendant next challenges the reasonableness of his sentence for second-degree murder
and he also contends that his sentence was a “de facto life sentence” in violation of the 1963
Michigan Constitution’s prohibition against cruel or unusual punishments. We disagree.
Generally, an issue is preserved for appellate review when it is raised before and
addressed and decided by a trial court. People v Metamora Water Serv, Inc, 276 Mich. App. 376,
382; 741 NW2d 61 (2007), citing Hines v Volkswagen of America, Inc, 265 Mich. App. 432, 443;
695 NW2d 84 (2005). Defendant did not contend in the trial court that his sentence was cruel or
unusual under the 1963 Michigan Constitution. Therefore, that contention is unpreserved.
This Court reviews a departure sentence imposed by a trial court for reasonableness.
People v Lockridge, 498 Mich. 358, 392; 870 NW2d 502 (2015). “[T]he standard of review to be
applied by appellate courts reviewing a sentence for reasonableness on appeal is abuse of
discretion.” People v Steanhouse, 500 Mich. 453, 471; 902 NW2d 327 (2017). Thus, “the
relevant question for appellate courts reviewing a sentence for reasonableness [is] whether the
trial court abused its discretion by violating the principle of proportionality . . . .” Id.
The Michigan Supreme Court examined the principle of proportionality in People v
Milbourn, 435 Mich. 630; 461 NW2d 1 (1990), overruled on other grounds by statute as
recognized in People v Armisted, 295 Mich. App. 32, 51; 811 NW2d 47 (2011). Under Milbourn,
“a given sentence can be said to constitute an abuse of discretion if that sentence violates the
principle of proportionality, which requires sentences imposed by the trial court to be
proportionate to the seriousness of the circumstances surrounding the offense and the offender.”
Milbourn, 435 Mich. at 636. Under this standard, the sentencing guidelines “ ‘remain a highly
relevant consideration in a trial court’s exercise of sentencing discretion’ that trial courts must
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consult and take into account when sentencing[.]” Steanhouse, 500 Mich. at 474-475 (quotation
marks and citations omitted). However, “the key test is whether the sentence is proportionate to
the seriousness of the matter, not whether it departs from or adheres to the guidelines’
recommended range.” Milbourn, 435 Mich. at 661.
Generally, “[t]his Court reviews constitutional questions de novo.” People v Dipiazza,
286 Mich. App. 137, 144; 778 NW2d 264 (2009), citing People v Pitts, 222 Mich. App. 260, 263;
564 NW2d 93 (1997). However, because defendant’s constitutional claim is not preserved, to
avoid forfeiture under the plain error rule, defendant must demonstrate that an error occurred, the
error was plain, and the plain error affected substantial rights. People v Buie, 285 Mich. App.
401, 407; 775 NW2d 817 (2009), citing People v Carines, 460 Mich. 750, 763; 597 NW2d 130
(1999). “The third prong requires a showing of prejudice, which occurs when the error affected
the outcome of the lower court proceedings.” People v Putman, 309 Mich. App. 240, 243; 870
NW2d 593 (2015), citing Carines, 460 Mich. at 763.
In Lockridge, the Michigan Supreme Court held that Michigan’s mandatory sentencing
guidelines were “constitutionally deficient,” and therefore, “sever[ed]” MCL 769.34(2) to the
extent necessary to render the sentencing guidelines “advisory.” Lockridge, 498 Mich. at 364,
391, 399. Further, the Michigan Supreme Court held that a sentence that departed from the now
advisory sentencing guidelines should be reviewed for “reasonableness.” Id. at 365, citing
United States v Booker, 543 U.S. 220, 264; 125 S. Ct. 738; 160 L. Ed. 2d 621 (2005).
This Court held in Steanhouse that a sentence is reasonable if it “fulfills the principle of
proportionality under Milbourn, and its progeny[.]” People v Steanhouse, 313 Mich. App. 1, 47-
48; 880 NW2d 297 (2015), rev’d in part on other grounds 500 Mich. 453 (2017). The Michigan
Supreme Court subsequently affirmed that holding. Steanhouse, 500 Mich. at 471. Under
Milbourn, trial courts were “required to impose a sentence that took ‘into account the nature of
the offense and the background of the offender.’ ” Steanhouse, 313 Mich. App. at 45, quoting
Milbourn, 435 Mich. at 651. Milbourn also offered additional guidance for the review of a
departure sentence:
Where there is a departure from the sentencing guidelines, an appellate court’s
first inquiry should be whether the case involves circumstances that are not
adequately embodied within the variables used to score the guidelines. A
departure from the recommended range in the absence of factors not adequately
reflected in the guidelines should alert the appellate court to the possibility that
the trial court has violated the principle of proportionality and thus abused its
sentencing discretion. Even where some departure appears to be appropriate, the
extent of the departure (rather than the fact of the departure itself) may embody a
violation of the principle of proportionality. [Milbourn, 435 Mich. at 659-660
(footnote omitted).]
Additionally, Steanhouse provided factors that were considered under the principle of
proportionality, and these factors included: “(1) the seriousness of the offense; (2) factors that
were inadequately considered by the guidelines; and (3) factors not considered by the guidelines,
such as the relationship between the victim and the aggressor, the defendant’s misconduct while
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in custody, the defendant’s expressions of remorse, and the defendant’s potential for
rehabilitation.” Steanhouse, 313 Mich. App. at 47-48 (citations omitted).
During sentencing, the trial judge noted that defendant’s minimum recommended
sentencing guidelines range was 225 to 375 months’ imprisonment, and that it was considering a
number of factors when he “was fashioning a reasonable sentence.” The trial judge observed
that, regarding “the nature and seriousness of the offense,” “that this [was] by far the most
savage and brutal beating in a domestic relationship that I have presided over.” He explained
that the victim had suffered multiple injuries before her death and dismemberment, including
multiple contusions, abrasions, injuries to her face and forehead, a complete fracture of her jaw,
“petechial injury” to her kidney, injuries to “each layer of [her] brain,” subarachnoid
hemorrhaging, and “extensive hemorrhaging around the neck where the defendant strangled the
victim.”
The trial judge also considered defendant’s “long-term boyfriend and girlfriend
relationship” with the victim, where the victim had just told defendant that she “was putting him
out at the end of the month.” Thus, the trial judge explained that defendant’s relationship with
the victim was “being considered in how the defendant exploited it.” He also explained that
there were “a number of factors that are not considered by the guidelines, including a 1988
conviction for attempted larceny in a building” for which defendant was “given services and an
opportunity to conform his conduct.” Thus, the trial court noted that while that conviction was
not considered by the sentencing guidelines, that fact was “indicative of a person who’s been
given a chance to change his life and did not take advantage of it.”
Additionally, the trial judge explained that “in terms of the commission of the offense,”
defendant’s conduct “immediately following the murder also demonstrates that guideline
minimum range does not offer a reasonable sentence.” The trial judge noted that defendant
decided to use an electric reciprocating saw to dismember the victim “in an attempt to get rid of
the body,” and that defendant “shoved the arms he had sawed off and the legs he had sawed off
and stuffed them into plastic totes” in order to evade discovery when he moved the victim’s body
and his personal possessions out of the apartment. He explained that “this conduct”
demonstrated “such of an indifference to human life that I do not believe the defendant is capable
of conforming his behavior to the laws and norms of a civilized society.”
Ultimately, the trial judge noted that defendant had made “no expression of remorse.”
Rather, the trial judge observed that “immediately following [defendant’s] arrest in the back seat
of the patrol car he was observed laughing about what he had done and mumbling well at least
I’ll get three meals a day; in prison presumably.”
Therefore, the trial judge concluded that, “in light of all those factors,” he found the
guidelines range did not provide a “reasonable sentence.” Instead, the trial court sentenced
defendant to 50 to 80 years’ imprisonment for the second-degree murder conviction, and 6 to 10
years’ imprisonment for the mutilation of a human body conviction.
Defendant contends that the trial court’s “subjective analysis” was an inadequate basis for
his sentence pursuant to the holding in People v Fields, 448 Mich. 58, 67-69; 528 NW2d 176
(1995), which required trial court judges to engage in “objective and verifiable” analysis when
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determining whether there were “substantial and compelling reasons” to depart from a
defendant’s recommended minimum sentencing guidelines range. However, a trial court is not
obliged to articulate “substantial and compelling reasons” to depart from the sentencing
guidelines range. Lockridge, 498 Mich. at 391-392. Therefore, defendant’s contention is without
merit.
Defendant also observes, in a cursory fashion, that the trial judge’s belief that defendant
was not capable of conforming his behavior to the laws and norms of society belied defendant’s
“relatively insignificant criminal history.” However, as discussed above, the trial court’s belief
was based largely on defendant’s conduct during and after the victim’s murder, and not
defendant’s criminal history.
Defendant alternatively contends that “a minimum sentence within the sentencing
guidelines range would have been sufficient” because defendant is a “45 year-old man.” In
support of this contention, defendant relies on the holding of the United States Court of Appeals
for the Sixth Circuit in United States v Payton, 754 F3d 375, 378-379 (CA 6, 2014), where the
defendant’s sentence was vacated and remanded for resentencing because the trial court failed to
respond to the defendant’s contention that society would only minimally benefit from a 20-year
upward departure from the defendant’s Federal Sentencing Guidelines range sentence where the
defendant would be released at age 68, as the trial court did not specifically explain why it found
that the defendant would still pose a high risk of recidivism at an advanced age. Defendant’s
contention is flawed.
“While the decisions of lower federal courts and other state courts are not binding on this
Court, they may be considered as persuasive authority.” People v Woodard, ___ Mich App ___,
___ n 2; ___ NW2d ___ (2017) (Docket No. 336512); slip op at 4 n 2, citing People v Jackson,
292 Mich. App. 583, 595 n 3; 808 NW2d 541 (2011). Defendant’s reliance on Payton is
misplaced, because the federal appellate courts review the sentences of a criminal defendant
under a distinct standard of review that is inapplicable here. See Steanhouse, 313 Mich. App. at
42-43 (explaining the standard of review applied by federal courts when reviewing the sentence
of a criminal defendant). As the basis of the holding in Payton is that the sentencing court’s
sentence was substantively unreasonable under the federal standard of review, there is no reason
to further consider that holding.
Defendant also contends that his sentence of 600 months’ imprisonment violates the
prohibition on cruel or unusual punishments found in the 1963 Michigan Constitution. Const
1963, art 3, § 16. He asserts that his sentence is excessively lengthy because it is a “de facto”
life sentence, and thus, it is a cruel or unusual sentence as prohibited by the 1963 Michigan
Constitution. Defendant’s contention is without merit.
“[U]nder the Michigan Constitution, the prohibition against cruel or unusual punishment
include[s] a prohibition on grossly disproportionate sentences.” People v Benton, 294 Mich. App.
191, 204; 817 NW2d 599 (2011), citing People v Bullock, 440 Mich. 15, 32; 485 NW2d 866
(1992). “[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
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other states.” Benton, 294 Mich. App. at 204, citing Bullock, 440 Mich. at 33-34. However, “ ‘the
constitutional concept of “proportionality” under Const 1963, art 1, § 16 is distinct from the
nonconstitutional “principle of proportionality” discussed in [Milbourn], although the concepts
share common roots.’ ” Benton, 294 Mich. App. at 204, quoting Bullock 440 Mich. at 34 n 17.
Defendant has abandoned this contention on appeal. Defendant has failed to provide a
comparison of the penalty for second-degree murder to penalties for other crimes under
Michigan law, and he has also failed to provide a comparison between Michigan’s penalty for
second-degree murder to the penalties for second-degree murder imposed by other states. “An
appellant may not merely announce his position and leave it to this Court to discover and
rationalize the basis for his claims, nor may he give only cursory treatment of an issue with little
or no citation of supporting authority.” Clark, 315 Mich. App. at 234 (quotation marks and
citation omitted). Therefore, defendant has failed to carry his burden to demonstrate that he
received a cruel or unusual sentence.
Regardless, defendant notes that he is currently 45 years old, and he cursorily contends
that his “de facto life sentence” of 50 years’ imprisonment violates the prohibition on cruel or
unusual sentences under the 1963 Michigan Constitution because the trial court sentenced him as
if he were convicted of first-degree murder. However, under MCL 750.317, a defendant
convicted of second-degree murder “shall be punished by imprisonment in the state prison for
life, or any term of years, in the discretion of the court trying the same.” Therefore, even though
the trial court could have sentenced defendant to life, it elected to only sentence defendant to a
term of years as authorized by MCL 750.317.
With regards to defendant’s argument that he received a “de facto” life sentence,
defendant notes that he is 45 years old, and that he has been sentenced to a minimum sentence of
50 years’ imprisonment. The implication of defendant’s argument appears to be that he will not
live long enough to be paroled because he will most likely spend the remainder of his life in
prison. However, a defendant is not necessarily entitled to parole. See People v Merriweather,
447 Mich. 799, 809; 527 NW2d 460 (1994) (“We find no basis, however, to conclude that the
Legislature intended that all defendants, or even simply this defendant, must be eligible for
parole).
Affirmed.
/s/ David H. Sawyer
/s/ Christopher M. Murray
/s/ Cynthia Diane Stephens
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