People of Michigan v. Kenneth Thomas McClellan ( 2020 )

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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
April 9, 2020
Plaintiff-Appellee,
v No. 346885
Chippewa Circuit Court
KENNETH THOMAS MCCLELLAN, LC No. 18-003454-FH
Defendant-Appellant.
Before: CAVANAGH, P.J., and BECKERING and GLEICHER, JJ.
PER CURIAM.
Defendant was found guilty by a jury of failure to comply with the Sex Offenders
Registration Act (SORA), third offense, MCL 28.729(1)(c). The trial court sentenced defendant
as a fourth-offense habitual offender, MCL 769.12, to serve 3 to 15 years’ imprisonment.
Defendant appeals as of right. We affirm defendant’s conviction and sentence, but remand to the
trial court for articulation of the factual basis for the court costs imposed.
I. FACTS
Defendant pleaded guilty to third-degree criminal sexual conduct in 1996. As a tier III sex
offender, defendant is required to register four times a year, according to his birthdate. In August
2017, defendant’s parole agent received an anonymous tip that defendant was operating a fake
rental property under the Facebook name of Duncan McClellan. Defendant’s parole agent looked
up defendant’s Facebook profile picture, and the picture matched defendant. Defendant had last
verified his information with his parole agent on September 26, 2017.
Defendant admitted that he did not report information about his Facebook and Twitter
accounts to his parole agent. Both the Facebook and Twitter accounts were under the name of
Duncan McClellan. Defendant’s Facebook account has existed since 2011. Defendant had been
active on Facebook since 2016, before he last verified on September 26, 2017. Defendant also
tweeted from his Twitter account in 2012 and 2013.
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II. ANALYSIS
A. SUFFICIENCY OF THE EVIDENCE
Defendant first argues that insufficient evidence was presented for a rational trier of fact to
convict him of failure to comply with SORA. We disagree.
This Court reviews de novo a defendant’s challenge to the sufficiency of the evidence to
support his conviction. People v Harverson, 291 Mich. App. 171, 177; 804 NW2d 757 (2010). “In
examining the sufficiency of the evidence, this Court reviews the evidence in a light most favorable
to the prosecut[ion] to determine whether any trier of fact could find the essential elements of the
crime were proven beyond a reasonable doubt.” People v Reese, 491 Mich. 127, 139; 815 NW2d
85 (2012) (quotation marks and citation omitted). Evidence may be circumstantial or it may be
drawn from reasonable inferences. People v Solmonson, 261 Mich. App. 657, 661; 683 NW2d 761
(2004). However, inferences may not be based only upon speculation. People v Lane, 308 Mich
App 38, 59; 862 NW2d 446 (2014). “Due process requires that the prosecutor introduce sufficient
evidence which could justify a trier of fact in reasonably concluding that defendant is guilty beyond
a reasonable doubt before a defendant can be convicted of a criminal offense . . . .” People v
Hampton, 407 Mich. 354, 368; 285 NW2d 284 (1979). That is, “[i]f sufficient evidence is not
introduced, a directed verdict or judgment of acquittal should be entered.” Id.
MCL 28.729(c) provides:
Except as provided in subsections (2), (3), and (4), an individual required to
be registered under this act who willfully violates this act is guilty of a felony
punishable as follows:
* * *
(c) If the individual has 2 or more prior convictions for violations of this
act, by imprisonment for not more than 10 years or a fine of not more than
$10,000.00, or both.
The notification requirement under MCL 28.725(1)(f) provides that
An individual required to be registered under this act who is a resident of
this state shall report in person and notify the registering authority having
jurisdiction where his or her residence or domicile is located immediately after any
of the following occur:
* * *
(f) The individual establishes any electronic mail or instant message
address, or any other designations used in internet communications or postings.
[Emphasis added.]
Under MCL 28.722(g), the word immediately “means within 3 business days.”
Additionally, while MCL 28.729(1) allows for criminal penalties to be imposed against “an
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individual required to be registered under this act who willfully violates this act” (emphasis added),
the SORA does not define “willfully violates” or “willfully.” However, in People v Lockett (On
Rehearing), 253 Mich. App. 651, 655; 659 NW2d 681 (2002), we concluded that the term
“willfully,” for purposes of SORA, “requires something less than specific intent, but requires a
knowing exercise of choice.” Id.
In this case, defendant last verified his information with the Michigan State Police on
September 26, 2017. Defendant admitted that the last time he verified his information with the
Michigan State Police, he did not disclose his Facebook or Twitter accounts. Defendant also
admitted that he has known, since 2011, that he is required to disclose all his electronic
communications to law enforcement. Therefore, a reasonable jury could conclude that defendant
knowingly exercised choice, Lockett (On Rehearing), 253 Mich. App. at 655, when he failed to
report information about his Facebook and Twitter accounts as required.
In sum, viewing the evidence presented in a light most favorable to the prosecution, it is
sufficient to justify a rational trier of fact in finding defendant guilty of failure to comply with
SORA. See Reese, 491 Mich. at 139.
B. REASONABLENESS OF SENTENCE
Defendant argues that his sentence was unreasonable and constituted an abuse of
discretion. We disagree.
“[A] sentence is reasonable under [People v Lockridge, 498 Mich. 358, 392; 870 NW2d
502 (2015)] if it adheres to the principle of proportionality set forth in [People v Milbourn, 435
Mich. 630, 657-658; 461 NW2d 1 (1990)].” People v Walden, 319 Mich. App. 344, 351; 901 NW2d
142 (2017). Milbourn’s principle of proportionality “requires sentences imposed by the trial court
to be proportionate to the seriousness of the circumstances surrounding the offense and the
offender.” Id. at 352 (quotation marks and citation omitted). If a trial court determines that the
recommended guidelines range is disproportionate, it may impose a departure sentence. People v
Steanhouse (On Remand), 322 Mich. App. 233, 238; 911 NW2d 253 (2017), rev’d in part on other
grounds 504 Mich. 969 (2019) (quotation marks and citation omitted).
However, in this case, defendant’s minimum sentence is within the properly calculated
guidelines range. A sentence within the guidelines range is “presumptively proportionate.” People
v Odom, 327 Mich. App. 297, 315; 933 NW2d 719 (2019). This Court is required to review a
defendant’s sentence for reasonableness only if the trial court imposed a departure sentence.
People v Anderson, 322 Mich. App. 622, 636; 912 NW2d 607 (2018). “When a trial court does not
depart from the recommended minimum sentencing range, the minimum sentence must be
affirmed unless there was an error in scoring or the trial court relied on inaccurate information.”
People v Schrauben, 314 Mich. App. 181, 196; 886 NW2d 173 (2016), citing MCL 769.34(10) (“If
a minimum sentence is within the appropriate guidelines sentence range, the court of appeals shall
affirm that sentence and shall not remand for resentencing absent an error in scoring the sentencing
guidelines or inaccurate information relied upon in determining the defendant’s sentence.”). “[T]o
overcome the presumption that the sentence is proportionate, a defendant must present unusual
circumstances that would render the presumptively proportionate sentence disproportionate.”
People v Lee, 243 Mich. App. 163, 187; 622 NW2d 71 (2000). There are no unusual circumstances
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in this case that would render defendant’s presumptively proportionate sentence disproportionate.
Defendant does not allege that the trial court relied on inaccurate information or that there was an
error in scoring offense variables or any prior record variables. Accordingly, we must affirm
defendant’s sentence. See Schrauben, 314 Mich. App. at 196.
C. COURT COSTS
Finally, the prosecution concedes that the trial court failed to provide a factual basis for
imposing $300 in court costs. Therefore, we remand to the trial court for articulation of the factual
basis for the imposition of $300 in court costs “or to alter that figure, if appropriate.” People v
Konopka (On Remand), 309 Mich. App. 345, 360; 869 NW2d 651 (2015).
We affirm defendant’s conviction and sentence, but remand to the trial court to establish
the factual basis for the imposition of court costs. We do not retain jurisdiction.
/s/ Mark J. Cavanagh
/s/ Jane M. Beckering
/s/ Elizabeth L. Gleicher
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