People of Michigan v. Ramon Curtis Pool ( 2023 )

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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED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 20, 2023
Plaintiff-Appellee,
v No. 358547
Genesee Circuit Court
RAMON CURTIS POOL, LC No. 18-043032-FC
Defendant-Appellant.
Before: GADOLA, P.J., and PATEL and MALDONADO, JJ.
PER CURIAM.
Defendant appeals as of right his jury trial convictions of two counts of first-degree
criminal sexual conduct (CSC-I), MCL 750.520b(1)(a) (sexual penetration with victim under 13
years of age), and one count of third-degree criminal sexual conduct (CSC-III), MCL
750.520d(1)(a) (sexual penetration with victim at least 13 years of age and under 16 years of age).1
The trial court sentenced defendant to concurrent prison terms of 25 to 50 years each for the CSC-
I convictions, and 5 to 15 years for the CSC-III conviction. The court’s judgment of sentence also
subjects defendant to lifetime electronic monitoring and requires him to register as a sexual
offender under the Sex Offenders Registration Act (SORA), MCL 28.721 et seq. We affirm.
I. BACKGROUND
Defendant’s convictions arise from allegations of ongoing sexual abuse perpetrated by
defendant against his god sister, AL, beginning when she was 12 years old until she was 15 years
old; defendant is eight years older than AL. The abuse initially involved defendant digitally
penetrating AL’s vagina and subsequently escalated to penile penetration of AL’s vagina, fellatio,
and cunnilingus. The last incident occurred on the evening of December 25, 2017, when AL was
15 years old, and involved defendant digitally penetrating her vagina. During this incident, AL
excused herself to the bathroom and contacted a friend who urged AL to disclose defendant’s
1
The jury acquitted defendant of two additional counts of CSC-III, and one count of assault by
strangulation, MCL 750.84(1)(b).
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conduct to her parents. The following day, AL disclosed the ongoing sexual abuse perpetrated by
defendant to various friends and family, and this ultimately led to defendant’s apprehension and
convictions.
II. SPEEDY TRIAL
Defendant argues that he was denied his constitutional right to a speedy trial. We disagree.
Despite the passage of 39 months between defendant’s arrest and trial, he has failed to establish a
speedy trial violation because the reasons for the delay only slightly favored defendant’s claim,
defendant did not assert his right to a speedy trial until 32 months after his arrest, and there has not
been a sufficient showing of prejudice.
The United States and Michigan Constitutions guarantee criminal defendants the right to a
speedy trial. US Const, Am VI; Const 1963, art 1, § 20; People v Patton, 285 Mich App 229, 235
n 4; 775 NW2d 610 (2009). The determination whether a defendant was denied a speedy trial is a
mixed question of fact and law. People v Waclawski, 286 Mich App 634, 664; 780 NW2d 321(2009). The trial court’s factual findings are reviewed for clear error, while the constitutional issue
is a question of law subject to de novo review. Id. “In determining whether a defendant has been
denied a speedy trial, four factors must be balanced: (1) the length of the delay, (2) the reasons for
the delay, (3) whether the defendant asserted his right to a speedy trial, and (4) prejudice to the
defendant from the delay.” People v Mackle, 241 Mich App 583, 602; 617 NW2d 339 (2000)
(quotation marks and citations omitted).
1. LENGTH OF THE DELAY
The 39-month delay in this case was significant but, alone, it is not sufficient to warrant
dismissal.
The delay period commences at the arrest of the defendant. People v Williams, 475 Mich
245, 261; 716 NW2d 208 (2006), citing United States v Marion, 404 US 307, 312; 92 S Ct 455;
30 L Ed 2d 468 (1971). In Marion, the United States Supreme Court held that “the Sixth
Amendment speedy-trial provision has no application until the putative defendant in some way
becomes an ‘accused,’” which does not occur until either the defendant is arrested or formally
charged. Marion, 404 US at 313, 320. In this case, defendant was arrested and jailed on April 3,
2018, and trial began approximately 39 months later on July 21, 2021. “A delay of more than
eighteen months is presumed to be prejudicial and the burden is on the prosecution to prove lack
of prejudice.” People v Simpson, 207 Mich App 560, 563; 526 NW2d 33 (1994). “Although the
length of delay in this case is considerable, there is no set number of days between a defendant’s
arrest and trial that is determinative of a speedy trial claim.” Waclawski, 286 Mich App at 665.
Thus, we must review the remaining factors.
2. REASONS FOR THE DELAY
The next factor requires and examination of the reasons for the delay and to whom they
should be attributed. There were various reasons for the delay in this case. To the extent the delays
were attributable to the prosecution, these reasons had a mostly neutral tint. Moreover, there were
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delays following defendant’s assertion of his speedy trial right that resulted from his request for
new counsel. Therefore, on balance, this factor is given little weight.
When assessing the reasons for the delay, we must examine to whom the delay is
attributable. In this case, the trial court examined the procedural history of the case, and there is
no dispute with its findings regarding the substantial delays. The court attributed a 21-month delay
to the prosecution and a 14-month delay (plus one additional month after defendant’s motion to
dismiss was denied) to the COVID-19 pandemic. The first trial date of November 14, 2018, was
adjourned apparently because a prosecution witness was unavailable. While chargeable to the
prosecution, an unavailable witness is a “valid reason” to “justify appropriate delay.” Barker v
Wingo, 407 US 514, 531; 92 S Ct 2182; 33 L Ed 2d 101 (1972). The second trial date of May 29,
2019 was adjourned without explanation; the third trial date of November 13, 2019 was adjourned
because the prosecutor was in trial in another case; and the fourth and fifth trial dates of January
28, 2020 and March 12, 2020, respectively, were adjourned because of judicial reassignments.
The prosecution is held accountable for unexplained or otherwise unattributable delays. People v
Lown, 488 Mich 242, 261; 794 NW2d 9 (2011). Delays and docket congestion inherent in the
court system are “technically attributable to the prosecution, [but] they are given a neutral tint and
are assigned only minimal weight in determining whether a defendant was denied a speedy trial.”
People v Gilmore, 222 Mich App 442, 460; 564 NW2d 158 (1997) (quotation marks and citation
omitted).
Regarding additional trial adjournments that were not attributable to the prosecution, the
sixth trial date of June 23, 2020 was adjourned because of the COVID-19 pandemic. The trial
court reasonably did not hold this delay against either party. See United States v Smith, 494 F
Supp 3d 772, 783 (ED Cal, 2020) (holding that where “emergency health measures to limit the
spread of COVID-19” were responsible for a delay in the defendant’s trial, such delay should not
weigh against the Government because “the Court’s inability to safely conduct a jury trial is a
good-faith and reasonable justification for the delay”).2 In this case, the prosecution was not
responsible for the docket congestion and delays caused by COVID-19 safety protocols. Finally,
the seventh trial date of June 22, 2021 was adjourned for a month because defendant requested a
new attorney at the final pretrial hearing on June 17, 2021.
In sum, because most of the substantial delay chargeable to the prosecution had a “neutral
tint,” additional delays were caused by the COVID-19 pandemic, and some delays were chargeable
to defendant, this factor is given little weight in determining whether defendant was denied a
speedy trial.
3. ASSERTION OF RIGHT
2
“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 Woodward, 321 Mich App 377, 385 n
2; 909 NW2d 299 (2017).
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This factor weighs heavily against dismissal because defendant did not assert his right to a
speedy trial until 32 months had elapsed from the date of his arrest, and the seven-month delay
that followed was attributable to the pandemic and defendant’s request for new counsel.
With respect to the third factor, the assertion of the speedy-trial right, we look to when
defendant asserted this right and when trial took place in relation to the assertion. See Cain, 238
Mich App at 113-114. Defendant first asserted his right to a speedy trial on December 16, 2020.
We agree with the prosecution that, contrary to the trial court’s finding, defendant did not assert
his speedy-trial right on January 28, 2020. Defendant’s specific request at that time was to be
released on a personal recognizance bond and placed on tether because he had been awaiting trial.
This was not a formal demand on the record to be brought to trial, but a clear request to modify
the conditions of his bond. Thus, defendant waited 32 months after his arrest to assert his right to
a speedy trial. “[W]e cannot ignore the fact” that such a substantial amount of time elapsed before
defendant asserted his right. Cain, 238 Mich App at 113-114. While approximately seven
additional months elapsed before the trial was conducted, this was primarily because the court
could not conduct trials as a result of the pandemic. At the hearing on May 27, 2021, the court
informed the parties that it would be conducting trials again, that three trials would be conducted
at a time until the priority cases were tried, and that defendant’s trial, which was 11th or 12th on
the list, was scheduled to be conducted on June 22, 2021. However, the trial was then delayed for
an additional month because defendant requested new trial counsel at the final pretrial hearing.
Under these circumstances, this factor weighs against defendant.
4. PREJUDICE
Defendant was not sufficiently prejudiced as to support a speedy trial violation because
nothing in the record suggests that his defense suffered from the delay and because the anxiety
defendant experienced during his pretrial incarceration is not alone sufficient.
With regard to the fourth factor, there are two types of prejudice: prejudice to the person
and prejudice to the defense. Gilmore, 222 Mich App at 461-462. “Prejudice to the person results
when pretrial incarceration deprives an accused of many civil liberties, and prejudice to the defense
occurs when the defense might be prejudiced by the delay.” People v Levandoski, 237 Mich App
612, 620 n 4; 603 NW2d 831 (1999). “Prejudice to the defense is the more serious concern because
the inability of a defendant adequately to prepare his case skews the fairness of the entire system.”
Williams, 475 Mich at 264 (quotation marks and citation omitted).
The record before us does not establish that defendant’s incarceration during the delay
prejudiced his person. Defendant states that he suffered anxiety because he was confined in jail,
particularly for 15 months during the extremely “stressful time” of the COVID-19 shutdown.
“However, anxiety, alone, is insufficient to establish a violation of defendant’s right to a speedy
trial.” Gilmore, 222 Mich App at 462. Further, nothing in the record suggests that the delay
adversely affected defendant’s ability to defend against the charges; indeed, defendant makes no
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argument at all on appeal regarding prejudice to the defense.3 In the trial court, defendant argued
that, because of the passage of time, his and other witnesses’ memories of the events were likely
diminished. However, general allegations of prejudice caused by delay, such as the unspecified
loss of evidence or memory, are insufficient to show that his defense was affected. Id. Notably,
defendant has not identified any specific beneficial testimony or evidence that was lost because of
the delay. “[T]he most important thing is that there is no evidence that a fair trial was jeopardized
by delay . . . .” Williams, 475 Mich at 264 (quotation marks and citation omitted). In sum,
defendant has failed to show that any potential witness testimony favorable to the defense or that
other exculpatory evidence was lost because of the delay in bringing him to trial.
In conclusion, when balancing the relevant factors, defendant’s right to a speedy trial was
not violated.
III. SEX OFFENDER REGISTRATION
Next, defendant argues that the requirement of lifetime registration under SORA is cruel
or unusual punishment in violation of the Eighth Amendment to the United States Constitution
and the Michigan Constitution. US Const, Am VIII; Const 1963, art 1, § 16. We disagree.
Because defendant did not argue below that lifetime registration would be
unconstitutionally cruel or unusual punishment, defendant’s constitutional claim is unpreserved.
See People v Bowling, 299 Mich App 552, 557; 830 NW2d 800 (2013). We therefore review this
unpreserved claim for plain error affecting defendant’s substantial rights. People v Carines, 460
Mich 750, 752-753, 763-764; 597 NW2d 130 (1999). A plain error occurs if three requirements
are “met: 1) error must have occurred, 2) the error was plain, i.e., clear or obvious, 3) and the plain
error affected substantial rights. The third requirement generally requires a showing of prejudice,
i.e., that the error affected the outcome of the lower court proceedings.” Id. at 763. Even if the
three requirements are met, “[r]eversal is warranted only when the plain, forfeited error resulted
in the conviction of an actually innocent defendant or when an error seriously affected the fairness,
integrity or public reputation of judicial proceedings independent of the defendant's innocence.”
Id. at 763 (quotation marks, citation, and alteration omitted).
Requiring defendant to register as a sex offender for the rest of his life is not
unconstitutionally cruel or unusual punishment. Preliminarily, our Supreme Court, in resolving
whether retroactive application of the 2011 version of SORA violated the Ex Post Facto Clause of
the United States Constitution, held that the registration requirements under that version of the law
are criminal punishments, People v Betts, 507 Mich 527, 558; 968 NW2d 497 (2021), and this
Court reached the same conclusion with regard to the 2021 SORA, as adopted by 2020 PA 295,
effective March 24, 2021. People v Lymon, ___ Mich App ___, ___; ___ NW2d ___ (2022)
3
“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 Matuszak, 263 Mich App 42, 59; 687 NW2d 342(2004). Providing an issue with only “cursory treatment constitutes abandonment of the issue.”
Id.-5-
(Docket No. 327355); slip op at 18. As this Court recently explained in People v Jarrell, ___ Mich
App ___, ___; ___ NW2d ___ (2022) (Docket No. 356070); slip op at 9:
Neither opinion, however, answered whether mandatory lifetime
registration under SORA necessarily constitutes cruel or unusual punishment. For
instance, Lymon held only that SORA registration was “cruel or unusual
punishment for a crime that lacks a sexual component and is not sexual in nature.”
Id. at 18. In that case, the defendant had been convicted of unlawful imprisonment
of a minor and placed on the sex offender registry under SORA, but the crimes did
not have any sexual component. Id. at 18-19. Here, of course, Jarrell’s CSC-I
conviction is sexual in nature, and thus Lymon’s limited holding does not apply.
Therefore, we must next determine whether SORA registration, as applied to
Jarrell’s circumstances, constitutes cruel or unusual punishment.
Similarly, in this case, we must determine whether this registration penalty is cruel or unusual as
applied to defendant.
To determine whether a punishment is cruel or unusual, courts assess whether it is
“unjustifiably disproportionate” to the offense committed by considering four factors: (1) the
harshness of the penalty compared to the gravity of the offense, (2) the penalty imposed for the
offense compared to penalties imposed for other offenses in Michigan, (3) the penalty imposed for
the offense in Michigan compared to the penalty imposed for the same offense in other states, and
(4) whether the penalty imposed advances the goal of rehabilitation. People v Bullock, 440 Mich
15, 33-34; 485 NW2d 866 (1992).
Regarding the harshness of the penalty compared to the gravity of the offense, the statutory
maximum in Michigan for CSC-I is imprisonment for life, MCL 750.520b(2)(a). SORA, which
requires defendant to register as a sexual offender, is a lesser punishment than life imprisonment.
Thus, the penalty is not unduly harsh considering the gravity of defendant’s crimes. Further,
defendant was AL’s stepfather’s godson, whom AL considered her “best friend” and godbrother,
and she testified that she did not consent to any of the multiple reported incidents. There was a
significant age disparity between defendant, who was 20 or 21 years of age, and AL, who was age
12, at the time of two CSC-I incidents. Defendant treated AL differently from her siblings by
spending more time with her, giving her more attention, and buying her more things from the time
she was nine years old; AL testified that she now believes defendant had been grooming her. The
assaults ended only because AL finally disclosed them at age 15. Thus, defendant took advantage
of a child, and instilled in her lasting fear and distrust, which she described at trial and in a victim-
impact statement. The gravity of defendant’s offenses should not be discounted merely because
he had no prior record. Considering the gravity of defendant’s offenses and that he faced a
statutory maximum life sentence for his CSC-I convictions, mandatory lifetime registration is not
a disproportionately harsh punishment as applied to defendant. Moreover, the unique
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circumstances surrounding CSC offenses justify the uniqueness of defendant’s lifetime registration
requirement.4
Next, defendant’s mandatory lifetime sex offender registration is not unduly harsh
compared to penalties imposed for other offenses in Michigan. This Court recently explained:
For instance, depending on the age of the offender and victim, a CSC-I conviction
may involve a mandatory 25-year minimum sentence, MCL 750.520b(2)(b), or a
mandatory life sentence, MCL 750.520b(2)(c). Legislatively mandated sentences
are presumptively proportional and presumptively valid, and a proportionate
sentence is not cruel or unusual. [Jarrell, ___ Mich App at ___; slip op at 11
(quotation marks and citations omitted).]
Like the defendant in Jarrell, defendant has failed to overcome the presumption that mandatory
lifetime sex offender registration is proportional as applied to his case, and he has not shown that
the punishment is disproportionately harsh compared to other penalties imposed in Michigan.
Further, defendant’s mandatory lifetime sex offender registration is not an unduly harsh
punishment when compared to punishments for similar offenses in other states, and thus not
unique. In Jarrell, this Court observed that “[m]any states have a tiered system for sex offender
registration, with lifetime registration reserved for the most heinous perpetrators of sexual assault.”
Id. Consequently, SORA’s registration requirement is not materially different from sex offender
registries in other states, and this supports a finding that it is not unduly harsh.
Lastly, regarding the impact of lifetime registration on rehabilitation, we agree with
defendant that SORA’s asserted rehabilitative effect will not assist his rehabilitation. In Jarrell,
this Court observed this premise, citing our Supreme Court’s recognition in Betts, 507 Mich at
556, 560-562, of a “growing body of research” that “sex-offender registries have dubious efficacy
in achieving their professed goals of decreasing recidivism.” Jarrell, ___ Mich App at ___; slip
op at 11. However, given the strength of the other three factors, such a punishment is not cruel or
unusual as applied to defendant’s CSC-I convictions. For these reasons, SORA’s lifetime
registration requirement is not unjustifiably disproportionate as applied to defendant. Bullock, 440
Mich at 30.5
4
Defendant’s reliance on People v DiPiazza, 286 Mich App 137, 139-140; 778 NW2d 264 (2009),
is misplaced because that case is factually inapposite; In DiPiazza, the defendant “was adjudicated
under the Holmes Youthful Trainee Act (HYTA), MCL 762.11 et seq., for attempted third-degree
criminal sexual conduct (CSC)” and was sentenced to probation due to a consensual relationship
with a girl less than three years his junior. In that case, the girl’s parents “knew of the relationship
and condoned it” and the two were married five years later. Id. at 154.
5
Defendant also argues that the imposition of lifetime electronic monitoring is unconstitutionally
cruel or unusual punishment, and that it constitutes an unreasonable search. However, as defendant
recognizes, this Court considered and rejected these same arguments when it decided People v
Hallak, 310 Mich App 555, 571-581; 873 NW2d 811 (2015), rev’d in part on other grounds 499
Mich 879 (2016). This Court is bound to follow its own precedent. MCR 7.215(J)(1). We note
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Affirmed.
/s/ Michael F. Gadola
/s/ Sima G. Patel
/s/ Allie Greenleaf Maldonado
that our Supreme Court has ordered the Macomb County Prosecuting attorney to answer an
application for leave to appeal and address this issue. People v Kardasz, ___ Mich ___; ___ NW2d
___ (2023) (Docket No. 165008). However, this does not diminish the precedential effect of
Hallak. See MCR 7.215(C)(2).
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