People of Michigan v. Thomas Lee Marney Sr ( 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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
December 21, 2023
Plaintiff-Appellee,
v No. 359845
Ingham Circuit Court
THOMAS LEE MARNEY SR., LC No. 19-000879-FH
Defendant-Appellant.
Before: RIORDAN, P.J., and MURRAY and M. J. KELLY, JJ.
PER CURIAM.
Defendant appeals as of right from his jury trial conviction and sentence for one count of
assault with intent to do great bodily harm less than murder or by strangulation (AWIGBH), MCL
750.84. Defendant was sentenced as a fourth-offense habitual offender, MCL 769.12, to 48 to 240
months’ imprisonment, awarded 21 days of jail credit, and ordered to pay $500 in court costs. In
addition to challenging his conviction and sentence, defendant challenges the trial court’s orders
denying his motion to correct an invalid sentence and his motion for resentencing. For the reasons
set forth in this opinion, we affirm.
I. BACKGROUND
This case arises from a domestic assault. In November 2018, defendant and complaining
witness, DS, lived together and were in an intimate relationship. On the day of the assault, DS and
defendant were napping in defendant’s bedroom when DS woke up and went to the bathroom,
waking defendant. DS returned to defendant’s bedroom, informing him she needed to pick up her
children from their father’s house. Defendant, irritable and angry from being woken up, began
questioning DS about why she was out of bed and accused her of poisoning him. DS, seeking to
avoid a confrontation, went to the spare bedroom where she kept her belongings. Defendant
followed DS into the spare bedroom and began choking her on the bed on and off for about four
minutes.
DS then left the spare bedroom and went into the living room to create a plan to escape.
Defendant followed DS and choked her a second time, for about 45 seconds, while she was sitting
in a recliner. Defendant stopped choking DS, but threatened to release his dog on her. While
defendant was threatening her, DS used an emergency feature on her cellphone to call 911 from
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her sweatshirt pocket. Without speaking to the 911 operator, DS hung up. When the 911 operator
called DS back, she pretended she was speaking with her children’s father and was able to covertly
request help and provide the operator with defendant’s address. Shortly thereafter, police arrived
at defendant’s home and questioned DS and defendant separately. DS eventually told police
defendant choked her, and defendant was taken into custody.
Defendant was charged and bound over for AWIGBH after waiving the preliminary
examination. Defendant was also charged as a fourth-offense habitual offender based on his prior
felony convictions, including: a May 2013 conviction for delivering or manufacturing marijuana,
MCL 333.7401(2)(d)(iii); a May 2005 conviction for felonious assault, MCL 750.82; and a May
2005 conviction for carrying a concealed weapon, MCL 750.227. Defendant waived his
arraignment and pleaded not guilty to AWIGBH. Notably, defendant never objected to the felony
information.
During the jury trial, DS, the 911 operator, the responding officers, and defendant testified.
In between witness testimony, this exchange occurred:
Ms. Nelson [the prosecutor]: Thank you[,] Your Honor[,] and if I may prior
to [calling my next witness] I just wanted to place on the record an issue. I know
the defendant has been making a number of faces, shaking his head especially when
being asked question of the last witness, specifically looking at jurors. I would just
ask the Court direct him to not try to influence or act out—(unintelligible).
Mr. Maddaloni [defense counsel]: I’m objecting at the fact that she even
brought it up. I mean it’s not anything that is out of [the] ordinary, its—
The Court: —okay—
Mr. Maddaloni: —to me it was done to prejudice my client even further.
The Court: Alright, thank you. You may call your witness.
After closing arguments, the trial court issued jury instructions, specifically instructing
jurors to only consider properly admitted evidence when deciding their verdict, which included
informing the jury that: “The lawyers’ statements and arguments are also not evidence. They are
only meant to help you understand the evidence and each side’s legal theories. You should only
accept things the lawyers say that are supported by the evidence or by your own common sense
and general knowledge.” Based on the evidence presented at trial, the jury found defendant guilty
of AWIGBH beyond a reasonable doubt.
During sentencing, the parties reviewed the presentence investigation report (PSIR). The
PSIR indicates defendant had an extensive criminal history, which included several felony
convictions, such as: two convictions for larceny from a person, MCL 750.356, and one conviction
for felonious assault in April 1997; one conviction for absconding or forfeiting bond, MCL
750.199a, in August 1998; one conviction for possession of a controlled substance, MCL
333.7403, in May 2000; one conviction for felon in possession of a firearm, MCL 750.224f, in
October 2005; and one conviction for delivering or manufacturing marijuana in March 2013.
Defendant denied having any additions, deletions, or corrections to the PSIR and stated he had no
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objections to the scoring of the guidelines. Based on defendant’s criminal history and the
seriousness of his crimes against DS, the trial court sentenced defendant to 48 to 240 months’
imprisonment and imposed $500 in court costs. This appeal followed.
While defendant’s appeal was pending before this Court, defendant moved to correct an
invalid sentence, arguing the trial court’s order of $500 in court costs must be vacated because
MCL 769.1k(1)(b)(iii) is unconstitutional on the ground that it: (1) creates pressure on trial court
judges to convict criminal defendants to ensure the courts are adequately funded, which in turn
violated defendant’s due-process right to a neutral arbiter; and, (2) violates the separation-of-
powers doctrine because the Legislature’s enactment of MCL 769.1k(1)(b)(iii) prevents the
judiciary from maintaining neutrality in criminal proceedings and promoting public confidence in
the impartiality of the judiciary. The trial court denied defendant’s motion.
Defendant also moved to remand to the trial court to address whether he was entitled to
resentencing because he claimed he should not have been sentenced as a fourth-offense habitual
offender. This Court granted defendant’s motion. People v Marney, unpublished order of the
Court of Appeals, entered April 3, 2023 (Docket No. 359845). Before the trial court, defendant
argued he was entitled to resentencing because the fourth-offense habitual offender notice in the
felony information contained inaccurate information. Specifically, defendant claimed the felony
information incorrectly stated he was convicted of felonious assault in May 2005, when he was
actually convicted in April 1997, and listed a conviction for carrying a concealed weapon despite
that defendant had never been convicted of this crime. While defendant conceded he had other
felony convictions that could have been used to enhance his sentence, because the fourth-offense
habitual offender notice was defective, he contended the prosecutor could not rely on his other
convictions. Defendant also argued he was entitled to resentencing because his sentence was based
on inaccurate information in the felony information. Further, defendant asserted he was denied
the effective assistance of counsel because had his counsel objected to the fourth-offense habitual
offender enhancement, his sentencing guidelines and maximum possible sentence would have
been lower.
During the hearing, defendant argued there was no proof of service filed for the fourth-
offense habitual offender notice in violation of MCL 769.13, which, when considered with the
defective notice, entitled him to resentencing. Additionally, because he raised his resentencing
arguments in his motion to remand, as required by the applicable statute, MCL 769.34(10),
defendant contended his arguments were not waived. In response, the prosecutor stated she
verified defendant was served with a copy of the felony information and asserted defendant’s
argument was waived under MCL 767.76. The trial court denied defendant’s motion because: (1)
it only relied on the PSIR during sentencing, not the felony information; (2) defendant waived his
claim the fourth-offense habitual offender notice was defective by failing to object before trial;
and (3) even if defendant had objected, defendant could not prove he was prejudiced because the
prosecutor could have substituted one of defendant’s four other felony convictions to rectify any
error.
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II. PROSECUTORIAL ERROR1
Defendant argues he is entitled to a new trial because the prosecutor’s statements, made in
front of the jury, were prejudicial and deprived him of a fair and impartial trial.
A. STANDARDS OF REVIEW
Defendant objected to the prosecutor’s statements during trial, therefore, his argument is
preserved for appellate review. People v Thomas, 260 Mich App 450, 453-454; 678 NW2d 631(2004). Preserved issues of prosecutorial error are reviewed de novo to determine whether a
defendant was denied a fair and impartial trial. Id. at 453. “Issues of prosecutorial misconduct are
decided case by case, and this Court must examine the entire record and evaluate a prosecutor’s
remarks in context.” People v Dobek, 274 Mich App 58, 64; 732 NW2d 546 (2007). An alleged
violation of a criminal defendant’s due-process rights presents a constitutional question and is also
reviewed de novo. People v Wilder, 485 Mich 35, 40; 780 NW2d 265 (2010).
B. ANALYSIS
The United States Constitution and Michigan Constitution each guarantee a criminal
defendant receives due process of law. US Const, Am XIV; Const 1963, art 1 § 17. Implicit in
this guarantee is each criminal defendant enjoys the right to a fair trial. People v Johnson, 315
Mich App 163, 179; 889 NW2d 513 (2016). Generally, “prosecutors are accorded great latitude
regarding their arguments and conduct,” and are “free to argue the evidence and all reasonable
inferences from the evidence as it relates to [their] theory of the case.” People v Bahoda, 448 Mich
261, 282; 531 NW2d 659 (1995) (quotation marks, citations, and alteration omitted).
“Nevertheless, prosecutors should not resort to . . . arguments that appeal to the fears and prejudices
of jury members . . . and must refrain from denigrating a defendant with intemperate and
prejudicial remarks.” Id. at 282-283.
During the jury trial, the prosecutor stated: “I know the defendant has been making a
number of faces, shaking his head especially when being asked question of the last witness,
specifically looking at jurors. I would just ask the Court direct him to not try to influence or act
out—(unintelligible).” Defendant claims these comments were prejudicial because defendant’s
case “came down to a credibility contest” and they suggested to the jury defendant was acting out
in a threatening manner and attempting to influence them. Evaluating the comments in context,
while the prosecutor’s remarks may have been better stated outside the presence of the jury,
Bahoda, 448 Mich at 282-283, these comments were isolated, brief, and unlikely to have deflected
the jury’s attention from the evidence presented. See People v Watson, 245 Mich App 572, 591;
629 NW2d 411 (2001). Further, because the trial court expressly instructed the jury not to consider
the lawyers’ statements as evidence, and jurors are presumed to follow jury instructions, People v
Ericksen, 288 Mich App 192, 199-200; 793 NW2d 120 (2010), it is presumed the jurors did not
1
This Court has recognized although “prosecutorial misconduct” is a commonly accepted term of
art in criminal appeals, it is a misnomer when referring to allegations that do not involve violations
of the rules of professional conduct or illegal activity. People v Cooper, 309 Mich App 74, 87-88;
867 NW2d 452 (2015). Less egregious conduct involving inadvertent or technical error is more
properly characterized as “prosecutorial error.” Id. at 88.
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consider the prosecutor’s statements regarding defendant’s body language when reaching their
guilty verdict. Because the jury instruction was sufficient to eliminate any prejudice that may have
resulted from the prosecutor’s remarks, defendant is not entitled to a new trial. See Thomas, 260
Mich App at 454 (citations omitted).
III. HABITUAL OFFENDER SENTENCING
Defendant argues that he is entitled to resentencing because the fourth-offense habitual
offender notice was defective and he was sentenced based on inaccurate information.
Alternatively, defendant argues that he was denied the effective assistance of counsel because
counsel failed to object to the defective habitual offender notice during sentencing.
A. ISSUE PRESERVATION
According to defendant, he preserved his arguments for appellate review by raising them
in his motion to remand and his motion for resentencing. While we question whether defendant
properly challenged the validity of the habitual offender notice under MCL 769.34(10), any
error—whether preserved or not—was harmless.
The habitual-offender statutes, MCL 769.10 et seq., enhance a defendant’s sentence based
on prior felony convictions. People v Brown, 492 Mich 684, 689; 822 NW2d 208 (2012). “They
do not create a substantive offense independent of the principal charge.” Id. “Rather, it is a
sentence-enhancement procedure with a deterrent and punitive purpose.” Id. (quotation marks and
citations omitted). Defendant’s challenge to the habitual offender notice is governed by MCL
769.13, which states:
A defendant who has been given notice that the prosecuting attorney will
seek to enhance his or her sentence as provided under section 10, 11, or 12 of this
chapter, may challenge the accuracy or constitutional validity of 1 or more of the
prior convictions listed in the notice by filing a written motion with the court and
by serving a copy of the motion upon the prosecuting attorney in accordance with
rules of the supreme court. [MCL 769.13(4).]
The purpose of MCL 769.13 is to ensure defendant has notice at an early stage in the proceedings
that his sentence is subject to enhancement. People v Morales, 240 Mich App 571, 582; 618 NW2d
10 (2000).
Before his appeal, defendant never filed a written motion challenging the accuracy or the
constitutional validity of the fourth-offense habitual offender notice with the trial court. The first
time defendant ever challenged the fourth-offense habitual offender notice was when he moved to
remand to the trial court under MCL 769.34(10). MCL 769.34(10) states, in pertinent part:
A party shall not raise on appeal an issue challenging the scoring of the
sentencing guidelines or challenging the accuracy of information relied upon in
determining a sentence that is within the appropriate guidelines sentence range
unless the party has raised the issue at sentencing, in a proper motion for
resentencing, or in a proper motion to remand filed in the court of appeals.
[Emphasis added.]
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Because the language of MCL 769.34(10) is clear and unambiguous, we must apply it as written.
See People v Nix, 301 Mich App 195, 199; 836 NW2d 224 (2013). Thus, in his motion to remand
under MCL 769.34(10), defendant was only permitted to address issues related to the scoring of
the sentencing guidelines or challenging the accuracy of the information relied on when
determining a sentence within the guidelines range.
As noted, a motion docket panel granted defendant’s motion to remand so that he could
file a motion for resentencing because the trial court allegedly relied on inaccurate information,
i.e., two of the listed felonies were inaccurate. Because this procedure is expressly contemplated
by MCL 769.34(10), and the motion was granted, defendant arguably preserved this issue for
appellate review. However, because defendant’s argument regarding the validity of the habitual
offender notice does not fall under the umbrella of MCL 769.34(10), defendant’s motion could not
have preserved this argument.
Our reasoning springs from the plain language of the statute and the effect a habitual
offender status has on sentences. As noted, the procedure for remands under MCL 769.34(10),
apply when a defendant seeks to challenge “the scoring of the sentencing guidelines” or “the
accuracy of the information relied upon in determining a sentence that is within the appropriate
guidelines sentence range.” Habitual offender enhancements do not affect the scoring of the
sentencing guidelines. Instead, they set the maximum limits of a defendant’s sentence. See MCL
769.12(1) and (2); People v Bonilla-Machado, 489 Mich 412, 429; 803 NW2d 217 (2011) (trial
court had discretion to increase the statutory maximum because defendant was a second habitual
offender); People v Coffee, 151 Mich App 364, 368; 390 NW2d 721 (1986) (“The general habitual
offender statutes allow sentence augmentation of the maximum prison term[.]”). The habitual
status does not apply to the court’s determination of the actual sentence imposed within the
guidelines range. Challenges to the scoring of the sentencing guidelines implicate scoring of the
offense and prior record variables, which take into account the severity of the criminal offense and
the offender’s criminal history to determine the appropriate sentence range. People v Babcock,
469 Mich 247, 263-264; 666 NW2d 231 (2003). Because defendant is not challenging the scoring
of the offense or prior record variables, he should have challenged the validity of the habitual
offender notice under MCL 769.13(4), not MCL 769.34(10), which he failed to do.
However, we need not definitively resolve whether defendant’s arguments are preserved
for appellate review, because even if they were, we could find no error. As explained below, there
is no dispute that defendant had at least three valid prior felonies, so even if both of the listed ones
were removed, they could have been replaced with others (had he raised the issue to the trial
court).2
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The prosecution contends that, under MCL 767.76, defendant’s arguments regarding the
defective fourth-offense habitual offender notice are waived because defendant failed to object to
the felony information before trial. MCL 767.76 states, in part:
No indictment shall be quashed, set aside or dismissed or motion to quash
be sustained or any motion for delay of sentence for the purpose of review be
granted, nor shall any conviction be set aside or reversed on account of any defect
in form or substance of the indictment, unless the objection to such indictment,
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B. STANDARDS OF REVIEW
“[W]hether defendant is entitled to resentencing is a legal question that we review de
novo.” People v Latham, 334 Mich App 501, 505; 965 NW2d 248 (2020). Whether a defendant
was properly apprised of the applicability of habitual-offender enhancements is reviewed de novo,
including the interpretation and application of relevant statutes and court rules. People v Head,
323 Mich App 526, 542; 917 NW2d 752 (2018). We review a trial court’s denial of a motion for
resentencing for an abuse of discretion. People v Divietri, 206 Mich App 61,66; 520 NW2d 643(1994). An abuse of discretion occurs when the trial court chooses an outcome that is outside the
range of principled outcomes. People v Schaw, 288 Mich App 231, 236; 791 NW2d 743 (2010).
Whether a defendant has been denied the effective assistance of counsel is
a mixed question of fact and constitutional law. Generally, a trial court’s findings
of fact, if any, are reviewed for clear error, and questions of law are reviewed de
novo. When no Ginther[3] hearing has been conducted, our review of the
defendant’s claim of ineffective assistance of counsel is limited to mistakes that are
apparent on the record. [People v Anderson, 322 Mich App 622, 627-628; 912
NW2d 607 (2018) (quotation marks and citations omitted).]
C. ANALYSIS
Defendant asserts that the fourth-offense habitual offender notice in the felony information
was defective because two of the listed felony convictions were inaccurate. Because the habitual
offender notice was defective, defendant argues he was improperly sentenced as a fourth-offense
habitual offender under MCL 769.12.
MCL 769.13 states:
(1) In a criminal action, the prosecuting attorney may seek to enhance the
sentence of the defendant as provided under [MCL 769.10, MCL 769.11, or MCL
769.12], by filing a 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 or,
if arraignment is waived, within 21 days after the filing of the information charging
the underlying offense.
(2) A notice of intent to seek an enhanced sentence filed under subsection
(1) shall list the prior conviction or convictions that will or may be relied upon for
purposes of sentence enhancement. The notice shall be filed with the court and
specifically stating the defect claimed, be made prior to the commencement of the
trial or at such time thereafter as the court shall in its discretion permit.
While defendant claims the fourth-offense habitual offender notice is defective, he is not
requesting to set aside the indictment or his conviction. Instead, defendant argues he is entitled to
resentencing because the notice was defective and the trial court relied on inaccurate information
during sentencing. Therefore, MCL 767.76 does not apply.
3
People v Ginther, 390 Mich 436, 443-444; 212 NW2d 922 (1973).
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served upon the defendant or his or her attorney within the time provided in
subsection (1). The notice may be personally served upon the defendant or his or
her attorney at the arraignment on the information charging the underlying offense,
or may be served in the manner provided by law or court rule for service of written
pleadings. The prosecuting attorney shall file a written proof of service with the
clerk of the court. [MCL 769.13(1) and (2).]
Similarly, MCR 6.112(F) states:
A notice of intent to seek an enhanced sentence pursuant to MCL 769.13
must list the prior convictions that may be relied upon for purposes of sentence
enhancement. The notice must contain, if applicable, any mandatory minimum
sentence required by law as a result of the sentence enhancement. The notice must
be filed within 21 days after the defendant’s arraignment on the information
charging the underlying offense or, if arraignment is waived or eliminated as
allowed under MCR 6.113(E), within 21 days after the filing of the information
charging the underlying offense.
“The purpose of the notice requirement is to provide the accused with notice, at an early
stage in the proceedings, of the potential consequences should the accused be convicted of the
underlying offense.” Head, 323 Mich App at 543 (quotation marks and citation omitted). During
the motion for resentencing hearing, defendant argued that there was no proof of service filed for
the fourth-offense habitual offender notice in violation of MCL 769.13, which, when considered
with the defective notice, entitled him to resentencing. However, this error was harmless because
defendant had actual notice of the prosecutor’s intent to seek an enhanced sentence when he was
served with a copy of the felony information containing information regarding the fourth-offense
habitual offender enhancement. See id. at 543-545.
Defendant’s fourth habitual offender enhancement was based on a May 2013 conviction
for delivering or manufacturing marijuana; a May 2005 conviction for felonious assault; and a
May 2005 conviction for carrying a concealed weapon. According to the PSIR, defendant was
convicted of felonious assault in April 1997, not May 2005, and he was never convicted of carrying
a concealed weapon. Regardless of these inaccuracies, defendant admits, and the PSIR shows, he
is a fourth offense habitual offender. Apart from his statutory violation claim, defendant has not
alleged his ability to respond to the habitual offender charge was prejudiced by the inaccuracies in
the habitual offender notice. See People v Walker, 234 Mich App 299, 314-315; 593 NW2d 673(1999). Because defendant had actual notice of the prosecutor’s intent to impose the habitual
offender enhancement and defendant is actually a fourth-offense habitual offender, we conclude
the trial court properly denied defendant’s motion for resentencing and sentenced him as a fourth-
offense habitual offender. See People v Hornsby, 251 Mich App 462, 470-471; 650 NW2d 700(2002), abrogated in part on other grounds by People v Jones, 494 Mich 880 (2013).
Defendant also contends he is entitled to resentencing because the trial court relied on
inaccurate information. Because defendant expressly stated he had no additions, corrections, or
deletions to the PSIR and had no objections to the scoring of the guidelines at sentencing, his
arguments are waived and extinguish any alleged error. See People v Kowalski, 489 Mich 488,
504-505; 803 NW2d 200 (2011). Regardless, because the record shows the trial court only relied
on the PSIR during sentencing, and defendant does not allege the PSIR was inaccurate, and
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because he was, in fact, a fourth-offense habitual offender, there is no merit to his argument that
he was sentenced based on inaccurate information and he is not entitled to resentencing.
Alternatively, defendant argues he was denied the effective assistance of counsel because
his counsel failed to object to defendant “being sentenced as a fourth habitual offender.” To
establish ineffective assistance of counsel, “a defendant must show that (1) the lawyer’s
performance fell below an objective standard of reasonableness under prevailing professional
norms and (2) there is a reasonable probability that, but for the lawyer’s deficient performance, the
result of the proceedings would have been different.” Anderson, 322 Mich App at 628. “Effective
assistance of counsel is presumed, and a defendant bears a heavy burden of proving otherwise.”
People v Putman, 309 Mich App 240, 248; 870 NW2d 593 (2015).
Because defendant’s argument that he was sentenced based on inaccurate information is
meritless, defense counsel was not ineffective for not objecting during sentencing. People v
Snider, 239 Mich App 393, 425; 608 NW2d 502 (2000). Further, defendant was not prejudiced
by defense counsel’s failure to object to the fourth-offense habitual offender enhancement before
trial because even if the trial court corrected the charging documents to accurately reflect his felony
convictions, defendant would have still been sentenced as a fourth-offense habitual offender. See
Hornsby, 251 Mich App at 469-473. Because counsel is not ineffective for failing to advocate a
meritless position, defendant is not entitled to resentencing on these grounds. Snider, 239 Mich
App at 425.
IV. CONSTITUTIONALITY OF STATUTE
Defendant argues MCL 769.1k(1)(b)(iii) is unconstitutional because it: (1) infringes on
defendant’s right to appear before an impartial, disinterested, and neutral arbiter; and, (2) disrupts
the separation of powers.
Defendant’s arguments were expressly addressed and rejected in People v Johnson, 336
Mich App 688, 692-705; 971 NW2d 692 (2021), and the Supreme Court has denied leave to
appeal. People v Johnson, 511 Mich 1047 (2023). Therefore, this Court’s holding in Johnson is
binding precedent under MCR 7.215(J)(1). See People v Danto, 294 Mich App 596, 613; 822
NW2d 600 (2011). In Johnson, we held MCL 769.1k(1)(b)(iii) was not facially unconstitutional
because: (1) court costs imposed under MCL 769.1k(1)(b)(iii) must have a factual basis and be
reasonably related to the actual costs incurred by the court; and (2) the defendant failed to show
MCL 769.1k(1)(b)(iii) creates a financial interest strong enough to cause trial courts to ignore their
constitutional mandates. Johnson, 336 Mich App at 692-705. Defendant’s challenges to the facial
constitutionality of MCL 769.1k(1)(b)(iii) fail.
V. CONCLUSION
Because: (1) any alleged prosecutorial error was cured by the trial court’s jury instructions;
(2) the discrepancies in the fourth-offense habitual offender notice did not violate defendant’s due
process rights and defendant failed to prove he was denied the effective assistance of counsel; and
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(3) MCL 769.1k(1)(b)(iii) is not unconstitutional, we affirm defendant’s conviction and sentence.
/s/ Michael J. Riordan
/s/ Christopher M. Murray
/s/ Michael J. Kelly
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