People v. Zinn , 217 Mich. App. 340 ( 1996 )

551 N.W.2d 704 (1996) 217 Mich. App. 340

PEOPLE of the State of Michigan, Plaintiff-Appellee,
v.
Wilbur Louis ZINN, Defendant-Appellant.

Docket No. 182911.

Court of Appeals of Michigan.

Submitted May 15, 1996, at Grand Rapids. Decided June 25, 1996, at 9:05 a.m. Released for Publication August 12, 1996.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Terry L. Shaw, Prosecuting Attorney, and Michael E. Moody, Assistant Attorney General, for the people.

Brott, Kipley, Grunst & Settles, P.C. by David G. Grunst, Acme, for defendant on appeal.

Before DOCTOROFF, C.J., and NEFF and FITZGERALD, JJ.

PER CURIAM.

Defendant was charged with assault with intent to do great bodily harm less than murder, M.C.L. § 750.84; M.S.A. § 28.279, and with being an habitual offender, fourth offense, M.C.L. § 769.12; M.S.A. § 28.1084. Following a jury trial, he was convicted of assault with a dangerous weapon, M.C.L. § 750.82; M.S.A. § 28.277. The trial court, having determined that defendant was a fourth-felony offender, sentenced defendant to a prison term of four to fifteen years. Defendant appeals as of right. We affirm, but remand for preparation of a Sentencing Information Report (SIR).

Defendant first claims that the trial court relied on a constitutionally infirm prior conviction when sentencing him as a fourth-felony offender. Specifically, defendant maintains that the evidence presented at the sentencing hearing failed to indicate that he was represented by counsel or that he validly waived counsel for his 1970 conviction of unlawfully driving away an automobile (UDAA), M.C.L. § 750.413; M.S.A. § 28.645.

Prior convictions obtained in violation of the right to counsel cannot be considered in determining punishment for another offense. People v. Moore, 391 Mich. 426, 436-438, 216 N.W.2d 770 (1974); People v. Hannan (After Remand), 200 Mich.App. 123, 128, 504 N.W.2d 189 (1993). Here, defendant failed to object at sentencing to the court's reliance on the now-challenged UDAA conviction. However, this Court may nonetheless review defendant's claim because the conviction's alleged defect involves the "unique import of a defendant's constitutional right to counsel." People v. Carpentier, 446 Mich. 19, 29-30, 521 N.W.2d 195 (1994).

In Carpentier, our Supreme Court reaffirmed the "well-established procedure... for reviewing collateral challenges alleging Gideon^[1] violations" first set forth in Moore, supra. When making such a challenge, the defendant bears the initial burden of establishing that a prior conviction was obtained without counsel or a proper waiver of counsel. Carpentier, supra at 31, 521 N.W.2d 195. A defendant may meet this burden by (1) presenting "prima facie proof that a previous conviction was violative of Gideon, such as a docket entry showing the absence of counsel or a transcript evidencing the same," or (2) presenting evidence that the defendant requested such records from the sentencing court and that the court either (a) failed to reply to the request, or (b) refused to furnish copies of the records, within a reasonable time. Id. Once a defendant meets this initial burden, a hearing will be convened at which the prosecutor will bear the burden of establishing the constitutional validity of the prior conviction. Id.

In the present case, defendant's 1970 UDAA conviction is noted in his presentence report as follows:

10/4/70, sentenced November of 1970, two years probation. While on probation went AWOL from the Army several times.

The above notation fails to suggest whether defendant was represented by counsel or whether he validly waived his right to counsel. Mere silence regarding counsel is not the equivalent of the prima facie proof required by Moore and Carpentier, or a presentence information report containing a notation that a prior conviction was obtained without the benefit of counsel. People v. Alexander (After Remand), 207 Mich.App. 227, 230, 523 N.W.2d 653 (1994). Accordingly, we conclude that defendant is not entitled to an evidentiary hearing because he failed to satisfy his initial burden of showing that the trial court erred in relying on the UDAA conviction.

Next, defendant contends that M.C.L. § 769.13; M.S.A. § 28.1085, as amended by 1994 P.A. 110, is unconstitutional because it denies several constitutional guarantees, including the right to a trial by jury and the right to be proved guilty beyond a reasonable doubt. Although defendant did not challenge the constitutionality of § 13 at trial, this Court may consider constitutional claims for the first time on appeal. People v. Grant, 445 Mich. 535, 547, 520 N.W.2d 123 (1994).

Before its amendment in 1994, M.C.L. § 769.13; M.S.A. § 28.1085 provided a statutory right to a jury trial for those charged with being an habitual offender:

If, after conviction and either before or after sentence it appears that a person convicted of a felony has previously been convicted of a crime set forth in [M.C.L. §§ 769.10, 769.11, or 769.13; M.S.A. §§ 28.1082, 28.1083, or 28.1085], the prosecuting attorney of the county in which the conviction was had may file a separate or supplemental information in the cause accusing the person of the previous convictions. The court in which the conviction was had shall cause the person to be brought before it and shall inform him of the allegations contained in the information, and of his right to be tried on the allegations, and require the offender to say whether he is the same person as charged in the information or not. If the offender says he is not the same person, or remains silent, the court shall enter a plea of not guilty, and a jury of 12 jurors shall be impaneled from the petit jurors serving at the then or a following term of court to determine the issues raised by the information and plea.

Effective May 1, 1994, the procedure for enhancing an habitual offender's sentence was dramatically changed. A defendant so charged is no longer entitled to a jury trial. As amended, § 13 provides in pertinent part:

(5) The existence of the defendant's prior conviction or convictions shall be determined by the court, without a jury, at sentencing, or at a separate hearing scheduled for that purpose before sentencing. The existence of a prior conviction may be established by any evidence that is relevant for that purpose, including, but not limited to, 1 or more of the following:

(a) A copy of the judgment of conviction.

(b) A transcript of a prior trial or a plea-taking or sentencing proceeding.

(c) Information contained in a presentence report.

(d) A statement of the defendant.

It is well-settled that in a criminal trial the defendant's conviction must rest on evidence that proves "beyond a reasonable doubt the existence of every fact necessary to constitute the crime charged" and includes the right to a trial by jury. People v. Eason, 435 Mich. 228, 238, 458 N.W.2d 17 (1990). However, it has long been held that Michigan's habitual offender statutes are merely sentence enhancement mechanisms rather than substantive crimes. In re Jerry, 294 Mich. 689, 293 N.W. 909 (1940); People v. Anderson, 210 Mich.App. 295, 532 N.W.2d 918 (1995). In Eason, our Supreme Court upheld the sentence enhancement provision in the controlled substance act, M.C.L. § 333.7413; M.S.A. § 14.15(7413), which, like the habitual offender statutes, does not provide for a jury trial:

The [controlled substance act's sentence enhancement provision] is directed to facts which relate to the criminal, not to the crime, and nothing in the act suggests a proceeding other than that comporting with the fundamental due process requirement that a sentence must be based on accurate information and a defendant have a reasonable opportunity at sentencing to challenge such information. [435 Mich. at 232-233, 458 N.W.2d 17.]

Relying on the analysis in Eason, this Court upheld the 1992 amendments of Michigan's drunken driving laws. People v. Weatherholt, 214 Mich.App. 507, 543 N.W.2d 34 (1995). The amendments provided a procedure by which the prosecutor may seek an enhanced sentence on the basis of one or more prior convictions by presenting, at sentencing, an abstract of conviction, a copy of the defendant's driving record, or an admission by the defendant. M.C.L. § 257.625(12); M.S.A. § 9.2325(12). This Court, in determining that a defendant subject to such enhanced sentences is not entitled to a jury trial or proof of the prior convictions beyond a reasonable doubt, noted the clear legislative intent that the amendments are aimed at sentence enhancement, not establishing a separate substantive offense:

[S]ubsections 11 and 12 clearly state that they are applicable where the prosecutor is seeking "an enhanced sentence." They also provide that a defendant's prior convictions "shall be established at sentencing." By adding sections 11 and 12, the Legislature demonstrated that sentence enhancement is the intended thrust of the new statutory provisions. [214 Mich.App. at 511, 543 N.W.2d 34.]

We find that application of the reasoning in Eason and Weatherholt is warranted in the present case. Section 13 expressly states that the section is applicable where a prosecutor "seek[s] to enhance the sentence of a defendant" as an habitual offender. It eliminates the statutory right to a jury trial as well as the right to have guilt proved beyond a reasonable doubt. This language reaffirms the long-held legislative intent that the habitual offender statutes are merely sentence enhancement mechanisms rather than substantive crimes. Hence, defendant is not entitled to a trial by jury or the right to be proved guilty of being an habitual offender beyond a reasonable doubt.

Defendant also maintains that the 1994 amendment of § 13 is violative of his right against self-incrimination. Specifically, defendant posits that, because a prior conviction may be established by information contained in a presentence report or by a statement by the defendant, the amendments require a defendant to provide self-incriminating information in violation of Const. 1963, Art. 1, § 17. We disagree. Contrary to defendant's suggestion, the amendment of § 13 merely permits, but does not require, a defendant to provide the sentencing court with information regarding his prior criminal convictions.

Defendant next suggests that the 1994 amendment violates the constitutional guarantees of due process because it permits a sentencing court to consider a prior conviction obtained in the absence of counsel or a valid waiver thereof. Again, we disagree. Due process requires that a sentence be based on accurate information and that a defendant have a reasonable opportunity at sentencing to challenge the information. Eason, supra at 233-234, 458 N.W.2d 17. To this end, § 13 provides as follows:

(4) A defendant who has been given notice that the prosecuting attorney will seek to enhance his or her sentence ... 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.

* * * * * *

(6) The court shall resolve any challenges to the accuracy or constitutional validity of a prior conviction or convictions that have been raised in a motion filed under subsection (4) at sentencing or at a separate hearing scheduled for that purpose before sentencing. The defendant, or his or her attorney, shall be given an opportunity to deny, explain, or refute any evidence or information pertaining to the defendant's prior conviction or convictions before sentencing is imposed, and shall be permitted to present relevant evidence for that purpose. The defendant shall bear the burden of establishing a prima facie showing that an alleged prior conviction is inaccurate or constitutionally invalid. If the defendant establishes a prima facie showing that information or evidence concerning an alleged prior conviction is inaccurate, the prosecuting attorney shall bear the burden of proving, by a preponderance of the evidence, that the information or evidence is accurate. If the defendant establishes a prima facie showing that an alleged prior conviction is constitutionally invalid, the prosecuting attorney shall bear the burden of proving, by a preponderance of the evidence, that the prior conviction is constitutionally invalid.

Clearly, the challenged amendment sufficiently protects defendants' due process rights to be sentenced on the basis of accurate information, Eason, supra at 233-234, 458 N.W.2d 17. See also People v. Williams, 215 Mich.App. 234, 544 N.W.2d 480 (1996).

Defendant's final constitutional challenge to the 1994 amendment is that it allows prior convictions that are more than ten years old to be used to enhance a defendant's sentence. However, defendant fails to identify a constitutional guarantee that is violated by the use of such convictions. Nonetheless, this Court has held that there is "no valid reason why convictions over ten years old... may not be used by the trial court in determining a proper sentence." People v. Line, 145 Mich.App. 567, 571-572, 378 N.W.2d 781 (1985). In Line, the Court noted that the scope of information to be considered by a sentencing court is necessarily broad and that the rules of evidence do not apply. Accordingly, it is not unconstitutional for a trial court to consider convictions that are over ten years old in determining whether a defendant is an habitual offender.

Defendant next maintains that the trial court failed to complete a written SIR and that, as a result, the trial court imposed a disproportionate sentence. We disagree. Review of habitual offender sentences is limited to considering whether the sentence violates the principle of proportionality set forth in People v. Milbourn, 435 Mich. 630, 461 N.W.2d 1 (1990), without reference to the guidelines. People v. Gatewood, 450 Mich. 1021, 546 N.W.2d 252 (1996); People v. Gatewood (On Remand), 216 Mich.App. 559, 550 N.W.2d 265 (1996). In light of the circumstances surrounding the offense and the offender, we conclude that defendant's sentence is not disproportionate and that the trial court did not abuse its discretion in sentencing defendant. People v. Cervantes, 448 Mich. 620, 532 N.W.2d 831 (1995).

Nonetheless, although the sentencing guidelines do not apply to habitual offenders, the trial court must fill out an SIR for the underlying offense. People v. Derbeck, 202 Mich.App. 443, 446, 509 N.W.2d 534 (1993); Michigan Sentencing Guidelines (2d ed.), p. 1. "This is done to aid in the development of guidelines for habitual offender sentencings, rather than to aid the sentencing court in determining the habitual offender's sentence." People v. Strickland, 181 Mich.App. 344, 346, 448 N.W.2d 848 (1989). Thus, we remand this matter to the trial court solely for the administrative task of completing a written SIR.

Last, defendant contends that he was denied the effective assistance of counsel at sentencing. Specifically, defendant contends that counsel failed to challenge the sentencing court's use of the 1970 UDAA conviction in determining whether defendant was a fourth-felony offender. However, we have already determined that the sentencing court properly considered the UDAA conviction. Consequently, defendant has failed to show that he was prejudiced by counsel's failure to challenge the use of the UDAA conviction. People v. Pickens, 446 Mich. 298, 302-303, 521 N.W.2d 797 (1994). Defendant also contends that counsel failed to object to the trial court's failure to prepare an SIR. While we agree that counsel should have brought this omission to the sentencing court's attention, defendant must establish more than deficient performance; he must also demonstrate that there is a reasonable probability that, but for counsel's error, the result of the proceedings would have been different. People v. Stanaway, 446 Mich. 643, 687-688, 521 N.W.2d 557 (1994). Defendant has failed to make such a demonstration. The completion of an SIR in the present case is merely an administrative task that has no effect on defendant's sentence as an habitual offender.

Defendant's conviction and sentence are affirmed, and the case is remanded for preparation of an SIR. Jurisdiction is not retained.

NOTES

[1] Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963).