People of Michigan v. Kenyon Bailey

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, FOR PUBLICATION
September 24, 2019
Plaintiff-Appellee, 9:10 a.m.
v No. 342175
Wayne Circuit Court
KENYON BAILEY, LC No. 17-004208-01-FC
Defendant-Appellant.
Before: JANSEN, P.J., and CAMERON and TUKEL, JJ.
CAMERON, J.
Following a bench trial, defendant, Kenyon Bailey, was convicted of murdering the drug
dealer who reportedly sold Bailey poor quality narcotics. Bailey now appeals his convictions of
felon in possession of a firearm (felon-in-possession), MCL 750.224f, second-degree murder,
MCL 750.317, and possession of a firearm during the commission of a felony, second offense,
(felony-firearm), MCL 750.227b. Bailey was sentenced to 10 to 15 years’ imprisonment for the
felon-in-possession conviction, 30 to 50 years’ imprisonment for the second-degree murder
conviction, and a consecutive sentence of five years’ imprisonment for the felony-firearm
conviction. We affirm Bailey’s convictions, but vacate his sentence and remand for resentencing
and recalculation of Bailey’s jail credit.
I. FACTUAL BACKGROUND
Bailey had recently purchased narcotics from the victim, the owner of an automobile
repair shop in Detroit, and later discovered that the drugs were ineffective. Bailey and his friend,
Stacey Reilly, drove to the victim’s repair shop, and Bailey attempted to get his money back
from the victim. Bailey entered the repair shop, but he returned to his car approximately four
minutes later. Bailey then went back inside the repair shop.
After Bailey reentered the repair shop, Reilly heard a series of gunshots. Reilly stepped
into the repair shop and encountered two of the victim’s employees. Reilly searched the
employees for weapons. As Reilly searched the employees, he saw Bailey run out of the repair
shop. Reilly found Bailey seated in his car with a gun on his lap. At trial, Reilly identified the
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gun in Bailey’s lap as a .40 caliber handgun. Bailey appeared shaken and distressed, and asked
Reilly if he planned to “tell on him.” Reilly told Bailey he would not tell anyone what he saw.
Detroit police responded to the shooting. Two officers at the scene saw blood and
multiple spent .40 caliber bullet casings on the floor of the repair shop. The officers found the
victim on the ground between two cars and determined that he had died of multiple gunshot
wounds. The officers discovered a .32 caliber revolver wedged underneath the victim’s body.
Six spent shell casings were discovered in the cylinder of the revolver. However, no .32 caliber
bullets were discovered at the scene of the crime. A medical examination concluded that the
victim was shot six times. Bailey was arrested and charged with felon-in-possession, second-
degree murder, and felony-firearm.
Bailey testified at trial, asserting that the victim threatened him with a gun first and that
the killing was in self-defense. Bailey was convicted of the charged crimes. This appeal
followed.
II. SUFFICIENCY OF THE EVIDENCE
Bailey argues that there was insufficient evidence to convict him of second-degree
murder because he acted in self-defense when he shot the victim. We disagree.
This Court reviews a challenge to the sufficiency of the evidence de novo. People v
Lanzo Const Co, 272 Mich. App. 470, 473; 726 NW2d 746 (2006). “The evidence is viewed in a
light most favorable to the prosecution to determine whether the trial court could have found that
the essential elements of the crime were proven beyond a reasonable doubt.” Id. at 474.
“Evidence is sufficient if, when viewed in the light most favorable to the prosecution, ‘a rational
trier of fact could have found that the essential elements of the crime were proven beyond a
reasonable doubt.’ ” People v Blevins, 314 Mich. App. 339, 357; 886 NW2d 456 (2016) (citation
omitted). Direct and circumstantial evidence, including reasonable inferences arising from the
use of circumstantial evidence, may provide sufficient proof to meet the elements of a crime.
People v Henderson, 306 Mich. App. 1, 9; 854 NW2d 234 (2014).
Bailey maintains that the trial court erred by finding him guilty of second-degree murder
because his shooting of the victim was justified as an act of self-defense. The elements of
second-degree murder are as follows:
(1) a death, (2) the death was caused by an act of the defendant, (3) the defendant
acted with malice, and (4) the defendant did not have lawful justification or
excuse for causing the death. [People v Smith, 478 Mich. 64, 70; 731 NW2d 411
(2007).]
A killing may be considered justified if the defendant acts in self-defense. People v Dupree, 486
Mich. 693, 707; 788 NW2d 399 (2010). Generally, an individual who is “not the aggressor in an
encounter is justified in using a reasonable amount of force against his adversary,” but only if the
individual believes that he is in immediate danger of bodily harm and that the use of force is
necessary to avoid said danger. Id. When a defendant raises the issue of self-defense, he must
“satisf[y] the initial burden of producing some evidence from which a [factfinder] could
conclude that the elements necessary to establish a prima facie defense of self-defense
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exist . . . .” People v Stevens, 306 Mich. App. 620, 630; 858 NW2d 98 (2014) (quotation marks
and citation omitted). The prosecution is then required to “exclude the possibility of self-defense
beyond a reasonable doubt.” Id. (quotation marks and citation omitted).
Bailey argues that he acted in self-defense because the victim pulled out a gun and shot at
him. Bailey further contends that he felt it necessary to pull out his own gun and shoot back at
the victim in self-defense because he believed that he was in imminent danger of great bodily
harm. In support of this assertion, Bailey argues that he was within his right to stand his ground
in the face of a perceived attack. Bailey directs this Court to People v Riddle, 467 Mich. 116,
119; 649 NW2d 30 (2002), in which our Supreme Court opined:
[A] person is never required to retreat from a sudden, fierce, and violent attack;
nor is he required to retreat from an attacker who he reasonably believes is about
to use a deadly weapon. In these circumstances, as long as he honestly and
reasonably believes that it is necessary to exercise deadly force in self-defense,
the actor’s failure to retreat is never a consideration when determining if the
necessity element of self-defense is satisfied; instead, he may stand his ground
and meet force with force. [Footnote omitted.]
The evidence presented at trial does not suggest that the victim used a deadly weapon
against Bailey, which would have necessitated Bailey’s use of deadly force as a means of self-
defense. Rather, the evidence indicates that Bailey walked into the repair shop and walked back
out again. After approximately seven minutes, Bailey reentered the repair shop, got into an
argument with the victim, and shot him. The trial court viewed a surveillance video of the
offense, and found that there was no indication that the victim pulled a gun out and fired at
Bailey; rather, the trial court found that the surveillance video suggested that Bailey left the
repair shop and then opened fire on the victim immediately after returning to the repair shop.
Additionally, the evidence showed that Bailey shot the victim six times. One of the bullets
entered through the victim’s back, suggesting that the victim had his back to Bailey when he was
shot. The trial court could certainly choose to disbelieve Bailey’s argument that he acted in self-
defense when he shot the victim six times, particularly in light of the surveillance video and the
fact that one of the bullets entered the victim’s body from behind. Further, although a .32 caliber
revolver was discovered underneath the victim’s body, there was no evidence that the gun was
actually fired inside the repair shop. No .32 caliber bullets were found in the repair shop after
the shooting, suggesting to the trial court that the victim did not fire his gun at Bailey. Thus, the
prosecution presented sufficient evidence to rebut Bailey’s theory of self-defense. See Stevens,
306 Mich. App. at 630.
Additionally, Bailey argues that, because he acted in self-defense, the prosecution could
not establish that he acted with malice. As previously noted, one of the elements of second-
degree murder requires a defendant to act with malice. Smith, 478 Mich. at 70. Malice is defined
as
the intent to kill, the intent to cause great bodily harm, or the intent to do an act in
wanton and willful disregard of the likelihood that the natural tendency of such
behavior is to cause death or great bodily harm. Malice may be inferred from
evidence that the defendant intentionally set in motion a force likely to cause
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death or great bodily harm. [People v Werner, 254 Mich. App. 528, 531; 659
NW2d 688 (2002) (citation and quotation omitted).]
The prosecution is not required to prove that a defendant intended to harm or kill a specific
victim. Id. Rather, “the prosecution must prove the intent to do an act that is in obvious
disregard of life-endangering consequences.” Id. (quotation marks and citation omitted). In this
instance, the prosecution proved that the victim’s murder was not done in self-defense, and thus,
no justification or excuse for the killing was presented in the trial court. It is clear that Bailey
opened fire on the victim in a closed space, with—at the very least—complete disregard for the
fact that his conduct could cause the victim great bodily injury or harm. Therefore, the
prosecution presented evidence that proved, beyond a reasonable doubt, that Bailey acted with
malice and without the justification of self-defense. See Werner, 254 Mich. App. at 531.
Accordingly, sufficient evidence existed to support Bailey’s conviction of second-degree murder.
III. DUE PROCESS AND RIGHT TO COUNSEL
Bailey argues that the trial court violated his right to due process and right to counsel.
Bailey first argues that the trial court violated his right to due process by failing to allow him
time to consult with his attorney before withdrawing his plea. He then argues that the trial court
violated his right to counsel when it sua sponte substituted his appointed defense counsel. We
disagree that the trial court’s plea procedures violated Bailey’s right to due process, but we agree
that the trial court erred by substituting defense counsel. However, the trial court’s substitution
of counsel did not constitute plain error affecting Bailey’s substantial rights; therefore, Bailey is
not entitled to relief.
A. WITHDRAWAL OF PLEA
This Court reviews a trial court’s decision regarding a motion to withdraw a plea for an
abuse of discretion. People v Martinez, 307 Mich. App. 641, 646; 861 NW2d 905 (2014). “An
abuse of discretion occurs when the trial court’s decision is outside the range of principled
outcomes.” Id. (quotation marks and citation omitted). This Court reviews all underlying
questions of law de novo. Id. “[A] trial court’s factual findings are reviewed for clear error.”
Id. at 646-647. (quotation marks and citation omitted).
Before sentencing, as is the case here, a trial court may withdraw a plea “on the
defendant’s motion or with the defendant’s consent, only in the interest of justice . . . .” MCR
6.310(B)(1). A plea is considered to be withdrawn “in the interest of justice” if a defendant
provides “a fair and just reason” for withdrawing the plea. People v Fonville, 291 Mich. App.
363, 378; 804 NW2d 878 (2011) (quotation marks and citation omitted). “Fair and just reasons
include reasons like a claim of actual innocence or a valid defense to the charge.” Id.
Conversely, “dissatisfaction with the sentence or incorrect advice from the defendant’s attorney”
are not considered “fair and just reasons” for withdrawing a plea. Id.
Bailey was scheduled to be sentenced following his entry into a plea agreement. At the
sentencing hearing, the following exchange took place:
Defendant Bailey: Hey I—Listen, I am not guilty . . . . I shouldn’t have
took [sic] this plea, I should have went [sic] to trial you know.
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I was scared. I didn’t understand it really, you know, what I’m
saying, and—
The Court: You had a right to be scared.
Defendant Bailey: Right, you know, I didn’t go up there to kill that man,
no, honest to God I didn’t. [The victim] shot at me first, and that man had a gun
on him and I had my gun on me but he pulled his out first and it’s on camera and
that’s all I got to say, sir.
Ms. Logan [the prosecutor]: Well, Your Honor, it sounds like the
defendant is trying to withdraw his plea.
The Court: That’s what it sounds like, is that what you are trying to do?
Defendant Bailey: Yes, sir, that’s why I went to the library, I want to
withdraw my plea.
The Court: Hold it, hold it. I don’t want to hear about you going to the
library . . . .
* * *
Ms. Logan [the prosecutor]: Well, Your Honor . . . I don’t want an
innocent man to go to prison, and if the defendant is claiming that he did this in
self-defense, albeit, it’s all on video—
The Court: Right. Right.
Ms. Logan [the prosecutor]: —I think the court should withdraw his plea
and let us go to trial.
The Court: Is that what you want to do?
Defendant Bailey: Yes, sir.
The Court: All right. I’ll allow you to withdraw your plea.
The trial court asked Bailey whether he intended to withdraw his plea on two occasions during
the conversation, and Bailey confirmed that he wished to withdraw his plea and go to trial.
Bailey does not argue that the trial court erred by accepting his request to withdraw his
plea. Rather, Bailey argues that the trial court violated his right to due process by failing to
allow him time to consult with defense counsel before withdrawing his plea. Bailey cites to
People v Anderson, 398 Mich. 361; 247 NW2d 857 (1976), which concerns a defendant’s right to
represent himself at trial, as well as to MCR 6.005(D), concerning the trial court’s responsibility
to appoint legal counsel to represent indigent defendants. Bailey contends that the trial court
effectively denied him the right to counsel by failing to give him time to discuss his decision to
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withdraw the plea with defense counsel. However, the record does not support Bailey’s
argument. Bailey clearly and unequivocally stated that he should not have entered a plea and
that he wished to go to trial because he acted in self-defense. The trial court made an effort to
clarify Bailey’s request with defense counsel, who told the judge “[w]ell, judge, I’m going to let
[Bailey] speak.” Bailey followed his attorney’s direction and agreed with the trial court that he
did want to withdraw his plea. Neither Bailey nor his counsel requested additional time to
reexamine the wisdom of Bailey’s request to withdraw his plea. Nor was there any indication
that Bailey was forced to withdraw his plea or that he did not understand the consequences of his
actions. A trial court has no obligation to require that attorney-client discussions take place.
B. SUBSTITUTION OF COUNSEL
Bailey also argues that the trial court violated his right to counsel by substituting his
appointed defense counsel without his consent. We agree.
After the trial court granted Bailey’s request to withdraw his plea, the trial court removed
Bailey’s first appointed attorney and replaced him with Lillian F. Diallo (Diallo). The trial court
appointed new counsel following Bailey’s explanation that he only pleaded guilty because he
was “scared” and that he “didn’t understand [the legal issues] really” until he “went to the
library” before sentencing. The trial court expressed concern about defense counsel’s continued
representation:
The Court: Do you want Mr. Harris to continue representing you?
Defendant Bailey: Yes, sir.
The Court: Oh, all right.
* * *
The Court: Well, let me speak, to say this to [Bailey].
Usually when a person has represented you—of course, you have a
difference with Mr. Harris, now, you’re saying that you are innocent and he’s
assisted you in pleading guilty, so I think you should have a different lawyer.
Defendant Bailey: Well—
The Court: We’ll appoint a lawyer to represent you.
Mr. Harris [defense counsel]: Judge, first of all, I have not addressed the
court on this, I am not moving to withdraw.
The Court: Yeah, but Mr. Harris, I think that when you—that’s quite a
problem, you have already—this man has said to me this morning that he plead
[sic] guilty on your advice and now he said he is innocent.
Mr. Harris [defense counsel]: Well wait a minute.
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The Court: No, you are out.
Harris explained that he informed Bailey regarding his option to enter into a plea agreement or
go to trial, but that he never forced Bailey to enter a plea. Nevertheless, new counsel was
appointed.
Because Bailey did not object to the substitution of defense counsel in the trial court, this
issue is unpreserved. People v Metamora Water Serv, Inc, 276 Mich. App. 376, 382; 741 NW2d
61 (2007). Therefore, this Court’s review is for plain error affecting Bailey’s substantial rights.
People v Carines, 460 Mich. 750, 763-764; 597 NW2d 130 (1999). “To avoid forfeiture under
the plain error rule, three requirements must be met: 1) error must have occurred, 2) the error
was plain, i.e., clear or obvious, 3) and the plain error affected substantial rights.” Id. at 763.
The third aspect “generally requires a showing of prejudice, i.e., that the error affected the
outcome of the lower court proceedings.” Id. Reversal will only be warranted where the plain
error leads to “the conviction of an actually innocent defendant,” or where an error affects the
“fairness, integrity, or public reputation” of the judicial proceeding. Id. at 763-764.
Since 1985, this Court has held in several decisions that a trial court may only sua sponte
remove and substitute appointed counsel for “gross incompetence, physical incapacity, or
contumacious conduct.” See People v Abernathy, 153 Mich. App. 567, 568-570; 396 NW2d 436
(1985); People v Durfee, 215 Mich. App. 677, 681; 547 NW2d 344 (1996); People v Johnson, 215
Mich. App. 658, 663; 547 NW2d 65 (1996); People v Coones, 216 Mich. App. 721, 728; 550
NW2d 600 (1996). In light of the principle of stare decisis codified under MCR 7.215(J)(1), we
are bound by the rule established in these cases.
However, we question the legal support upon which this rule was first established in
Michigan. In 1980, this Court held in People v Fox, 97 Mich. App. 324, 328; 293 NW2d 814
(1980), rev’d on other grounds 410 Mich. 871 (1980), that “it is well settled that gross
incompetence, physical incapacity or contumacious conduct may justify the court’s removal of
an attorney.” The Fox Court cited to United States v Dinitz, 538 F2d 1214 (CA 5, 1976), reh den
542 F2d 1174 (CA 5, 1976), cert den 429 U.S. 1104, 97 S. Ct. 1133, 51 L. Ed. 2d 556 (1977), as
support for this newly established rule under Michigan law. In Dinitz, the trial court removed the
defendant’s retained counsel, Maurice Wagner, from the courtroom at the beginning of the trial,
which resulted in a mistrial shortly after Wagner made his opening statement. Id. at 1217.1
According to the federal court, “the judge was prompted to order Wagner’s removal by
Wagner’s efforts, during his opening statement, to tell the jury about [a federal agent’s] attempt
to extort money from [the defendant].” Id. Wagner did not move for reinstatement, but the
defendant made repeated motions requesting Wagner’s reinstatement before the next trial. Id. at
1218.
The defendant in Dinitz argued that “his Sixth Amendment right to counsel was violated
when the district court banned Wagner from the first trial and precluded him from appearing
1
During the first trial, the defendant had two other attorneys also representing him. Dinitz, 538
F2d at 1217 n 1. However, he chose to represent himself during the second trial. Id. at 1218.
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thereafter.” Id. at 1219. Acknowledging that courts must respect a defendant’s choice of
counsel, the Dinitz court explained that the defendant had a right to choose his counsel—subject
to certain limits. Id. Because “attorneys are officers of the courts before which they appear,” the
Dinitz court held that “courts are necessarily vested with the authority, within certain limits, to
control attorneys’ conduct.” Id. While the Sixth Amendment helped define the limits of judicial
discretion, the inquiry turned on “whether, given the defendant’s qualified right to choose his
own counsel, the trial court’s refusal to hear the defendant through his chosen counsel constituted
an abuse of discretion.” Id. (emphasis added). Based on Wagner’s conduct at trial, the court in
Dinitz concluded that the district court did not abuse its discretion when it dismissed Wagner. Id.
at 1220-1222.
The court in Dinitz addressed a very different question than that posed in this case, which
is whether the trial court erred when it removed Bailey’s appointed counsel. Importantly, a
defendant has a “right to choice of counsel[,]” but this right is “limited and may not extend to a
defendant under certain circumstances.” People v Aceval, 282 Mich. App. 379, 386; 764 NW2d
285 (2009) (citation omitted). Under Michigan law, “[a]s an indigent receiving counsel at public
expense,” Bailey “was not entitled to choose his attorney.” People v Ackerman, 257 Mich. App.
434, 456; 669 NW2d 818 (2003). The court’s decision in Dinitz relied on the well-settled rule
that all defendants have the right to retain counsel of their choice. However, in this case, there is
no such right implicated, and whether a trial court may replace a defendant’s appointed counsel
for reasons other than “gross incompetence, physical incapacity or contumacious conduct” is a
discernibly different question than the one addressed in Dinitz. Thus, we question the rule
adopted in Fox and later applied in Abernathy, Durfee, Coones, and Johnson. Importantly, those
cases all involved appointed counsel—not retained counsel—yet this distinction is neither
recognized nor addressed in those cases.
Furthermore, not even the Dinitz court articulated the standard established in Fox—that
courts may only substitute counsel upon a showing of gross incompetence, incapacity, or
contumacious conduct. Fox, 97 Mich. App. at 328. Rather, the court in Dinitz examined each of
the defense counsel’s transgressions and determined whether the district court’s dismissal
constituted an abuse of its discretion. See Dinitz, 538 F2d at 1219-1220 (“Thus, in the context of
[the defendant’s] case, we must consider each instance at which the district judge exercised his
discretion in disallowing Wagner to appear for [defendant].”). Nevertheless, the court in Fox
used these case-specific facts to establish a rule that treats the removal of appointed and retained
counsel the same. This approach relies upon a flawed legal analysis and sets an unwarrantedly
high bar for trial courts to find “gross incompetence, physical incapacity or contumacious
conduct” before appointed counsel may be removed.
In our view, the standard that this Court should adopt is set forth in Daniels v Lafler, 501
F3d 735 (CA 6, 2007). In Daniels, the Sixth Circuit stated, “[T]hose who do not have the means
to hire their own lawyers have no cognizable complaint so long as they are adequately
represented by attorneys appointed by the courts.” Id. at 739, quoting Caplin & Drysdale v
United States, 491 U.S. 617, 624; 109 S. Ct. 2646; 105 L. Ed. 2d 528 (1989) (quotation marks
omitted). The defendant in Daniels, as in this case, argued that the district court violated his
Sixth Amendment right to counsel when it replaced his court-appointed attorney with another
court-appointed attorney. Id. at 737. The court held “that a defendant relying on court-appointed
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counsel has no constitutional right to the counsel of his choice.” Id. at 740. While this is a
maxim well established under Michigan law, the court in Daniels further explained:
This does not mean that an indigent defendant never could establish that the
arbitrary replacement of court-appointed counsel violated his constitutional rights.
The replacement of court-appointed counsel might violate a defendant’s Sixth
Amendment right to adequate representation or his Fourteenth Amendment right
to due process if the replacement prejudices the defendant—e.g., if a court
replaced a defendant’s lawyer hours before trial or arbitrarily removed a skilled
lawyer and replaced him with an unskilled one. [Id.]
Thus, under Daniels, Bailey would have no right to choose his appointed counsel, and without a
showing that the trial court violated his constitutional right to adequate representation or due
process, there would be no violation.
The standard in Michigan, however, requires us to determine whether the trial court’s
substitution of counsel violated Bailey’s right to counsel. As stated previously, binding case law
provides that “[a] trial court may remove appointed counsel for gross incompetence, physical
incapacity, or contumacious conduct.” See e.g., Coones, 216 Mich. App. at 728. The trial court
attempted to justify the removal of Bailey’s defense counsel by opining that a conflict of interest
must exist between Bailey and his appointed counsel because appointed counsel “assisted
[Bailey] in pleading guilty” and would now have to assert Bailey’s innocence at trial. In doing
so, the trial court implied that Bailey’s appointed counsel encouraged him to plead guilty and this
advice, in light of Bailey’s later claim of innocence, must have fatally compromised their
attorney-client relationship. However, no evidence was presented to the trial court supporting
the notion that defense counsel erroneously urged Bailey to plead guilty or that any actual
conflict existed. Instead, it merely appeared that Bailey changed his mind about pleading guilty
and expressed his desire to go to trial. Bailey expressed no desire to have new defense counsel
appointed, and there was no clearly justifiable reason to do so. Clearly, appointed counsel’s
conduct did not rise to the level of gross incompetence. Moreover, there is no evidence of
incapacity or contumacious conduct. Thus, the trial court erroneously substituted counsel.
However, this Court is not obligated to reverse Bailey’s convictions, as he requests,
because the trial court’s decision did not affect Bailey’s substantial rights. When a trial court’s
error “implicates a constitutional right,” this Court must determine whether the error was
structural. People v Willing, 267 Mich. App. 208, 223; 704 NW2d 472 (2005). “Structural errors
are defects that affect the framework of the trial, infect the truth-gathering process, and deprive
the trial of constitutional protections without which the trial cannot reliably serve its function as
a vehicle for determination of guilt or innocence.” People v Watkins, 247 Mich. App. 14, 26; 634
NW2d 370 (2001). Structural errors require automatic reversal, and this Court held in Durfee
that the harmless-error doctrine does not apply to a preserved issue as to whether the trial court
violated the defendant’s right to counsel when it substituted appointed counsel. Durfee, 215
Mich. App. at 681. When the issue is preserved, “a ‘prejudice’ standard simply does not apply.”
Id. However, unlike in Fox, Abernathy, Durfee, Coones, and Johnson, the issue here is
unpreserved given that neither Bailey nor his original appointed counsel expressly objected to
the trial court appointing new trial counsel. An unpreserved constitutional issue—structural or
nonstructural—is reviewed for plain error affecting substantial rights. Carines, 460 Mich. at 763-
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764. The record indicates that Bailey was never without representation because Diallo replaced
Bailey’s original appointed counsel immediately after the removal, and Bailey was represented at
all times, including during trial. Bailey has not argued that he was deprived of the effective
assistance of counsel or that counsel failed to adequately represent him. There is no evidence
that the removal of Bailey’s original appointed counsel affected the outcome of the proceedings.
If anything, the trial court appointed a new attorney who was more willing to go to trial
considering Bailey’s original attorney was—in the trial court’s eyes—more favorable to taking a
plea than going to trial. Accordingly, because the trial court’s substitution of counsel did not
amount to plain error affecting Bailey’s substantial rights, Bailey is not entitled to the relief he
seeks. See Carines, 460 Mich. at 763-764.
IV. SENTENCING ERRORS
Bailey argues that the trial court erred for a number of different reasons during
sentencing. Namely, Bailey contends that the trial court erred by (1) assessing 15 points for
offense variable (OV) 5, (2) failing to consider mitigating factors in crafting an appropriate
sentence, (3) failing to properly calculate jail credit, and (4) denying him his right of allocution.
We agree that the trial court erred in its assessment of 15 points under OV 5, denied
Bailey the right of meaningful allocution at sentencing, and incorrectly calculated Bailey’s jail
credit. However, we conclude that the trial court did not fail to consider mitigating factors when
sentencing Bailey.
Bailey first argues that the trial court erred by assessing 15 points under OV 5. The
prosecution agrees and so do we. This Court reviews for clear error the trial court’s factual
determinations at sentencing and “review[s] de novo whether the factual determinations were
sufficient to assess points under OV [5].” People v Schrauben, 314 Mich. App. 181, 196; 886
NW2d 173 (2016). “When calculating the sentencing guidelines scores, a trial court may
consider all evidence in the record, including but not limited to the presentence investigation
report (PSIR) and admissions made by a defendant during a plea proceeding.” People v Jackson,
320 Mich. App. 514, 519; 907 NW2d 865 (2017).
OV 5, MCL 777.35, “is scored when a homicide or homicide-related crime causes
psychological injury to a member of a victim’s family.” People v Calloway, 500 Mich. 180, 184;
895 NW2d 165 (2017). MCL 777.35 provides:
(1) Offense variable 5 is psychological injury to a member of a victim’s
family. Score offense variable 5 by determining which of the following apply and
by assigning the number of points attributable to the one that has the highest
number of points:
(a) Serious psychological injury requiring professional treatment occurred
to a victim’s family . . . 15 points
(b) No serious psychological injury requiring professional treatment
occurred to a victim’s family . . . 0 points
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(2) Score 15 points if the serious psychological injury to the victim’s
family may require professional treatment. In making this determination, the fact
that treatment has not been sought is not conclusive.
“In this context, ‘serious’ is defined as ‘having important or dangerous possible consequences.’ ”
Calloway, 500 Mich. at 186 (citation omitted).
At the original sentencing hearing, the victim’s wife gave a victim impact statement,
stating:
I was [the victim]’s wife. We be [sic] together since I was 14. I am 50
years old now, we would have been celebrating our 20th anniversary August the
4th of this year.
I am—I just want to say that I forgave [Bailey], I don’t even know him,
but I forgave him a month after this happened. Before they even caught him.
But I knew that [Bailey] wasn’t a stranger to my husband. And [Bailey]
not only took my husband[,] he took a son, he took a brother, he took a
grandfather[,] he took a great grandfather.
* * *
[The victim] have [sic] 15 grand kids. And for [Bailey] to go in the shop and do
this to my husband . . . . I feel that [Bailey] should get life . . . .
The victim’s wife also gave a statement at Bailey’s second sentencing hearing, stating that she
“prayed that [the trial court] and God give [Bailey] the sentence that he deserves and [he] never
see [sic] the light of day again for doing this” to the victim. On the basis of the statements
presented to the trial court, insufficient evidence was presented in support of the finding that the
victim’s wife suffered psychological injury warranting the assessment of 15 points under OV 5.
Although the victim’s wife clearly experienced grief following her husband’s death, there was no
evidence presented to show that she experienced the type of serious psychological trauma
contemplated in MCL 777.35. See Calloway, 500 Mich. at 186. Consequently, the trial court
erred when it scored OV 5 at 15 points. See Schrauben, 314 Mich. App. at 196. OV 15 should
have been scored at zero. See MCL 777.35(1)(b).
Although OV 5 should have been assessed at zero points, the trial court’s error does not
affect Bailey’s minimum sentencing guidelines range. Bailey had a total of 117 prior record
variable (PRV) points, which places him in Level F of the sentencing grid. Although Bailey’s
total OV score is not noted in the available record, Bailey’s minimum sentencing guidelines
range for the second-degree murder conviction was 315 months to 1,050 months, indicating that
his OV score was between 50 and 99 points under the applicable sentencing grid. MCL 777.61.
This places him in OV Level II. MCL 777.61. On appeal, the prosecution confirms that Bailey
was placed in OV Level II and that correcting the assessment of points assessed under OV 5
would not change Bailey’s minimum sentencing guidelines range. OV Level II is a broad range,
and there is no indication that Bailey’s minimum sentencing guidelines range would change if
OV 5 was properly scored. Therefore, resentencing is not required based on Bailey’s arguments
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concerning the improper scoring of OV 5. See People v Francisco, 474 Mich. 82, 89 n 8; 711
NW2d 44 (2006) (“Where a scoring error does not alter the appropriate guidelines range,
resentencing is not required.”). Nonetheless, for the reasons discussed infra, it is necessary to
vacate Bailey’s sentence and remand this matter to the trial court so that Bailey can be
resentenced and his jail credit can be recalculated. On remand, the trial court shall correct
Bailey’s sentencing information report to reflect a score of zero points for OV 5.2
Second, Bailey argues that it was unclear whether the trial court took into account
mitigating factors when sentencing him. More specifically, Bailey contends that the trial court
likely ignored his psychiatric history, particularly the fact that he was previously diagnosed with
schizophrenia. Because this sentencing challenge is unpreserved, our review is for plain error
affecting Bailey’s substantial rights. See Carines, 460 Mich. at 763-764.
Bailey presents no supporting authority for the proposition that a trial court must consider
mitigating factors on the record at sentencing. Indeed, contrary to Bailey’s suggestion, trial
courts are not required to expressly or explicitly consider mitigating factors at sentencing. See
People v Osby, 291 Mich. App. 412, 416; 804 NW2d 903 (2011). Moreover, the trial court was
provided with a copy of the PSIR, and the court discussed its contents at sentencing. The PSIR
provides that “previous reports indicate the defendant suffered from [S]chizophrenia when he
was shot in the face in 2006. The defendant denies taking any medication for that diagnosis.”
Because the trial court was clearly aware of the contents of the PSIR, which discussed Bailey’s
schizophrenia diagnosis, Bailey cannot conclusively show that the trial court failed to take into
account his previously diagnosed mental illness. Thus, Bailey has failed to establish plain error.
See Carines, 460 Mich. at 763-764.
Third, Bailey argues that the trial court improperly calculated his jail credit. This
argument is unpreserved, and our review is for plain error affecting Bailey’s substantial rights.
See Carines, 460 Mich. at 763-764.
The calculation of jail credit is governed by MCL 769.11b, which provides:
Whenever any person is hereafter convicted of any crime within this state and has
served any time in jail prior to sentencing because of being denied or unable to
furnish bond for the offense of which he is convicted, the trial court in imposing
sentence shall specifically grant credit against the sentence for such time served in
jail prior to sentencing.
Bailey was granted 222 days of jail credit, but asserts that he is entitled to an additional
27 days of jail credit. Bailey contends that he was arrested on March 24, 2017, but that his jail
credit was calculated from the later date of April 20, 2017. The parties do not dispute that Bailey
2
Even if it was not proper to vacate Bailey’s sentence, we would nonetheless remand this matter
to the trial court for the ministerial task of correcting Bailey’s sentencing information report to
reflect a score of zero points for OV 5. See People v Harmon, 248 Mich. App. 522, 534; 640
NW2d 314 (2001).
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was arrested in Kentucky on March 24, 2017. However, the parties disagree regarding whether
Bailey was arrested in Kentucky “for the offense[s] of which he [was] convicted” in this case.
See MCL 769.11b. Bailey contends that he was arrested in Kentucky and extradited to Michigan
on crimes committed in relation to the victim’s murder, whereas the prosecution asserts that
Bailey was arrested and detained in Kentucky on unrelated charges. Bailey’s PSIR indicates that
Bailey was arrested in Kentucky for heroin trafficking and possession of drug paraphernalia.
MCL 769.11b “ ‘neither requires nor permits sentence credit in cases . . . where a defendant
is . . . incarcerated as a result of charges arising out of an unrelated offense or
circumstance . . . .’ ” People v Clark, 315 Mich. App. 219, 234; 888 NW2d 309 (2016) (citation
omitted). Therefore, because Bailey was arrested and jailed in Kentucky for offenses unrelated
to the victim’s murder, he is not entitled to additional jail credit for the time he spent in jail in
Kentucky before he was extradited to Michigan.
However, the prosecution notes that Bailey may be entitled to one additional day of jail
credit because the April 20, 2017 date from which Bailey’s jail credit was calculated is incorrect.
The PSIR indicates that Bailey was arrested on April 20, 2017, but the prosecution explains that
Bailey was initially arraigned on the warrant in Wayne County on April 18, 2017. It is unclear
how long Bailey was incarcerated in the Wayne County Jail after he was extradited from
Kentucky, and whether he is entitled to additional jail credit. A review of the record suggests
that Bailey was extradited to Michigan before April 20, 2017. Further, although Bailey was
initially arraigned on April 18, 2017, it is unclear whether he spent additional time in the Wayne
County Jail after his extradition to Michigan for which he is entitled to jail credit. We cannot
conclusively determine whether Bailey is entitled to additional jail credit on the basis of the
available record. Therefore, we remand this matter so that the trial court can verify the number
of days that Bailey spent in jail in Michigan for his convictions.
Finally, Bailey argues that he was not afforded the right of allocution at sentencing.
Because Bailey failed to object at the sentencing hearing, this Court’s review is for plain error
affecting Bailey’s substantial rights. See Carines, 460 Mich. at 763-764.
The right of allocution allows a defendant “to speak in mitigation of the sentence,” and
offers defendants “an occasion to accept responsibility” and begin the process of atonement.
People v Petty, 469 Mich. 108, 119-120; 665 NW2d 443 (2003). A defendant’s right of
allocution is recognized in MCR 6.425(E)(1)(c), which states:
(E) Sentencing Procedure.
(1) The court must sentence the defendant within a reasonably prompt
time after the plea or verdict unless the court delays sentencing as provided by
law. At sentencing, the court must, on the record:
* * *
(c) give the defendant, the defendant’s lawyer, the prosecutor, and the
victim an opportunity to advise the court of any circumstances they believe the
court should consider in imposing sentence . . . .
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Bailey was originally scheduled to be sentenced on September 15, 2017, following his
entry into a plea agreement. Bailey used his opportunity for allocution to profess his innocence
and indicate that he should not have pleaded guilty. Bailey was permitted to withdraw his plea,
and he was not sentenced on September 15, 2017. Bailey’s second sentencing hearing took place
on November 27, 2017. At the second sentencing hearing, the following exchange occurred:
The Court: [Bailey], do you have anything to say before I pass sentence
on it?
Defendant Bailey: Thank you, sir.
Ms. Diallo [defense counsel]: Stand up sir.
Defendant Bailey: I’m sorry to [the victim’s wife], and—
The Court: [Bailey], this is another case where this could have been
avoided even though you claimed I don’t have a lot of reason to suspect there
wasn’t something going on.
You can’t kill people because you bought some bad dope. That’s
not the way.
When you get involved in criminal activity you can’t go out and
start killing people about it. You have to just chalk it up to a bad deal.
Defendant Bailey: Yes, sir.
Thus, review of the transcript from the sentencing hearing establishes that the trial court did not
give Bailey a meaningful opportunity for allocution. Rather, the trial court, without justification,
interrupted Bailey almost immediately. The trial court then proceeded to impose Bailey’s
sentence without providing Bailey with the opportunity to speak further, which is a clear
violation of MCR 6.425(E)(1)(c).
We find that the trial court’s failure to comply with MCR 6.425(E)(1)(c) constitutes plain
error. See Carines, 460 Mich. at 763. The error likely affected the outcome of the proceedings in
that Bailey was not given an opportunity to inform the trial court of “any circumstances” that he
believed the trial court should consider when crafting and imposing the sentence. This could
have resulted in Bailey being given a longer sentence, and it most certainly affected the fairness
of the judicial proceeding. See id. at 763-764 (holding that reversal is warranted where the plain
error affects the “fairness, integrity, or public reputation” of the judicial proceeding).
Consequently, it is necessary to vacate Bailey’s sentence and remand for the limited purpose of
providing Bailey with the opportunity for allocution at resentencing. Of course, the trial court is
not precluded from imposing the same sentence on remand if it determines that it is proper to do
so.
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V. CONCLUSION
Sufficient evidence was presented to support Bailey’s conviction of second-degree
murder, MCL 750.317. Additionally, the trial court did not abuse its discretion by granting
Bailey’s request to withdraw his plea, but committed harmless error by dismissing defense
counsel following the plea withdrawal. The trial court erred by assessing OV 5 at 15 points. The
trial court correctly sentenced Bailey on the basis of facts contained in the PSIR, but it appears
that Bailey may be entitled to additional jail credit. The trial court erred by failing to provide
Bailey with the opportunity for allocution at sentencing.
We affirm Bailey’s convictions, but vacate Bailey’s sentence and remand for
recalculation of Bailey’s jail credit. On remand, the trial court shall give Bailey an opportunity
for allocution at resentencing and shall correct Bailey’s sentencing information report to reflect a
score of zero points for OV 5. We do not retain jurisdiction.
/s/ Thomas C. Cameron
/s/ Kathleen Jansen
/s/ Jonathan Tukel
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