Opinion
No. 349717
09-10-2020
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. JAMES HOWARD SHAUL, Defendant-Appellant.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Chippewa Circuit Court
LC No. 14-001528-FC Before: CAVANAUGH, P.J., and BORRELLO and TUKEL, JJ. PER CURIAM.
This case returns to this Court a third time, following defendant's second resentencing. Defendant was convicted by jury of first-degree criminal sexual conduct (CSC-I), MCL 750.520b(1)(g) (sexual penetration of a physically helpless victim causing injury), first-degree vulnerable adult abuse, MCL 750.145(n)1, fourth-degree criminal sexual conduct (CSC-IV), MCL 750.520e(1)(c) (incapacitated victim), and violation of the Sex Offender Registration Act (SORA), MCL 28.735(2)(a) (student safety zone residency violation). Defendant was originally sentenced as a fourth-offense habitual offender, MCL 769.12, to serve consecutive prison terms of 60 to 90 years for CSC-I; three years and 10 months to 15 years for CSC-IV and first-degree vulnerable adult abuse; and 12 months for the SORA violation. Defendant appealed as of right and we vacated his CSC-I conviction and sentence for insufficiency of the evidence and remanded the case to the trial court for resentencing. On remand, the trial court sentenced defendant as an habitual offender, fourth offense, MCL 269.12, to serve consecutive prison terms of 19 to 28½ years for first-degree vulnerable adult abuse, 3 years and 10 months to 15 years for CSC-IV, and 12 months for the SORA violation. Defendant again appealed as of right, arguing, among other things, that his increased sentence for first-degree vulnerable adult abuse was vindictive. This Court vacated his sentence for vulnerable adult abuse and remanded for resentencing on that offense with directions that the trial court state with specificity its reasons for imposing the same or a different sentence. On remand, the trial court again imposed a sentence of 19 to 28½ years' imprisonment for first-degree vulnerable adult abuse. Defendant again appeals as of right. For the reasons set forth in this opinion, we affirm.
People v Shaul, unpublished per curiam opinion of the Court of Appeals, issued November 22, 2016 (Docket No. 326905) (Shaul I).
I. BACKGROUND
As indicated, this matter has been before this Court on two prior occasions. In defendant's first appeal, this Court's set forth the facts leading to defendant's convictions:
According to the 56-year-old immobile and wheelchair-bound quadriplegic victim, defendant, who was the then-boyfriend of one of her caregivers, was alone with the victim when he began asking her personal sexual questions while he was "touching himself" in her presence. Defendant then approached and stood beside the victim, exposed his penis, and asked her if she wanted to touch it or put it in her mouth. The victim testified that defendant then rubbed her left nipple through her shirt. She testified that defendant tried to put his finger in her "private part" but never did and that he "only touched the hairs of my private area" and "didn't touch the inside." He then pulled up her shirt, spit "over [her] private part", and ejaculated on her stomach. According to the victim, during the incident her urostomy bag was torn from her body. She testified that defendant refused her repeated requests for him to leave her home or to allow her to call a caregiver. [People v Shaul, unpublished per curiam opinion of the Court of Appeals, issued November 22, 2016 (Docket No. 326905) (Shaul I); see also People v Shaul, unpublished per curiam opinion of the Court of Appeals, issued April 23, 2019 (Docket No. 342484) (Shaul II).]
This Court vacated defendant's CSC-I conviction for insufficiency of the evidence. Id. at 5. This Court further concluded that the trial court erroneously scored 10 points for OV 3, 50 points for OV 7, and 25 points for OV 11. Id. at 5-7. Accordingly, this Court remanded for resentencing. Id. at 11.
On January 18, 2018, defendant was resentenced as a fourth-offense habitual offender, MCL 769.12, to serve consecutive prison terms of 19 to 28½ years for first-degree vulnerable adult abuse, 46 months to 15 years for CSC-IV, and 12 months for the SORA violation, with credit for 1,254 days served. Defendant appealed his sentence as of right. Among other arguments, defendant argued that his resentence of 19 to 28½ years for first-degree vulnerable adult abuse—representing a 182-month increase in his minimum sentence for that offense—was vindictive. Shaul II, unpub op at 1, 4. This Court noted:
The state concedes that if this Court concludes that the presumption of vindictiveness applies in this case, then the proper remedy is to remand to the trial court "for the limited purpose of stating the reasons for the increase" on the record. The state concedes that "there is no record upon which this Court can even attempt to determine whether the circuit court entertained an unconstitutional reason for increasing its sentence—or perfectly legitimate ones—remand would facilitate proper appellate review." [Id. at 5.]This Court agreed and vacated "defendant's sentence for first-degree vulnerable adult abuse and remanded for resentencing on that offense." Id. at 6. This Court added, "At resentencing, the trial court shall state with specificity its reasons for imposing the same or a different sentence." Id.
On June 25, 2019, defendant was resentenced as a fourth-offense habitual offender, MCL 769.12, and was again sentenced to serve consecutive prison terms of 19 to 28½ years for first-degree vulnerable adult abuse, 46 months to 15 years for CSC-IV, and 12 months for the SORA violation. Defendant's total prior record variable score was calculated to be 50 points (PRV level E). Defendant's total OV score was calculated to be 90 points (OV level VI). Defendant's scores resulted in a minimum guidelines range of 58 to 228 months (19 years). This appeal ensued.
See MCL 777.64.
II. ANALYSIS
A. VINDICTIVE SENTENCE
On appeal, defendant argues that because the trial court did not articulate any new or previously unknown information to justify defendant's resentence for first-degree vulnerable adult abuse, the sentence imposed for first-degree vulnerable adult abuse was vindictive.
An argument that a sentence is vindictive implicates a defendant's constitutional rights. See Michigan v Payne, 412 US 47, 50; 93 S Ct 1966; 36 L Ed 2d 736 (1973); People v Brown, 294 Mich App 377, 389; 811 NW2d 531 (2011). We review constitutional issues de novo. People v Bosca, 310 Mich App 1, 56; 871 NW2d 307 (2015).
"[F]undamental notions of fairness embodied within the concept of due process absolutely preclude the imposition of sentences based upon such a retaliatory motivation." Payne, 412 US at 50 (quotation marks and citations omitted). Penalizing a person who has exercised his or her constitutional rights "would be patently unconstitutional." North Carolina v Pearce, 395 US 711, 725; 89 S Ct 2072; 23 L Ed 2d 656 (1969), overruled in part on other grounds by Alabama v Smith, 490 US 794; 109 S Ct 2201; 104 L Ed 2d 865 (1989) (quotation marks and citation omitted).
When the same judge resentences a defendant and increases the sentence, the increased sentence is presumptively vindictive. People v Mazzie, 429 Mich 29, 35; 413 NW2d 1 (1987). A trial court judge cannot overcome the presumption of vindictiveness by referring to a new piece of information that is minor and has no relevance to a fair or appropriate sentence. Id. at 36.
However, this Court has determined that
if the trial court has discretion to impose an out-of-guidelines sentence during the original sentencing, on de novo resentencing there can be no presumption of vindictiveness for the trial court's exercise of that discretion—especially when our Supreme Court has struck the substantial-and-compelling requirement for departure
and replaced it with a reasonableness review. [People v Odom, 327 Mich App 297, 307; 933 NW2d 719 (2019).]
In our last opinion in this case, we noted the following:
The state concedes that if this Court concludes that the presumption of vindictiveness applies in this case, then the proper remedy is to remand to the trial court "for the limited purpose of stating the reasons for the increase" on the record. The state concedes that "there is no record upon which this Court can even attempt to determine whether the circuit court entertained an unconstitutional reason for increasing its sentence—or perfectly legitimate ones—remand would facilitate proper appellate review." [Shaul II, unpub op at 5.]We agreed and vacated defendant's sentence for first-degree vulnerable adult abuse and remanded with directions that the trial court "state with specificity its reasons for imposing the same or a different sentence." Id.
On remand, the trial court stated the following:
Well, clearly to begin with first and foremost I don't want there to be any misconception, the second sentence that Mr. Shaul received was not vindictive. The reason for the first sentence and the reason that the vulnerable adult abuse was not scored—was not sentenced at 19 years to 28 years six months with whatever appropriate credit was coming, was because that sentence in and of itself would have been consumed by the more serious offense, the CSC one, which was vacated.
Now, to be fair, I don't know why [the prosecutor] didn't object to the three years at that point because that would have required as [a Department of Corrections (MDOC) agent] said, a downward departure stated on the record for that sentence to be imposed, which was not done either. So I don't know, and nobody seemed to address that. But to impose that sentence at that time, it would have required this Court to articulate reasons for the downward departure.
Because the guideline range for count one—now count one, abuse vulnerable adult first-degree habitual offender fourth was always and continues to be 58 to 228. That was the same guideline range that was articulated—that was scored at the first sentence. That's what this Court sentenced on the second sentence. It was within the guideline range. It was not vindictive. It was within the appropriate guideline range for that offense.
The reason [the prosecutor] was not asking for and did not ask for the high end of the guideline has been identified by [the successor prosecutor] today, and I believe that's why [the MDOC agent] wasn't doing it either. Because that sentence in and of itself would have been consumed and absorbed by the first sentence. But when that becomes vacated, then we have to look at the most serious offense and what the guideline range is for that is where we are now.
That's why the Court sentenced Mr. Shaul at that point in time on the second sentencing to 19 years to 28 years six months. It's within the appropriate guideline range. There was not an upward departure. There was no reason for a—reasons for an upward departure because it was not an upward departure. It was within that guideline range.
The reason for that just to be clear, and [the prosecutor] touched on them. The victim here was a quadriplegic woman who was completely at the mercy of her caregivers as she's identified. The defendant waited for a time where he had unfettered access to the victim, and then touched her for his own sexual gratification, exposed himself to her, made several unwanted sexual advances culminating and ejaculating on her stomach.
Now, it went further than that because we heard testimony at the time of trial, which was subsequently vacated that Mr. Shaul actually did more than that, but that's vacated so we don't have to get into that portion. But there was more than just that activity going on. We're only here for the vulnerable sentencing today. But again, to be clear, the defendant refused the victim's request to leave her home and refused her pleas to allow her to call other caregivers. In fact, her caregiver necklace was removed.
The defendant acted in a reckless disregard for the humanity of the victim and placed her in jeopardy of medical complications because of the removal of her urostomy bag, and also to remove her catheter. His actions on that specific day and time in that frame we're looking at were deviant, reprehensible, and justify an upward departure. I'm not going to do that today, but I think there are clearly reasons here for upward departure higher than the 228. Again, I am not going to do that today because I don't think that's absolutely necessary, but clearly, if the Court wanted to sentence Mr. Shaul higher than what it did the first time, it would clearly be justified.
At this time, the new sentence is a sentence that's appropriate, and it's within the scored guideline range. The scored guideline range now for this offense is 58 months to 228 months. At this point, in reviewing the presentence report as prepared by the Michigan Department of Corrections, we must look at the sexual assault as being a destructive, catastrophic, life-changing event, and a traumatic event for the victim. While each victim response uniquely, he or she's experienced problems—she did that were physical, emotional, cognitive, psychological, social, and sexual in nature at the hands of the defendant.
Therefore, the sentence at this point in time is going to be, I'm going to follow the recommendation of the Michigan Department of Corrections. To be clear for anybody looking at this later, this Court has always followed the recommendation of the Michigan Department of Corrections. It didn't act independently. This Court at time one, and time two, and I'm going to at time three, follow the recommendation as made by the Michigan Department of Corrections. That's what I did the first time, the second time, and today. [Emphasis added.]
As the trial court noted, according to the PSIR, defendant's minimum sentencing guidelines range for first-degree vulnerable adult abuse, the sentencing offense, was calculated to be 58 to 228 months (19 years). The trial court's sentence of 19 to 28½ years' imprisonment is within defendant's minimum sentencing guidelines range. Defendant argues that the trial court did not articulate "any new or previously unknown information to justify" the higher sentence. However, the trial court did provide a reasonable explanation, stating that the reason defendant was originally sentenced to 3 years and 10 months to 15 years for first-degree vulnerable adult abuse, rather than to a higher in-guidelines sentence for that offense, is because the sentence for first-degree vulnerable adult abuse "would have been consumed by the more serious offense," CSC-I, which was later vacated by this Court.
At defendant's second resentencing, as directed by this Court, the trial court articulated specific reasons for the 19-year minimum sentence imposed for first-degree vulnerable adult abuse after the CSC-I conviction was vacated. The court noted that the victim is a quadriplegic woman, that defendant waited until he had "unfettered access" to her, and that he touched her for purposes of sexual gratification. Defendant also "refused the victim's request to leave her home" and defendant refused to allow the victim to call her caregivers. Defendant also removed the victim's caregiver necklace, urostomy bag, and catheter during this act. Defendant has failed to show that the trial court's sentence was vindictive. See Mazzie, 429 Mich at 35.
B. SENTENCE ENHANCEMENT
Defendant additionally argues that the trial court erred by sentencing him as a fourth-offense habitual offender because the prosecution failed to file proof of service of the notice of its intention to seek an enhanced sentence. We conclude that the error was harmless.
Defendant did not raise this issue in the trial court. Accordingly, this issue is not preserved for appeal. See People v Metamora Water Serv, Inc, 276 Mich App 376, 382; 741 NW2d 61(2007). Generally, whether a defendant is entitled to resentencing when the prosecutor fails to file a proof of service of the habitual-offender notice is a question of law that we review de novo. People v Head, 323 Mich App 526, 542; 917 NW2d 752 (2018). However, unpreserved claims are reviewed for plain error affecting the defendant's substantial rights. People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). In order to show such error, "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. (citations omitted.) Further, defendant must also demonstrate "that the error either resulted in the conviction of an actually innocent defendant or seriously affected the fairness, integrity, or public reputation of judicial proceedings." People v Vaughn, 491 Mich 642, 654; 821 NW2d 288 (2012).
MCL 769.13 provides, in relevant part:
(1) In a criminal action, the prosecuting attorney may seek to enhance the sentence of the defendant as provided under section 10, 11, or 12 of this chapter, 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."The purpose of requiring a prosecutor to proceed 'promptly' to file the supplemental information 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." People v Shelton, 412 Mich 565, 569; 315 NW2d 537 (1982) (emphasis added).
(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 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.
However, the harmless-error rule, which is contained in both statute and court rule, must be considered. See Head, 323 Mich App at 544. MCL 769.26 states:
No judgment or verdict shall be set aside or reversed or a new trial be granted by any court of this state in any criminal case, on the ground of misdirection of the jury, or the improper admission or rejection of evidence, or for error as to any matter of pleading or procedure, unless in the opinion of the court, after an examination of the entire cause, it shall affirmatively appear that the error complained of has resulted in a miscarriage of justice.MCR 2.613(A) states that
[a]n error in the admission or the exclusion of evidence, an error in a ruling or order, or an error or defect in anything done or omitted by the court or by the parties is not ground for granting a new trial, for setting aside a verdict, or for vacating, modifying, or otherwise disturbing a judgment or order, unless refusal to take this action appears to the court inconsistent with substantial justice.
In Head, 323 Mich App at 544, this Court held that the prosecutor's failure to file a proof of service of the notice of intent to seek an enhanced sentence was harmless because the "defendant had actual notice of the prosecutor's intent to seek an enhanced sentence and defendant was not prejudiced in his ability to respond to the habitual offender notification." Similarly, in this case, the notice of defendant's fourth-offense habitual offender was provided along with the felony information, but no proof of service was filed. Just as in Head, defendant in the present case had actual notice of the prosecutor's intent to seek an enhanced sentence. Accordingly, defendant was not prejudiced, and the prosecutor's failure to file the proof of service is harmless error. Head, 323 Mich App at 544.
Affirmed.
/s/ Mark J. Cavanagh
/s/ Stephen L. Borrello
/s/ Jonathan Tukel