Opinion
348469
09-16-2021
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. REGINALD DESHAWN WALKER, Defendant-Appellant.
UNPUBLISHED
Wayne Circuit Court LC No. 13-008885-01-FH.
Before: Letica, P.J., and Servitto and M. J. Kelly, JJ.
PER CURIAM.
Defendant appeals as of right his sentence imposed on resentencing after the trial court partially granted defendant's motion for relief from judgment. We affirm.
I. FACTS AND PROCEDURAL HISTORY
In 2014, a jury convicted defendant of possession with intent to deliver (PWID) 50 to 449 grams of cocaine, MCL 333.7401(2)(a)(iii); PWID less than 50 grams of heroin, MCL 333.7401(2)(a)(iv); PWID hydrocodone, MCL 333.7401(2)(b)(i); PWID alprazolam, MCL 333.7401(2)(c); and possession of marijuana, MCL 333.7403(2)(d). Defendant appealed, arguing a wide range of issues. This Court affirmed defendant's convictions and sentences, but remanded to correct the clerical error on the judgment of sentence that incorrectly stated that defendant was convicted of PWID less than 50 grams of cocaine, rather than PWID less than 50 grams of heroin. People v Walker, unpublished opinion of the Court of Appeals, issued March 31, 2016 (Docket No. 320559), p 27.
After this Court's remand, and before defendant's resentencing, defendant moved for relief from judgment on several bases. The trial court granted the motion as to his ineffective assistance of counsel claim, finding that defendant was denied effective assistance of counsel when his trial attorney and his appellate attorney failed to recognize that the habitual drug statute, MCL 333.7413, applied instead of the general habitual statute, MCL 769.12, and that defendant was entitled to resentencing. Defendant's later delayed application for leave to appeal was denied by this Court. People v Walker, unpublished order of the Court of Appeals, entered July 8, 2019 (Docket No. 348737). Defendant's subsequent appeal to our Supreme Court was also denied. People v Walker, 505 Mich. 1015 (2020).
In December 2018, the trial court held defendant's resentencing hearing. Defendant argued the Presentence Investigation Report (PSIR) required updating because it did not accurately state his jail credit or institutional record since he was incarcerated, and the sentencing guidelines needed to be rescored under the correct sentencing enhancement statute. The trial court adjourned the hearing so the PSIR could be updated, stating it was "certainly appropriate for [the trial court] to read all of the information" that defendant presented. In February 2019, the trial court resumed defendant's resentencing hearing, and sentenced defendant, as a third habitual drug-offender, MCL 333.7413, to 24 to 40 years' imprisonment for his PWID 50 to 449 grams of cocaine conviction; 15 to 30 years' imprisonment for his PWID less than 50 grams of heroin conviction; 5 years to 15 years' imprisonment for his PWID hydrocodone conviction; 1 to 8 years' imprisonment for his PWID alprazolam conviction; and time served for his possession of marijuana conviction. Defendant thereafter filed the instant appeal. With his appeal, defendant filed a motion for remand, which this Court denied. People v Walker, unpublished order of the Court of Appeals, entered on December 23, 2020 (Docket No. 348469).
While defendant's instant appeal to this Court was pending, defendant moved for a second resentencing hearing in the trial court, arguing the PSIR had not been properly updated, that the trial court and counsel failed to address that issue, and that defendant's supporters were improperly excluded from the courtroom during his resentencing hearing. In supplemental motions, defendant further argued that resentencing him under MCL 333.7413 violated his due-process rights because the prosecutor failed to give notice of the sentencing enhancement, and the trial court's application of sentencing enhancement violated the separation-of-powers doctrine.
The trial court denied defendant's motion. Specifically, the trial court concluded it had considered defendant's institutional record and imposed a sentence that was "more than appropriate" to defendant and to the offenses. With regard to the trial court's exclusion of defendant's supporters, the trial court concluded there was no violation of defendant's right to a courtroom open to the public and further found no unconstitutional application of MCL 333.7413.
In this appeal, defendant argues he is entitled to resentencing because (1) the PSIR used at his initial resentencing was not properly updated; (2) he was denied the right to be resentenced in a courtroom open to the public, which trial counsel failed to object to, constituting ineffective assistance of counsel; and (3) the trial court erred in imposing the sentence enhancement, under MCL 333.7413.
II. ANALYSIS
A. PSIR
Defendant first argues the trial court erred in resentencing defendant, relying on an outdated PSIR that did not include his institutional record during incarceration. We disagree.
Generally, this Court reviews the trial court's decisions regarding the information in the PSIR for an abuse of discretion. People v Lampe, 327 Mich.App. 104, 120; 933 N.W.2d 314 (2019).
A trial court abuses its discretion when the sentence imposed by the trial court is disproportionate to the seriousness of the circumstances involving the offense and the offender. People v Milbourn, 435 Mich. 630, 636; 461 N.W.2d 1 (1990). If the trial court selects a sentence that falls within the range recommended under the advisory guidelines, that sentence is presumptively proportionate. Id. at 658. The reviewing court must affirm a sentence that falls within the recommended sentencing range absent an error in scoring or reliance on inaccurate information. People v Schrauben, 314 Mich.App. 181, 196 n 1; 886 N.W.2d 173 (2016).
"A defendant is entitled to be sentenced by a trial court on the basis of accurate information[.]" People v Francisco, 474 Mich. 82, 88; 711 N.W.2d 44 (2006). To be entitled to resentencing, a defendant must establish that "there has been a scoring error or inaccurate information has been relied upon[.]" Id. However, "[w]here a scoring error does not alter the appropriate guidelines range, resentencing is not required." Id. at 89 n 8.
The PSIR "is an information-gathering tool for use by the sentencing court." Lampe, 327 Mich.App. at 120 (quotation marks and citation omitted). The PSIR must be "reasonably updated" and include "complete, accurate, and reliable" information. People v Triplett, 407 Mich. 510, 515; 287 N.W.2d 165 (1980). A PSIR is not reasonably updated if it is several years old, was prepared in connection with unrelated offenses, or "significant allegations" exist "that the defendant's circumstances [have] changed" in the meantime. People v Hemphill, 439 Mich. 576, 580-581; 487 N.W.2d 152 (1992). While a defendant may not waive the production of a PSIR at sentencing, the defendant or the prosecutor may waive the right to the preparation of a reasonably updated PSIR at resentencing "where each believes the previously prepared report is accurate." Id. at 581-582. However, the PSIR may not be waived if the existing PSIR is "manifestly outdated[.]" Id. at 582. A PSIR is manifestly outdated if it "contains] information that [is] manifestly stale." Id. The information in the PSIR "is presumed to be accurate, and the defendant has the burden of going forward with an effective challenge, but upon assertion of a challenge to the factual accuracy of information, a court has a duty to resolve the challenge." Lampe, 327 Mich.App. at 120 (quotation marks and citation omitted). "If the court finds that challenged information is inaccurate or irrelevant, that finding must be made part of the record and the information must be corrected or stricken from the report." Id. (quotation marks and citation omitted).
The trial court did not err in relying on the PSIR in fashioning defendant's sentence. To support his argument, defendant contends the institutional record section of the PSIR was outdated because it did not contain any record of his incarceration since he was originally sentenced in 2014. We note that the original PSIR relied on at the December 2018 resentencing hearing is not contained in the record; however, the transcript from the resentencing hearing indicates that the PSIR did not include an institutional record section that accounted for defendant's incarceration since his original sentencing. As this Court has noted, "it is not particularly important how the information gets before the trial court; rather, it is important that the trial court have the relevant information available for sentencing." People v Odom, 327 Mich.App. 297, 313; 933 N.W.2d 719 (2019). To the extent the PSIR presented at the initial resentencing hearing did not account for defendant's institutional record since his original sentencing, trial counsel aptly informed the trial court of this information before defendant was resentenced:
[T]here does not appear to be any update with respect to his institutional record. I think that it is important. . . . [Defendant] has, I believe, an exemplary record. And
he has documentation here to show that, there are block reports, that he keeps to himself, that he's usually disciplined, he follows orders usually. And usually is the . . . is the most innocuous of all these descriptions, going from usually to sometimes to seldom.... So, he, he's, he's generally a good prisoner and follows the rules and he complies with the laws. And I ask the [c]ourt to take that into consideration, as well.
Moreover, defendant informed the trial court that he had "held employment the whole time [he] was incarcerated, exemplary reports, all excellent reports." This information prompted the trial court to adjourn defendant's resentencing twice to allow defendant to gather and present "all of the information" that defendant wanted the trial court to consider. Accordingly, there is no question the trial court was aware that the PSIR being used did not include defendant's complete institutional record and sought additional information provided by the parties before resentencing defendant. However, while the PSIR had not been fully updated, given the provision of additional, recent details after defendant's incarceration, the information used at sentencing was not manifestly stale. Hemphill 439 Mich. 582.
Regardless, defendant argues that the institutional record section is intended to contain all relevant information regarding defendant's incarceration, rather than only negative information. A review of the record indicates that the PSIR was updated in May 2019, after defendant's resentencing, and included an updated institutional record section:
During the defendant's term of incarceration he has incurred the following major misconduct tickets: Disobeying a Direct Order-Class II and Possession of Stolen Property; THEFT-Class II. He is assigned food service for a work assignment.
We note that defendant does not dispute that this updated PSIR contains accurate and relevant information; rather, defendant contends information as to his positive institutional record should have been included in the PSIR. However, as stated, the PSIR is not inaccurate or incomplete when relevant information is made available for sentencing through other methods. Odom, 327 Mich.App. at 313. The trial court affirmed that it had knowledge of, and considered, "all of defendant's prison records, and letters from supporters." In fact, the trial court "agreed that the defendant's good conduct in prison warranted some consideration." While defendant's positive block reports and work assignment evaluations were not explicitly detailed in the institutional record section of the PSIR, the existing record sufficiently established that such documents were presented to, and considered by, the trial court for resentencing purposes. On this basis, the trial court's acknowledgment that it received and reviewed defendant's prison records, letters from defendant's supporters, and other documents presented by defendant alleviates any concern that the incomplete or lack of detail in the PSIR hampered the trial court's sentencing decision. Id. at 313-314. Further, outside of the block report and work assignment evaluations, defendant has not specified what other information should have been included in the PSIR and, as a result, has failed to meet his burden of proof. Lampe, 327 Mich.App. at 120.
B. RIGHT TO A PUBLIC COURTROOM
Defendant argues the trial court violated his constitutional right to a courtroom open to the public when it excluded some of his supporters from his resentencing hearing. We agree to the extent that the trial court erred in its broad exclusion, but disagree that it affected defendant's substantial rights to warrant resentencing.
To preserve a claim that the trial court violated the right to a public trial, a defendant must object to the closure in the trial court. People v Vaughn, 491 Mich. 642, 649-650; 821 N.W.2d 288 (2012). Because defendant did not raise this issue until after his resentencing, this issue is not preserved for appellate review. Additionally, a claim of ineffective assistance of counsel must be raised below in a motion for a new trial or remand to the trial court for an evidentiary hearing under People v Ginther, 390 Mich. 436; 212 N.W.2d 922 (1973). People v Snider, 239 Mich.App. 393, 423; 608 N.W.2d 502 (2000); People v Sabin (On Second Remand), 242 Mich.App. 656, 658-659; 620 N.W.2d 19 (2000). Because defendant filed a motion for remand with this Court after his resentencing, this issue is preserved for appellate review.
The determination of whether defendant has been denied the right to a public courtroom is a question of constitutional law. Vaughn, 491 Mich. at 649-650. However, because defendant's claim of the right to a public courtroom is unpreserved, this Court's review is limited to plain error affecting defendant's substantial rights. Id. at 664-665. Under this standard, defendant must establish "(1) that the error occurred, (2) that the error was 'plain,' (3) that the error affected substantial rights, and (4) 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." Id. at 665 (citation omitted).
In addition, the determination of whether a defendant has been deprived of the effective assistance of counsel presents a mixed question of fact and law. People v LeBlanc, 465 Mich. 575, 579; 640 N.W.2d 246 (2002). The trial court's factual findings are reviewed for clear error, while its constitutional determinations are reviewed de novo. Id. "A trial court's factual finding is clearly erroneous if the reviewing court is left with a definite and firm conviction that the trial court made a mistake." People v Wiley, 324 Mich.App. 130, 165; 919 N.W.2d 802 (2018) (quotation marks and citation omitted). Although preserved, because an evidentiary hearing was not held, this Court's review of defendant's ineffective assistance of counsel claim is limited to the facts on the record. Sabin (On Second Remand), 242 Mich.App. at 658-659.
Our Supreme Court has generally stated:
The right to a public trial "has its roots in our English common law heritage." The Sixth Amendment of the United States Constitution expressly enumerates this right and states that a criminal defendant "shall enjoy the right to a . . . public trial . . . ." The Sixth Amendment right to a public trial is incorporated to the states by the Due Process Clause of the Fourteenth Amendment. Additionally, article 1, § 20 of the 1963 Michigan Constitution guarantees that a criminal defendant "shall have the right to a . . . public trial . . . ." [Vaughn, 491 Mich. at 650 (citations omitted).]
The right to a public trial serves the goals of "(1) ensuring a fair trial, (2) reminding the prosecution and court of their responsibility to the accused and the importance of their functions, (3) encouraging witnesses to come forward, and (4) discouraging perjury." Id. Accordingly, this right is not absolute. Vaughn, 491 Mich. at 653. "[A] trial court is entitled to control the proceedings in its courtroom[.]" People v Johnson, 315 Mich.App. 163, 179; 889 N.W.2d 513 (2016). However, this right of control by the trial court cannot come "at the expense of a defendant's constitutional rights." Id.
Under MCR 8.116(D), a trial court may limit access by the public to a court proceeding when:
(a). . . [T]he court sua sponte has identified a specific interest to be protected, and the court determines that the interest outweighs the right of access;
(b) the denial of access is narrowly tailored to accommodate the interest to be protected, and there is no less restrictive means to adequately and effectively protect the interest; and
(c)the court states on the record the specific reasons for the decision to limit access to the proceeding. [MCR 8.116(D) (emphasis omitted).]
"Because the effect of a partial closure does not reach the level of total closure, only a substantial, rather than a compelling, reason for the closure is necessary." People v Kline, 197 Mich.App. 165, 170; 494 N.W.2d 756 (1992).
To start, we note that the December 2018 resentencing hearing transcript does not contain the incident that led to the exclusion of all but three of defendant's supporters from his resentencing hearing. Instead, the entire explanation of the incident is contained in two affidavits presented by defendant and the trial court's statements at the June 2020 hearing. Accordingly, after the trial court adjourned defendant's second resentencing hearing, and as defendant was being escorted out of the courtroom, one of defendant's supporters yelled from the gallery, "I love you bro." Defendant's mother, Shirley Walker, apologized to the courtroom staff for the disruption and was told that "outbursts like that reflected poorly on [defendant's] sentencing" and were "highly inappropriate." When defendant's sentencing hearing resumed (with defendant appearing by Zoom) in February 2019, Walker, Tiara Hull, and defendant's god-sister, Dean-na Gardner, entered the courtroom and were instructed by the bailiff to sit on the far-right side of the courtroom. Soon thereafter, two of defendant's supporters entered the courtroom and were told to leave by the bailiff after indicating they were there to see defendant. Because the bailiff told Walker that only Walker, Hull, and Gardner were permitted to be in the courtroom on defendant's behalf, Walker exited the courtroom and told defendant's other supporters to not enter the courtroom. At all relevant times, the courtroom was not full. Although there was no objection from defendant or trial counsel regarding the partial closure of the courtroom, defendant submitted an affidavit, indicating he had no knowledge of the exclusion of his supporters in the courtroom, but if he had known, he would have objected to such exclusion.
A review of the record indicates that at the hearing on defendant's second motion for resentencing, the trial court identified a substantial interest to be protected by excluding all but three of defendant's supporters, stating the "exclusion from the courtroom was necessary to prevent future disruptions." As stated, a trial court is entitled to control the proceedings in its courtroom. Johnson, 315 Mich.App. at 179. However, there is no demonstration the trial court considered any less restrictive means to achieve this goal. While the trial court did permit defendant to have three supporters present at his resentencing hearing, the trial court broadly excluded any other individuals associated with defendant from entering the courtroom. Notably, it does not appear that the trial court attempted to first warn defendant's supporters or exclude only the supporter that caused the disruption. Accordingly, we conclude the trial court erred in excluding all but three of defendant's supporters from the courtroom.
However, the trial court's exclusion did not affect defendant's substantial rights. "[I]t does not follow that every temporary instance of unjustified exclusion of the public-no matter how brief or trivial, and no matter how inconsequential the proceedings that occurred during an unjustified closure-would require that a conviction be overturned." Vaughn, 491 Mich. at 667 (quotation marks and citation omitted). Because defendant's resentencing proceeding was largely procedural, i.e., applying the correct sentencing enhancement statute and calculating the corresponding sentencing guidelines, we cannot conclude that the exclusion of defendant's supporters affected the sentence imposed by the trial court. Additionally, defendant has not established how the outcome of his resentencing would have changed had his supporters been permitted to attend the resentencing hearing, beyond claiming a deprivation of right. Therefore, there was no error that affected defendant's substantial rights to warrant remand for resentencing.
Defendant additionally argues he was denied effective assistance of counsel by trial counsel's failure to object to the exclusion of defendant's supporters at the resentencing hearing. Effective assistance of counsel is presumed and defendant bears a heavy burden to prove otherwise. People v Rockey, 237 Mich.App. 74, 76; 601 N.W.2d 887 (1999). To establish ineffective assistance of counsel, defendant must show that counsel's performance fell below an objective standard of reasonableness, and that the representation so prejudiced defendant that he was denied the right to a fair trial. People v Pickens, 446 Mich. 298, 338; 521 N.W.2d 797 (1994). To establish prejudice, defendant must show a reasonable probability that, but for counsel's error, the result of the proceeding would have been different. People v Johnson, 451 Mich. 115, 124; 545 N.W.2d 637 (1996). Defendant must overcome the strong presumption that counsel's actions constituted sound trial strategy under the circumstances. People v Toma, 462 Mich. 281, 302; 613 N.W.2d 694 (2000).
Defendant was not denied effective assistance of counsel for trial counsel's failure to object to the exclusion of defendant's supporters at the resentencing hearing. Defendant contends that trial counsel's failure to object to the exclusion resulted in a lower level of scrutiny being applied to the issue by the trial court. However, the record does not indicate whether trial counsel had any reason to know that defendant's supporters were excluded from the resentencing hearing, beyond defendant's own speculation. In fact, Walker stated that she voluntarily exited the courtroom and told defendant's supporters to not enter the courtroom after a bailiff informed her that defendant was only allowed three supporters in the courtroom.
Even to the extent that trial counsel failed to object to the exclusion of defendant's supporters at the resentencing hearing, defendant has not established the outcome of his resentencing would have been different had trial counsel made an objection. As previously indicated, because of the procedural nature of the resentencing hearing, it is unlikely that the inclusion of defendant's supporters was determinative of the trial court's sentence. "Failing to advance a meritless argument or raise a futile objection does not constitute ineffective assistance of counsel." People v Ericksen, 288 Mich.App. 192, 201; 793 N.W.2d 120 (2010). As a result, defendant was not denied the effective assistance of counsel on this issue.
C. MCL 333.7413
Defendant lastly argues the trial court erred in applying the habitual drug-offender statute, MCL 333.7413, to his sentence because the primary case addressing habitual offender sentencing, People v Eason, 435 Mich. 228; 458 N.W.2d 17 (1990) has been overruled by United States Supreme Court cases. Alternatively, defendant argues the trial court erred in applying MCL 333.7413 because the prosecution failed to charge or notify defendant of the sentencing enhancement; and, consequently, the trial court overstepped its authority and violated the separation-of-powers doctrine. We disagree.
This Court reviews constitutional questions, such as those involving due-process rights and the separation-of-powers doctrine, de novo. People v Cameron, 319 Mich.App. 215, 220; 900 N.W.2d 658 (2017). "Statutes are presumed to be constitutional and must be construed as such unless it is clearly apparent that the statute is unconstitutional." Id. (quotation marks and citation omitted). "[T]he burden of proving that a statute is unconstitutional rests with the party challenging it." Id. (quotation marks and citation omitted).
In general, "the Legislature has long provided that where a prosecutor intends to proceed under the habitual offender act, a separate charge must be filed, the defendant is entitled to a full jury trial, and the defendant's prior convictions must be proven beyond a reasonable doubt." Eason, 435 Mich. at 232. Moreover, MCR 6.112(F) generally requires that notice of intent to seek an enhanced sentence under a habitual offender statute must be given "within 21 days of the defendant's arraignment on the information charging the underlying offense." MCR 6.112(F). 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." People v Morales, 240 Mich.App. 571, 582, 618 N.W.2d 10 (2000) (quotation marks and citation omitted).
However, the sentencing enhancement for habitual drug-offenders does not contain the same due-process requirements as a new offense charge. People v Weatherholt, 214 Mich.App. 507, 511; 543 N.W.2d 34 (1995). The sentencing enhancement for controlled substances of the Public Health Code, MCL 333.1101, et seq., states:
"Except as otherwise provided in subsection (2) an individual convicted of a second or subsequent offense under this article may be imprisoned for a term not more than twice the term otherwise authorized or fined an amount not more than twice that otherwise authorized, or both." [MCL 333.7413(1).]
In creating this sentence enhancement provision for prior drug convictions, "the Legislature took a factor, the defendant's prior criminal convictions, . . . and authorized a weight to be given that factor, i.e., not more than twice the term authorized. The statute is directed to facts which relate to the criminal, not to the crime[.]" Eason, 435 Mich. at 232-233. As a result, "due process does not require the filing of a separate charge pursuant to a statute that does not create a new offense but simply authorizes the sentencing court to enhance the sentence." Id. at 246. "The prosecutor is not required to charge the prior conviction in the information because it is not an element of a new charge, separate from the offense for which the defendant is presently charged." Id. at 246-247. "Instead, the prior conviction is a factor which the judge may consider when imposing the sentence." Id. at 247. Likewise, due process only "requires notice of the [sentencing enhancement] information[, ] [under MCL 333.7413, ] in the presentence report sufficiently in advance of sentence to provide a meaningful opportunity to contest its accuracy." Eason, 435 Mich. at 251.
In addition, the Michigan Constitution states that "[t]he powers of government are divided into three branches: legislative, executive and judicial. No person exercising powers of one branch shall exercise powers properly belonging to another branch except as expressly provided in this constitution." Cameron, 319 Mich.App. at 232, citing Const 1963, art 3, § 2 (quotation marks omitted). However, our Supreme Court has explained that the separation-of-powers doctrine does not require an absolute separation of the branches of government:
While the Constitution provides for three separate branches of government, the boundaries between these branches need not be airtight. In fact, in designing the structure of our Government and dividing and allocating the sovereign power among three co-equal branches, the Framers of the Constitution sought to provide a comprehensive system, but the separate powers were not intended to operate with absolute independence. The true meaning [of the separation-of-powers doctrine] is that the whole power of one of these departments should not be exercised by the same hands which possess the whole power of either of the other departments; and that such exercise of the whole would subvert the principles of a free Constitution. [Cameron, 319 Mich.App. at 232-233 (citation omitted).]
"If the grant of authority to one branch is limited and specific and does not create encroachment or aggrandizement of one branch at the expense of the other, a sharing of power may be constitutionally permissible." Id. at 233 (quotation marks and citation omitted).
To start, the trial court did not err in imposing the sentencing enhancement, under MCL 333.7413, on the basis of defendant's prior drug convictions. Despite defendant's contention that the statute is unconstitutional, we conclude that there is no caselaw indicating it is either unconstitutional or that the Legislature intended to repeal the statute. Likewise, there is no indication that Eason has been overruled or misinterpreted as defendant suggests. Further, because defendant's sentence was enhanced under the habitual drug-offender statute, instead of the general habitual offender statute, the requirements typically associated with due process, involving notice, were not required to enhance defendant's sentence. Eason, 435 Mich. at 246-251. As a result, defendant has failed to meet his burden of proving that a statute is unconstitutional. Cameron, 319 Mich.App. at 220.
Regardless, defendant asserts the trial court erred in applying MCL 333.7413 to his sentence because the prosecution failed to charge or notify defendant of the sentencing enhancement and, consequently, overstepped its authority and violated the separation-of-powers doctrine. However, the prosecutor was not required to charge the sentencing enhancement on the information because it was not a new charge but a factor for defendant's sentencing. Eason, 435 Mich. at 246. As stated, due process only "requires notice of the [sentencing enhancement] information[, ] [under MCL 333.7413, ] in the presentence report sufficiently in advance of sentence to provide a meaningful opportunity to contest its accuracy." Eason, 435 Mich. at 251.
A review of the record indicates that defendant received all the notice that he was entitled to receive. The PSIR and sentencing information report relied on at defendant's resentencing indicated that defendant's convictions were subject to the habitual drug-offender statute, stating the documents were updated for sentencing "under MCL 333.7413-Drug Habitual Statute is ordered." Because these documents specified that the habitual drug-offender statute applied to defendant's resentence, defendant was sufficiently on notice that the enhancement would be sought at resentencing and given the opportunity to contest the PSIR's accuracy. Eason, 435 Mich. at 251. Further, we note that defendant was originally charged as a habitual offender and given ample notice that his sentence would be enhanced, yet at no point during the proceedings has defendant challenged the accuracy of his criminal history and convictions. In fact, defendant has recognized the existence of his "extensive criminal history" on multiple occasions during resentencing.
While the general habitual offender statute was indicated at the first sentencing, instead of the habitual drug-offender statute, defendant received adequate notice under the more stringent due-process notice requirements consistent with the application of the general habitual offender statute. On this basis, there is no question that defendant received notice of the intent to seek a sentencing enhancement. As a result, the due-process notice requirement for MCL 333.7413 was satisfied.
Affirmed.