PEOPLE OF MI V RICHARD ALAN DUENAZ
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
February 6, 1998
Plaintiff-Appellee,
v
No. 198517
St. Clair Circuit Court
LC No. 93-002168 FH
RICHARD ALAN DUENAZ,
Defendant-Appellant.
Before: Gage, P.J., and Murphy and Reilly, JJ.
MEMORANDUM.
Defendant appeals by right his sentences, after resentencing pursuant to this Court’s order of
February 13, 1995, remanding for resentencing (Docket No. 192764). This appeal is being decided
without oral argument pursuant to MCR 7.214(E).
Defendant was not deprived of the ordered resentencing by virtue of the trial court’s failure to
recalculate the sentence guidelines. As defendant was an habitual offender, the guidelines had no
relevance to his sentence and were to be calculated, if at all, only for statistical purposes. People v
Edgett, 220 Mich App 686; 560 NW2d 360 (1996).
Defendant’s argument that uncounselled misdemeanor convictions were improperly used at
sentencing is also without merit. First, only those uncounselled misdemeanor convictions that resulted in
incarceration implicate any constitutional impediment to their use for this purpose. People v
Reichenbach, 224 Mich App 186, 191; ___ NW2d ___ (1997); Nichols v United States, 511 US
738, 742-744; 114 S Ct 1921; 128 L Ed 2d 745 (1994). Second, the mere fact that a misdemeanor
conviction resulting in incarceration is uncounselled does not mean that it is the product of a Sixth
Amendment violation, since counsel might have been validly waived. To challenge use of a prior
conviction for lack of counsel or proper waiver of counsel, defendant must present prima facie proof
that the prior conviction violated the Sixth Amendment, or in the alternative evidence that the sentencing
court failed to reply to a request for or refused to furnish requested copies of records and documents.
Defendant made no such showing at the resentencing, and accordingly reliance on such convictions was
entirely proper. People v Haywood, 209 Mich App 217, 231-232; 530 NW2d 497 (1995).
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Finally, defendant contends that his sentences, of 5 to 10 years for assault with intent to commit
second degree criminal sexual conduct, MCL 750.520g(2); MSA 28.788(7)(2), and 2 to 4 years for
fourth degree criminal sexual conduct, MCL 750.520e(1)(a); MSA 28.788(5)(1)(a), enhanced by
defendant’s habitual offender status, MCL 769.11; MSA 28.1083, are disproportionate to the offenses
and the offender. The proportionality of habitual offender sentences is reviewed for abuse of sentencing
discretion. People v Edgett, supra. In light of the crimes for which defendant has been sentenced and
his prior criminal record, no such abuse of discretion has been demonstrated.
Affirmed.
/s/ Hilda R. Gage
/s/ William B. Murphy
/s/ Maureen Pulte Reilly
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