PEOPLE OF MI V ROSIE MARY GRAY
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
December 18, 2001
Plaintiff-Appellee,
v
No. 227068
Oakland Circuit Court
LC No. 99-168354-FH
ROSIE MARY GRAY,
Defendant-Appellant.
Before: Holbrook, Jr., P.J., and Cavanagh and R. S. Gribbs*, JJ.
PER CURIAM.
Defendant appeals as of right from her jury trial convictions for forgery of a promissory
note, MCL 750.251, false pretenses involving property worth more than $1,000 but less than
$20,000, MCL 750.218(4), and forgery or alteration of a driver’s license, MCL 257.310(7)(a).
Defendant was sentenced as a fourth habitual offender, MCL 769.12, to a term of four to twenty
years for the forgery of a promissory note conviction, four to fifteen years for the false pretense
conviction, and one year for the forgery or alteration of a driver’s license conviction. The
sentences run concurrently with each other, but consecutive to a current parole violation. We
affirm defendant’s convictions but remand for resentencing.
Defendant argues on appeal that the trial court erred when it gave the jury an instruction
on aiding and abetting. Defendant claims that, since the prosecution’s theory in the case was that
defendant acted alone, the evidence offered at trial did not support a theory of aiding and
abetting. However, defendant has waived the issue before this Court because the trial court
specifically asked defense counsel for her opinion on that instruction and defense counsel stated
she had no objection to it. When defense counsel expressly accepts a trial court’s jury
instruction, she effectively waives appellate review of any error based on that accepted
instruction. People v Carter, 462 Mich 206, 215; 612 NW2d 144 (2000). Consequently, we will
not review defendant’s jury instruction claim. Further, the objection made by defense counsel
after the trial court reinstructed the jury was directed at the manner in which the trial court reread
the aiding and abetting instruction rather than the instruction itself. We thus will not reverse
defendant’s conviction on that basis.
Defendant next asserts that, in passing sentence, the trial court improperly considered the
fact that defendant exercised her right to a trial, improperly considered her refusal to admit guilt,
* Former Court of Appeals judge, sitting on the Court of Appeals by assignment.
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and improperly took into account the effect defendant’s exercise of her right to trial had on her
daughter. We agree in part. A court in passing sentence may not consider factors that violate a
defendant’s constitutional rights. People v Godbold, 230 Mich App 508, 512; 585 NW2d 13
(1998). A defendant has the constitutional right to a trial. People v Mosko, 190 Mich App 204,
211; 475 NW2d 866 (1991); People v Travis, 85 Mich App 297, 303; 271 NW2d 208 (1978).
Similarly, a defendant has a right to secure witnesses on his own behalf and to present a defense.
People v Hayes, 421 Mich 271, 279; 364 NW2d 635 (1984); People v McCumby, 130 Mich App
710, 715; 344 NW2d 338 (1983). Nor may a sentencing court base its sentence even in part on a
defendant’s refusal to admit guilt. People v Wesley, 428 Mich 708, 711; 411 NW2d 159 (1987);
People v Yennior, 399 Mich 892; 282 NW2d 920 (1977). Since this issue presents a question of
constitutional law, our review is de novo. People v Levandoski, 237 Mich App 612, 619; 603
NW2d 831 (1999).
The court’s comments at sentencing were as follows:
Ms. Gray, I’m going to be very blunt. I’m going to sentence you to the maximum
in connection with this. And the reason I’m doing so is simply because, one, I think
you’re a menace to society from the standpoint of white collar crime and to yourself, but
also, as a very practical matter, you, because of your foolish behavior in connection with
this, insisting on going to trial in connection with this and pursuing this in the manner in
which you did, you jeopardized your daughter because subsequently they may write her
as a result of it. You forced her to get on this stand and lie. Now that’s my opinion of
exactly what took place in connection with this matter. Therefore, I have no pity for you,
no sympathy. And you’re still denying everything, even when I read this report.
[Emphasis added.]
Even a slight indication that the sentencing court considered the defendant’s refusal to
plead guilty can be enough to remand for resentencing. In Travis, supra, this Court found error
in the trial court’s comments:
I don’t think that any person should have their right to a jury trial chilled.
But, on the other hand, occasionally, the Court will reward a person, giving
something less than they deserve just because they have [pleaded] guilty, and,
consequently, not put the People to the risk of a not guilty verdict. [Travis, supra
at 303.]
In Mosko, supra, this Court found the trial court’s comments, “I am very concerned about this
case. I’m concerned because it was a case that went to trial,” indicated that the court may have
improperly considered the defendant’s exercise of his right to trial. Mosko, supra at 210-211.
The comment made in the present case is even more indicative of an improper consideration, and
nothing in the record or the prosecution’s arguments sufficiently counters defendant’s assertion.
We likewise find that the trial court’s comment, “you’re still denying everything,” tends
to indicate improper consideration of defendant’s refusal to admit guilt as a basis for sentencing.
A trial court cannot base its sentence, even in part, on a defendant’s refusal to admit guilt.
Wesley, supra at 711; Yennior, supra at 892. However, a court may consider a defendant’s lack
of remorse when imposing the sentence. Wesley, supra at 714. In this case, the court’s comment
that defendant was still denying her guilt does not indicate that the court thought she was failing
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to show remorse, but that she continued to insist on her innocence.
Finally, defendant asserts that the sentencing judge erred by taking into account the effect
defendant’s exercise of her right to trial had on her daughter. Because the reasons above require
resentencing, we need not determine whether the court erred in this matter. However, we note
that a defendant’s right to present a defense includes the right to compel witnesses to testify.
Hayes, supra at 278. Even if it were proper for the trial court to consider them, the record does
not indicate any adverse effects resulting to the daughter, nor is there any indication in the
record, contrary to the trial court’s statement, that defendant’s daughter testified for any reason
but her own choice. She was fully advised of her right to remain silent in a pre-testimonial
hearing. Any consequences she suffered were those of her own choosing.
Finally, in response to the prosecution’s argument that MCL 769.34(10) narrowly
circumscribes appellate review of a sentence within the guidelines’ range, we do not find
defendant’s four-year minimum sentence necessarily inappropriate. However, that statute does
not take away a defendant’s constitutional protection of due process rights, including the right to
trial by jury.
Defendant’s convictions are affirmed and her sentences vacated.
resentencing; we do not retain jurisdiction.
We remand for
/s/ Donald E. Holbrook, Jr.
/s/ Mark J. Cavanagh
/s/ Roman S. Gribbs
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