STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
February 22, 2005
Macomb Circuit Court
LC No. 2000-000503-FH
JAMES JAY FRANKINA,
Before: Fort Hood, P.J. and Griffin and Donofrio, JJ.
Defendant appeals as of right his 85 to 240 month sentence for first-degree criminal
sexual conduct, MCL 750.520b, entered after remand from this Court. We affirm. This appeal
is being decided without oral argument pursuant to MCR 7.214(E).
On appeal from his resentencing, defendant argues that in scoring the sentencing
guidelines, the trial court improperly considered prior misdemeanor convictions obtained without
the presence of counsel. Convictions obtained in violation of the right to counsel cannot be
considered in determining punishment for another offense. People v Love (After Remand), 214
Mich App 296, 299; 542 NW2d 374 (1995). A defendant who collaterally challenges a prior
conviction bears the initial burden of establishing that the conviction was obtained without
counsel or a proper waiver of counsel. Id. A defendant can satisfy this burden by either
presenting prima facie proof such as a docket entry or transcript, or evidence that he requested
such records from the sentencing court, and that request was ignored or denied. Id., 299-300.
The presentence report only indicates that it was unknown whether an attorney was
present for six of defendant’s convictions. Defendant has not presented any information from
the sentencing courts showing that counsel was not present and that defendant did not waive the
right to counsel. In the alternative, there is no evidence that defendant requested records from
the sentencing courts and that the request was not honored. Defendant did not carry his burden
of proof, and he is not entitled to resentencing. People v Carpentier, 446 Mich 19, 31-32; 521
NW2d 195 (1994).
Defendant also argues that the trial court erred in failing to determine the validity of a
conviction for a November 2, 1993 misdemeanor when he had been sentenced to one year
imprisonment on May 10, 1993, and to eighteen months’ imprisonment on July 29, 1993.
However, defendant presented no evidence that he was actually incarcerated on the date of the
offense. Where defendant was scored for having five or six prior misdemeanor convictions, and
the PSIR shows that he had seven convictions, the deletion of one conviction would not affect
the guidelines score.
/s/ Karen M. Fort Hood
/s/ Richard Allen Griffin
/s/ Pat M. Donofrio