PEOPLE OF MI V PHILLIP ALLEN LESTER
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
January 10, 2008
Plaintiff-Appellee,
v
No. 273646
Oakland Circuit Court
LC No. 06-207823-FH
PHILLIP ALLEN LESTER,
Defendant-Appellant.
Before: Fitzgerald, P.J., and Markey and Smolenski, JJ.
PER CURIAM.
Defendant appeals by right his convictions following a jury trial of two counts of
aggravated stalking. MCL 750.411i. He was sentenced as an habitual offender, fourth offense,
MCL 769.13, to concurrent prison terms of 5 to 15 years. We affirm. This appeal is being
decided without oral argument pursuant to MCR 7.214(E).
Defendant argues that the multiple counts of aggravated stalking involving the same
victim violated constitutional protections against double jeopardy, US Const Am V; Const 1963,
art 1 § 5. Although defendant failed to preserve this issue in the trial court, we are reviewing it
for plain error because it involves a significant constitutional issue. People v Matuszak, 263
Mich App 42, 47 n1; 687 NW2d 342 (2004).
To determine whether a defendant received multiple punishments for the same offense,
we apply the same elements test, set forth in Blockburger v United States, 284 US 299, 304; 52 S
Ct 180; 76 L Ed 306 (1932). People v Smith, 478 Mich 292, 295-296; 733 NW2d 351 (2007).
But when the same statute is involved, the same elements necessarily must be proven.
Therefore, it must be determined from the language of the statute what unit of prosecution the
Legislature intended. See People v Wakeford, 418 Mich 95, 106-107; 341 NW2d 68 (1983).
In People v White, 212 Mich App 298, 306-307; 536 NW2d 876 (1995), this Court held
generally that stalking was not necessarily a continuous offense allowing only one prosecution.
Stalking, by definition, requires a course of conduct, defined as “a pattern of conduct composed
of a series of 2 or more separate noncontinuous acts evidencing a continuity of purpose.” MCL
750.411i(1)(a) and (d). A course of conduct is the proper unit of prosecution. In the present
case, the prosecution established that a new course of conduct began in November 2005 when
defendant renewed his correspondence with a change in focus and tone. This new course of
conduct created a second violation of MCL 750.411i. Defendant was not convicted and
-1-
punished twice for the same offense; rather, he committed two separate offenses under MCL
750.411i. His multiple convictions did not violate double jeopardy protections.
Defendant also argues that he was denied effective assistance of counsel because his
attorney failed to raise the double jeopardy issue. The right to counsel, guaranteed by the United
States Constitution, US Const, Am VI, and the Michigan Constitution, Const 1963, art 1, § 20,
includes the right to effective assistance of counsel. People v Pubrat, 451 Mich 589, 594; 548
NW2d 595 (1996). To constitute ineffective assistance, the attorney’s performance must fall
below an objective level of reasonableness and the defendant must be denied a fair trial as a
result. People v Toma, 462 Mich 281, 302; 613 NW2d 694 (2000). Because defendant failed to
move for a new trial or request an evidentiary hearing, review is limited to any mistakes apparent
on the record. People v Rodriguez, 251 Mich App 10, 38; 650 NW2d 96 (2002).
Defendant observes correctly that although he was sentenced concurrently for the two
offenses, the second offense changed a scoring variable; however, the multiple convictions did
not constitute double jeopardy. His attorney did not have a duty to make a meritless argument,
People v Snider, 239 Mich App 393, 425; 608 NW2d 502 (2000), and failure to make the
argument did not deny defendant a fair trial, see Toma, supra at 302.
We affirm.
/s/ E. Thomas Fitzgerald
/s/ Jane E. Markey
/s/ Michael R. Smolenski
-2-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.