PEOPLE OF MI V MARQUIS DESHAWN FARR
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
June 30, 2009
Plaintiff-Appellee,
v
No. 285513
Kent Circuit Court
LC No. 00-011096-FC
MARQUIS DESHAWN FARR,
Defendant-Appellant.
Before: O’Connell, P.J., and Bandstra and Donofrio, JJ.
PER CURIAM.
Defendant appeals in propria persona by delayed leave granted the trial court’s order
denying his motion for relief from judgment. Defendant was sentenced, following a probation
violation, to two to ten years’ imprisonment for his plea-based conviction of assault with intent
to commit criminal sexual conduct involving sexual penetration, MCL 750.520g(1), on
December 23, 2003.1 We affirm the trial court’s denial of defendant’s motion for relief from
judgment, but we remand for resentencing. This appeal is being decided without oral argument
pursuant to MCR 7.214(E).
Defendant maintains that he is entitled to relief from judgment because the prosecutor
deliberately failed to reveal exculpatory evidence concerning DNA testing, which occurred
during the initial prosecution in 2000 and 2001. The testing revealed no semen stains on the
victim’s underwear, and no DNA forensic evidence was acquired from the underwear or in
swabs from the victim’s person. Defendant maintains that had he known of these results, he
would not have pleaded guilty but would have proceeded to trial.
We review a trial court’s ruling granting a motion for relief from judgment for an abuse
of discretion. People v Clark, 274 Mich App 248, 251; 732 NW2d 605 (2007). The findings of
fact supporting the trial court’s decision are reviewed for clear error. Id.
1
Defendant was initially charged with criminal sexual conduct in the first degree, MCL
750.520b, and criminal sexual conduct in the third degree, MCL 750.520d. These charges were
dismissed pursuant to the plea agreement.
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MCR 6.508(D)(3) precludes a trial court from granting relief under certain
circumstances. MCR 6.508(D) states, in pertinent part,
Entitlement to Relief. The defendant has the burden of establishing entitlement
to the relief requested. The court may not grant relief to the defendant if the
motion
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(3) alleges grounds for relief, other than jurisdictional defects, which could have
been raised on appeal from the conviction and sentence or in a prior motion under
this subchapter, unless the defendant demonstrates
(a) good cause for failure to raise such grounds on appeal or in the
prior motion, and
(b) actual prejudice from the alleged irregularities that support the
claim for relief. As used in this subrule, “actual prejudice” means that,
***
(ii) in a conviction entered on a plea of guilty, guilty but
mentally ill, or nolo contendere, the defect in the proceedings was
such that it renders the plea an involuntary one to a degree that it
would be manifestly unjust to allow the conviction to stand;
(iii) in any case, the irregularity was so offensive to the
maintenance of a sound judicial process that the conviction should
not be allowed to stand regardless of its effect on the outcome of
the case . . . .
Defendant argues that the prosecutor has an affirmative obligation to turn over
exculpatory information to the defense. See People v Lester, 232 Mich App 262, 281-282; 591
NW2d 267 (1998). Defendant maintains, however, that the prosecutor purposely failed to
provide the defense with the test results and that this misfeasance provides good cause to order
relief from judgment.
In order to establish a Brady[2] violation, a defendant must prove: (1) that
the state possessed evidence favorable to the defendant; (2) that he did not possess
the evidence nor could he have obtained it himself with any reasonable diligence;
(3) that the prosecution suppressed the favorable evidence; and (4) that had the
evidence been disclosed to the defense, a reasonable probability exists that the
outcome of the proceedings would have been different. [Lester, supra at 281-282
(citation omitted).]
2
Brady v Maryland, 373 US 83; 83 S Ct 1194; 10 L Ed 2d 215 (1963).
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According to the trial court, defendant’s trial was initially set to begin on February 19,
2001. Trial was adjourned to May 29, 2001, by stipulation of the parties because they were
awaiting DNA test results. The prosecutor sent defense counsel a letter on November 17, 2000,
stating that the prosecutor had not yet received final DNA results and that they would be sent to
defense counsel when they became available. However, in support of his claim that the
prosecutor lied to defense counsel and that the prosecutor already had the test results, defendant
relied on laboratory results, dated November 1, 2000, and a phone log dated the same day, that
indicates that the results were provided to the police department and the prosecutor’s office.
Our review of the record does not support defendant’s claim. The report on which
defendant relies is not, as he maintains, the actual DNA test of the samples, but rather the
preliminary immunoassay and preliminary chemical tests. Defendant’s appellate materials
indicate that the actual DNA tests were not completed until July 31, 2001. Therefore, contrary to
defendant’s assertion, there were no DNA results for the prosecutor to withhold when defendant
pleaded guilty on May 29, 2001, a fact that defendant would likely have known at the time of the
plea. According to the plea transcript, defendant’s plea was not qualified on the receipt of any
further DNA results, and defendant did not claim that counsel could not obtain the preliminary
chemical results. Nor does defendant argue that his counsel was ineffective for counseling him
to enter his plea before learning the results of the test. Thus, even to the extent that the absence
of DNA evidence connecting him to the crime can be properly termed “exculpatory,” defendant
has not provided evidence of the remaining elements necessary to establish a Brady violation
here. Therefore, we find that the trial court did not abuse its discretion when it denied
defendant’s motion for relief from judgment.
In its appellate brief, the prosecutor notes an irregularity that occurred during
resentencing. During defendant’s initial sentencing, the original guidelines were preliminarily
scored at ten to 23 months. However, during sentencing the guidelines were reduced to zero to
17 months. During resentencing, the trial court apparently incorrectly noted that the guidelines
were scored at ten to 23 months. The trial court also found that it was not bound by the
guidelines. Subsequently, our Supreme Court held that the sentencing guidelines apply to
sentences imposed after probation revocation, and “a defendant’s conduct while on probation can
be considered as a substantial and compelling reason for departure . . . .” People v Hendrick, 472
Mich 555, 565; 697 NW2d 511 (2005). Here, then, the trial court should have either sentenced
defendant to an intermediate sanction, see MCL 769.34(4), or articulated reasons for departure.
MCL 769.34(3); Hendrick, supra. Defendant does not raise this issue on appeal. However, the
prosecutor essentially concedes the error, and it is plain. We thus remand for resentencing.
The trial court’s denial of relief from judgment is affirmed. We remand for resentencing
consistent with this opinion. We do not retain jurisdiction.
/s/ Peter D. O’Connell
/s/ Richard A. Bandstra
/s/ Pat M. Donofrio
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