PEOPLE OF MI V MARLON D MATTHEWS
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
November 19, 2009
Plaintiff-Appellee,
v
No. 286178
Wayne Circuit Court
LC No. 07-018454
MARLON D. MATTHEWS,
Defendant-Appellant.
Before: Shapiro, P.J., and Jansen and Beckering, JJ.
PER CURIAM.
Defendant appeals as of right his bench trial conviction for failure to pay child support,
MCL 750.165. Defendant was sentenced to 14 to 48 months’ imprisonment, with credit for two
days served. We affirm.
Defendant first argues that he did not effectuate a valid waiver of counsel in the trial
court. We review de novo the record, but do not disturb the trial court’s findings of fact absent
clear error. People v Williams, 470 Mich 634, 640-641; 683 NW2d 597 (2004).
A defendant’s request to proceed in propria persona must be unequivocal, and his waiver
of counsel must be knowing, intelligent, and voluntary. People v Adkins (After Remand), 452
Mich 702, 722; 551 NW2d 108 (1996), overruled in part on other gds Williams, supra at 641 n 7.
The trial court must advise defendant of the risks of self-representation and determine whether
defendant will unduly disrupt the proceedings. Id. In addition, the requirements in MCR
6.005(D) must be met:
The court may not permit the defendant to make an initial waiver of the right to be
represented by a lawyer without first
(1) advising the defendant of the charge, the maximum possible prison sentence
for the offense, any mandatory minimum sentence required by law, and the risk
involved in self-representation, and
(2) offering the defendant the opportunity to consult with a retained lawyer or, if
the defendant is indigent, the opportunity to consult with an appointed lawyer.
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The trial court must substantially comply with the requirements set forth in both the court rule
and People v Anderson, 398 Mich 361, 367-368; 247 NW2d 857 (1976), which are “merely
vehicles to ensure that the defendant knowingly and intelligently waived counsel with eyes
open.” Adkins, supra at 725, 726.
Having reviewed the record, we conclude that the trial court substantially complied with
the waiver requirements. Over the course of the January 15, 2008, pretrial hearing and before
the bench trial began on February 4, 2008, the trial court advised defendant of the charge, the
potential sentence, and offered him the opportunity to obtain appointed counsel. MCR 6.005(D).
The record reflects that defendant was apprised of the importance of obtaining the best advice
possible because he could potentially go to prison, he was informed that he had to follow the
court and evidentiary rules if he represented himself, and he was questioned about whether he
was familiar with the court rules and rules of evidence, and whether he would be able to apply
the rules and make objections based on the rules.
The trial court also substantially complied with the requirements in Anderson that the
waiver of defendant’s right to counsel was unequivocal, knowing, intelligent, and voluntary.
Adkins, supra at 722. At the January 15 hearing, defendant informed the trial court that he was
proceeding in propria persona and when the trial court told defendant that the prosecution wanted
another attorney appointed for him, he responded, “I don’t need one.” Defendant asserted that he
discharged his former attorney1 and was proceeding in propria persona. This supports a finding
that defendant unequivocally requested to represent himself and that he did so voluntarily. Id.
Further, defendant insisted that “I’m very well aware of what I’m doing” and that he “fully
understand[s] what’s going on today.” Defendant then indicated that he would move to dismiss
the case, would not assert his right to a jury trial, and argued that he never waived his right to a
preliminary examination.
On February 4, defendant again asserted that he was proceeding in propria persona. He
made several motions, raised several arguments, and formally waived his right to a jury trial.
When the trial court began to voir dire defendant regarding the charge against him, he told the
trial court that “we went through this . . . the last time I was here.” Defendant also indicated that
he “fully understand[s] that this is a criminal charge,” and “fully understands the right of having
an attorney,” and he reiterated that he discharged his former attorney. Defendant brought his
own copy of the court rules and rules of evidence to trial and indicated that he could apply them.
Defendant’s motions and arguments demonstrate his understanding of and familiarity with the
criminal process. Because defendant indicated that he understood his rights and proceeded to
make formal motions before the trial court, we conclude that his assertion of his right to
represent himself was unequivocal, knowing, intelligent, and voluntary. See Adkins, supra at
734 (A defendant’s behavior is relevant when assessing whether a waiver was made knowingly,
intelligently, and voluntarily). Defendant has failed to establish that the trial court clearly erred
in finding that his waiver of counsel was knowing and intelligent. Williams, supra at 640-641.
1
The record reflects that his former counsel was permitted to withdraw.
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Further, the record available supports that the trial court did not believe defendant’s selfrepresentation would disrupt or burden the proceedings because he was warned he had to comply
with the court rules and did so when instructed by the trial court. Adkins, supra at 722.
Moreover, although defendant argues that he does not know of any authority indicating that a
valid waiver can occur over the course of two proceedings, under the present circumstances, any
defect in the January 15 proceeding was subsequently cured before trial on February 4 and the
record nonetheless supports that defendant energetically and insistently defended himself and
made the choice “with eyes open.” Anderson, supra at 370 (No error where the trial court failed
to explicitly inform the defendant regarding the dangers and disadvantages of self-representation
where the defendant’s statements and history of involvement with the criminal justice system
demonstrated that he “knew what he was doing and made his choice with eyes open.”).
Defendant next argues that MCL 750.165, a strict liability crime, violates due process
because the potential four-year sentence is not relatively small, and a conviction would “gravely
besmirch.” People v Olson, 181 Mich App 348, 352; 448 NW2d 845 (1989), citing United
States v Wulff, 758 F2d 1121, 1125 (CA 6, 1985). Because he did not raise this contention in the
trial court, we review the unpreserved issue for plain error that affected his substantial rights.
People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999).
To prove felony nonsupport, the prosecutor must show that defendant was required by
court order to pay child support, defendant appeared or received notice by personal service of the
action for support, and defendant failed to pay the support as ordered. People v Herrick, 277
Mich App 255, 257; 744 NW2d 370 (2007); MCL 750.165. Felony nonsupport is a strict
liability offense and inability to pay is not a defense. People v Adams, 262 Mich App 89, 100;
683 NW2d 729 (2004).
Defendant recognizes that Adams held that a lack of scienter was permissible and the
potential four-year jail term was not overly severe, see id. at 97-99, but argues that it failed to
take into consideration due process considerations under both the Michigan and United States
Constitutions. However, in People v Westman, 262 Mich App 184, 190-191; 685 NW2d 423
(2004), overruled on other grounds by People v Monaco, 474 Mich 48; 710 NW2d 46 (2006),
this Court concluded that there was no due process violation. We also reject defendant’s claim
that the statute raises the specter of a debtor’s prison; a judgment for child support or alimony is
not considered a debt and a party may be imprisoned for failing to pay. Toth v Toth, 242 Mich
23, 26; 217 NW 913 (1928).
Next, defendant argues that his right to confront the witnesses against him was violated
when the record keeper of the friend of the court testified that the proof of service in the file
indicated that defendant was personally served with notice of the paternity action. The process
server did not testify. Because defendant did not raise this objection at trial, we review the issue
for plain error that affected his substantial rights. People v Bauder, 269 Mich App 174, 180; 712
NW2d 506 (2005). Where a testimonial statement is admitted against a defendant and the
declarant is unavailable and the defendant never had an opportunity to cross-examine him, a
defendant’s Confrontation Clause rights are violated. People v Bryant, 483 Mich 132, 138-139;
768 NW2d 65 (2009), citing Crawford v Washington, 541 US 36, 59, 68; 124 S Ct 1354; 158 L
Ed 2d 177 (2004).
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The [Crawford] Court recognized that “[v]arious formulations of this core class
of ‘testimonial’ statements exist,” such as “‘pretrial statements that declarants
would reasonably expect to be used prosecutorially’” and “‘statements that were
made under circumstances which would lead an objective witness reasonably to
believe that the statement would be available for use at a later trial.’” Id. at 5152 (citations omitted). [Id. at 139.]
Although the process server’s statements were testimonial, i.e. used to prove that defendant was
served, and while it would be reasonable to expect that the proof of service would be used in a
prosecutorial manner in a later trial because it involved serving defendant with notice of the
paternity/child support action proceeding in court against him, we conclude that under the plain
error analysis, defendant has failed to establish that any error was outcome determinative
because the prosecutor established that defendant actually appeared in the action. The record
reflects, and defendant does not dispute, that he moved to reduce the amount of child support
through that action and twice moved for a paternity test. Because the statute requires personal
service or appearance, MCL 750.165(2), defendant’s appearance in the support action was
sufficient to meet this element.
Next, defendant argues that he is entitled to resentencing because the trial court failed to
obtain a proper waiver of counsel at the subsequent sentencing proceeding. Neither the
Michigan nor United States Constitutions require wavier be obtained at subsequent proceedings
once the initial waiver is obtained. People v Lane, 453 Mich 132, 139; 551 NW2d 382 (1996).
“[F]ailure to comply with MCR 6.005(E) is to be treated as any other trial error.” Id. at 140.
Because this is an unpreserved, nonconstitutional error, to avoid forfeiture under the plain error
rule, defendant must show that plain error occurred and that it prejudiced his substantial rights,
i.e. that the error affected the outcome of the lower court proceeding. Id.; Carines, supra at 763.
Once defendant waived his right to counsel, MCR 6.005(E) imposed an ongoing duty on
the trial court to inquire whether defendant continued to exercise the right to self-representation,
providing:
If a defendant has waived the assistance of a lawyer, the record of each
subsequent proceeding ([including] sentencing) need show only that the court
advised the defendant of the continuing right to a lawyer’s assistance (at public
expense if the defendant is indigent) and that the defendant waived that right.
Before the court begins such proceedings,
(1) the defendant must reaffirm that a lawyer’s assistance is not wanted; or
(2) if the defendant requests a lawyer and is financially unable to retain one, the
court must appoint one; or
(3) if the defendant wants to retain a lawyer and has the financial ability to do so,
the court must allow the defendant a reasonable opportunity to retain one.
The record reflects that at the sentencing hearing on May 16, 2008, the parties stated their
appearances for the record and defendant indicated he was in propria persona. At that time, the
trial court did not advise defendant of his continuing right to counsel, or ask him to reaffirm that
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he did not want an attorney. Thus, we agree that there was plain error. However, defendant has
failed to show that it affected his substantial rights. Carines, supra.
First, after the trial court sentenced defendant and advised him of his right to appeal, it
stated:
And I would strongly recommend that you request an attorney. But if he does not
request an attorney for his appeal, you should not bother him with an attorney.
He asked that there be no attorney today and I found that he was competent in his
request.
And the Court advised him before that you should use an attorney . . . .
Thus, unlike circumstances where a trial court completely fails to advise defendant of his right to
counsel, it appears that the trial court did advise defendant before the sentencing hearing began,
but failed to do so on the record.
Defendant argues that he was prejudiced by lack of counsel at sentencing because he
erroneously moved to withdraw his plea instead of moving for a judgment notwithstanding the
verdict. We disagree. First, in the very next sentence after defendant moved to withdraw his
plea, he also requested “to enter a plea where a motion for JNOV.” We fail to see how there can
be prejudice from a lack of counsel where defendant made the motion he claims would have
been made if he had counsel. Second, the record indicates that defendant moved to withdraw a
plea even though the conviction was the result of a bench trial, not a plea. Therefore, the trial
court did not clearly err in finding that defendant tried to mislead the court. People v Babcock,
469 Mich 247, 264; 666 NW2d 231 (2003).
Finally, the trial court based its decision to depart upward from the sentencing guidelines’
recommended minimum range on several other factors besides defendant’s attempt to mislead
the trial court and specifically indicated that an indeterminate sentence was not appropriate
because defendant would not comply based on his statements and conduct. Indeed, when the
defendant asked the trial court how it could deviate from the “strict guidelines” the trial court
reiterated its reasons:
You just heard it. There’s no chance for rehabilitation. There’s no remorse for
the crime. There’s a demonstration of a continual refusal to pay child support or
adhere to the instructions of the Court.
The Court finds that the Department of Corrections is going to be
responsible for this case. I find that if there had been probation, probation ordered
there would be a violation of probation the next month.
Your activity when given the opportunity to pay child support has been
you don’t do it. Instead you attack the Court, you attack the prosecutor, you
attack anybody and everybody.
Thus, the trial court concluded that an intermediate sentence such as probation was inappropriate
given defendant’s history. These reasons are fully supported by the record and unrelated to
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defendant’s attempt to withdraw his nonexistent plea. There is no indication in the record that
absent defendant’s request to withdraw his plea, or that even had defendant been represented by
counsel, the trial court would have imposed any sentence other than what it did. Defendant has
failed to establish any prejudice in sentencing that resulted from the trial court’s failure to strictly
follow MCR 6.005(E) on the record prior to sentencing. Carines, supra.
Moreover, given defendant’s numerous expressions of his desire to represent himself, it
seems highly unlikely that defendant would have changed his mind. We find this particularly
true in light of defendant’s attempt at the January 15, 2008 pre-trial hearing to disavow any work
done by counsel when he was represented, by indicating that his waiver of the preliminary exam
was invalid because it “was moved forward by an attorney that I did not want representing me.”
As our Supreme Court held in People v Williams, 470 Mich 634, 645; 683 NW2d 597 (2004):
To permit a defendant in a criminal case to indulge in the charade of insisting on a
right to act as his own attorney and then on appeal to use the very permission to
defend himself in pro per as a basis for reversal of conviction and a grant of
another trial is to make a mockery of the criminal justice system and the
constitutional rights sought to be protected. [Quotations and citations omitted.]
Lastly, defendant argues that the trial court erred in departing from the sentencing
guidelines. A trial court must articulate substantial and compelling reasons to justify departing
from the sentencing guidelines’ recommended range. Babcock, supra at 261-262; MCL
769.34(11). A substantial and compelling reason must be objective and verifiable. Id. at 257.
We review the trial court’s factual findings that supported the departure for clear error.
Id. at 264. Whether the reasons for departure are objective and verifiable is a matter of law we
review de novo, but the determination that those reasons are substantial and compelling enough
to justify the departure and the amount of the departure is reviewed for an abuse of discretion.
Id. at 264-265. The trial court abuses its discretion where its decision falls outside the range of
principled outcomes. Id. at 269. This Court gives “some degree of deference” to the trial court’s
determination that substantial and compelling reasons warrant departure from the guidelines
because of its “familiarity with the facts and its experience in sentencing.” Id. at 268-269.
Although the trial court’s consideration of defendant’s lack of remorse was not objective
and verifiable, People v Daniel, 462 Mich 1, 8, 11; 609 NW2d 557 (2000), that factor may be
considered as it relates to his rehabilitative potential, id. at 7 n 8; People v Spanke, 254 Mich
App 642, 650; 658 NW2d 504 (2003). Further, although a trial court’s finding that defendant
would not comply with probation, i.e., would reoffend by failing to pay child support, was not
objective and verifiable, objective and verifiable facts such as prior criminal history indicating
that such efforts to rehabilitate failed to deter a defendant, can support a decision to depart and
sentence the defendant to a term of imprisonment rather than an intermediate sanction. Concern
that a defendant would re-offend is supported by underlying objective and verifiable factors
“such as repeated offenses and failures at rehabilitation—[which] constitute an acceptable
justification for an upward departure.” People v Horn, 279 Mich App 31, 44-45; 755 NW2d 212
(2008) (citations omitted).
The record reflects that defendant had an extensive history of failing to pay child support,
with the arrearage totaling over $27,000; he did not pay support in 2004, paid $370 in 2005, and
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$4.17 in 2006. After he was charged with nonsupport, defendant in response filed false UCC
statements against the attorney general, trial court, and two prosecuting attorneys. He was
subsequently convicted of four counts of filing false UCC statements. Defendant also violated
the terms of his bond. At sentencing, defendant threatened to charge the trial court under several
federal laws and international treaties. The trial court’s determination that defendant was
“openly defiant” of the trial court, court orders, and his court-ordered obligation to pay child
support, and had a low chance of rehabilitation or complying with probation was therefore
objective and verifiable. Although defendant argues that his disobedience was adequately
considered by OV 16, MCL 777.46(1)(b), for which defendant was scored ten points for property
loss of more than $20,000, this variable did not account for defendant’s other demonstrations of
defiance. There is also no record support for defendant’s contention that the trial court
improperly considered defendant’s failure to admit guilt, such as by offering him a lesser
sentence if he would admit guilt. People v Wesley, 428 Mich 708, 711; 411 NW2d 159 (1987).
Defendant further argues that that the trial court’s determination that defendant was
deliberately trying to mislead the trial court amounted to the trial court impermissibly holding the
fact that defendant appeared in propria persona against him. However, this Court defers to the
trial court’s familiarity with the facts of the case and its sentencing experience. Babcock, supra
at 268-269. The record does not support that the trial court departed from the guidelines because
defendant represented himself, or that the trial court clearly erred in determining defendant’s
argument was an attempt to mislead the trial court under the circumstances.
Defendant also argues that his sentence was not proportionate. A sentence must be
“proportionate to the seriousness of the defendant’s conduct and to the defendant in light of his
criminal record.” Babcock, supra at 262. We conclude that defendant’s sentence departure of
five months was proportionate to the offense and offender given the circumstances and the trial
court adequately articulated its reasoning. People v Smith, 469 Mich 247, 259; 666 NW2d 231
(2008). The trial court was very clear that it did not believe that defendant would comply with
the terms of any probation or payment of child support if it chose to give defendant an
intermediate sentence, based on the factors described above, and noted that defendant failed to
pay support in the past when given the chance. As the trial court noted, “[i]nstead you attack the
Court, you attack the prosecutor, you attack anybody and everybody.”
Affirmed.
/s/ Douglas B. Shapiro
/s/ Kathleen Jansen
/s/ Jane M. Beckering
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