PEOPLE OF MI V ANTHONY DONIQUE CLAY
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
January 26, 2010
Plaintiff-Appellee,
v
No. 286478
Jackson Circuit Court
LC No. 06-004307-FC
ANTHONY DONIQUE CLAY,
Defendant-Appellant.
Before: Cavanagh, P.J., and Fitzgerald and Shapiro, JJ.
PER CURIAM.
Defendant appeals as of right his conviction for first-degree criminal sexual conduct
(CSC), MCL 750.520b(1). We affirm.
On April 30, 1998, defendant was sentenced to 10 to 30 years’ imprisonment on a plea
conviction for second-degree murder, MCL 750.317. On August 25, 2006, while defendant was
incarcerated, a felony warrant was issued against him for the charged crime of first-degree CSC
committed on July 28, 1995. On September 29, 2006, a waiver of preliminary exam was signed
by defendant and he was bound over to the circuit court for arraignment. On October 11, 2006,
an information charged defendant, as a third-offense habitual offender, with first-degree CSC.
On November 17, 2006, the matter was remanded to the district court for a preliminary exam.
On December 15, 2006, defendant filed a motion to dismiss citing MCL 767.24 and arguing that
the charge was barred by the statute of limitations. On January 25, 2007, the motion was denied.
A preliminary exam was held on April 5, 2007, and defendant was bound over to circuit court on
the charge.
On July 12, 2007, defendant moved to dismiss the charge, again arguing that the matter
was time-barred under MCL 767.24. Defendant also argued that once defendant was “identified
as the perpetrator” on September 28, 2005, “the State had a duty to bring him to trial within 180
days [sic] MCL 780.131 and 133.” Instead, defendant argued, the complaint and warrant were
not filed until August 25, 2006 “because the People deliberately delayed authorizing a warrant to
defeat the ‘180 day rule’ and can always do so, if the statute is interpreted favoring the
prosecution.” Defendant also claimed that his right to a speedy trial was implicated and that a
delay of 18 months was presumptively prejudicial. The prosecution responded to the motion to
dismiss, arguing that defendant was identified as a DNA match on July 7, 2005, but a confirming
DNA sample was necessary for evidentiary purposes. Further, under MCR 6.004(D)(1), “[t]he
180-day rule begins only when the Department of Corrections notifies the Prosecution that the
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defendant is in their custody after a warrant has been authorized.” In this case, the 180-day rule
never started because the prosecution did not receive proper notification from the Department of
Corrections. And defendant’s right to a speedy trial was not violated because prejudice does not
attach until after 18 months from the time a defendant is charged and defendant has failed to
even allege actual prejudice. At a hearing conducted on July 19, 2007, the motion was denied.
Following a jury trial, on July 16, 2008, defendant was convicted as charged. Defendant
was sentenced to life in prison to be served consecutively to his then-current prison sentence on a
conviction for second-degree murder. This appeal followed. Subsequently, this Court vacated
the sentence imposing a consecutive sentence and remanded for entry of an amended judgment
of sentence to reflect that the sentence was to be served concurrently to his second-degree
murder sentence. People v Clay, unpublished order of the Court of Appeals, entered 01/30/09
(Docket No. 286478).
On appeal defendant argues that, because the Michigan Department of Corrections
(MDOC) failed to notify the prosecutor of defendant’s inmate status as required under the 180day rule, MCL 780.131(1), due process required dismissal of the charge. We disagree.
Issues of statutory interpretation, and legal issues presented under the 180-day rule, are
reviewed de novo on appeal. People v Cleveland Williams, 475 Mich 245, 250; 716 NW2d 208
(2006); People v McLaughlin, 258 Mich App 635, 643; 672 NW2d 860 (2003). However,
defendant did not raise the issue in the trial court whether dismissal was the proper remedy when
the MDOC fails to provide the requisite notice under MCL 780.131(1); thus, our review is for
plain error affecting his substantial rights. People v Carines, 460 Mich 750, 763; 597 NW2d 130
(1999).
MCL 780.131(1) provides, in part:
Whenever the department of corrections receives notice that there is
pending in this state any untried warrant, indictment, information, or complaint
setting forth against any inmate of a correctional facility of this state a criminal
offense for which a prison sentence might be imposed upon conviction, the
inmate shall be brought to trial within 180 days after the department of
corrections causes to be delivered to the prosecuting attorney of the county in
which the warrant, indictment, information, or complaint is pending written notice
of the place of imprisonment of the inmate and a request for final disposition of
the warrant, indictment, information, or complaint.
As our Supreme Court held in Cleveland Williams, supra at 256-257 n 4, “the 180-day period
begins to run the day after the prosecutor receives notice that a defendant is incarcerated and
awaiting trial on pending charges.” Here, the prosecutor never received the requisite notice,
thus, the 180-day period never commenced. See People v Holt, 478 Mich 851; 731 NW2d 93
(2007). Defendant claims that this failure of the MDOC to render such notice denied defendant
his “statutory right to a speedy trial” and thus “created a due process violation. US Const, Ams
V, XIV; Const 1963, art 1, § 17.” Defendant further claims that reversal of his first-degree
criminal sexual conduct conviction is the proper remedy. We disagree.
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The plain language of MCL 780.131(1) does not require the MDOC to send the requisite
notice; it merely indicates that after the MDOC provides such notice, “the inmate shall be
brought to trial within 180 days.” Cleveland Williams, supra at 250. The statute does not
provide a remedy for the failure of the MDOC to provide such notice. Defendant claims that the
remedy for depriving him of the right afforded by MCL 780.131(1) derives from the due process
clause and results in dismissal of the charge and reversal of his conviction.
However, even if we assumed without deciding that a violation of the 180-day rule
implicated due process rights, defendant has failed to establish that reversal of his conviction is
required. In a criminal case, due process generally requires reasonable notice of the charge and
an opportunity to be heard. People v McGee, 258 Mich App 683, 699; 672 NW2d 191 (2003).
Defendant does not deny that he was afforded those rights. And to establish a due process
violation requiring reversal, a defendant must prove prejudice to his defense. Id. at 700.
Defendant has set forth no such claims of prejudice to his defense. Defendant merely claims that
his “constitutional right to speedy trial was placed in jeopardy by the delays in bringing his case
to trial.” But defendant was not precluded from raising this claim in the trial court and did, in
fact, raise the claim, which was denied. Defendant does not challenge that decision on appeal.
Considering the facts of this case, defendant has failed to establish that he is entitled to reversal
of his conviction on the ground that he was denied a right afforded by MCL 780.131(1). See
Carines, supra at 763; McGee, supra at 700.
Next, defendant argues that he was denied the effective assistance of counsel because his
defense counsel failed to further question jurors Richard Powers and Michael Horton during voir
dire despite them expressing potential bias. We disagree.
To establish ineffective assistance of counsel, defendant must show that his trial
counsel’s representation fell below an objective standard of reasonableness, that but for
counsel’s errors there is a reasonable probability that the result of his trial would have been
different, and that the proceedings were fundamentally unfair or unreliable. People v Toma, 462
Mich 281, 302-303; 613 NW2d 694 (2000); People v Rodgers, 248 Mich App 702, 714; 645
NW2d 294 (2001). To establish that his trial counsel’s performance was deficient, “defendant
must overcome the strong presumption that his counsel’s action constituted sound trial strategy
under the circumstances.” Toma, supra at 302. Effective assistance of counsel is presumed and
defendant bears a heavy burden of proving otherwise. People v Solmonson, 261 Mich App 657,
663; 683 NW2d 761 (2004).
A criminal defendant has a constitutional right to be tried by an impartial jury, US Const,
Am VI; Const 1963, art 1, § 20. In addition, there is a presumption that jurors are impartial until
the contrary is shown. People v Miller, 482 Mich 540, 550; 759 NW2d 850 (2008). The burden
is on the defendant to establish that the juror was not impartial or at least that the juror’s
impartiality is in reasonable doubt. Id. It is the “duty of counsel to ferret out potential bases for
excusing jurors.” Bynum v ESAB Group, Inc, 467 Mich 280, 284; 651 NW2d 383 (2002).
However, “an attorney’s decisions relating to the selection of jurors generally involve matters of
trial strategy,” which we normally decline to evaluate with the benefit of hindsight. People v
Johnson, 245 Mich App 243, 259; 631 NW2d 1 (2001).
Here, defendant has failed to establish that Powers and Horton were not impartial. See
Miller, supra at 550. Further, on the record before this Court, defendant has not overcome the
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presumption that defense counsel’s decision to select Powers and Horton as jurors was sound
trial strategy. See Johnson, supra. This Court should not second-guess defense counsel on
matters involving trial strategy. People v Garza, 246 Mich App 251, 255; 631 NW2d 764
(2001). Because counsel may have been engaged in legitimate trial strategy, defendant has not
affirmatively demonstrated that his counsel’s performance fell below an objective standard of
reasonableness. See Toma, supra at 302-303.
Further, even if we concluded that defense counsel’s representation fell below an
objective standard of reasonableness, there is no reasonable probability that the outcome of the
case would have been different. See id. Defendant admitted that he broke into the victim’s
home, beat her, and stabbed her. He further admitted that he cut the victim’s underwear off, but
did not recall sexually assaulting her. However, DNA confirmed that defendant’s semen was
found in the victim’s vagina. Thus, defendant has not demonstrated that, but for counsel’s
failure to question Powers and Horton further about their impartiality, defendant would have
avoided conviction of first-degree CSC. See id.
Affirmed.
/s/ Mark J. Cavanagh
/s/ E. Thomas Fitzgerald
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