PEOPLE OF MI V JAMES KENNETH WILLINGHAM SRAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
December 1, 1998
Newaygo Circuit Court
LC No. 96-006106 FH
JAMES KENNETH WILLINGHAM, SR.,
Before: Sawyer, P.J., and Wahls and Hoekstra, JJ.
Defendant appeals by right his plea-based sentence for assault with intent to commit criminal
sexual conduct in the second degree, MCL 750.520g(2); MSA 28.788(7)(2), and habitual offender,
second offense, MCL 769.10; MSA 28.1082. We affirm. This appeal is being decided without oral
argument pursuant to MCR 7.214(E).
Defendant was originally charged with criminal sexual conduct in the second degree and habitual
offender, second offense. It was alleged that defendant had engaged in sexual contact with the victim,
his stepdaughter, for a period of approximately four years. Pursuant to an agreement, defendant
pleaded nolo contendere to assault with intent to commit criminal sexual conduct in the second degree,
and habitual offender, second offense. In return, the prosecutor dismissed the charge of criminal sexual
conduct in the second degree, and recommended that the minimum term be capped at three years.
The trial court sentenced defendant to three to seven and one-half years in prison, with credit
for 125 days. The court increased the statutory maximum term of five years for the conviction of assault
with intent to commit criminal sexual conduct in the second degree one and one-half times based on
defendant’s conviction as a second habitual offender. MCL 769.10(1)(a); MSA 28.1082(1)(a).
On appeal, defendant argues that his sentence was disproportionate to the circumstances of the
offense and to his own circumstances. People v Milbourn, 435 Mich 630; 461 NW2d 1 (1990).
Defendant cites his minimal prior record, strong family support, and past history of alcohol abuse. He
contends that his former wife lodged the charges in retaliation for his reporting of her involvement in
The sentencing guidelines do not apply to habitual offenders. The standard of review for a
sentence imposed on an habitual offender is abuse of discretion. If an habitual offender’s underlying
criminal and felony history demonstrate that he is unable to conform his conduct to the law, a sentence
within the statutory limits does not constitute an abuse of discretion. People v Hansford (After
Remand), 454 Mich 320, 323-324, 326; 562 NW2d 460 (1997). Here, defendant’s abuse of his
stepdaughter occurred over a four-year period. Defendant’s prior felony was for a criminal sexual
offense. Defendant has demonstrated that he cannot conform his conduct to the requirements of the
law. His sentence was within the statutory limits, and did not constitute an abuse of discretion under the
/s/ David H. Sawyer
/s/ Myron H. Wahls
/s/ Joel P. Hoekstra