PEOPLE OF MI V ROGER JAMES PACER
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
June 14, 2002
Plaintiff-Appellee,
v
No. 227361
Osceola Circuit Court
LC No. 99-002919-FC
ROGER JAMES PACER,
Defendant-Appellant.
Before: Jansen, P.J., and Smolenski and Wilder, JJ.
PER CURIAM.
Following a jury trial, defendant was convicted of felonious assault, MCL 750.82, and
third-offense habitual offender, MCL 769.11. He was thereafter sentenced to a term of four to
eight years of imprisonment. He appeals as of right and we affirm.
On appeal, defendant’s issues relate only to his sentence. He contends that his sentence
is disproportionate and that he was given a harsher sentence because his exercised his
constitutional right to a jury trial.
Because the offense in this case occurred on September 27, 1998, the judicial sentencing
guidelines and not the legislative sentencing guidelines are applicable. See MCL 769.34(1). The
judicial sentencing guidelines do not apply to the sentencing of habitual offenders. People v
Hansford (After Remand), 454 Mich 320, 323; 562 NW2d 460 (1997). The maximum sentence
for a felonious assault conviction is four years and the third habitual offender statute permits the
court to double the maximum sentence to eight years. Thus, the sentence is clearly within the
statutory limits.
Defendant contends, however, that his sentence is disproportionate because the trial court
relied on information in the presentence information report concerning the criminal sexual
conduct offenses of which defendant was acquitted.1 However, the trial court could properly
consider other criminal activities established at the trial even though defendant was acquitted of
those charges. People v Compagnari, 233 Mich App 233, 236; 590 NW2d 302 (1998). There
was ample testimony from the victim at trial establishing the criminal sexual conduct charges,
1
Defendant was acquitted of two counts of first-degree criminal sexual conduct and two counts
of attempted first-degree criminal sexual conduct.
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although defendant was acquitted of those charges. Consequently, it was not error for the trial
court to consider those charges.
Next, the record does not support defendant’s contention that the trial court gave him a
harsher sentence because he exercised his right to a jury trial. In fact, the trial court stated that
defendant had every right to a trial and accepted the jury’s verdict. Defendant makes much of
the fact that he withdrew his guilty plea and requested a jury trial when the trial court (a different
judge) indicated that it would not follow the plea bargain for one year in the county jail, but
would instead sentence him to three to four years for a felonious assault conviction and forty to
sixty months for a gross indecency conviction. The trial court at sentencing very clearly stated
that the plea agreement had no significance or effect on it. There is simply no indication that the
trial court impermissibly gave defendant a harsher sentence because he exercised his right to a
jury trial.
Here, in considering defendant’s background (two prior felony convictions and five prior
misdemeanor convictions) and the seriousness of the offense (defendant held a knife to the
victim’s throat), we conclude that the trial court did not abuse its discretion in sentencing
defendant. Hansford, supra, pp 324, 326.
Affirmed.
/s/ Kathleen Jansen
/s/ Michael R. Smolenski
/s/ Kurtis T. Wilder
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