PEOPLE OF MI V WILLARD JACKSON DUTY
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
December 4, 2003
Plaintiff-Appellee,
v
No. 241759
Jackson Circuit Court
LC No. 01-002999-FH
WILLARD JACKSON DUTY,
Defendant-Appellant.
Before: Sawyer, P.J., and Griffin and Smolenski, JJ.
PER CURIAM.
Defendant appeals from his conviction of two counts of assault upon a prison employee.
MCL 750.197. Defendant was sentenced to concurrent terms of three to six years’
imprisonment. We affirm but remand for resentencing.
Defendant first seeks reversal of his conviction alleging that the trial court erred in
delivering jury instructions pertaining to the specific intent required for the crime of assault upon
a prison employee. In the alternative, defendant seeks reversal by alleging that trial counsel was
ineffective for failing to object.
Before charging the jury, the trial judge held a conference in which he discussed the
proposed jury instructions with both the prosecution and defendant. Among them was CJI2d 3.9,
the instruction specifically alleged to be deficient in defendant’s appeal. At the end of the
conference, defendant’s attorney specifically stated that he had no objections to the proposed
instructions. Moreover, after they were given, defendant’s counsel again stated that he had no
objections to the instructions. “This action effected a waiver. Because defendant waived . . . his
rights under the rule, there is no ‘error’ to review.” People v Carter, 462 Mich 206, 219; 612
NW2d 144 (2000). Therefore, we review the sufficiency of the jury instructions only as they
relate to defendant’s claim of ineffective assistance of counsel.
The prosecution alleges that defendant’s claim of ineffective assistance of counsel has not
been preserved because defendant made neither a motion for a new trial nor a request for an
evidentiary hearing prior to appeal. “However, the absence of a motion for new trial or an
evidentiary hearing is not fatal to appellate review where the details relating to the alleged
deficiencies of the defendant’s trial counsel are sufficiently contained in the record to permit this
Court to reach and decide the issue.” People v Johnson, 144 Mich App 125, 129; 373 NW2d
263 (1985). In the present case, defendant’s claim of ineffective counsel relates to a failure to
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object to jury instructions read by the trial court. As these instructions are contained in the
present record, defendant’s failure to make a motion for a new trial or request an evidentiary
hearing does not preclude our review of this issue. We review claims of ineffective assistance of
counsel de novo. In re CR¸ 250 Mich App 185, 197; 646 NW2d 506 (2002).
Defendant’s claim centers on his trial counsel’s failure to object to the trial judge’s
instruction that:
The crime of assault upon a prison employee requires proof of a specific
intent. This means, the Prosecution must prove not only that the Defendant did
certain acts, but he did the acts with the intent to cause a particular result.
For the crime of assault upon a prison employee, this means the
prosecution must prove each of the elements I’m going to set forth in the
instruction on that to you.
According to defendant, the judge’s instructions, although instructing the jurors that they
must find specific intent, were deficient in that they never informed them of the result defendant
must have specifically intended. Accordingly, defendant argues that the trial judge, instead of
stating that “the prosecution must prove each of the elements I’m going to set forth in the
instruction on that to you,” should have stated “the prosecution must prove that the defendant
intended to [injure, harm or embarrass the victims],” which is how CJI2d 3.9, dealing with
specific intent, would have read.
As to the sufficiency of jury instructions, this Court has stated that:
Jury instructions are to be read as a whole rather than extracted piecemeal
to establish error. Even if somewhat imperfect, instructions do not warrant
reversal if they fairly presented the issues to be tried and sufficiently protected the
defendant's rights. The instructions must include all elements of the crime charged
and must not exclude consideration of material issues, defenses, and theories for
which there is supporting evidence. No error results from the absence of an
instruction as long as the instructions as a whole cover the substance of the
missing instruction. [People v Kurr, 253 Mich App 317, 327; 654 NW2d 651
(2002) (citations omitted).]
The instructions in this case, taken as a whole, are sufficient under the standard set forth
in Kurr. The trial judge clearly stated, “The crime of assault upon a prison employee requires
proof of a specific intent. This means, the Prosecution must prove not only that the Defendant
did certain acts, but did the acts with the intent to cause a particular result.” Thereafter, the trial
judge informed the jurors:
To prove that there was an assault, the Prosecutor must prove each of the
following elements beyond a reasonable doubt:
First, that the Defendant committed a battery on Marlis Cargo and/or
David DeLong. A battery is a forceful, violent or offensive touching of the
person or something closely connected with the person of another. The touching
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must have been intended by the Defendant; that is, not accidental, and must have
been against Marlis Cargo and/or David DeLong’s will. It does not matter
whether the touching caused an injury.
Second, that the Defendant intended either to commit a battery upon
Marlis Cargo and/or David DeLong or make Marlis Cargo and/or David DeLong
reasonably fear an immediate battery.
As used in these instructions, the words “force” and “violence” mean any
use of physical force against another person so as to harm or embarrass him or
her.
For a battery to occur, the touching must have been intended by the
Defendant; that is, not accidental, and it must have been against Marlis Cargo
and/or David Cargo’s [sic] will. It does not matter whether the touching caused
an injury.
An assault does not have to cause an actual injury; however, if there is an
injury, you may consider the injury with the other evidence in determining
whether there was an assault.
If the Defendant intended to assault one person, but, by mistake or
accident, assaulted another person, the crime is the same as if the person had—the
first person had been assaulted.
The above instructions, although they may not be a verbatim reading of CJI2d 3.9,
nonetheless fairly presented the issues and included all the elements of the crime charged. Kurr,
supra, 253 Mich App 327. Not only did the trial judge make numerous references to the intent
required, but also clearly stated the elements of both assault and battery. As such, the trial
court’s instructions are sufficient under Kurr.
Since defendant’s claim that the jury instructions were deficient is meritless, “It is
similarly without merit to impute error to . . . trial counsel for failure to object to the trial court’s
instructions when the instructions themselves were not erroneous. Trial counsel is not required
to advocate a meritless position.” People v Snider, 239 Mich App 393, 425; 608 NW2d 502
(2000).
Defendant next seeks resentencing due to an error in the sentencing proceedings.
Specifically, defendant was charged as a second habitual offender and should have received a
minimum sentence of twelve to thirty months. However, due to a clerical error, the trial court
unintentionally applied the range applicable to a third habitual offender and imposed a minimum
sentence of thirty-six months. At a post-trial motion for resentencing, the prosecutor argued that
defendant had waived this argument by not objecting at trial, and that defendant was not entitled
to resentencing because the prosecution could have charged him as a third felony offender based
on his prior convictions for armed robbery and the sale of a controlled substance. The trial
judge, although admitting the error, denied defendant’s motion for resentencing, reasoning that
defendant had waived this argument by failing to object during trial or at sentencing. In his
appeal to this Court, defendant alleges that the error constitutes an unintended and unjustified
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departure from the sentencing guidelines and, in the alternative, that his trial counsel was
ineffective for failing to notice and object to the error.
The prosecution argues that the sentencing issue has not been properly preserved for
appeal citing MCR 6.429(C), which precludes appeals challenging the accuracy of a presentence
report unless the issue was raised at or before sentencing. Alternatively, defendant argues that
the matter has been preserved due to its motion for resentencing under MCL 769.34.
In resolving the conflict between MCL 769.34 and MCR 6.49(C), this Court held in
People v McGuffey, 251 Mich App 155, 165-66; 649 NW2d 801 (2002) that:
[T]he issue of when a guidelines scoring error must be brought to the trial
court’s attention falls squarely within the ‘practice and procedure’ aspect of our
legal system. In addition, by imposing reasonable limitations, the court rule aids
in the efficient administration of justice. Accordingly, we conclude that the court
rule, MCR 6.429(C), must prevail over the conflicting statutory provision, MCL
769.34(10).
Moreover, this Court has previously stated that there is no basis for treating scoring issues
different from issues relating to inaccurate information. See, People v Kimble, 252 Mich App
269, 276-277 n 5; 651 NW2d 798 (2002). Thus, Defendant’s assertion that he was sentenced
incorrectly due to an inadvertent clerical error rather than improper scoring will not affect this
Court’s review of this issue.
Therefore, in light of this Court’s holdings in McGuffey and Kimble, Defendant has not
properly preserved this issue for appeal. However, “defendant’s failure to assert this argument
before the trial court does not preclude appellate review under the plain error doctrine.” Kimble,
supra, 252 Mich App 275.
To avoid forfeiture under the plain error rule, three requirements must be
met: 1) error must have occurred, 2) the error was plain, i.e., clear or obvious, 3)
and the plain error affected substantial rights. The third requirement generally
requires a showing of prejudice, i.e., that the error affected the outcome of the
lower court proceedings. "It is the defendant rather than the Government who
bears the burden of persuasion with respect to prejudice." Finally, once a
defendant satisfies these three requirements, an appellate court must exercise its
discretion in deciding whether to reverse. Reversal is warranted only when . . . an
error " 'seriously affect[ed] the fairness, integrity or public reputation of judicial
proceedings' independent of the defendant's innocence." [People v Carines, 460
Mich 750, 763; 597 NW2d 130 (1999) (citations omitted), quoting United States v
Olano, 507 US 725, 736-737; 113 S Ct 1770; 123 L Ed 2d 508 (1993).]
This case is not unlike Kimble, supra, 252 Mich App 276, where this Court found plain
error where “the prosecutor, defense counsel, and the trial court all failed to realize” that a
certain offense variable did not apply to the defendant’s charge. In the present instance, there is
no dispute among the parties that an error occurred. Moreover, a review of the sentencing
information report shows that the mistake was “clear and obvious.” Defendant was clearly listed
as a second habitual offender, but the guideline range was inappropriately filled out to show a
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minimum guidelines range of twelve to thirty-six months instead of twelve to thirty months.
Finally, there is no doubt that substantial rights were affected, as the error resulted in defendant
receiving an additional minimum sentence of six months for each offense. Carines, supra, 460
Mich 763.
The critical issue in this case, however, is the fourth requirement of the plain error test
which provides that “[r]eversal is warranted only when the plain, forfeited error . . . “ ‘seriously
affect[ed] the fairness, integrity or public reputation of judicial proceedings' independent of the
defendant's innocence.’ " Carines, supra, 460 Mich 763, quoting Olano, supra, 507 US 736
737. As noted above, the trial court in Kimble applied an offense variable that did not apply to
defendant’s offense. Kimble, supra, 252 Mich App 276. Thus, this Court held that the fourth
requirement had been met. Id. at 279.
However, the situation in the present case is distinguishable because the range of twelve
to thirty-six months was not wholly inapplicable to defendant. Instead, as the prosecution argues
and the presentencing investigation report shows, the defendant in this case could have been
charged as a third habitual offender. Therefore, defendant’s sentence was not enhanced due to
an inapplicable variable. Rather, it was enhanced by the inadvertent use of a variable that,
although applicable, was not included in the prosecution’s information.
In light of this distinction, the prosecution argues that United States v Cotton, 535 US
625; 122 S Ct 1781; 152 L Ed 2d 860 (2002), is relevant. In Cotton, the defendants were
indicted with, and convicted of, conspiracy to distribute and possess “a detectable amount” of
cocaine. Id. at 627-628. However, at sentencing, the defendants received enhanced maximum
sentences due to the quantity of cocaine involved. Id. at 627-628. Thus, the Supreme Court
addressed “whether the omission from a federal indictment of a fact that enhances the statutory
maximum sentence justifies a court of appeals’ vacating the enhanced sentence, even though the
defendant did not object in the trial court.” Id. at 627. In resolving this issue under the plain
error analysis, the Court held that because there was “ ‘overwhelming’ and ‘essentially
uncontroverted’” evidence establishing the amount of cocaine involved, the erroneous omission
from the indictment did not “substantially affect the fairness, integrity, or public reputation of
judicial proceedings.” Id. at 632-633.
Therefore, the prosecution argues that, under Cotton, defendant’s being sentenced as a
third habitual offender should not constitute plain error because, although he was only charged as
a second habitual offender, there is “essentially uncontroverted” evidence that he could have
been charged as a third habitual offender. Thus, upholding the present sentence would not
threaten “the fairness, integrity, or public reputation of judicial proceedings.” Cotton, supra, 535
US 632-633. Instead, the prosecution insists that:
The real threat then to the “fairness, integrity, and public reputation of
judicial proceedings” would be if [the criminal defendant], despite the
overwhelming and uncontroverted evidence . . . were to receive a sentence
prescribed for those committing less substantial . . . offenses because of an error
that was never objected to at trial. [Id. at 634.]
case.
However, Cotton, like Kimble, contains an important factual difference from the present
Most noteworthy is that the challenged indictment omissions used to enhance the
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defendants’ sentences in Cotton, the quantity of cocaine, were directly tied to the underlying
offense of which the defendants were convicted. Thus, the defendants’ sentences were being
enhanced due to “ ‘overwhelming’ and ‘essentially uncontroverted’” evidence related to the
severity of their crime, Cotton, supra, 535 US 633. However, the omitted sentence enhancing
factor in the present case, the defendant’s prior felonies, are unrelated to the crime charged.
In light of this distinction, we decline to apply the Supreme Court’s holding in Cotton to
the facts of this case. Moreover, the distinction between this case and Kimble—that the sentence
enhancing factor was not wholly inapplicable—does not affect our prior holding that this Court
“simply cannot . . . sanction a sentence imposed outside the appropriate guidelines range that is
arrived at through a mistake of law.” Kimble, supra, 252 Mich App 280. To do so would
seriously affect “ ‘the fairness, integrity, or public reputation of judicial proceedings’
independent of the defendant’s innocence.” Olano, supra, 507 US 736-737. Thus, we find that,
under Kimble, plaintiff has met the burden of showing plain error.
Accordingly, defendant’s conviction is affirmed, and the case is remanded for
resentencing. We do not retain jurisdiction.
/s/ David H. Sawyer
/s/ Michael R. Smolenski
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