PEOPLE OF MI V MICHAEL ALLEN MILLER
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
February 10, 2009
Plaintiff-Appellee,
v
No. 273488
Ottawa Circuit Court
LC No. 05-028876-CC
MICHAEL ALLEN MILLER,
Defendant-Appellant.
ON REMAND
Before: Davis, P.J., and Murphy and Beckering, JJ.
PER CURIAM.
We previously reversed defendant's conviction of first-degree criminal sexual conduct
(CSC I), MCL 750.520b(1)(a) (sexual penetration with person under 13 years of age), finding
that a new trial was mandated where a convicted felon served as a juror at trial. Defendant had
been sentenced to 171 to 360 months' imprisonment. Because of the nature of our earlier holding
it was unnecessary to rule on the other appellate issues raised by defendant. Our Supreme Court
reversed our decision, holding that a new trial was not required given defendant's failure to show
that he was actually prejudiced by the presence of a convicted felon on the jury. People v Miller,
482 Mich 540; __ NW2d __ (2008). The Supreme Court remanded the case in order for us "to
address defendant's remaining issues." Id. On review of the remaining issues, we affirm
defendant's conviction and sentence.
Defendant argues that he was deprived of his constitutional rights when the trial court
denied defense counsel’s motions to withdraw and defendant’s request for appointment of
substitute counsel. After review of the record, we conclude that defendant was negligent in
asserting his right to have new counsel appointed, that defendant was merely attempting to delay
the trial, that there was no “legitimate” reason for appointing new counsel, and that defendant
has not established prejudice. See People v Atkins, 259 Mich App 545, 557, 675 NW2d 863
(2003) (setting forth factors to consider in regard to review of a motion to withdraw and request
to appoint substitute counsel).1 Accordingly, the trial court did not abuse its discretion in
denying the motions. Id. at 556-557.
1
The Court indicated that while the Sixth Amendment provides a defendant with the right to
retain counsel of choice, the right is not absolute and must be balanced against the public’s
(continued…)
-1-
Defendant next argues that he was deprived of his right to effective assistance of counsel
when trial counsel failed to raise and preserve an insanity or temporary insanity defense on the
basis of pedophilia and involuntary intoxication. We first note that defendant does not cite any
authority for, or conduct any relevant analysis in support of, the preposition that pedophilia is a
mental illness for purposes of our insanity defense statute, MCL 768.21a. Accordingly, the
pedophilia argument fails. Mudge v Macomb Co, 458 Mich 87, 105; 580 NW2d 845 (1998) (it is
not up to the appellate court to unravel and elaborate a party’s arguments and then search for
supporting authority). Also, defendant does not claim on appeal that he “lack[ed] substantial
capacity either to appreciate the nature and quality or the wrongfulness of his or her conduct or
to conform his or her conduct to the requirements of the law.” MCL 768.21a(1). Furthermore,
defendant failed to establish the factual predicate for his claim of ineffective assistance of
counsel. People v Hoag, 460 Mich 1, 6; 594 NW2d 57 (1999). Defendant provides no evidence
of an alcohol or substance abuse problem,2 nor is there any indication in the record that he was
involuntarily intoxicated during the illegal sexual act. Without any evidence or authority
showing that an insanity defense should have been investigated on the basis of involuntary
intoxication and pedophilia, we cannot conclude that counsel’s performance was deficient, nor
that defendant incurred prejudice; therefore, the claim of ineffective assistance fails. Hoag,
supra at 5-6.
Finally, defendant presents multiple sentencing challenges. He argues that the trial court
erred in scoring 50 points with regard to offense variable 13 (OV 13), MCL 777.43. Further,
defendant argues that his sentence was unlawful because the court never stated how it arrived at
the sentence, because the court never articulated why the sentence was proportionate, because
the court never considered defendant’s rehabilitative potential, because there was a basis for a
downward departure in light of, possibly, drug and alcohol addictions that impaired his
judgment, because the court lacked accurate and complete information about defendant given an
incomplete assessment of his rehabilitative potential under MCR 6.425(A)(5), because the
sentence was cruel and unusual, and because it violated his right to a jury trial under Blakely v
Washington, 542 US 296; 124 S Ct 2531; 159 L ED 2d 403 (2004).
With respect to OV 13, a score of 50 points is proper when an offense is part of a pattern
of felonious criminal activity involving three or more sexual penetrations against a person or
persons less than 13 years of age. MCL 777.43(1)(a). It is undisputed that the victim was under
13 years of age at the time of the alleged incidents. While defendant argues that there was no
evidence that he engaged in three sexual penetrations with the victim, there was testimony from a
detective, on questioning by defense counsel, that there were more than five incidents involving
illegal sexual acts between defendant and the victim. Therefore, because a trial court’s scoring
decision will be upheld if there is any evidence in the record to support it, People v Kegler, 268
Mich App 187, 190; 706 NW2d 744 (2005), we affirm the trial court’s scoring of OV 13.
(…continued)
interest in the prompt and efficient administration of justice. Atkins, supra at 557.
2
The presentence investigation report (PSIR) provided that there were no known substance
abuse issues.
-2-
With respect to the additional challenges, there is simply no basis for reversal. The trial
court sentenced defendant within the legislative sentencing guidelines range. Indeed, defendant
was sentenced to a minimum term of 171 months, which was at the bottom of the guidelines
range of 171 to 285 months. Unless there was an error in scoring or reliance on inaccurate
information in the PSIR, this Court must affirm a sentence that falls within the guidelines range.
MCL 769.34(10). There was no scoring error here, nor was the PSIR inaccurate. In regard to
the proportionality argument, our Supreme Court has stated that the sentencing guidelines
themselves, by considering both the severity of the offense and the defendant’s prior record,
incorporate the principle of proportionality. People v Babcock, 469 Mich 247, 263-264; 666
NW2d 231 (2003). Babcock suggests that a sentence within the guidelines is presumptively
proportionate, noting that a court should depart from the guidelines where there are “substantial
and compelling reasons that lead the trial court to believe that a sentence within the guidelines
range is not proportionate to the seriousness of the defendant’s conduct and his criminal history.”
Id. at 264. The sentence in the case at bar was proportionate to the seriousness of the offense and
defendant’s conduct and proportionate to the seriousness of defendant’s criminal history; a
downward departure would not be justified. Id.; People v Milbourn, 435 Mich 630, 651; 461
NW2d 1 (1990).3
With respect to defendant’s articulation argument, “[t]he articulation requirement is
satisfied if the trial court expressly relies on the sentencing guidelines in imposing the sentence
or if it is clear from the context of the remarks preceding the sentence that the trial court relied
on the sentencing guidelines.” People v Conley, 270 Mich App 301, 313; 715 NW2d 377
(2006). The trial court expressly relied on the sentencing guidelines in imposing sentence;
therefore, the articulation requirement was satisfied. In regard to defendant’s argument that the
sentence was cruel and unusual, because the sentence was within the guidelines range and
proportionate, the sentence was not cruel and unusual. People v Drohan, 264 Mich App 77, 9192; 689 NW2d 750 (2004), aff’d 475 Mich 140 (2006).
Finally, with respect to defendant’s argument that the trial court’s scoring of the
sentencing factors violated his constitutional right to a jury trial under Blakely, our Supreme
Court has definitively ruled that Blakely does not affect Michigan’s indeterminate sentencing
scheme. People v McCuller, 479 Mich 672, 676-678; 739 NW2d 563 (2007); People v Drohan,
475 Mich 140, 164; 715 NW2d 778 (2006).
Affirmed.
/s/ Alton T. Davis
/s/ William B. Murphy
/s/ Jane M. Beckering
3
Defendant’s lengthy criminal history belies his argument that his rehabilitative potential
demands resentencing. Moreover, MCR 6.425(A)(5) does not require the court to do an
assessment of defendant’s rehabilitative potential. Rather, MCR 6.425(A)(5) merely indicates
that, depending on the circumstances, the PSIR must include “the defendant’s medical history,
substance abuse history, if any, and, if indicated, a current psychological or psychiatric report.”
-3-
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