PEOPLE OF MI V JOHNNY BONILLA-MACHADO
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
December 15, 2009
Plaintiff-Appellee,
V
No. 287605
Ionia Circuit Court
LC No. 08-013934-FH
JOHNNY BONILLA-MACHADO,
Defendant-Appellant.
Before: Talbot, P.J., and O’Connell and Davis, JJ.
PER CURIAM.
After a jury trial, defendant Johnny Bonilla-Machado was convicted of two counts of
assaulting a prison employee, MCL 750.197c. The trial court sentenced defendant as a second
habitual offender, MCL 769.10, to concurrent terms of 30 to 90 months’ imprisonment for each
conviction, but specified that these sentences would be served consecutively to any sentences
already being served. Defendant appeals as of right. We affirm the convictions, but remand this
case to the trial court for resentencing. This appeal has been decided without oral argument
pursuant to MCR 7.214(E).
Defendant, a prisoner housed in the segregation unit of the Bellamy Creek Correctional
Facility in Ionia, overflowed his toilet. Using a knotted garment, he then splashed some of that
water onto two correctional officers as they respectively made their rounds.
I. Right to Testify
First, defendant argues that he was misinformed concerning his right to testify.
Defendant initially showed some inclination to testify in his own defense, but after some
discussion with counsel and the trial court, he changed his mind. At trial, defendant was asked
whether he wished to testify:
THE COURT:
[D]oes your client want to testify?
[DEFENSE COUNSEL]: That’s what I’m trying to find out right now, your
Honor.
THE COURT:
. . . He should have made his decision before now.
[DEFENSE COUNSEL]: He’s going to testify, your Honor.
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THE COURT:
Would you like to explain his rights to him on the
record?
[DEFENSE COUNSEL]: Yes, I would, you Honor. John, it’s going to be your
choice to take the stand here today?
THE DEFENDANT:
Yes.
[DEFENSE COUNSEL]: You understand if you take the stand today anything
you say on the stand can be used against you? . . . . Do
you understand? You have a right not to take the
stand. So are you going to take the stand or not take
the stand?
THE DEFENDANT:
No.
[DEFENSE COUNSEL]: Your Honor, he’s indicated to me he’s not going to
take the stand. Is that right Johnny? You’re not going
to take the stand?
THE DEFENDANT:
No.
[DEFENSE COUNSEL]: But I’ve explained to you, if you take the stand,
anything you say can be held against you. Do you
understand that?
THE DEFENDANT:
Yes.
[DEFENSE COUNSEL]: So it’s your choice not to take the stand here today?
THE DEFENDANT:
I’m not going to go up there.
THE COURT:
Mr. Machado, do you want to testify today?
THE DEFENDANT:
No.
Defendant argues that his counsel and the trial court overemphasized his right not to testify and
that any testimony he offered could be used against him. We disagree.
The decision whether to testify is ultimately the defendant’s personal decision to make
and counsel must respect that decision. See Rock v Arkansas, 483 US 44, 52; 107 S Ct 2704; 97
L Ed 2d 37 (1987).1 In this case, defendant’s vacillation on the matter illustrates that he
1
But see People v Toma, 462 Mich 281, 308; 613 NW2d 694 (2000) (where a defendant insisted
on testifying, counsel’s failure to ensure that the jury fully understood the defendant’s account of
events did not constitute ineffective assistance, because that account was “so unbelievable that
defendant was arguably better off letting the jury speculate about what he was really trying to
(continued…)
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understood that he was at liberty to testify. Further, defense counsel reminded defendant that the
choice was his to make. Counsel’s additional reminders that any testimony offered could work
against him, as well as for him, were in proper discharge of his duty, especially given that taking
the stand exposes a defendant to vigorous cross-examination.
Defendant seems to suggest that he was given to understand that his testimony only could
be used against him, but any such argument is strained. We decline to interpret reminders that
testifying in one’s defense can backfire as misinforming a defendant that only negative
inferences can be drawn from any testimony offered.
We reject defendant’s characterization of the discussion transcribed above as indicative
of the trial court and defense counsel either failing to inform defendant of his right to testify or
improperly and prejudicially pressuring him to waive that basic right. Because the record shows
that defendant decided not to testify after being properly reminded of the hazards of doing so, we
reject this claim of error.
II. Maximum Sentences
Next, defendant argues that the trial court failed to exercise its discretion when fixing
defendant’s maximum sentences. The trial court imposed maximum sentences of 90 months’
imprisonment for each conviction, stating, “That’s what the statute says it has to be.” Apparently
his statement refers to an enhancement of the normal five-year maximum in light of defendant’s
habitual offender status. Defendant protests that the trial court thus demonstrated that it failed to
recognize that enhancement of the maximum sentence in habitual offender situations is a matter
of discretion. See People v Turski, 436 Mich 878; 461 NW2d 366 (1990). Plaintiff confesses
error in this regard and recommends a remand for clarification. We accept that recommendation
and remand this case for the trial court to either clarify that it understood that it had discretion in
the matter or to redetermine the maximum sentences after properly exercising its discretion in the
matter.
III. Offense Variables 9 and 13
Next, defendant argues that the court erred in scoring Offense Variable (OV) 9 and OV
13. OV 9 concerns the number of victims. The trial court assessed ten points for that variable,
which is the total prescribed where there were “2 to 9 victims who were placed in danger of
physical injury . . . .” MCL 777.39(1)(c).
Defendant does not assert that he did not place his victims in danger of physical injury by
splashing water from his overflowed toilet on them, but instead points out that, according to the
evidence, he so assaulted two different victims nearly one-half hour apart, and argues that for
each of the instant crimes there was only a single victim. This argument has merit.
In People v McGraw, 484 Mich 120; 771 NW2d 655 (2009), our Supreme Court
reiterated that “offense variable (OV) 9 in the sentencing guidelines cannot be scored using
(…continued)
say”).
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uncharged acts that did not occur during the same criminal transaction as the sentencing
offense,” and elaborated that “a defendant’s conduct after an offense is completed does not relate
back to the sentencing offense for purposes of scoring offense variables unless a variable
specifically instructs otherwise.” Id. at 121-122 (footnote omitted).
Although the two assaults here at issue occurred fairly close in time, the first was wholly
completed before the second began, and each victim was assaulted separately. Under McGraw
and related authority, the trial court erred in aggregating the victims from those two separate
offenses for purposes of scoring OV 9.
The trial court scored ten points for OV 13, which concerns patterns of felonious conduct.
Subsection (2)(a) provides that “all crimes within a 5-year period, including the sentencing
offense, shall be counted regardless of whether the offense resulted in a conviction.”
Defendant notes that, as indicated in his presentence investigation report, his record of
felonious conduct over the past five years, in addition to the instant offenses, consists of one
instance of attempted carjacking, one instance of unarmed robbery, and one earlier assault of a
prison employee. He argues that these add up to fewer than three crimes against a person or
property as statutorily classified. This argument lacks merit.
Carjacking, MCL 750.529a, and unarmed robbery, MCL 750.530, are both classified as
crimes against a person. MCL 777.16y. Assault of a prison guard is classified as a crime against
public safety. MCL 777.16j. Plaintiff notes that the instant offenses were directed at persons
and argues that those offenses are properly counted for purposes of scoring OV 13. We agree.
Although MCL 777.16j indicates that assault of a prison guard is a crime against public safety,
this offense is also a crime against a person because, obviously, a prison guard is a person.
Apparently, the trial court assessed ten points for OV 13 pursuant to MCL 777.43(1)(d),
which indicates that ten points is the total prescribed where “[t]he offense was part of a pattern of
felonious criminal activity involving a combination of 3 or more crimes against a person or
property or a violation of” certain controlled substance violations not here at issue. However,
because defendant committed three crimes against a person, he should be scored 25 points for
this variable pursuant to MCL 777.43(1)(c), which requires a score of 25 points if “[t]he offense
was part of a pattern of felonious criminal activity involving 3 or more crimes against a person.”
Accordingly, we direct the trial court to score this variable at 25 points on remand.
IV. Assistance of Counsel
Finally, defendant argues that his counsel was ineffective. “In reviewing a defendant’s
claim of ineffective assistance of counsel, the reviewing court is to determine (1) whether
counsel’s performance was objectively unreasonable and (2) whether the defendant was
prejudiced by counsel’s defective performance.” People v Rockey, 237 Mich App 74, 76; 601
NW2d 887 (1999). Regarding the latter, the defendant must show that the result of the
proceeding was fundamentally unfair or unreliable, and that but for counsel’s poor performance
the result would have been different. People v Messenger, 221 Mich App 171, 181; 561 NW2d
463 (1997).
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Defendant argues that his counsel was ineffective for failing to properly advise him
concerning his right to testify. Because we have concluded that counsel adequately and
accurately informed defendant with respect to his right to testify, this claim of ineffective
assistance lacks merit.
Defendant also argues that his counsel was ineffective for failing to challenge the scoring
of OV 9 and OV 13. However, because we remand for resentencing, we need not consider this
assertion of error further.
Defendant’s convictions are affirmed.
resentencing. We do not retain jurisdiction.
We remand this case to the trial court for
/s/ Michael J. Talbot
/s/ Peter D. O’Connell
/s/ Alton T. Davis
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