People v. Burkett

• Decision Date: 17 June 2021
• Docket Number: 351882
• Citation: 337 Mich.App. 631,976 N.W.2d 864
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Timothy Jeremiah BURKETT, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

337 Mich.App. 631

976 N.W.2d 864

PEOPLE of the State of Michigan, Plaintiff-Appellee,

v.Timothy Jeremiah BURKETT, Defendant-Appellant.

No. 351882

Court of Appeals of Michigan.

Submitted June 8, 2021, at Detroit.

Decided June 17, 2021, 9:15 a.m.

Dana Nessel, Attorney General, Fadwa A. Hammoud, Solicitor General, Jessica R. Cooper, Prosecuting Attorney, Thomas R. Grden, Appellate Division Chief, and Joshua J. Miller, Assistant Prosecuting Attorney, for the people.

State Appellate Defender (by Douglas W. Baker ) for defendant.

Before: Murray, C.J., and Fort Hood and Rick, JJ.

Per Curiam.

Defendant appeals as of right his jury-trial conviction of assault with intent to do great bodily harm less than murder (AWIGBH), MCL 750.84.¹ Defendant was sentenced, as a fourth-offense habitual offender, MCL 769.12(1)(a), to a term of 25 to 99 years’ imprisonment. We affirm.

I. FACTUAL BACKGROUND

Defendant's AWIGBH conviction arose from a stabbing he perpetrated against Alicia Paris, during which he stabbed Paris eight times. On appeal, defendant does not challenge any aspect of the evidence against him at trial. Before trial, the prosecution filed a notice of intent to seek a sentence enhancement under MCL 769.12(1)(a) on the basis of defendant's three prior felony convictions: (1) operating while intoxicated causing death, MCL 257.625(4) ; (2) voluntary manslaughter, MCL 750.321 ; and (3) AWIGBH, MCL 750.84. At the arraignment, defense counsel acknowledged receipt of the notice. The parties again discussed the sentencing enhancement at a pretrial hearing. At sentencing, defendant pleaded guilty to being a fourth-offense habitual offender under MCL 769.12(1)(a).² In accordance with that sentence enhancement, the trial court sentenced defendant to a mandatory minimum term of 25 years’ imprisonment.

After sentencing, defendant filed an appeal as of right in this Court. Defendant then moved to remand, arguing that the trial court should decide whether the 25-year mandatory minimum sentence it imposed violated the United States Constitution's prohibition against cruel and unusual punishment or the 1963 Michigan Constitution's prohibition against cruel or unusual punishment. A panel of this Court denied defendant's motion to remand without prejudice to a case call panel of this Court later determining that remand was necessary. People v. Burkett , unpublished order of the Court of Appeals, entered November 30, 2020 (Docket No. 351882).

II. CONSTITUTIONALITY OF MCL 769.12(1)(a)

Defendant argues that the 25-year mandatory minimum sentence imposed by MCL 769.12(1)(a) constitutes cruel and unusual punishment under the United States Constitution and cruel or unusual punishment under the Michigan Constitution. We disagree.

To preserve a claim that the defendant's sentences were unconstitutionally cruel or unusual, the defendant must raise the claim in the trial court. See People v. Bowling , 299 Mich. App. 552, 557, 830 N.W.2d 800 (2013) ("Defendant did not advance a claim below that his sentences were unconstitutionally cruel or unusual, so this issue is unpreserved."). Defendant did not raise this claim below; therefore, this claim is unpreserved.

"This Court generally reviews constitutional questions de novo." People v. Brown , 294 Mich. App. 377, 389, 811 N.W.2d 531 (2011). However, we "review unpreserved constitutional issues for plain error affecting substantial rights." People v. Posey , 334 Mich. App. 338, 346, 964 N.W.2d 862 (2020), oral argument ordered on the application 508 Mich. 940, 964 N.W.2d 362 (2021). "To establish entitlement to relief under plain-error review, the defendant must establish that an error occurred, that the error was plain, i.e., clear or obvious, and that the plain error affected substantial rights." People v. Lockridge , 498 Mich. 358, 392-393, 870 N.W.2d 502 (2015). "An error affects substantial rights when it impacts the outcome of the lower-court proceedings." Posey , 334 Mich. App. at 346-347, 964 N.W.2d 862. "Reversal is warranted only when the error resulted in the conviction of an actually innocent defendant or seriously affected the fairness, integrity, or public reputation of judicial proceedings independently of the defendant's innocence." Lockridge , 498 Mich. at 393, 870 N.W.2d 502.

MCL 769.12 provides, in relevant part:

(1) If a person has been convicted of any combination of 3 or more felonies or attempts to commit felonies ... and that person commits a subsequent felony within this state, the person shall be punished upon conviction of the subsequent felony and sentencing under section 13 of this chapter as follows:

(a) If the subsequent felony is a serious crime or a conspiracy to commit a serious crime, and 1 or more of the prior felony convictions are listed prior felonies, the court shall sentence the person to imprisonment for not less than 25 years. [ MCL 769.12(1)(a).]

Defendant does not dispute that MCL 769.12(1)(a) applies to him. Rather, defendant argues that the 25-year mandatory minimum sentence imposed by MCL 769.12(1)(a) violates both the United States Constitution's prohibition against cruel and unusual punishment and the Michigan Constitution's prohibition against cruel or unusual punishment. This argument is unpersuasive.

"The Michigan Constitution prohibits cruel or unusual punishment, Const. 1963, art. 1, § 16, whereas the United States Constitution prohibits cruel and unusual punishment, U.S. Const., Am. VIII." People v. Benton , 294 Mich. App. 191, 204, 817 N.W.2d 599 (2011). "If a punishment passes muster under the state constitution, then it necessarily passes muster under the federal constitution." Id. (cleaned up). "[U]nder the Michigan Constitution, the prohibition against cruel or unusual punishment include[s] a prohibition on grossly disproportionate sentences." Id.

This Court employs the following three-part test in determining whether a punishment is cruel or unusual: "(1) the severity of the sentence imposed and the gravity of the offense, (2) a comparison of the penalty to penalties for other crimes under Michigan law, and (3) a comparison between Michigan's penalty and penalties imposed for the same offense in other states." Id. "Legislatively mandated sentences are presumptively proportional and presumptively valid." Brown , 294 Mich. App. at 390, 811 N.W.2d 531. "In order to overcome the presumption that the sentence is proportionate, a defendant must present unusual circumstances that would render the presumptively proportionate sentence disproportionate." Bowling , 299 Mich. App. at 558, 830 N.W.2d 800 (cleaned up). "Statutes are presumed to be constitutional, and the courts have a duty to construe a statute as constitutional unless its unconstitutionality is clearly apparent." Benton , 294 Mich. App. at 203, 817 N.W.2d 599 (cleaned up). This Court has previously held that habitual-offender statutes "are constitutional and the sentences under them are not cruel and unusual, because the state has a right to protect itself from individuals who continue to engage in criminal activities." People v. Curry , 142 Mich. App. 724, 732, 371 N.W.2d 854 (1985).³

As an initial matter, it is worth noting that defendant does not explicitly specify whether his challenge to MCL 769.12(1)(a) is a facial challenge or an as-applied challenge. "A facial challenge involves a claim that a legislative enactment is unconstitutional on its face, in that there is no set of circumstances under which the enactment is constitutionally valid." People v. Wilder , 307 Mich. App. 546, 556, 861 N.W.2d 645 (2014). By contrast, "[a]n as-applied challenge ... alleges a present infringement or denial of a specific right, or of a particular injury in process of actual execution of government action." Id. (cleaned up). The nature of defendant's argument on appeal appears to raise a facial challenge to the statute.

Defendant has failed to overcome the presumption that the legislatively mandated sentence imposed was proportionate and valid. See Brown , 294 Mich. App. at 390, 811 N.W.2d 531. Moreover, defendant's argument lacks merit under the 3-part test enumerated earlier. Regarding the first prong of the test, we acknowledge that a 25-year mandatory minimum sentence is a harsh punishment. However, it is not an unduly harsh punishment considering the gravity of defendant's present conviction and three previous felony convictions. In the instant case, a jury found defendant guilty of AWIGBH. Paris testified that defendant stabbed her eight times. This undoubtedly constituted a serious and violent offense. Further, defendant does not dispute that he was previously convicted of three other felonies—AWIGBH, voluntary manslaughter, and operating while intoxicated causing death. While MCL 769.12(1)(a) requires that at least one of the defendant's prior offenses be a listed felony, all three of these prior convictions are listed felonies under MCL 769.12(6)(a). See MCL 769.12(6)(a)(i ) and (iii ). Moreover, two of these prior convictions involved the death of another human being.

In support of defendant's argument regarding the severity of the punishment at issue, he cites People v. Lorentzen , 387 Mich. 167, 194 N.W.2d 827 (1972), and People v. Bullock , 440 Mich. 15, 485 N.W.2d 866 (1992). In Lorentzen , 387 Mich. at 170-171, 194 N.W.2d 827, the defendant, who had no prior convictions, was convicted under a statute that prohibited the sale of any quantity of marijuana and imposed a 20-year mandatory minimum sentence. Our Supreme Court held that the sentence imposed by the statute constituted both cruel and unusual punishment under the federal Constitution and cruel or unusual punishment under the Michigan Constitution. Id. at 181, 194 N.W.2d 827. The Court reasoned, "A compulsory prison sentence of 20 years for a nonviolent crime imposed without consideration for defendant's individual personality and history is so excessive that it ‘shocks the conscience.’ " Id. In Bullock , our Supreme Court conside...