People v. Jones

• Docket Number: 361019
• Decision Date: 25 May 2023
• Parties: PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. DWIGHT ANDREW JONES, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

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PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. DWIGHT ANDREW JONES, Defendant-Appellant.

No. 361019

Court of Appeals of Michigan

May 25, 2023

UNPUBLISHED

Wayne Circuit Court LC No. 18-002173-01-FC

Before: RICK, P.J., and SHAPIRO and O'BRIEN, JJ.

PER CURIAM

Defendant appeals as of right his resentencing for two counts of first-degree criminal sexual conduct (CSC-I), MCL 750.520b(2)(b) (victim under 13, defendant 17 years of age or older). The trial court resentenced defendant to 30 to 110 years' imprisonment for each conviction. We affirm.

I. BACKGROUND

This case arises out of the sexual assault of then-five-year-old SJ by defendant. Defendant is her biological father. The relevant facts were summarized in this Court's opinion in a prior appeal:

[SJ] described that defendant called her into another room away from her siblings. He instructed SJ to remove her clothes and then removed his own clothes. SJ described that defendant then placed his penis into her vagina, answering in the affirmative that defendant "actually put [his penis] inside . . . your private area, . . . inside where you pee." SJ asserted that she bled from her vagina after. SJ further described that defendant put his penis inside her mouth and touched it against her butt. When SJ's mother knocked on the door, her father instructed her to get dressed.

SJ indicated that she immediately told her mother about the abuse. However, SJ's mother did not contact the authorities. Rather, at some unknown point, SJ's maternal grandmother contacted Child Protective Services. SJ underwent a medical examination, but the record does not indicate how much time passed between the assault and the exam. It appears that the examining physician noted nothing out of the ordinary.

Defendant voluntarily came to the police station to speak with Officer Ernine Porter. Defendant denied that he had sexual intercourse with SJ. However, he claimed that he awoke one night and found SJ placing his penis in her mouth. [People v Jones, unpublished per curiam opinion of the Court of Appeals, issued November 19, 2020 (Docket No 349105), at 1-2.]

Defendant was convicted by a jury of two counts of CSC-I and sentenced to consecutive terms of 25 to 55 years' imprisonment for each count. Defendant appealed to this Court, which affirmed defendant's convictions, but remanded to the trial court for further consideration of defendant's sentences. Jones, unpub op at 6-7.

At the resentencing hearing, the trial court determined that it would not impose consecutive sentences and instead resentenced defendant to concurrent terms of 30 to 110 years' imprisonment for each conviction. This was an upward departure from defendant's minimum sentencing guidelines range of 9 to 15 years' imprisonment, as well as from the statutory mandatory minimum term of 25 years, MCL 750.520b(2)(b). The trial court explained that the upward departure was justified because the sentencing guidelines did not adequately consider a number of factors, including SJ's young age, defendant's lack of remorse and lack of potential for rehabilitation, as well as the familial relationship between SJ and defendant. The trial court also observed that the guidelines did not account for the fact that SJ was separated from her siblings and placed in foster care after the assaults occurred. The trial court further opined that neither defendant's minimum sentencing guidelines range nor the 25-year statutory mandatory minimum term adequately reflected the gravity of his crimes. This appeal followed.

A. VINDICTIVE SENTENCING

Defendant first argues that the trial court imposed vindictive sentences for each of his CSC-I convictions on resentencing. He maintains that this constituted a violation of his due-process rights. Defendant did not raise this constitutional challenge at any point during the trial court proceedings, and therefore, this aspect of the issue is not preserved. See People v Burkett, 337 Mich.App. 631 635; 976 N.W.2d 864 (2021) (stating that a constitutional issue was not preserved for appeal because the defendant did not raise the issue in the trial court). Unpreserved constitutional questions are reviewed "for plain error affecting substantial rights." Id. (quotation marks and citation omitted). "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." People v Stokes, 333 Mich.App. 304, 307; 963 N.W.2d 643 (2020), quoting People v Carines, 460 Mich. 750, 763; 597 N.W.2d 130 (1999). "The third requirement generally requires a showing of prejudice, i.e., that the error affected the outcome of the lower court proceedings." Id. "Reversal is warranted only when the plain, forfeited error resulted in the conviction of an actually innocent defendant or when an error seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings independent of the defendant's innocence." Id.

"A claim that a sentence is vindictive," such as one "that punishes a defendant for successfully appealing a conviction," implicates a defendant's constitutional due-process rights. People v Warner, 339 Mich.App. 125, 156-157; 981 N.W.2d 733 (2021), citing North Carolina v Pearce, 395 U.S. 711, 723-724; 89 S.Ct. 2072; 23 L.Ed.2d 656 (1969), overruled in part on other grounds by Alabama v Smith, 490 U.S. 794; 109 S.Ct. 2201; 104 L.Ed.2d 865 (1989). Thus," 'whenever a judge imposes a more severe sentence after a new trial, the reasons for his doing so must affirmatively appear.'" Id., quoting Pearce, 395 U.S. at 726. Additionally," '[t]he factual data upon which the increased sentence is based must be made part of the record, so that the constitutional legitimacy of the increased sentence may be fully reviewed on appeal.'" Id.

These broad requirements do not apply across the board. Instead, they are limited to circumstances in which there is a reasonable likelihood that the decision to impose a harsher sentence "is the product of actual vindictiveness on the part of the sentencing authority." Warner, 339 Mich. at 158 (quotation marks and citation omitted). Put differently, appellate courts do not generally apply Pearce "when the reasons for the harsher sentence after a successful appeal are apparent from the surrounding circumstances." Id. Thus, "when the possibility of judicial vindictiveness is only speculative, a presumption of vindictiveness does not apply and the burden remains upon the defendant to prove actual vindictiveness[.]" Id. (quotation marks and citations omitted).

Defendant argues that the sentences imposed by the trial court on remand are presumptively vindictive because (1) the same judge who sentenced defendant during the original sentencing also conducted the resentencing hearing; (2) there was no new information available to the trial court during resentencing which would warrant increased sentences; (3) no major misconduct citations or incidents occurred while defendant was incarcerated that might demonstrate that he was incorrigible; and (4) there was a significant disparity between the original sentences and the current sentences imposed. Defendant therefore characterizes the concurrent sentences imposed here as "increased sentences" that must trigger a presumption of vindictiveness. The trial court increased defendant's minimum sentences on remand from consecutive terms of 25 to 55 years' imprisonment to concurrent terms of 30 to 110 years' imprisonment. However, the trial court opted not to impose consecutive sentences on remand. Thus, defendant's sentence decreased overall, at least in terms of time served. Simple math suggests this does not constitute judicial vindictiveness. Nevertheless, we recognize that each sentence must be viewed individually rather than in the aggregate to determine its impact. People v Mapp, 224 Mich.App. 431, 435; 569 N.W.2d 523 (1997). Therefore, we will evaluate the trial court's imposition of each of defendant's sentence on remand to determine whether the court engaged in vindictive sentencing.

When the same judge resentences a defendant and increases the sentence, the increased sentence may be presumptively vindictive. Warner, 339 Mich.App. at 159. However, "under Pearce and its progeny, this is only the first step of the analysis," and as previously noted, Michigan's appellate courts have not invoked a presumption of vindictiveness when the reason for the imposition of a harsher sentence is apparent. Id. at 160. Instead, "[b]efore the Pearce presumption can be invoked, an appellate court must examine the surrounding circumstances to determine whether there is a reasonable likelihood that the defendant was punished for successfully appealing his conviction." Id.

The facts here do not support invoking a presumption of vindictiveness. Defendant asserts that the sentences are "vindictive," but does not specify how the trial court's conduct demonstrated any retaliatory motivation during resentencing. While we recognize that the same trial judge presided over both the sentencing and resentencing hearings, the trial court provided a detailed rationale for its sentencing decision on remand. The trial court noted defendant's lack of remorse and lack of potential for rehabilitation, and highlighted the psychological ramifications of the assaults on SJ in detail, going so far as to read portions of SJ's trial testimony into the record. Thus, the trial court sufficiently justified its rationale for imposing harsher sentences on remand. Further although the minimum sentence for each conviction was increased by five years after defendant's successful appeal in this Court, we find that the trial court reasonably...