People v. Parnell
| Decision Date | 15 September 2022 |
| Docket Number | 357004,357005 |
| Parties | PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. MICHAEL PAUL PARNELL, Defendant-Appellant. PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. MICHAEL PAUL PARNELL, Defendant-Appellant. |
| Court | Court of Appeal of Michigan — District of US |
UNPUBLISHED
Muskegon Circuit Court LC Nos. 02-047101-FH, 02-048012-FH
Before: Murray, P.J., and O'Brien and Redford, JJ.
In Docket No. 357004, defendant, Michael Paul Parnell, appeals as of right his sentences arising from his jury-trial convictions for fourth-degree criminal sexual conduct (CSC-IV) (sexual contact by force or coercion), MCL 750.520e(1)(b); resisting and obstructing a police officer MCL 750.479(1)(b); and carrying a concealed weapon (CCW), MCL 750.227. The trial court sentenced defendant as a fourth-offense habitual offender, MCL 769.12, to 10 to 15 years' imprisonment for the CSC-IV conviction, 2 to 15 years' imprisonment for the resisting-a-police-officer conviction, and life imprisonment for the CCW conviction. In Docket No. 357005, defendant appeals as of right his sentence arising from his jury-trial conviction of witness intimidation, MCL 750.122(8). The trial court sentenced defendant as a fourth-offense habitual offender to life imprisonment. Defendant's convictions in each docket were the result of separate jury trials, but he was sentenced for all of his convictions at a single sentencing hearing. This Court consolidated the cases on appeal.[1] We now affirm in both dockets.
Defendant's convictions in Docket No. 357004 arise from a sexual assault that occurred on February 13, 2002, in Muskegon, Michigan. Defendant, who was riding a bicycle, grabbed and squeezed the buttocks of the victim, KF, as she walked toward her car. KF called 911 and provided a description of defendant and his bike to the dispatcher. Following a foot chase and struggle, defendant was arrested and handcuffed. A subsequent search revealed that defendant was carrying a knife. A police officer also found that defendant had pantyhose with the legs cut off and tied together. The officer testified that he had seen pantyhose in that condition used as a mask. Following a two-day trial, the jury found defendant guilty of CSC-IV, resisting a police officer, and CCW.
Defendant's witness intimidation conviction in Docket No. 357005 arises from a previous armed robbery conviction. On February 4, 2002, defendant held 12-year-old CB at knifepoint in a Kmart bathroom stall and ordered her to remove her underwear. Defendant unzipped his pants, placed his groin onto CB's groin, and stuck his tongue down her throat. When he left, he took CB's underwear and threatened to kill her if she screamed or told anyone what had happened. CB testified about the incident at a trial held in June 2002, after which defendant was convicted of armed robbery, MCL 750.529, and sentenced as a fourth-offense habitual offender to 45 to 100 years' imprisonment. Defendant appealed that conviction,[2] and while his appeal was pending, CB received a letter in the mail at her home where she lived with her grandmother. The letter, which was addressed to CB and signed by defendant, contained graphic threats to rape, torture, and murder CB unless she recanted her testimony against defendant. The letter also contained graphic hand-drawn pictures. Three of defendant's fingerprints were discovered on the letter. On the basis of this letter, a jury convicted defendant of witness intimidation.
Defendant was sentenced for his convictions in Docket Nos. 357004 and 357005 at a single sentencing hearing. At the hearing, the trial court described defendant's lengthy criminal history, which included several assaults against young girls and women. The court found that defendant was "out of control," and that there were substantial and compelling reasons to exceed the sentencing guidelines. The court then sentenced defendant as previously described.
Defendant's initial appellate counsel failed to pursue an appeal, eventually leading to his appellate rights being restored in April 2021. Thereafter, defendant filed a motion to correct an invalid sentence in which he raised the claims that he now raises in this appeal. The trial court denied that motion in a written opinion and order. This appeal followed.
Defendant first argues that he was denied the effective assistance of counsel at sentencing because defense counsel failed to establish that defendant suffered from an intellectual disability. Defendant further argues that this showing would have prohibited the court from imposing life sentences on defendant. We disagree.
Generally, whether a person has been denied effective assistance of counsel is a mixed question of fact and constitutional law-a trial court's factual findings are reviewed for clear error, while its constitutional rulings are reviewed de novo. People v LeBlanc, 465 Mich. 575, 579; 640 N.W.2d 246 (2002); People v Cline, 276 Mich.App. 634, 637; 741 N.W.2d 563 (2007). In this case, however, no evidentiary hearing was held, so the trial court never made factual findings, and our review is accordingly limited to mistakes apparent on the lower court record. See People v Payne, 285 Mich.App. 181, 188; 774 N.W.2d 714 (2009).
To prevail on a claim of ineffective assistance of counsel, a defendant must establish that "(1) the performance of his counsel was below an objective standard of reasonableness under prevailing professional norms and (2) a reasonable probability exists that, in the absence of counsel's unprofessional errors, the outcome of the proceedings would have been different." People v Sabin (On Second Remand), 242 Mich.App. 656, 659; 620 N.W.2d 19 (2000). "A defendant must overcome a strong presumption that the assistance of his counsel was sound trial strategy, and he must show that, but for counsel's error, the outcome of the trial would have been different." Id.
Defendant asserts that defense counsel was ineffective during sentencing for failing to present a social worker evaluation that was prepared in 1993 to show that defendant suffered from an intellectual disability. "[Decisions regarding what evidence to present and which witnesses to call are presumed to be matters of trial strategy, and we will not second-guess strategic decisions with the benefit of hindsight." People v Dunigan, 299 Mich.App. 579, 589-590; 831 N.W.2d 243 (2013).
We first conclude that defense counsel's decision to not present the social worker evaluation did not fall below an objective standard of reasonableness. The report was prepared in July 1993 when defendant was 15 years old, and defendant was sentenced in 2003 when he was 25 years old. Thus, the report was 10 years old at the time of his sentencing. Defendant has not presented any evidence that defense counsel was aware of this report or otherwise had reason to know that defendant suffered from an intellectual disability. This is particularly concerning given that defendant had an extensive history with the criminal justice system by the time he was sentenced for these offenses, and nothing in those cases suggests that defendant had-or in some way asserted that he may have-an intellectual disability. Defendant bears the burden of establishing the factual predicate of his claim, which in this case includes establishing that defense counsel knew or should have been known (1) about the 1993 report or (2) that defendant otherwise may have an intellectual disability. See People v Hoag, 460 Mich. 1, 6; 594 N.W.2d 57 (1999) ().
Further, as pointed out by the trial court and the prosecution, the report contained the opinion of a therapist who believed that defendant had a poor prognosis for rehabilitation and would likely reoffend if released into the community-an opinion that proved accurate, as demonstrated by defendant's subsequent criminal history. Additionally, the report detailed defendant's juvenile adjudications for criminal sexual conduct, along with other offenses such as arson, theft, and fighting. Given this damaging information in the 1993 report, even if defense counsel was aware of the report in February 2003, counsel would have had to decide whether its potentially mitigating effects outweighed its possible prejudicial effects. On such facts, counsel's decision to not present the report would be a typical example of reasonable trial strategy, which this Court "will not second-guess" on appeal. See Dunigan, 299 Mich.App. at 589.[3]
Regardless, even if defendant could establish the first prong of his ineffective assistance claim, we would conclude that the claim fails because there is not a reasonable probability that, but for counsel's failure to present the 1993 report, the outcome of the proceedings would have been different. At the sentencing hearing, defendant stated that he reviewed the presentence investigation report and that he did not have any changes or additions. The report states that defendant completed the eighth grade and had received mental health treatment.[4] Thus, the lower court was aware that defendant possessed a limited education and possibly had a mental illness when it sentenced defendant, and we do not believe it reasonably probable that defendant's sentence would have been different had the trial court also reviewed the 1993 report.
Defendant argues more generally that, if the trial court had evidence of his intellectual disability, it would have been precluded from imposing life sentences. In support of this assertion defendant relies on the United States Supreme Court's decision in Atkins v...
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