People v. Sandoval, No. 291626 (Mich. App. 6/15/2010)

• Decision Date: 15 June 2010
• Docket Number: No. 291626.,291626.
• Court: Court of Appeal of Michigan — District of US
• Parties: PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. MAXIMO SANDOVAL, JR., Defendant-Appellant.

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PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee,
v.
MAXIMO SANDOVAL, JR., Defendant-Appellant. No. 291626. Court of Appeals of Michigan. June 15, 2010.

Appeal from the Tuscola Circuit Court, LC No. 06-009907-FC.

Before: ZAHRA, P.J., and CAVANAGH and FITZGERALD, JJ.

UNPUBLISHED

PER CURIAM.

A jury convicted defendant of three counts of criminal sexual conduct (CSC) involving personal injury, MCL 750.520c(1)(f).¹ The trial court sentenced defendant as an habitual offender, fourth offense, MCL 769.12, to concurrent prison terms of 20 to 60 years for each conviction. On appeal, this Court affirmed defendant's convictions, but remanded for resentencing.² On remand, the trial court sentenced defendant to concurrent prison terms of 18 to 60 years for each conviction. Defendant appeals as of right following his resentencing. We affirm.

The following facts are taken from this Court's original opinion in this matter:

In the summer of 2005, defendant, then a 25 year-old male, knocked on the victim's window at 2 a.m. The victim, then a 13 year-old girl who is developmentally delayed, knew the defendant because his parents lived in her neighborhood and because she worked with defendant at a local farm. When the victim heard the knocking, she went to the door and opened it. When she saw defendant, she went outside. Defendant and the victim went to his parents' house and the two entered the back of defendant's mother's van, where they kissed. Defendant then

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touched the victim's breasts and her vagina and the victim told him to stop. Defendant refused and called the victim derogatory names. The victim tried to leave the van, but defendant pulled her back into the van. Defendant, having pulled his pants down, then grabbed the victim's head and forced her to perform fellatio on him twice. The victim told defendant to stop, but he refused and continued to push her head down. Sometime during these events, the victim tried to push defendant off her and defendant tried to choke her. The victim got out of the van and ran home. Once the victim returned home, the victim's mother called the police and the victim submitted to a sexual assault examination and rape kit. The examiner found saliva on the victim's chest, which was collected and sent for DNA testing. Defendant's DNA matched the DNA collected from the victim's chest.

Defendant was arrested on August 22, 2005. Defendant was then incarcerated on parole detainer and remained incarcerated during the pendency of this matter. Trial was set for February 14, 2006. However, on February 13, 2006 the charges were dismissed without prejudice because the DNA analysis had not yet been completed. The prosecutor refiled the charges on May 12, 2006 and defendant was arraigned and "rearrested" on June 5, 2006. After a pretrial in October 2006, the matter was brought to trial on January 9, 2007. At trial, defendant presented an alibi defense, alleging that he was sleeping at his sister's house at the time of the event. The victim testified according to the facts above. The victim also indicated that she has been angry, embarrassed, and afraid as a result of the incident and that she sought counseling after the incident.

At a February 23, 2009, hearing on remand for resentencing, defendant asked for sentence credit for the 496 days served from the date of his initial arrest to the date of his initial sentence in this case. However, defense counsel acknowledged, "there are cases that say you do not have to do that — or that you don't do that." The trial court refused to grant the sentence credit requested by defendant.

Defendant first argues that the trial court erred in denying him credit for time served because he was held in jail on the present offense, and not on the parole violation, and is therefore entitled to credit for the time served. However, our Supreme Court recently rejected this argument in People v Idziak, 484 Mich 549, 566-569; 773 NW2d 616 (2009). I...