People v. Waclawski

• Decision Date: 29 December 2009
• Docket Number: Docket No. 287146.
• Citation: 286 Mich. App. 634,780 N.W.2d 321
• Parties: PEOPLE v. WACLAWSKI.
• Court: Court of Appeal of Michigan — District of US

780 N.W.2d 321

286 Mich. App. 634

PEOPLE v. WACLAWSKI.

Docket No. 287146.

Court of Appeals of Michigan.

Submitted November 10, 2009, at Detroit.

Decided December 29, 2009, at 9:30 a.m.

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Michael A. Cox, Attorney General, B. Eric Restuccia, Solicitor General, and Mark G. Sands, Assistant Attorney General, for the people.

State Appellate Defender (by Brandy Y. Robinson), and Steven M. Waclawski in propria persona.

Before: FORT HOOD, P.J., and SAWYER and DONOFRIO, JJ.

DONOFRIO, J.

Defendant appeals as of right his jury trial convictions of one count of first-degree criminal sexual conduct (CSC-I), MCL 750.520b, two counts of second-degree criminal sexual conduct (CSC-II), MCL 750.520c, five counts of using a computer to produce child sexually abusive material, MCL 752.797(3), and one count of producing child sexually abusive material, MCL 750.145c(2). The trial court sentenced defendant to 209 to 480 months' imprisonment for the CSC-I conviction, 86 to 180 months' imprisonment for both CSC-II convictions, and 95 to 240 months' imprisonment for each of the remaining convictions, all sentences running concurrently. Because none of defendant's arguments on direct appeal or contained in his Standard 4 brief¹ merit relief, we affirm.

I

Defendant was initially arrested in Illinois when he traveled to that state to meet with a person he thought was a 14-year-old boy. Defendant had "met" the boy through Internet chat room communications (electronic messages) and arranged to meet him for sex. The boy was in fact a police detective, and when defendant arrived at the assigned location he was arrested.² When arrested, defendant admitted possessing child pornography on his computer. Subsequently, detectives in Michigan searched defendant's home and office computers, revealing various pornographic images depicting underage boys and defendant. The current charges resulted from a search of defendant's computers, which revealed hundreds of images of male child pornography, some three dozen of which were taken in defendant's home and depicted three boys. The three boys had all spent the night at defendant's home on multiple occasions when no other adults were present. Three of the images, taken on August 23, 2001, allegedly depicted defendant performing fellatio on a 14-year-old boy with the first initial K.³ Other photographs, taken on March 1, 2000, allegedly depicted P, a 12-year-old boy, with his penis being measured with a ruler. Photographs taken on June 15, 2001, allegedly depicted M, a 10-year-old boy, who was also photographed with his penis being measured with a ruler. Discovery of these pictures resulted in the Michigan charges against defendant.

The Attorney General's office prosecuted the case and filed a notice seeking to admit evidence of online electronic messages (chats) defendant exchanged with two underage boys named "Coty" and "Jason" located in Ohio and Illinois, respectively. Both "Coty" and "Jason" were in fact police officers. The prosecutor argued that the evidence was admissible pursuant to MRE 404(b) to prove defendant's intent, motive, scheme, plan, or system in perpetrating criminal sexual acts. Defendant moved the trial court to suppress all evidence of his online chats in Ohio and Illinois. The trial court granted defendant's motion to exclude the evidence in an opinion and order issued February 6, 2007, finding that the acts in Ohio and Illinois were "substantially different" from the acts alleged in the instant case and, therefore, the probative value was substantially outweighed by the danger of unfair prejudice. The prosecutor applied for leave to appeal and moved to stay circuit court proceedings pending an interlocutory appeal. This Court granted the prosecutor's application and motion for a stay in an unpublished order entered February 14, 2007 (Docket No. 276094).

In an unpublished opinion issued October 11, 2007, this Court reversed the circuit court's February 6, 2007, order excluding other acts evidence and remanded the matter to the circuit court for trial. People v. Waclawski, unpublished opinion per curiam of the Court of Appeals, issued October 11, 2007 (Docket No. 276094), 2007 WL 2962888. The internet chats constituting the challenged "other acts evidence" were well documented by the panel that handled the interlocutory appeal in the previous unpublished decision of this Court, thus, we include a portion of the fact section of that opinion detailing defendant's internet chats:

On February 25, 2006, defendant contacted "jason_12parma" in a chat room, and they exchanged messages for about 45 minutes, discussing fellatio and a possible future sexual encounter. Defendant asserted that he was a 42-year-old man from Monroe, and "Jason" claimed to be a 12-year-old boy living in Ohio. "Jason" was actually an undercover police officer. Defendant and "Jason" communicated online on February 28, 2006, March 4, 2006, and March 6, 2006, discussing fellatio and the possibility of getting together so that defendant could perform fellatio on "Jason." On March 4, 2006, defendant asked "Jason" if he had been circumcised and whether he had ever measured his penis. When "Jason" stated that he had never measured it, defendant asked him to estimate its size.

On March 10, 2006, "Jason" contacted defendant and they communicated for about 90 minutes, discussing fellatio and arrangements they had made to meet on the following Friday. Defendant stated that he would find a "nice hotel" and perform fellatio on "Jason." On March 13, 2006, "Jason" contacted defendant, and they chatted about fellatio, masturbation, and the upcoming plans. On March 15, 2006, "Jason" contacted defendant, and they chatted about fellatio, masturbation, and they confirmed the upcoming plans for that Friday, March 17, 2006. Apparently, defendant did not arrive at the prearranged location on that date. Rather, he traveled to Wheaton, Illinois, for a similar encounter.

On March 4, 2006, defendant contacted "cotyme_91" in a chat room, and they exchanged messages for about 50 minutes, discussing fellatio, and specifically, defendant performing fellatio on "Coty." "Coty" lived in Illinois and claimed to be a 14-year-old boy. "Coty" was actually an undercover police officer. On March 15, 2006, "Coty" contacted defendant, and they chatted online, discussing defendant performing fellatio on "Coty" and a possible encounter the following weekend. "Coty" stated that his penis was small, and defendant asked how small. On March 17, 2006, "Coty" and defendant made arrangements to meet at a park in Wheaton on March 18, 2006, and go to defendant's hotel room, where defendant planned to perform fellatio on "Coty." When defendant arrived at the meeting place, he was arrested. In July 2006, defendant was convicted of indecent solicitation of a child, 720 Ill. Comp. Stat. 5/11-6, and sentenced to two years in prison. Id. unpub. op. at 2.

In reversing the circuit court's order excluding the other acts evidence, this Court found that "the circuit court's discretion was exercised within an erroneous legal framework." Id. unpub. op. at 4. This Court then remanded the case back to the trial court for reconsideration of the issue in light of this Court's opinion. Id. On remand, at a hearing on November 2, 2007, the trial court revisited the other acts evidence issue and reversed itself, holding that it would allow the evidence under MRE 404(b) "insofar as it is logically relevant." The matter eventually proceeded to a jury trial where defendant was convicted as charged. Defendant now appeals as of right.

II

Defendant first argues that this Court must dismiss the charges against him because the prosecution failed to bring him to trial within 120 days of its request for disposition under the Interstate Agreement on Detainers (IAD), MCL 780.601. "We review for an abuse of discretion a trial court's decision on a motion to dismiss." People v. Stone, 269 Mich.App. 240, 242, 712 N.W.2d 165 (2005). A court abuses its discretion when it selects an outcome outside the range of reasonable and principled outcomes. People v. Uphaus (On Remand), 278 Mich.App. 174, 181, 748 N.W.2d 899 (2008). "However, we review for clear error a trial court's attributions of delay." Stone, supra at 242, 712 N.W.2d 165. "Clear error exists if the reviewing court is left with a definite and firm conviction that a mistake has been made." Id. "Additionally, we review de novo the interpretation and application of statutes." Id.

There are two subparts to this issue on appeal. First, there is the question whether the 120-day or the 180-day deadline set by the IAD applies to the facts of this case. It does not appear that the trial court ever addressed this question. Next, the second question involves the application of either the 120-day or the 180-day deadline to the procedural history of this case and whether pursuant to the IAD the trial court abused its discretion when it denied defendant's motion for dismissal of the charges against him for violating his rights under the IAD.

A

"`Forty-eight States, including Michigan, the Federal Government, and the District of Columbia ... have entered into the Interstate Agreement on Detainers....'" People v. Swafford, 483 Mich. App. 229, 232, 775 N.W.2d 902 (2009), quoting Alabama v. Bozeman, 533 U.S. 146, 148, 121 S.Ct. 2079, 150 L.Ed.2d 188 (2001). "The purpose of the IAD is to facilitate the prompt disposition of outstanding charges against an inmate incarcerated in another jurisdiction." People v. Patton, 285 Mich. App. 229, 232, 775 N.W.2d 610 (2009).

In Michigan, the IAD was enacted into law by MCL 780.601. Article III (extradition instituted by the prisoner — time limit 180 days) and Article...