People v. Wilson

695 N.W.2d 351, 265 Mich. App. 386
CourtMichigan Court of Appeals
DecidedApril 29, 2005
DocketDocket 250804
StatusPublished
Cited by29 cases

This text of 695 N.W.2d 351 (People v. Wilson) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Wilson, 695 N.W.2d 351, 265 Mich. App. 386 (Mich. Ct. App. 2005).

Opinions

SAWYER, J.

Defendant was convicted, following a jury trial, of assault with intent to commit great bodily harm [388]*388less than murder. MCL 750.84. He was sentenced as a fourth-offense habitual offender to serve ten to thirty years in prison, consecutively to the sentence for which he was on parole at the time of the instant offense. He appeals and we affirm.

Defendant’s conviction arises out of an assault he committed upon his wife, Lisa Wilson. The victim described a brutal attack, involving punching, slapping, choking, and threats with weapons on New Year’s Day in 2003. The victim received a laceration to her hand, which required eight stitches, and she was confined to a wheelchair and then to the use of a cane for several weeks after the attack. The assault took place on and off over a few hours. Defendant’s theory was that he did not assault the victim and, in any event, the injuries were not as severe as suggested.

Defendant first argues that he was denied a fair trial because of the replacement of the trial judge during trial. We disagree. The assigned judge was unable to preside over the trial, apparently because of medical issues. Accordingly, a visiting judge presided over the actual trial. When the jury was sent out to deliberate, the visiting judge informed them that the assigned judge would be back the next day to take their verdict and that they would not see him again. In fact, the assigned judge did take the verdict and also presided over sentencing.

First, we note that defendant did not properly preserve this issue for review. At no time during the trial itself did defendant object to the replacement of the visiting judge with the assigned judge. Furthermore, despite defendant’s representations to the contrary in his brief on appeal, the issue was not, in fact, raised at sentencing. In his brief, defendant cites an irrelevant court rule, MCR 2.517(A)(7), which provides that an [389]*389exception need not be taken from a trial court’s factual findings or decisions when sitting without a jury or with an advisory jury. Defendant then states that “counsel raised the issue on the record of the problem stemming from a sentencing judge who did not hear the evidence and accordingly was not in a position to accurately score the sentencing guidelines.” This statement is true only in the most literal of terms. Defense counsel at sentencing, while challenging the scoring of offense variable 7 (OV 7), stated, “I’m the only one now that was [present] during the trial ’cause the judge is different, the prosecution is different, and I stand by the lack of — that there should be no scoring for OV 7, your Honor.” This hardly constitutes an objection to the fact that the sentencing judge was not the judge who presided over the trial.

Accordingly, because the issue was not preserved with an objection, we review it for plain error under People v Carines, 460 Mich 750; 597 NW2d 130 (1999). In Carines, supra at 763, the Michigan Supreme Court, relying on the decision in United States v Olano, 507 US 725; 113 S Ct 1770; 123 L Ed 2d 508 (1993), described the plain error rule as follows:

The Olano Court emphasized that a constitutional right may be forfeited by a party’s failure to timely assert that right. Id,., p 731. 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. Id., pp 731-734. The third requirement generally requires a showing of prejudice, i.e., that the error affected the outcome of the lower court proceedings. Id., p 734. “It is the defendant rather than the Government who bears the burden of persuasion with respect to prejudice.” Id. Finally, once a defendant satisfies these three requirements, an appellate court must exercise its discretion in deciding whether forfeited error resulted in the conviction of an actually [390]*390innocent defendant or when an error “ ‘seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings’ independent of the defendant’s innocence.” Id., pp 736-737.

Carines, supra at 774, applies this rule to both constitutional and nonconstitutional errors.

With respect to the assigned judge replacing the visiting judge at the end of the trial, defendant certainly cannot demonstrate prejudice. After the substitution, the assigned judge did four things: receive the verdict, take defendant’s guilty plea on the habitual offender notice, revoke defendant’s bond (with defendant’s consent), and order DNA testing as required. In short, the judge did nothing that required his presence at the trial and did not make any decision that was dependent in any way on any information presented during the trial. The exact same actions would have been taken by the visiting judge had he remained through the end of the trial.

The only suggestion of prejudice at the trial stage advanced by defendant is the “subtle harm” caused by the visiting judge’s departure, which may have caused the jury to regard the trial as “unimportant” because it was “not important enough” to cause the presiding judge to return to receive the verdict. Defendant concedes that the “ramifications of this dismissive treatment ... cannot be measured,” but asserts that “we can be sure that it had an impact.” We are by no means so sure that it had any such effect. At the beginning of the trial, the visiting judge introduced himself to the jury panel as a retired judge from Ionia County who was filling in because the assigned judge was ill. Before releasing the jury for deliberations, the visiting judge informed the jury that the assigned judge was now able to come back on a limited basis and would be there the [391]*391next day. This hardly suggests that the visiting judge found the trial unimportant; rather, it suggests that the assigned judge was doing better and could resume his duties and the substitute judge was no longer necessary.

For these reasons, we conclude that defendant has not met his burden of establishing prejudice with respect to the assigned judge returning to receive the verdict. Accordingly, review of this issue has been forfeited under Carines, supra at 763.

But the issue of sentence being imposed by the assigned judge rather than the visiting judge who presided over the trial is not so easily resolved. First, a plain error did occur as a defendant has the right to be sentenced by the judge who presided over the trial. People v Bart (On Remand), 220 Mich App 1, 8; 558 NW2d 449 (1996). But we are not persuaded that defendant has met his burden of establishing prejudice. Defendant’s only argument in this respect is that he was “disadvantaged” in having the assigned judge handle the sentencing in responding to defendant’s challenge to the scoring of OV 7, MCL 777.37, without the judge having heard the evidence at trial. We disagree.

First, defendant mischaracterizes the sentencing judge’s actions as raising the score of OV 7 from zero to fifty points. The judge did no such thing. The presen-tence report had scored OV 7 at fifty points. At sentencing, defendant objected to that scoring. The only basis offered at sentencing for the objection, however, is that in the trial prosecutor’s sentencing memorandum at “no time does she request or does she stand by and request 50 points as scored by Probation which obviously did not sit through the trial, your Honor.

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Bluebook (online)
695 N.W.2d 351, 265 Mich. App. 386, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-wilson-michctapp-2005.