Preview:

STATE OF MICHIGAN
COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v CHRIS DOUGLAS MACK, Defendant-Appellant.

FOR PUBLICATION February 8, 2005 9:00 a.m. No. 249023 Oakland Circuit Court LC No. 02-183122-FH Official Reported Version

Before: Wilder, P.J., and Hoekstra and Owens, JJ. WILDER, P.J. Defendant appeals as of right his sentences following jury trial convictions of thirddegree criminal sexual conduct (CSC III), MCL 750.520d(1)(c), and assault with intent to commit criminal sexual conduct involving sexual penetration (AWICSC), MCL 750.520g(1). Defendant was sentenced on both counts as a fourth-offense habitual offender, MCL 769.12, to concurrent terms of fifteen to thirty years' imprisonment. We affirm. I Defendant was employed with Give-a-Lift Transportation as a van driver. Give-a-Lift transports clients to medical, doctor, and therapy appointments. The complainant lives in a group home and is mentally impaired as a result of a closed-head brain injury she suffered in an automobile accident when she was seven years old. Although she is chronologically twenty-four years old, the complainant has the mental abilities of a seven- to ten-year-old child and has required therapy since her injury. Defendant's convictions and sentences arise from an incident that occurred while he, in his position as a Give-a-Lift van driver, initiated sexual contact with the complainant while en route to the group home after her therapy session. Defendant drove the van into a parking lot, where he requested that complainant go to the rear of the van. Defendant removed his pants and complainant's undergarment and pants. Defendant attempted anal sex with complainant and forced her to perform fellatio. After the encounter, defendant drove complainant to the group home, where complainant reported the incident to a counselor the following day. Defendant was subsequently arrested and, after a two-day trial, he was convicted as charged.

-1-


After his convictions, the probation department prepared a presentence investigation report (PSIR), calculating the guidelines range for defendant's conviction of CSC III at 84 to 120 months. A PSIR was not prepared for defendant's conviction of AWICSC. Following defendant's sentence to concurrent terms of fifteen to thirty years' imprisonment, defendant filed a motion for resentencing asserting that the trial court erred by failing to separately score the AWICSC conviction and by sentencing defendant outside the guidelines range that would apply to defendant's AWICSC conviction. Defendant also moved for a Ginther1 hearing, asserting that he was provided ineffective assistance of counsel at his sentencing hearing. The trial court denied both motions. Defendant now appeals. II This Court reviews for clear error a trial court's factual findings at sentencing. People v Houston, 261 Mich App 463, 471; 683 NW2d 192 (2004). This Court reviews a trial court's decision to impose an increased sentence pursuant to the habitual offender act for an abuse of discretion. People v Reynolds, 240 Mich App 250, 252; 611 NW2d 316 (2000). However, the proper construction or application of statutory sentencing guidelines presents a question of law that is reviewed de novo. Id. When no Ginther hearing has been conducted, our review of the defendant's claim of ineffective assistance of counsel is limited to mistakes that are apparent on the record. People v Wilson, 257 Mich App 337, 363; 668 NW2d 371 (2003). III A Defendant first argues that he is entitled to a resentencing because the trial court erred in using a PSIR that only covered the CSC III conviction and because the sentence for the AWICS conviction was a departure from the sentencing guidelines that was not supported by substantial and compelling reasons. We disagree. We first observe that although defendant did not challenge the trial court's failure to separately score the AWICSC conviction at sentencing, defendant did raise this challenge as well as his assertion that the trial court imposed a sentence outside the applicable guidelines in a timely motion for resentencing. "[P]ursuant to [MCL

Download PEOPLE OF MI V CHRIS DOUGLAS MACK.pdf

Michigan Law