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Michigan Supreme Court Lansing, Michigan

Opinion
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v JOHNNY BONILLA-MACHADO, Defendant-Appellant.

Chief Justice:

Justices:

Robert P. Young, Jr. Michael F. Cavanagh Marilyn Kelly Stephen J. Markman Diane M. Hathaway Mary Beth Kelly Brian K. Zahra

FILED JULY 26, 2011 STATE OF MICHIGAN SUPREME COURT

No. 140510

BEFORE THE ENTIRE BENCH HATHAWAY, J. This case presents three issues for review. First, we review whether defendant was coerced by the trial court and defense trial counsel into forgoing his right to testify. Second, we review whether an offense that is statutorily designated as a "crime against public safety" may also be considered a "crime against a person" to establish a continuing pattern of criminal behavior for purposes of scoring offense variable (OV) 13, MCL 777.43. Finally, we review whether defendant is entitled to resentencing as a matter of law in light of the trial court's erroneous statement that it was statutorily bound to enhance defendant's maximum sentences.

We first conclude that neither the trial court nor defense trial counsel coerced defendant into forgoing his right to testify. Instead, the record shows that defense counsel advised defendant of the risks of testifying and that, ultimately, defendant himself made the decision not to testify. The trial court merely confirmed defendant's decision. Accordingly, there was no error on this issue, and defendant is not entitled to a new trial. Next, we hold that the Court of Appeals erroneously concluded that even though assault of a prison employee1 is statutorily designated as a crime against public safety, MCL 777.16j, it can also be considered a crime against a person for purposes of scoring OV 13 because a prison employee is a "person." We hold that the six named offense category designations used in MCL 777.5 and 777.11 through 777.19 apply to the scoring of offense variables and, therefore, a felony designated as a "crime against public safety" may not be used to establish a "pattern of felonious criminal activity involving 3 or more crimes against a person," MCL 777.43(1)(c), for purposes of scoring OV 13. Because this changes defendant's sentencing guidelines range, we agree with defendant that this matter must be remanded for resentencing. See People v Francisco, 474 Mich 82, 88-89; 711 NW2d 44 (2006). Finally, we hold that the trial court erred when it stated that it was bound by law to enhance defendant's maximum sentences. Application of the enhanced maximum

sentence is discretionary, not mandatory. People v Turski, 436 Mich 878 (1990). The Court of Appeals acknowledged the error and remanded to allow the trial court to clarify
1

MCL 750.197c.

2

whether the trial court knew it had discretion to enhance the maximum sentences or to redetermine the maximum sentences after using its discretion. Because the trial court, on remand, has already resentenced defendant in accordance with the Court of Appeals' remand order, this issue is now moot. Accordingly, we reverse the judgment of the Court of Appeals in part and remand this matter to the trial court for resentencing. On remand, we instruct the trial court to assess zero points for OV 13. We affirm the judgment of the Court of Appeals in all other respects. I. FACTS AND PROCEDURAL HISTORY This case arises from events that occurred in November 2007 while defendant was incarcerated in the Bellamy Creek Correctional Facility in Ionia. Defendant was serving prison terms for unarmed robbery and attempted carjacking. While in his cell, defendant assaulted two corrections officers by overflowing his toilet and then splashing the toilet water on the corrections officers as they made their respective rounds approximately 30 minutes apart. Defendant was charged with two counts of assaulting a prison employee and was found guilty by a jury on both counts. Defendant did not testify at his trial. MCL 750.197c(1) sets the maximum sentence of imprisonment for assaulting a prison employee at five years, and MCL 769.10(1)(a) allows a trial court to enhance the maximum sentence imposed for a subsequent felony conviction by not more than 1

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Michigan Law