Docket No. 329031.

895 N.W.2d 577 (2016)

317 Mich. App. 714


Court of Appeals of Michigan.

Decided November 15, 2016, at 9:00 a.m.

Attorney(s) appearing for the Case

Bill Schuette , Attorney General, Aaron D. Lindstrom , Solicitor General, Douglas R. Lloyd , Prosecuting Attorney, and Brent E. Morton , Assistant Prosecuting Attorney, for the people.

Laurel K. Young , Grand Rapids, for defendant.


Defendant appeals by right his convictions, following a jury trial, of first-degree criminal sexual conduct (CSC-I), MCL 750.520b(1)(a) and (2)(b) (victim under 13; defendant at least 17), and second-degree criminal sexual conduct (CSC-II), MCL 750.520c(1)(a) and (2)(b) (victim under 13; defendant at least 17).1 The trial court determined that defendant was a third-offense habitual offender, MCL 769.11, and sentenced him to a 35- to 70-year term of imprisonment for the CSC-I conviction to be served consecutively to a 20- to 30-year term of imprisonment for the CSC-II conviction. We affirm.


Defendant met the victim's mother in September 2006 and moved into her home, where she was residing with her three minor children, in late 2006 or early 2007. Defendant and the victim's mother eventually married.2 The victim testified that from the time she was six or seven years old until she was 12, defendant "[r]aped" her "[m]ore than once." The victim described multiple instances of sexual abuse, marking the abuse by the location where it occurred: at her family's home on Grand Manor Drive; at defendant's apartment; during a sleepover she had with her cousins at the family's home, then on Marsh Drive; in her mother's bedroom at the Marsh Drive home; and in a bathroom at the Marsh Drive home. At all relevant times, defendant was at least 17 years of age.

At sentencing, the trial court found defendant to be a third-offense habitual offender. MCL 769.11. This determination was based on defendant's prior convictions in Texas for "aggravated assault with a deadly weapon" and "indecency with a child, sexual contact in the third degree," his victim at that time being his then stepson. The prosecution, echoing the sentiments expressed by the victim's family following their description of the trauma suffered by the victim and her family, requested consecutive sentencing pursuant to MCL 750.520b(3), which allows a term of imprisonment imposed for CSC-I to be "served consecutively to any term of imprisonment imposed for any other criminal offense arising from the same transaction."

In imposing sentence, the trial court characterized defendant's repeated conduct in sexually abusing young children as "almost unbelievable and inconceivable." The court noted that defendant's conduct as alleged in this case began shortly after defendant was released from prison following a 2004 conviction for molesting his stepson in Texas. Addressing defendant, and referring to both the sexual abuse for which defendant was being sentenced in this case and the sexual abuse for which he was earlier convicted in Texas, the trial court stated, "What it appears to me, Mr. Deleon, ... is that you're finding these women and marrying these women so you have access to the children. That's what it looks like to me. And apparently with a step-son and a step-daughter, you're an equal opportunity pervert in this matter." The trial court found defendant to be "a menace to society. And this ain't gonna be the last time if you're not stopped here today. So we'll make every effort to take care of the problem today." The trial court imposed the sentences noted and ordered consecutive sentencing.

This appeal followed. On appeal, defendant argues only that the evidence supporting his CSC-II conviction was insufficient and that his consecutive sentences violate his Sixth Amendment rights pursuant to our Supreme Court's opinion in People v. Lockridge, 498 Mich. 358, 870 N.W.2d 502 (2015).


Defendant argues that plaintiff failed to introduce sufficient evidence of CSC-II to support his conviction. We disagree. We review de novo sufficiency-of-the-evidence claims. People v. Osby, 291 Mich.App. 412, 415, 804 N.W.2d 903 (2011). In doing so, we must view the evidence in the light most favorable to the prosecution to "determine whether a rational trier of fact could find that the essential elements of the crime were proved beyond a reasonable doubt." People v. Alter, 255 Mich.App. 194, 201-202, 659 N.W.2d 667 (2003). The victim's testimony alone can provide sufficient evidence to support a conviction. People v. Brantley, 296 Mich.App. 546, 551, 823 N.W.2d 290 (2012); see also MCL 750.520h.

Defendant was convicted of CSC-II under MCL 750.520c(2)(b), which required the jury to find that he had "engage[d] in sexual contact with" the victim who was "under 13 years of age" when he was "17 years of age or older." MCL 750.520c(1)(a) and (2)(b). "Sexual contact" means "the intentional touching of the victim's or [defendant's] intimate parts ... if that intentional touching can reasonably be construed as being for the purpose of sexual arousal or gratification, [or] done for a sexual purpose...." MCL 750.520a(q). "Intimate parts" include a person's "genital area, groin, inner thigh, buttock, or breast." MCL 750.520a(f). And when determining whether touching could be reasonably construed as being for a sexual purpose, the conduct should be "viewed objectively" under a "`reasonable person' standard." People v. Piper, 223 Mich.App. 642, 647, 650, 567 N.W.2d 483 (1997). The ages of the parties at the relevant time are not in dispute.

The victim testified to multiple instances in which defendant used his hands to make sexual contact with her intimate parts. She testified to multiple instances in which defendant used his hands and fingers to touch her "from [her] vagina to [her] butt" before penetrating her with his penis. Given this testimony, a rational jury could objectively find that defendant's touching of the victim's intimate parts with his hand or fingers was both intentional and "for the purpose of sexual arousal or gratification." MCL 750.520a(q).

The victim also testified to several other instances of sexual contact sufficient to support a CSC-II conviction.3 She described defendant intentionally using his penis to touch her genital area, at the Grand Manor home, and her buttock, at his apartment. She also described defendant intentionally touching either her genital area or buttock with his penis when her cousins spent the night at the Marsh Drive home. She further reported that defendant had some contact with her genital area when she was in her mother's bed at the Marsh Drive home. And she stated that defendant touched her "inner thigh" with his stomach and then touched her genital area with his penis in the bathroom at the Marsh Drive home. Any one of these contacts would have supported a conviction for CSC-II.

Viewed in the light most favorable to the prosecution, the evidence at trial was sufficient to support defendant's CSC-II conviction. Alter, 255 Mich.App. at 201-202, 659 N.W.2d 667.


Defendant also argues that the trial court violated his Sixth Amendment rights when it relied on judicial fact-finding to impose consecutive sentencing under MCL 750.520b(3).4 Because defendant failed to preserve this issue, our review is for plain error. Lockridge, 498 Mich. at 365, 870 N.W.2d 502. "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." People v. Carines, 460 Mich. 750, 763, 597 N.W.2d 130 (1999).

"In Michigan, `concurrent sentencing is the norm,' and a `consecutive sentence may be imposed only if specifically authorized by statute.'" People v. Ryan, 295 Mich.App. 388, 401, 819 N.W.2d 55 (2012), quoting People v. Brown, 220 Mich.App. 680, 682, 560 N.W.2d 80 (1996). The trial court imposed consecutive sentencing pursuant to MCL 750.520b(3), which provides that the trial "court may order a term of imprisonment ... to be served consecutively to any term of imprisonment imposed for any other criminal offense arising from the same transaction."5 "The term `same transaction' is not statutorily defined[.]" Ryan, 295 Mich.App. at 402, 819 N.W.2d 55. But it has a temporal requirement. See People v. Bailey, 310 Mich.App. 703, 723-725, 873 N.W.2d 855 (2015). For example, "[f]or multiple penetrations [in a CSC case] to be considered as part of the same transaction, they must be part of a `continuous time sequence,' not merely part of a continuous course of conduct." Id. at 725, 873 N.W.2d 855, quoting People v. Brown, 495 Mich. 962, 963, 843 N.W.2d 743 (2014).

"The Sixth Amendment provides that those `accused' of a `crime' have the right to a trial `by an impartial jury.'" Alleyne v. United States, 570 U.S. ___, 133 S.Ct. 2151, 2156, 186 L.Ed.2d 314 (2013). "This right, in conjunction with the Due Process Clause, requires that each element of a crime be proved to the jury beyond a reasonable doubt." Id. at ___, 133 S.Ct. at 2156. In light of the constitutional protections of the Sixth Amendment, the United States Supreme Court in Apprendi v. New Jersey held that "`any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt.'" Apprendi v. New Jersey, 530 U.S. 466, 476, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), quoting Jones v. United States, 526 U.S. 227, 243 n. 6, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999) (emphasis added). The United States Supreme Court in Alleyne, 570 U.S. at ___, 133 S.Ct. at 2155, extended this rule to fact-finding that enhances statutory minimum sentences, holding that "any fact that increases [a defendant's] mandatory minimum [sentence] is an `element' that must be submitted to the jury." Therefore, in combination with Apprendi, the United States Supreme Court created the general rule "that any `facts that increase the prescribed range of penalties to which a criminal defendant is exposed' are elements of the crime," and defendants have the right to have a jury find those elements beyond a reasonable doubt. Id. at ___, 133 S.Ct. at 2160, quoting Apprendi, 530 U.S. at 490, 120 S.Ct. 2348. The Michigan Supreme Court applied this general rule in Lockridge, 498 Mich. at 399, 870 N.W.2d 502, to hold that "Michigan's sentencing guidelines scheme" "violate[d] the Sixth Amendment" because it used judge-found facts "to compel an increase in the mandatory minimum punishment a defendant receives." For the reasons stated in this opinion, we hold that neither Apprendi, Alleyne, nor Lockridge compels the conclusion that consecutive sentencing in Michigan violates a defendant's Sixth Amendment protections.

Post-Apprendi, the United States Supreme Court specifically held that the Sixth Amendment does not prohibit the use of judicial fact-finding to impose consecutive sentencing. Oregon v. Ice, 555 U.S. 160, 164, 129 S.Ct. 711, 172 L.Ed.2d 517 (2009). In Ice, the defendant challenged an Oregon sentencing statute that allowed a trial court judge to order consecutive sentencing after making specific findings of fact. Id. at 165, 129 S.Ct. 711. The Ice Court contrasted Oregon's determination to so "constrain judges' discretion by requiring them to find certain facts before imposing consecutive, rather than concurrent, sentences" with the common-law tradition followed in most states to "entrust to judges' unfettered discretion the decision whether sentences for discrete offenses shall be served consecutively or concurrently" and the practice in still other states in which "sentences for multiple offenses [were] presumed to run consecutively, but sentencing judges [could] order concurrent sentences upon finding cause therefor."6 Id. at 163-164, 129 S.Ct. 711. The Court concluded that "the Sixth Amendment does not exclude Oregon's choice." Id. at 164, 129 S.Ct. 711. In so concluding, the Court found that "twin considerations — historical practice and respect for state sovereignty — counsel against extending Apprendi's rule to the imposition of sentences for discrete crimes." Id. at 168, 129 S.Ct. 711. It first explained that whether to impose consecutive or concurrent sentencing historically (and for centuries of the common law predating even "the founding of our Nation") was a "choice [that] rested exclusively with the judge" — it was a decision in which "the jury played no role," and it therefore was not within "the scope of the constitutional jury right" in the Sixth Amendment, as articulated in Apprendi. Id. at 168-170, 129 S.Ct. 711. Further, the Court reasoned that the states' "authority ... over the administration of their criminal justice systems lies at the core of their sovereign status" and that the states have historically had an "interest in the development of their penal systems." Id. at 170, 129 S.Ct. 711. The Court concluded that neither the Sixth Amendment nor Apprendi required it to restrain the states' traditional power. Id. at 171, 129 S.Ct. 711.

The United States Supreme Court issued Alleyne approximately seven years after Ice, and, importantly, made no mention of Ice. Alleyne extended the rationale of Apprendi to mandatory minimum sentences, stating that "any fact that increases the mandatory minimum [sentence for a crime] is an `element' that must be submitted to the jury." Alleyne, 570 U.S. at ___, 133 S.Ct. at 2155. Alleyne did nothing to disturb Ice's holding that a trial court's imposition of consecutive sentences based on judge-found facts did not run afoul of Sixth Amendment protections. Our Supreme Court in Lockridge applied the rationale of Apprendi and Alleyne to the Michigan sentencing guidelines, holding that the Sixth Amendment prohibits "judicial fact-finding to score OVs to increase the floor of the sentencing guidelines range." Lockridge, 498 Mich. at 388-389, 870 N.W.2d 502. Lockridge also made no mention of Ice or its applicability to the trial court's ability to order, pursuant to relevant statutes, consecutive sentencing for multiple offenses.

Additionally, federal courts, both before and after Alleyne, have recognized that judge-imposed consecutive sentences do not violate the rationales of Apprendi or Alleyne. See, e.g., United States v. White, 240 F.3d 127, 135 (C.A.2, 2001) ("[T]he district court did not exceed the maximum for any individual count. It cannot therefore be said that, as to any individual count, the court's findings resulted in the imposition of a greater punishment than was authorized by the jury's verdict."); United States v. Le, 256 F.3d 1229, 1240 n. 11 (C.A.11, 2001) ("Apprendi does not apply when the sentences on two related offenses are allowed to run consecutively under the relevant law and the sentence on each offense does not exceed the prescribed statutory maximum for that particular offense."); United States v. Garcia, 754 F.3d 460, 473 (C.A.7, 2014) ("The imposition of consecutive sentences on separate counts of conviction does not have the effect of pushing a sentence on any one count above the statutory maximum for a single count of conviction. The court was entitled to find the facts [supporting the imposition of consecutive sentences] by a preponderance of the evidence, so long as those facts did not affect either the statutory maximum or the statutory minimum.") (citations omitted).

We conclude that the rationale of Ice should apply to Michigan's rules governing consecutive sentencing and that this rationale does not run afoul of Lockridge, which has its basis in Apprendi's and Alleyne's reasoning concerning the right to a jury trial and the protections of the Sixth Amendment. We also find persuasive the reasoning of federal courts confronted with this issue after Apprendi and Alleyne. Although consecutive sentencing lengthens the total period of imprisonment, it does not increase the penalty for any specific offense. By contrast, Lockridge prohibits a trial court only from using judge-found facts to increase "the floor of the sentencing guidelines range," and thereby the mandatory minimum sentence for an offense, and it prohibits the guidelines from being mandatory. Lockridge, 498 Mich. at 389, 870 N.W.2d 502. No such increase occurred here, nor would the trial court's imposition of consecutive sentences be affected by whether the sentencing guidelines are mandatory or advisory.

Therefore, although defendant correctly notes that the jury's verdict in this case did not necessarily incorporate a finding that his CSC-I conviction "ar[ose] from the same transaction" as did his CSC-II conviction, MCL 750.520b(3), defendant has no Sixth Amendment right to have a jury make that determination, Ice, 555 U.S. at 164, 129 S.Ct. 711. We discern no conflict between this holding and Lockridge.


SHAPIRO and GADOLA, JJ., concurred with BOONSTRA, P.J.


1. The jury acquitted defendant of another count of CSC-I.
2. The record reflects that defendant and the victim's mother married in 2008, had a son together, and divorced in 2011, and that the victim's mother and her children maintained a relationship with defendant thereafter.
3. Although the prosecution's closing argument focused on defendant having touched the victim with his fingers and hand before penetrating her, the trial court's instructions did not limit the jury to convicting defendant of CSC-II only upon finding that defendant had touched the victim in that manner. And the court explicitly told the jury without objection that the prosecution did not have to show that the contact occurred on a specific date and time.
4. Defendant does not argue that the trial court erroneously determined that his convictions arose from the same transaction; rather, he argues only that the trial court made the determination using judge-found facts supposedly in violation of Lockridge.
5. Although the trial court did not specifically so state, it is clear from the record and the context of the court's comments at sentencing that its consecutive-sentencing determination was based on the crimes having arisen from the same transaction, and the record further evidences that, on several occasions, defendant sexually touched the victim's intimate areas immediately before penetrating her.
6. Like Oregon, other states similarly constrain judicial discretion by requiring judges to find certain facts before imposing consecutive sentences.


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