People v. Bailey

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. RYAN LOWELL BAILEY, Defendant-Appellant.

No. 347548

Court of Appeals of Michigan

October 14, 2021

UNPUBLISHED

Grand Traverse Circuit Court LC No. 13-011601-FC

Before: Redford, P.J., and K. F. Kelly and Letica, JJ.

Per Curiam

On remand from our Supreme Court, ^[1] defendant appeals as on leave granted the trial court's denial of his motion for relief from judgment. Finding no errors warranting reversal, we affirm.

I. BASIC FACTS AND PROCEDURAL HISTORY

This case arises out of defendant's jury trial convictions of one count of first-degree criminal sexual conduct (CSC-I) under MCL 750.520b(2)(b) (sexual penetration of a person less than 13 years of age by a person 17 years of age or older) two counts of CSC-I under MCL 750.520b(1)(a) (sexual penetration of a person who is less than 13 years of age) and one count of CSC-I under MCL 750.520b(1)(b)(ii) (sexual penetration of a person older than 13 years of age, but younger than 16 years of age, and who is related by blood or affinity). In defendant's claim of appeal as of right, People v Bailey, 310 Mich.App. 703; 873 N.W.2d 855 (2015), this Court delineated the following basic facts, his convictions, and sentences:

Defendant was charged with engaging in digital-vaginal sexual penetration of three minors: MB, AB, and BS. Defendant, who was born in 1982, was BS's uncle and MB and AB's great-uncle. He was charged with four counts of first-degree criminal sexual conduct (CSC-I), MCL 750.520b(1), and convicted of each following a jury trial. We affirm defendant's convictions against his arguments that they were not supported by sufficient evidence, that his due process rights were violated, that the trial court made erroneous evidentiary rulings, and that the trial was tainted by prosecutorial misconduct. However, we remand for resentencing.

AB and MB were sisters, and defendant resided in their home for several years. MB, born in 1996, testified that defendant repeatedly engaged in digital-vaginal penetration of her as far back as she could remember, but that her first specific recollection of defendant digitally penetrating her occurred when she was seven years old. She testified that defendant continued this conduct until he moved out of the home in November 2008. As to MB, defendant was charged with, and convicted of, two counts of CSC-I. In Count I, but not Count II, defendant was charged with violating MCL 750.520b(1)(a) and (2)(b) (victim under the age of 13 and defendant 17 years of age or older), the provision that provides for a 25-year mandatory minimum term of imprisonment, MCL 750.520b(2)(b). The jury was instructed that to convict on this offense, it had to find that defendant committed the crime between August 1, 2008, and November 2008 (the month in which MB testified that the assaults stopped). Count II did not provide for any specific date of offense other than a nearly seven-year period and was a charge simply under MCL 750.520b(1)(a) (victim under age 13).

AB, born in 1994, testified that the first incident of digital-vaginal penetration occurred in the summer of 2003 and continued on a daily basis until she left for boarding school in the summer of 2008. As to AB, defendant was charged with, and convicted of, a single count of CSC-I, MCL 750.520b(1)(a) (victim under the age of 13). The date of the offense was listed as January 1, 2001, to November 30, 2008, with no particular date referenced. This was Count III of the felony information.

BS, born in 1994, was a first cousin once removed of AB and MB. She testified that defendant digitally penetrated her vagina on one occasion in June 2007, during a visit. As to BS, defendant was charged with, and convicted of, a single count of CSC-I, MCL 750.520b(1)(b)(ii) (victim at least 13 years of age but less than 16 and related to defendant by blood or affinity to the fourth degree). This was Count IV of the information.

Defendant was convicted on all counts. As to Count I, the trial court sentenced him to 25 to 50 years' imprisonment. For each of the other counts, the court imposed terms of 225 months to 50 years. The trial court, stating that it was exercising its authority under MCL 750.520b(3), ordered that the sentence for Count I be served consecutively to the other three sentences, which were to be served concurrently with one another. In sum, defendant was sentenced to a combined minimum term of 43 years and 8 months, which will make him 79 years old at the time he is first eligible to be considered for parole. [Id. at 709-711.]

This Court rejected defendant's challenge to the sufficiency of the evidence premised on a lack of corroborating forensic evidence and an attack on the credibility of the witnesses. Id. at 713-715.

We also rejected his argument that he was deprived of due process in light of the prosecutor's extended time frame for the claimed abuse, the joinder of the charges, and the failure to instruct the jury regarding unanimity. Id. at 715-718. His claims of evidentiary error for admission of other-acts evidence and seven different instances of prosecutorial misconduct were also denied. Id. at 720-722. Defendant's claim that his trial counsel was ineffective as it related to the joinder of charges, admission of other-acts evidence, and jury unanimity instruction was denied because he could not show that the outcome of the trial would have been different. Id. at 727-728. However, a majority of this Court concluded that the trial court did not have the discretion to impose consecutive sentences, and therefore, vacated his sentence on Count I and remanded for resentencing. Id. at 723-726. Defendant's application for leave to appeal was denied. People v Bailey, 498 Mich. 896 (2015).

In the trial court, defendant moved for relief from judgment, MCR 6.500 et seq. Specifically, defendant claimed that relief from judgment was warranted for: (1) actual innocence; (2) fabricated charges and witness perjury (sufficiency); (3) prosecutorial misconduct by admission of other-acts evidence and a violation of the sequestration order; (4) judicial misconduct by allowing the admission of "other crimes evidence" and allowing the witnesses to remain in the courtroom; (5) jurisdictional defect by allowing AB to testify regarding out-of-county sexual abuse; (6) ineffective assistance by trial counsel for waiving the preliminary examination, failing to impeach, and failing to call witnesses; and (7) ineffective assistance by appellate counsel. With the motion, defendant submitted affidavits from his father and others to contradict the plausibility of the victims' testimony regarding the location and timing of the sexual abuse.

The trial court issued a written opinion without hearing oral argument and ruled that defendant made "the same, or substantially equivalent arguments, on a number of issues that were decided on appeal." Specifically, because this Court addressed the sufficiency of the evidence and the victims' credibility pertaining to defendant's claim of innocence and the issue of ineffective assistance of trial counsel, the trial court concluded it was precluded from addressing those issues. To the extent that defendant raised "new" issues of judicial and prosecutorial misconduct, the trial court determined that defendant failed to demonstrate good cause for failing to raise those issues in the claim of appeal as of right. The trial court concluded that there was no jurisdictional defect pertaining to AB's testimony of an incident of sexual abuse that occurred in another county. Because it was uncharged conduct, but properly admissible evidence, MRE 404(b), the challenge to jurisdiction failed. Finally, the trial court rejected defendant's claim of ineffective assistance by appellate counsel, concluding counsel raised the most relevant claims, was not required to raise frivolous or meritless claims, and a different result was not established, but for any alleged error by appellate counsel. Therefore, the trial court denied the motion for relief from judgment because defendant did not establish that he was entitled to relief. Defendant filed two motions for reconsideration, and the trial court denied both motions, concluding that defendant failed to demonstrate palpable error.

II. APPLICABLE STANDARDS

This Court reviews for an abuse of discretion a trial court's decision on a motion for relief from judgment. People v Walker, 328 Mich.App. 429, 436; 938 N.W.2d 31 (2019). The trial court abuses its discretion when it makes an error of law or when its decision falls outside the range of reasonable and principled outcomes. People v Duncan, 494 Mich. 713, 722-723; 835 N.W.2d 399 (2013). The trial court's factual findings made in support of its relief from judgment decision are reviewed for clear error. People v Clark, 274 Mich.App. 248, 251; 732 N.W.2d 605 (2007). This Court reviews de novo the trial court's interpretation of court rules. Id.

"Motions for relief from judgment are governed by MCR 6.500 et seq." People v Johnson, 502 Mich. 541 565; 918 N.W.2d 676 (2018). "A defendant in a criminal case may move for relief from a judgment of conviction and sentence. MCR 6.502(A)." People v Swain, 288 Mich.App. 609, 629; 794 N.W.2d 92 (2010). "A defendant has the burden to establish entitlement to relief. MCR 6.508(D)." Swain, 288 Mich.App. at 630. When a defendant seeks such relief on grounds, other than jurisdictional defects, that could have been raised on appeal, the defendant must show "good cause" for the failure to raise such grounds earlier and "actual prejudice" as a result of the alleged irregularity. MCR 6.508(D)(3)(a) and (b). Additionally, this Court "may not grant relief to the defendant if the motion . . . alleges grounds for relief which...