People v. Rickerd

1

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. MICAH HENRY RICKERD, Defendant-Appellant.

No. 365408

Court of Appeals of Michigan

February 29, 2024

UNPUBLISHED

Chippewa Circuit Court LC No. 2021-005500-FH

Before: FEENEY, P.J., and REDFORD and YATES, JJ.

PER CURIAM.

Defendant appeals by leave granted^[1] his guilty-plea convictions for child sexually abusive activity, MCL 750.145c(2), and lying to a peace officer, MCL 750.479c(2)(c). The trial court sentenced defendant to 3 to 20 years' imprisonment for his child sexually abusive activity conviction and 1 to 2 years' imprisonment for his lying to a peace officer conviction. We affirm defendant's convictions and sentences, but for the reasons stated in this opinion, we remand to the trial court to correct defendant's sentencing guidelines calculation and for amendment of his judgment of sentence consistent with this opinion.

I. FACTUAL AND PROCEDURAL BACKGROUND

In August 2021, defendant used a mobile dating application to message someone he believed was 14 years old, engaged in sexual conversation, and arranged to meet for sexual purposes. Defendant set a time and place to meet the individual and drove to that location. When defendant arrived, law enforcement officers arrested him. Defendant then realized the individual with whom he spoke on the mobile application was a police officer and not a 14-year-old.

The prosecution charged defendant with accosting, enticing, or soliciting a child for an immoral purpose, MCL 750.145a child sexually abusive activity, MCL 750.145c(2), and two counts of using a computer to commit a crime, MCL 752.796, MCL 752.797(3)(d), and MCL 752.797(3)(f). In September 2021, the prosecution extended a plea offer to defendant which included a sentencing agreement of "36 months on the minimum pursuant to People v Killebrew."^[2]The offer provided that the prosecution would agree to dismiss all counts except for the child sexually abusive activity charge and defendant would agree to plead guilty to an added count of lying to a peace officer, MCL 750.479c(2)(c), and agree to forfeit his vehicle. Defendant accepted the plea agreement in April 2022.

At defendant's plea hearing, the prosecution outlined the plea agreement to the court and stated that "there's a binding sentence agreement of 36 months, ...." Defense counsel responded:

[Defense Counsel]: In addition to that, [there is] Killebrew, where [defendant] would be capped at 36 months. So that would be his complete understanding.

The Court: Right. That's what [the prosecution]-[the prosecution] did say that. So it's a guilty plea to count three and an added count five with a forfeiture of a vehicle and a 36-month minimum sentence. Is that correct?

[Defense Counsel]: Well, I just want to be clear; the way I explained that to my client is the 36 months-yes, 36 months minimum, but the court would not exceed that per the agreement. He can get 36 months. That's how he understands the plea.

[The Prosecution]: Yeah.

The Court: Right.

[The Prosecution]: Thirty-six months is the sentence agreement for the minimum.

The Court: Right, that's correct.

[Defense Counsel]: Thank you. Thank you.

Once defendant was sworn in, the trial court stated that defendant appeared before the court to plead guilty to Count 3 pertaining to sexually abusive material of a child and noted that the charged offense required registration under the Sex Offenders Registration Act.^[3] The court asked defendant, "There's a binding sentencing agreement of 36 months at the time of sentencing .... Is that your understanding of the plea?" Defendant responded, "Yes, your honor." The court inquired whether defendant understood that by accepting the two guilty pleas he would be giving up several constitutional rights which the court listed. Defendant affirmed that he understood and that he willingly, knowingly, and voluntarily waived those rights. Defense counsel affirmed that the trial court stated the plea agreement correctly. Defendant denied that anyone promised him anything outside the plea agreement and denied that anyone threatened him to get him to plead guilty. He affirmed that he pleaded guilty to the two offenses because he believed himself guilty of those offenses. Defendant admitted the factual bases for the offenses. The prosecution and defense counsel agreed that the court complied with the requirements set forth in MCR 6.302. The trial court, therefore, advised defendant that it was satisfied and would accept his two guilty pleas and stated that defendant would return "for imposition of the 36 months ...."

At the sentencing hearing, the trial court asked defendant if he reviewed the Presentence Investigation Report (PSIR) prepared by the Department of Corrections and whether it comported with the plea agreement that he entered into including the sentencing agreement. Defendant affirmed that he had. The court asked the prosecution and defense counsel if they reviewed the PSIR. Both affirmed that they had. On the child sexually abusive activity conviction, the court assessed defendant 15 points for Offense Variable (OV) 10 and 5 points for OV 12. The guidelines scoring calculated the minimum sentencing guidelines range for that conviction at 30 to 50 months.

Defense counsel provided allocution on defendant's behalf and noted that the offense required a 25-year sex registry,^[4] which counsel described as disproportionate and unfair. Defense counsel stated that defendant took responsibility and did not desire to withdraw his plea and understood that he was going to prison for a minimum of three years. The prosecution responded by describing aspects of defendant's conduct in seeking to have sexual relations with a 14-year-old boy. The prosecution asked the trial court to follow the agreement for defendant to serve a prison term of three years. Defendant added that he felt sincerely sorry for his actions. Defense counsel asserted that there had not been a 14-year-old boy and that the case involved no victim. The trial court said that it intended to follow the plea agreement. The court stated that "it was a voluntary and knowing plea, and I will accept the plea as outlined as directed through the sentencing agreement as well." The court sentenced defendant to 3 years to 20 years with credit for 19 days for his conviction of violating MCL 750.145c(2). The court directed defendant to comply with DNA testing and pay a crime victim assessment fee and court costs and advised him of his appellate rights.

II. CONSTITUTIONALITY OF MCL 769.1k(1)(b)(iii)

Defendant first argues MCL 769.1k(1)(b)(iii) is unconstitutional because it incentivizes trial courts to convict defendants and impose costs against them, thus undermining a defendant's due-process rights. We disagree.

To preserve an issue challenging the constitutionality of a statute, a defendant must first raise the issue in the trial court. See People v Sands, 261 Mich.App. 158, 160; 680 N.W.2d 500 (2004).

Here, defendant failed to challenge the constitutionality of MCL 769.1k(1)(b)(iii) below. We review unpreserved issues for plain error affecting a defendant's substantial rights. See People v Carines, 460 Mich. 750, 763; 597 N.W.2d 130 (1999). "[T]he defendant bears the burden to show that (1) an error occurred, (2) the error was plain, i.e., clear or obvious, and (3) the plain error prejudiced substantial rights, i.e., the error affected the outcome of the lower court proceedings." People v Cameron, 291 Mich.App. 599, 618; 806 N.W.2d 371 (2011).

Regarding the imposition of costs after a defendant enters a guilty plea, MCL 769.1k(1)(b)(iii) provides:

(b) The court may impose any or all of the following:

* * *

(iii) Until May 1, 2024, any cost reasonably related to the actual costs incurred by the trial court without separately calculating those costs involved in the particular case, including, but not limited to, the following:

(A) Salaries and benefits for relevant court personnel.

(B) Goods and services necessary for the operation of the court.

(C) Necessary expenses for the operation and maintenance of court buildings and facilities.

We "presume statutes to be constitutional unless their unconstitutionality is clearly apparent and, if possible, the statute is to be construed as constitutional. The burden is on the party challenging the statute's constitutionality to prove its invalidity." People v GR, 331 Mich.App. 58, 68; 951 N.W.2d 76 (2020) (quotation marks and citation omitted). Here, defendant argues that no judge in any case can be presumed to be impartial and that MCL 769.1k(1)(b)(iii) is facially unconstitutional. To prevail on a challenge to a statute's facial constitutionality, the challenging party must demonstrate that "no circumstances exist under which it would be valid." Sands, 261 Mich.App. at 161.

In People v Johnson, 336 Mich.App. 688, 692; 971 N.W.2d 692 (2021), this Court specifically addressed the constitutionality of MCL 769.1k(1)(b)(iii). This Court held that the defendant's due-process rights were not violated because, although the courts may benefit from "a portion of the revenue generated by court assessments," they do not have actual control over the administration of the revenue. Id. at 702. Specifically, a "trial court judge does not have unfettered discretion with respect to the amount of costs to impose under [MCL 769.1k(1)(b)(iii)] because the costs imposed must be reasonably related to the actual costs incurred by the trial court without separately calculating those costs involved in the particular case." Id. at 700 (quotation marks and citation omitted). Further, there must also be "a factual basis demonstrating that the imposed costs are reasonably related to the actual costs incurred by the trial court." Id. at 701 ...