Order                                                                        Michigan Supreme Court
                                                                                   Lansing, Michigan

  July 19, 2019                                                                   Bridget M. McCormack,
                                                                                                 Chief Justice

  156198                                                                                David F. Viviano,
                                                                                        Chief Justice Pro Tem

                                                                                     Stephen J. Markman
                                                                                          Brian K. Zahra
  PEOPLE OF THE STATE OF MICHIGAN,                                                  Richard H. Bernstein
            Plaintiff-Appellant,                                                    Elizabeth T. Clement
                                                                                    Megan K. Cavanagh,
                                                                                                      Justices
  v                                                       SC: 156198
                                                          COA: 328956
                                                          Wayne CC: 15-000755-FC
  ALPHONSO L. STRAUGHTER, JR.,
           Defendant-Appellee.

  _________________________________________/

         On October 9, 2018, the Court heard oral argument on the application for leave to
  appeal the April 11, 2017 judgment of the Court of Appeals. On order of the Court, the
  application is again considered, and it is DENIED, there being no majority in favor of
  granting leave to appeal or taking other action.

         VIVIANO, J. (concurring).

         I concur with the Court’s order denying leave to appeal by equal division and
  write separately to explain my reasoning.

         Defendant, Alphonso Straughter Jr., was convicted of carjacking, armed robbery,
  conspiracy to commit armed robbery, second-degree home invasion, and unlawful
  imprisonment and, relevant for the purposes of this appeal, was sentenced as a second-
  offense habitual offender. Notwithstanding the prosecutor’s failure to comply with the
  habitual-offender statute, the trial court sentenced defendant as a second-offense habitual
  offender. In his subsequent appeal, the Court of Appeals affirmed defendant’s
  convictions, but vacated defendant’s sentence and remanded for resentencing without the
  habitual-offender sentencing enhancement because the prosecutor failed to show that
  notice was served on defendant, since no proof of service was filed with the trial court as
  required under MCL 769.13. In the prosecutor’s application for leave to appeal in our
  Court, the prosecutor argues for the first time that the trial court’s error was harmless
  because the record reflects that defendant had actual notice of his habitual-offender status
  within the time period set forth in the statute.

         In relevant part, MCL 769.13 reads as follows:

                (1) In a criminal action, the prosecuting attorney may seek to
         enhance the sentence of the defendant as provided under section 10, 11, or
         12 of this chapter, by filing a written notice of his or her intent to do so
         within 21 days after the defendant’s arraignment on the information
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         charging the underlying offense or, if arraignment is waived, within 21
         days after the filing of the information charging the underlying offense.

                (2) A notice of intent to seek an enhanced sentence filed under
         subsection (1) shall list the prior conviction or convictions that will or may
         be relied upon for purposes of sentence enhancement. The notice shall be
         filed with the court and served upon the defendant or his or her attorney
         within the time provided in subsection (1). The notice may be personally
         served upon the defendant or his or her attorney at the arraignment on the
         information charging the underlying offense, or may be served in the
         manner provided by law or court rule for service of written pleadings. The
         prosecuting attorney shall file a written proof of service with the clerk of
         the court.

        In People v Head, the Court of Appeals held that “[t]he failure to file a proof of
service of the notice of intent to enhance the defendant’s sentence may be harmless if the
defendant received the notice of the prosecutor’s intent to seek an enhanced sentence and
the defendant was not prejudiced in his ability to respond to the habitual offender
notification.” 1 In concluding that the error in that case was harmless, the Court of
Appeals relied on the following facts: (1) “[d]efendant does not claim that he and
defense counsel never received a copy of the charging documents”; (2) “[a]t the
arraignment on the information, defendant waived a formal reading of the information”;
(3) “[t]here was no indication at the arraignment hearing that defendant or his attorney
had not received a copy of the felony information”; (4) “defendant and defense counsel
exhibited no surprise at sentencing when defendant was sentenced as a fourth-offense
habitual offender”; and (5) “[d]efendant has not asserted in the trial court or on appeal
that he had any viable challenge to his fourth-offense habitual offender status.” 2

      Because this case was decided before Head, the Court of Appeals in this case was
not bound by Head. While this Court has the discretion to remand for reconsideration in


1
    People v Head, 323 Mich App 526, 543-544 (2018).
2
  Id. at 544-545. The Court of Appeals also noted that “defendant received actual notice
on the record at the preliminary examination that he was being charged as a fourth-
offense habitual offender” and that “the fact that the prosecutor was seeking to enhance
defendant’s sentence as a fourth-offense habitual offender was acknowledged on the
record by defendant and defense counsel at a pretrial hearing during the discussion of the
prosecutor’s final plea offer.” Id. The Court of Appeals does not explain, however,
whether either of these hearings took place “within 21 days after the defendant’s
arraignment on the information,” such that the defendant would have received actual
notice within the time period required under MCL 769.13(1).
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light of Head, because I have concerns with Head’s analysis, I do not believe that we
should exercise our discretion to do so.

      In particular, I question whether the Court of Appeals in Head erred by placing the
burden on the defendant of proving that the prosecutor’s error was harmless. Typically,
the burden is on the defendant to show that a preserved nonconstitutional error is
harmless. 3 In this context, however, placing the burden on the prosecutor may be
appropriate since the prosecutor committed the error and the prosecutor is best able to
prove whether the defendant received actual notice. The Court of Appeals’ analysis in
Head, which relies almost exclusively on negative inferences from the record, reflects the
concerns with placing this burden on the defendant. 4

       Therefore, while the Court of Appeals’ decision in this case is at odds with Head,
because of my concerns with Head’s framework, I would not exercise our discretion to
remand this case for reconsideration in light of Head. Instead, I believe that denying
leave to appeal is appropriate.

        MARKMAN, J. (dissenting).

       I respectfully dissent from the order denying leave to appeal. Instead, I would
reverse the Court of Appeals’ judgment and reinstate defendant’s sentences for
carjacking, armed robbery, conspiracy to commit armed robbery, second-degree home
invasion, and unlawful imprisonment because defendant here possessed actual notice of
the prosecutor’s intention to seek to enhance defendant’s sentence as a second-offense
habitual offender under MCL 769.10.

       The prosecutor committed clear error by failing to comport with the procedures set
forth in MCL 769.13. In particular, she failed to show service of written notice of her

3
    See People v Lukity, 460 Mich 484, 491-496 (1999).
4
   Unlike Justice MARKMAN, I would be hesitant to conclude that simply filing the
relevant charging documents with the court—something that happens in every case—is
sufficient to render harmless the prosecutor’s error in failing to serve the habitual notice
on the defendant or his attorney within the time period set forth in MCL 769.13. Among
other things, this would render nugatory the remaining requirements of the statute since
the prosecutor would never be penalized for ignoring them. It would also be strange to
excuse the prosecutor’s noncompliance when the defendant waives his arraignment on
the information, since the statute expressly contemplates such waivers and makes no
exceptions from its requirements for them. See MCL 769.13(1) (providing that a habitual
notice must be filed “within 21 days after the defendant’s arraignment on the information
charging the underlying offense or, if arraignment is waived, within 21 days after the
filing of the information charging the underlying offense”).
                                                                                         4

intention to seek sentencing enhancement within 21 days of defendant’s arraignment on
the information by filing written proof of service with the circuit court. See MCL
769.13(1) and (2). Nonetheless, such error here was harmless because defendant
possessed actual notice of the prosecutor’s intention to seek sentencing enhancement.
MCL 769.26. First, each of the relevant charging documents filed in the district and
circuit courts, i.e., the felony warrant, the felony complaint, and the felony information,
specifically informed defendant that he was “subject to the penalties provided by MCL
769.10” and detailed the effect of sentencing enhancement under MCL 769.10. Indeed,
defendant himself concedes in his brief that the language contained in the charging
documents would constitute habitual-offender notice. Moreover, Black’s Law Dictionary
(6th ed) defines “subject to” as “governed or affected by.” Therefore, the prosecutor
informed defendant that he was “governed or affected by” habitual-offender sentencing
enhancement. There is no apparent reason for the prosecutor to have included this
information in the charging documents other than to apprise defendant that she intended
to seek sentencing enhancement under MCL 769.10, and this is not disputed by
defendant. Second, at his arraignment on the information, defendant waived a formal
reading of the information. This waiver effectively communicated that defendant already
possessed a copy of the felony information and thus possessed notice of the prosecutor’s
intent to seek habitual-offender sentencing enhancement. 5 Third, at sentencing, defense
counsel displayed no surprise at the enhanced sentence, and neither counsel nor
defendant objected to the enhancement. In fact, defense counsel actually corrected the
trial court that defendant was only a second-offense, rather than third-offense, habitual
offender.

5
  Contrary to Justice VIVIANO’s concurrence, this dissent does not “conclude that simply
filing the relevant charging documents with the court—something that happens in every
case—is sufficient to render harmless the prosecutor’s error in failing to serve the
habitual notice on the defendant or his attorney within the time period set forth in MCL
769.13.” More precisely, I conclude that the inclusion of the habitual-offender notice
within the charging documents may in certain circumstances indicate the defendant’s
actual notice of the prosecutor’s intention to seek habitual-offender enhancement. That
is, where such notice is included within the information and the defendant has waived
arraignment on the information, it has been effectively established that the defendant or
the defendant’s attorney has physical possession of the information and thus from the
very onset of the case possesses notice of the prosecutor’s intention to seek enhancement.
While this process plainly does not satisfy the requirements of MCL 769.13, it does
nonetheless fully satisfy the obvious purpose of the statute-- to ensure that the defendant
has been timely notified of an intention to pursue habitual-offender enhancement. While
indisputably an error on the part of the prosecutor, the failure to satisfy MCL 769.13 was
a manifestly harmless error in this case.
                                                                                                               5

       Because defendant here possessed actual notice of the prosecutor’s intention to
seek a habitual-offender enhancement to his sentence, the error by the prosecutor, in my
judgment, was altogether harmless. And as a result, defendant has failed to show that it
is “more probable than not that the error was outcome determinative.” People v Lukity,
460 Mich 484, 496 (1999). Accordingly, in my judgment, he was properly sentenced as a
second-offense habitual offender.

      ZAHRA, J., joins the statement of MARKMAN, J.

      CLEMENT, J. (dissenting).

       I respectfully dissent from this Court’s order denying leave to appeal because I
believe the more prudent disposition would be to vacate the Court of Appeals opinion and
remand to the Court of Appeals so that it may engage in a harmless-error analysis
pursuant to People v Head, 323 Mich App 526, 544-546 (2018).

      CAVANAGH, J., did not participate in the disposition of this case because the Court
considered it before she assumed office.




                         I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
                   foregoing is a true and complete copy of the order entered at the direction of the Court.
                         July 19, 2019
       s0716
                                                                             Clerk
