                          STATE OF MICHIGAN

                           COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   April 24, 2018
               Plaintiff-Appellee,

v                                                                  No. 337802
                                                                   Gladwin Circuit Court
JESSE KANE MARTIN,                                                 LC No. 16-008731-FH

               Defendant-Appellant.


Before: MURPHY, P.J., and JANSEN and SWARTZLE, JJ.

PER CURIAM.

       Defendant appeals by delayed leave granted1 from a judgment of sentence imposing a
term of 5 to 15 years of imprisonment for his conviction of second-degree criminal sexual
conduct (“CSC II”), MCL 750.520c(1)(h) (mentally disabled victim). We affirm.

        In January 2017, defendant entered a guilty plea to the present CSC II charge. He had
previously pleaded guilty in 1999 to a charge of CSC II, MCL 750.520c(1)(a), for sexual conduct
with a person under the age of 13. At sentencing on the current charge, the trial court determined
that the sentencing guidelines range was 12 to 24 months, noting that defendant’s prior
conviction would have increased the range but that it was not taken into account. The trial court
then departed from the advisory guidelines range, stating:

               In order to punish you for what you have done, to attempt to rehabilitate
       you, to deter others from committing similar acts, and protection of the
       community, it’ll be the sentence of this Court that you be sentenced to the
       Michigan Department of Correction for a period of five years to 15 years, with
       credit for two days served.




1
 See People v Martin, unpublished order of the Court of Appeals, issued May 12, 2017 (Docket
No. 337802).


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                                   I. SENTENCING ERROR

       Defendant first argues that the sentencing court erroneously considered his former CSC
conviction, in contravention of MCL 777.50, and contends that “[t]he 1999 conviction was the
only reason stated for rescoring the guidelines that increased [defendant’s] sentence to a higher
guideline range, from 12-24 months to 36 to 71 months.” The claim is without merit.

        Defendant failed to object to his sentence at the sentencing hearing and failed to move for
resentencing or a remand, and thus his claim of sentencing error is unpreserved. See MCR
6.429(C). Unpreserved errors are reviewed for plain error affecting defendant’s substantial
rights. People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). Therefore, on appeal,
defendant bears the burden of showing a clear error that affected the outcome of the trial court
proceedings. Id.

        Defendant argues on appeal that the trial court erroneously considered his 1999 CSC
conviction, in contravention of MCL 777.50, and that “[t]he 1999 conviction was the only reason
stated for rescoring the guidelines that increased [defendant’s] sentence to a higher guideline
range, from 12-24 months to 36 to 71 months.” The trial court indicated, however, that the
“[s]entencing guidelines do not take into account his prior conviction of CSC in the second
degree with a person under the age of 13. The [c]ourt finds that if that was taken into account,
sentencing guidelines would be 36 to 71 months.”

       MCL 777.50(1) provides,

               In scoring prior record variables 1 to 5, do not use any conviction or
       juvenile adjudication that precedes a period of 10 or more years between the
       discharge date from a conviction or juvenile adjudication and the defendant’s
       commission of the next offense resulting in a conviction or juvenile adjudication.

The trial court had a correct understanding of the guidelines and did not score the prior
conviction. The sentencing-information report indicates that all prior-record variables were
assessed zero points. Therefore, the record indicates that the trial court did not sentence
defendant in contravention of MCL 777.50 because the trial court did not account for
defendant’s prior conviction “[i]n scoring prior record variables 1 to 5.” MCL 777.50(1).

       Instead, the record makes clear that the trial court understood it could not score the prior
conviction and was therefore dealing with an advisory sentencing range of 12 to 24 months, but
decided to depart from that range. Although the trial court did consider the prior conviction in
departing from the guidelines, defendant has not raised a challenge to the reasonableness of the
departure. Ordinarily, this Court will not address issues not raised by the parties on appeal. See
Tingley v Kortz, 262 Mich App 583, 588; 688 NW2d 291 (2004). Accordingly, we conclude that
defendant has failed to establish plain error affecting his substantial rights.

                       II. INEFFECTIVE ASSISTANCE OF COUNSEL

       Defendant next argues that he received ineffective assistance of counsel based on defense
counsel’s failure to apprise the trial court of the correct sentencing standard which would have
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prohibited the trial court from considering defendant’s 1999 CSC conviction. This claim is also
without merit because, as explained above, the trial court committed no error for counsel to
correct with respect to MCL 777.50. See People v Gist, 188 Mich App 610, 613; 470 NW2d 475
(1991).

        Alternatively, defendant argues that counsel failed to object to the trial judge’s alleged
conflict of interest. Defendant asserts that the trial judge was his defense attorney during the
1999 CSC proceedings. Defendant’s claim of ineffective assistance of counsel is unpreserved
because he failed to move for a new trial or an evidentiary hearing. People v Hurst, 205 Mich
App 634, 641; 517 NW2d 858 (1994). Where a claim of ineffective assistance of counsel is
unpreserved, this Court’s “review is limited to errors apparent on the record.” People v
Matuszak, 263 Mich App 42, 48; 687 NW2d 342 (2004). To establish ineffective assistance of
counsel, defendant must show that his counsel’s representation fell below an objective standard
of reasonableness and that the deficient representation prejudiced his defense. Strickland v
Washington, 466 US 668, 687; 104 S Ct 2052; 80 L Ed 2d 674 (1984).

        Defendant submitted with his appellate brief an affidavit dated June 11, 2017. The
affidavit was not included in the trial court record, nor was it included with his application for
leave to appeal in this Court. In his affidavit, defendant alleges that the trial judge was his
appointed counsel for a brief period during the 1999 CSC proceedings, and that defendant
terminated the representation “over disagreements of how the matter was proceeding” and then
hired a different attorney. Because this Court’s review is generally limited to the lower court
record and expansion of the record on appeal is generally prohibited, People v Nix, 301 Mich
App 195, 203; 836 NW2d 224 (2013), defendant cannot establish his alternative claim of
ineffective assistance of counsel with his untimely affidavit, see Matuszak, 263 Mich App at 48.
In any event, defendant has not shown that the trial judge should have been disqualified under
MCR 2.003 or that any former professional relationship between defendant and the trial judge
actually affected his sentence.

       Affirmed.




                                                            /s/ William B. Murphy
                                                            /s/ Kathleen Jansen
                                                            /s/ Brock A. Swartzle




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