            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                           STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   February 12, 2019
               Plaintiff-Appellee,

v                                                                  No. 334807
                                                                   Wayne Circuit Court
KIJUAN MILLER,                                                     LC No. 16-000458-01-FC

               Defendant-Appellant.


PEOPLE OF THE STATE OF MICHIGAN,

               Plaintiff-Appellee,

v                                                                  No. 334813
                                                                   Wayne Circuit Court
ANTHONY DULANEY,                                                   LC No. 16-000458-02-FC

               Defendant-Appellant.


Before: LETICA, P.J., and CAVANAGH and METER, JJ.

LETICA, J. (concurring).

        I concur as to defendant Miller in Docket No. 334807. I concur in the result in Docket
No. 334813, noting that although Dulaney failed to object to the circuit court’s failure to
articulate reasons for the consecutive sentence imposed, “[n]o exception need be taken to a
finding or decision.” MCR 2.517(A)(7). I further agree that Dulaney’s challenge to his armed-
robbery sentence is moot.

        I write separately because, while I agree that resentencing is not required, I reject
Dulaney’s argument that the trial court improperly considered his failure to cooperate as a basis
for fashioning the sentences imposed. Dulaney primarily relies on People v Peques, 104 Mich
App 45; 304 NW2d 482 (1980), vacated sub nom Michigan v Peques, 452 US 934; 101 S Ct
3073; 69 L Ed 2d 949 (1981), aff’d on state grounds People v Peques, 410 Mich 894 (1981).
That decision is not binding, MCR 7.215(J)(1), and is distinguishable.

         In Peques, 104 Mich App at 46, this Court explained that the sentencing court threatened
defendant with the maximum sentence if he failed to supply information about other drug
activities, writing:

               Judge Ravitz indicated in an in camera discussion with the attorneys that
       the defendant could anticipate the maximum sentence if convicted unless
       intelligence information was offered about other drug transactions. . . . [W]e do
       find that defendant is entitled to resentencing by a different judge. While there is
       a natural inclination to reward cooperation, there must be a reluctance to coerce it.
       It is a violation of Fifth Amendment rights for a judge to actively use the
       sentencing power to elicit information from a defendant. It is improper to punish
       a defendant for exercising his right to remain silent. This would include a
       situation where the defendant admits guilt, but refuses to disclose details or
       criminal activities. People v Anderson, 391 Mich 419; 216 NW2d 780 (1974);
       People v Westerfield, 71 Mich App 618, 626; 248 NW2d 641 (1977).

       Although this rule from Peques remains valid1 and the United States Supreme Court has
expressed “doubt that a principled distinction may be drawn between ‘enhancing’ the
punishment imposed upon the petitioner and denying him the ‘leniency’ he claims would be
appropriate if he had cooperated[,]” Roberts v United States, 445 US 552, 557 n 4; 100 S Ct
1358; 63 L Ed 2d 622 (1980), at least two federal appellate courts have accepted this distinction.
United States v Arrington, 73 F3d 144, 149-150 (CA 7, 1996) (discussing distinction between
penalizing a defendant for not cooperating and allowing a defendant the opportunity to obtain a
more lenient sentence by cooperating with the government); United States v Torres, 114 F 3d
520, 527 (CA 5, 1997). The Second Circuit recognized that “even though th[is] distinction is
somewhat illusory, it is the only rule that recognizes the reality of the criminal justice system
while protecting the integrity of that system.” Mallette v Scully, 752 F2d 26, 30 (CA 2, 1984).

       Although Dulaney argues that the trial court based its sentencing decision on his refusal
to name his accomplices, the issue arose in the context of Dulaney’s request for leniency at
sentencing. The court explained to Dulaney why the facts of the case did not justify leniency. It
was in this context that the court agreed to consider Dulaney’s request for leniency if Dulaney
opted to cooperate with authorities and identify his accomplices. The trial court was not
punishing Dulaney refusing to cooperate with authorities, but instead was willing to consider
Dulaney’s request for leniency in exchange for his cooperation. The court did not attempt to
coerce Dulaney into cooperating,2 but merely expressed what it believed was necessary for the

1
 Several former Supreme Court Justices indicated that they did “not wish to be understood as
approving” of Peques. People v Jackson, 451 Mich 864 (1996) (concurring in denial of leave,
BOYLE, J., joined by RILEY, J., and WEAVER, J.)
2
 Although Dulaney initially balked, telling the court he did not know who accompanied him, he
quickly expressed interest before he ultimately opted not to do so.


                                                -2-
court to entertain Dulaney’s request for leniency. Considered in this context, the record does not
support Dulaney’s argument that the trial court improperly penalized him for refusing to
cooperate or provide information to the government. Moreover, the fact that the trial court later
agreed to resentence Dulaney because of its misunderstanding of the appropriate guidelines
range, and then imposed substantially reduced sentences for Dulaney’s armed robbery
convictions, further buttresses the conclusion that the court did not intend to punish Dulaney for
his refusal to cooperate or identify his accomplices.



                                                            /s/ Anica Letica




        At the hearing on the motion for a new trial, Dulaney again refused to name the
individuals who participated in the crimes. But after conferring with his attorney, he agreed to
provide their “street” names because he denied knowing their legal names as he had known them
for only a few months. Dulaney then identified his accomplices as Jay, James, and Mike,
indicating that two of them were incarcerated.
        Dulaney admitted that he previously lied when he told the court at sentencing that he did
not know the other participants. He explained that he did not come forward with this
information sooner because he thought he would “beat” this case and “the system.” He also
stated that he had been unwilling to tell the sentencing judge about his cohorts because he
thought the judge was lying when he said he would give Dulaney a lesser sentence if he
identified them.


                                               -3-
