                          STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     December 16, 2014
               Plaintiff-Appellee,

v                                                                    No. 317465
                                                                     Van Buren Circuit Court
JOHN ROY BARTLEY,                                                    LC No. 10-017394-FC

               Defendant-Appellant.


Before: MARKEY, P.J., and SAWYER and OWENS, JJ.

PER CURIAM.

       Defendant appeals as of right his sentences imposed by the trial court following a remand
from this Court. We remand for further proceedings consistent with this opinion.

        In defendant’s first appeal, this Court set forth the underlying facts. People v Bartley,
unpublished opinion per curiam of the Court of Appeals, issued October 9, 2012 (Docket No.
305813). Defendant was convicted of one count of manslaughter (with a motor vehicle), MCL
750.321, and one count of failure to stop at the scene of an accident resulting in death (failure to
stop), MCL 257.617(2). The trial court sentenced defendant as a third-offense habitual offender,
MCL 769.11, to 17 to 30 years’ imprisonment for his manslaughter conviction, and 4 years and 9
months to 10 years’ imprisonment for his failure to stop conviction. The sentence for
defendant’s manslaughter conviction was an upward departure from the recommended minimum
sentence range under the legislative sentencing guidelines. The sentences were ordered to run
concurrent to each other but consecutive to a sentence for which defendant was on parole at the
time he committed the offenses. Because defendant was on parole at the time he committed the
offenses, he was not given credit for time served while he was awaiting trial or sentencing in this
case. Defendant timely appealed his convictions and sentences. This Court affirmed defendant’s
convictions but found that the trial court incorrectly relied on defendant’s claim of innocence as
a basis for its upward departure from the sentencing guidelines. Bartley, unpub op at 10.

        Defendant was resentenced on June 20, 2013. At this time, the trial court sentenced
defendant within the recommended minimum sentence range to 14 to 30 years’ imprisonment for
his manslaughter conviction and to 4 years and 9 months to 10 years’ imprisonment for his
failure to stop conviction. These sentences were again ordered to run concurrent to each other;
however, the trial court did not indicate whether these sentences were to run consecutive to the
sentence for which defendant was on parole. In addition, at the time of resentencing, defendant

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was given credit on his sentences in this case for 703 days of time served. On July 16, 2013, the
trial court held a “sentence clarification hearing.” At this hearing, the trial court clarified that
defendant’s sentences in this case were to be served consecutively to the sentence for which
defendant was on parole. In all other respects, defendant’s sentences remained the same as
ordered at the resentencing hearing that was held on June 20, 2013. Defendant was again given
credit for 703 days of time served on his sentences in this case.

       On appeal, defendant argues that at the sentence clarification hearing, the trial court
inadvertently failed to give him credit on his sentences for the 26 days that he spent incarcerated
between the resentencing hearing on June 20, 2013, and the sentence clarification hearing on
July 16, 2013. This unpreserved claim is reviewed for plain error affecting defendant’s
substantial rights. People v Carines, 460 Mich 750, 764-765; 597 NW2d 130 (1999).
Consecutive sentencing is mandatory when someone commits a crime while on parole, and a
parolee convicted of a new offense only begins to serve the sentence for his new offense once the
parolee has served the remainder of the term of imprisonment for their previous offense. MCL
768.7a(2). See also People v Howell, 300 Mich App 638, 643, 647; 834 NW2d 923 (2013). In
Wayne Co Prosecutor v Dep’t of Corrections, 451 Mich 569, 584; 548 NW2d 900 (1996), the
Michigan Supreme Court held that MCL 768.7a(2) requires an “offender to serve at least the
combined minimums of his sentences, plus whatever portion, between the minimum and the
maximum, of the earlier sentence that the Parole Board may, because the parolee violated the
terms of parole, require him to serve.” Id. at 584.

         In the present case, defendant was on parole at the time he committed the offenses in this
case. Therefore, he was required to serve at least the minimum of the sentence for which he was
on parole, plus whatever portion, between the minimum and the maximum, of this sentence that
the parole board required him to serve for his parole violation, before he began to serve his
sentences for the convictions in this case. At the time defendant committed the offenses in this
case he had already served the minimum of the sentence for which he was on parole, but the
record does not contain any information regarding how much time defendant was required to
serve for his parole violation. Because defendant cannot begin serving his sentences in this case
until he completes his sentence for his parole violation, he is not entitled to receive credit for any
time served against his sentences in this case until he completes the sentence for his parole
violation. No information regarding when this did or may occur is in the record. Therefore, we
remand this case to the trial court for clarification related to defendant’s sentence for his parole
violation, clarification that his sentences in this case do not begin to run until defendant has
completed the sentence for his parole violation, and recalculation of how many days of jail
credit, if any, defendant should receive for his sentences in this case.

        Defendant also raises several issues in his Standard 4 brief. Defendant initially argues
that the trial court erred when it denied the motion to disqualify the trial court judge that he filed
before resentencing. Defendant argues that he was entitled to be resentenced before a different
judge because the trial court judge who originally sentenced defendant was biased based on
previously expressed opinions that the judge could not set aside. When reviewing a motion to
disqualify a judge, this Court generally reviews the trial court’s findings of fact for an abuse of
discretion and reviews the court’s application of those facts to the relevant law de novo. People
v Roscoe, 303 Mich App 633, 647; 846 NW2d 402 (2014). However, this issue is not properly


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preserved, and review is for plain error affecting defendant’s substantial rights. Carines, 460
Mich at 764-765.

       Michigan Court Rule 2.003(C)(1) addresses disqualification of a judge. Pursuant to
MCR 2.003(C)(1), disqualification of a judge is warranted if “[t]he judge is biased or prejudiced
for or against a party or attorney.” Under this subrule, disqualification of a judge is only
warranted if the judge is actually biased or prejudiced for or against a party or his attorney. See
Cain v Michigan Dep’t of Corrections, 451 Mich 470, 495; 548 NW2d 210 (1996). Likewise, in
People v Wade, 283 Mich App 462, 470; 771 NW2d 447 (2009), this Court held that “as a
general rule, a showing of actual, personal prejudice is required to disqualify a judge under MCR
2.003,” and “a trial judge is presumed to be impartial, and the party asserting partiality has the
heavy burden of overcoming that presumption.” And, “[c]omments that are critical of or hostile
to counsel and the parties are generally not sufficient to pierce the veil of impartiality.” People v
Jackson, 292 Mich App 583, 598; 808 NW2d 541 (2011).

        In the present case, the record does not support that the trial judge was biased or
prejudiced. Any alleged incorrect finding at sentencing was brief and limited in context. Id. at
600. Further, although the trial court made comments critical of defendant’s lack of remorse at
sentencing, comments that are critical of, or hostile to, a defendant are generally not sufficient to
pierce the veil of impartiality. Id. at 598. In addition, in denying defendant’s motion for
disqualification, the trial court judge confirmed that he could be fair and impartial in the case and
specifically stated that his responsibilities at resentencing “could not be more clear,” and that
resentencing “has nothing to do with” the trial court’s previously expressed views. Wade, 283
Mich App at 471. Moreover, at resentencing it was clear that the trial court’s ruling and
statements at the original sentencing did not reflect a deep-seated favoritism or antagonism to the
extent that the exercise of fair judgment was not possible. Jackson, 292 Mich App at 600.
Instead, at resentencing the trial court did not mention defendant’s lack of remorse.

         Nevertheless, defendant argues that the trial court judge who originally sentenced him
was biased, and remained biased at the time of resentencing. He supports his argument by the
following: (1) this Court already determined that the judge was biased against defendant; (2) the
judge did not specifically denounce his previously held, erroneous views; and (3) the judge
sentenced defendant to the high end of the guidelines. First, this Court did not previously
determine that the trial court judge was biased; there is simply no such finding in this Court’s
previous opinion. Second, in its opinion denying the motion for disqualification, the trial court
stated that its responsibilities at resentencing “could not be more clear,” and that resentencing
“has nothing to do with” the trial court’s previously expressed views. Third, defendant’s
argument that the trial court’s continuing bias was evidenced by the fact that the judge sentenced
defendant to the high end of the guidelines at resentencing is not supported by law because “a
sentence within the guidelines range is presumptively proportionate.” People v Powell, 278
Mich App 318, 323; 750 NW2d 607 (2008). In sum, the record does not support a finding that
the trial court judge was biased, and judicial disqualification was not warranted pursuant to MCR
2.003(C)(1)(a). Cain, 451 Mich at 495; Jackson, 292 Mich App at 600; Wade, 283 Mich App at
471. No plain error exists. Carines, 460 Mich at 763-764.




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        In addition, pursuant to MCR 2.003(C)(1)(b)(i), disqualification of a judge is warranted if
the judge, based on objective and reasonable perceptions, has “a serious risk of actual bias
impacting the due process rights of a party as enunciated in Caperton v Massey, 556 US 868; 129
S Ct 2252; 173 L Ed 2d 1208 (2009).” It is only “an extraordinary situation where the
Constitution requires recusal.” Id. at 887. Likewise, this Court has held that “[j]udicial
disqualification based on due process grounds is reserved for extreme cases.” Roscoe, 303 Mich
App at 647 (citation omitted). In the present case, the trial court committed an error of law,
specifically, departing upward from the sentencing guidelines without a substantial and
compelling reason to do so. Bartley, unpub op at 10. The trial court was careful to acknowledge
that the error would not be repeated on resentencing, and the error was not repeated when
defendant was resentenced. The trial court’s erroneous finding did not create a serious, objective
risk of actual bias that rose to an unconstitutional level, and judicial disqualification was not
warranted under MCR 2.003(C)(1)(b)(i) based on due process. Roscoe, 303 Mich App at 647-
648. No plain error exists. Carines, 460 Mich at 763-764.

       Next, pursuant to MCR 2.003(C)(1)(b)(ii), disqualification of a judge is warranted if the
judge, based on objective and reasonable perceptions, “has failed to adhere to the appearance of
impropriety standard set forth in Canon 2 of the Michigan Code of Judicial Conduct.”
Defendant’s arguments to support that the trial court judge violated Canon 2 are the same
arguments upon which he relied in arguing that the trial court should have been disqualified
pursuant to MCR 2.003(C)(1). For all of the reasons set forth above, these arguments are not
supported by the record. No plain error exists. Carines, 460 Mich at 763-764.

        Defendant also argues that the trial court should have been disqualified pursuant to
Canon 3(E) of the American Bar Association (ABA) Model Code of Judicial Conduct. Canon 3
addresses extrajudicial activities, not bias or impartiality, and there is no subsection (E) to this
model judicial canon. “It is not enough for an appellant in his brief simply to announce a
position or assert an error and then leave it up to this Court to discover and rationalize the basis
for his claims, or unravel and elaborate for him his arguments, and then search for authority
either to sustain or reject his position.” People v Kevorkian, 248 Mich App 373, 389; 639 NW2d
291 (2001). Defendant has insufficiently briefed, and thus abandoned, this argument on appeal.
Id.

        Defendant next argues that he received ineffective assistance of trial counsel because his
trial counsel did not request that he be evaluated for competency before resentencing. Because
defendant did not raise an ineffective assistance of counsel claim in a motion for new trial or
request a Ginther1 hearing in the trial court, this Court’s review is “limited to mistakes apparent
from the record.” Id.

        A defendant has the burden of proving ineffective assistance of trial counsel, and to do
so, “the defendant must show that (1) defense counsel’s performance was so deficient that it fell
below an objective standard of reasonableness and (2) there is a reasonable probability that


1
    People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).



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defense counsel’s deficient performance prejudiced the defendant.” People v Heft, 299 Mich
App 69, 80-81; 829 NW2d 266 (2012) (citation omitted). A defendant is presumed to be
competent, and will only be determined incompetent “if he is incapable because of his mental
condition of understanding the nature and object of the proceedings against him or of assisting in
his defense in a rational manner.” MCL 330.2020(1). The issue of a defendant’s competency
may be raised by a defendant, the prosecution, or the trial court, MCL 330.2024, and a
defendant’s trial counsel should raise the issue of competency when there is evidence that the
defendant is incompetent. People v Mette, 243 Mich App 318, 332 n 8; 621 NW2d 713 (2000).
In addition, MCR 6.125(B) states that “[t]he issue of the defendant’s competence to stand trial or
to participate in other criminal proceedings may be raised at any time during the proceedings
against the defendant.” (Emphasis added.)

        In the present case, before trial, defendant filed a petition for a referral to determine his
competency to stand trial. At the hearing on this petition, defendant’s trial counsel stated that
defendant was oriented to time and place and understood the nature of the proceedings against
him and that he filed the petition against defendant’s wishes because he believed that defendant
was unable to assist in his own defense. Although defendant insisted that he was competent, the
trial court ordered that defendant be examined for competency. Following this examination, and
at the hearing on defendant’s competency, defendant stipulated to the admission of the
competency report, and the trial court found that based on this report, defendant was competent
to stand trial. Further, defendant represented himself on the first day of trial, selected his own
jury, examined a witness during an in camera hearing, and participated in an extensive dialogue
with the trial court and prosecution regarding trial witnesses. Therefore, all of the proceedings
before and during trial (including defendant’s own assertions of competency) support a finding
that defendant was competent to understand the nature and object of the proceedings against him
and of assisting in his defense in a rational manner.

        Next, there was nothing in the record from defendant’s original sentencing hearing or
resentencing hearing to indicate that defendant’s competence should have been reevaluated at
anytime thereafter, including before resentencing in this case. According to the Presentence
Investigation Report (“PSIR”), although defendant was diagnosed with Attention Deficit
Disorder, he stopped taking his medication for this disorder. Although the PSIR also stated that
while defendant was in prison for a previous offense he was diagnosed as bipolar, this diagnosis
was never confirmed, and the PSIR concluded that he had no psychiatric history. Defendant did
not challenge the accuracy of this information in the PSIR, and at defendant’s original sentencing
hearing he admitted that he had never been diagnosed with bipolar disorder. Further, defendant
did not argue that his mental health history rendered him incompetent to participate in the
original sentencing or the resentencing; he simply argued that this history should support a
sentence at the low end of the sentencing guidelines and that he should receive treatment while in
prison. In addition, defendant addressed the victim’s family in a cogent and coherent manner at
his original sentencing hearing and responded to the trial court in a coherent manner at both his
original sentencing and resentencing hearings. Therefore, both the original sentencing and
resentencing proceedings support a finding that defendant continued to be competent to
understand the nature and object of the proceedings against him and of assisting in his defense in
a rational manner. In sum, because there is nothing in the record to indicate that defendant was
incompetent to participate in resentencing, defendant cannot establish that his trial counsel was


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ineffective for failing to request a competency hearing before sentencing or resentencing. Mette,
243 Mich App at 332 n 8. We also note that to the extent defendant argues that his trial
counsel’s failure to pursue an insanity defense at the time of sentencing deprived him of his
constitutional right to present a defense and rendered his trial counsel ineffective, this claim is
not supported by law because insanity is an affirmative defense that is asserted at trial. MCL
768.21a(1).

        Next, defendant argues that he was denied his constitutional right to be sentenced
according to accurate information because the trial court failed to consider his mental health
history at the time he was resentenced. This unpreserved claim is reviewed for plain error
affecting defendant’s substantial rights. Carines, 460 Mich at 763-764. If a minimum sentence
is within the appropriate guidelines sentence range, this Court “shall affirm that sentence and
shall not remand for resentencing absent an error in scoring the sentencing guidelines or
inaccurate information relied upon in determining the defendant’s sentence.” MCL 769.34(10).
See also People v Babcock, 469 Mich 247, 261; 666 NW2d 231 (2003). In addition, MCR
6.425(A)(1)(e) requires that a PSIR include “the defendant’s medical history, substance abuse
history, if any, and, if indicated, a current psychological or psychiatric report[.]” A PSIR “is
presumed to be accurate and may be relied on by the trial court unless effectively challenged by
the defendant.” People v Callon, 256 Mich App 312, 334; 662 NW2d 501 (2003).

         In the present case, when resentencing defendant, the trial court considered and relied on
the information in the PSIR, and as stated above, defendant did not challenge the accuracy of any
of the information in the PSIR regarding his mental health. In addition, when resentencing
defendant, the trial court considered and relied on a report from a school psychologist that was
provided by defendant. Finally, when resentencing defendant, the trial court relied on
defendant’s arguments regarding his mental health history. The trial court then resentenced
defendant within the guidelines. Therefore, the record does not support defendant’s argument
that the trial court relied on inaccurate information when it resentenced defendant because it
failed to consider defendant’s need for mental health treatment in determining an appropriate
sentence. Callon, 256 Mich App at 334. Further, because defendant was sentenced based on
accurate information, his due process rights were not violated. And, because there was no error
with defendant’s new sentence, defendant is not entitled to resentencing and the issue of
reassignment of this case for resentencing is moot. People v Cathey, 261 Mich App 506, 510;
681 NW2d 661 (2004).

       We note that to the extent defendant also argues that the trial court failed to consider his
mental health history as a mitigating factor when sentencing him, this argument also fails
because a sentence within the guidelines range is presumed to be proportionate. Babcock, 469
Mich at 261; Powell, 278 Mich App at 323.

        Finally, we note that defendant requests that we remand the case to the trial court for
evidentiary hearings on the issues of judicial bias and ineffective assistance of counsel.
Defendant did not file an appropriate or timely motion to remand pursuant to MCR 7.211(C)(1).
In addition, for all of the reasons stated herein, defendant’s claims of judicial bias and ineffective
assistance of counsel are not meritorious and a further factual record is not necessary for



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resolution of these claims on appeal. Therefore, we deny defendant’s request for remand for
evidentiary hearings.

        We remand for further proceedings consistent with this opinion. We do not retain
jurisdiction.

                                                        /s/ Jane E. Markey
                                                        /s/ David H. Sawyer
                                                        /s/ Donald S. Owens




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