                             STATE OF MICHIGAN

                              COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                        UNPUBLISHED
                                                                        September 10, 2015
                  Plaintiff-Appellee,

v                                                                       No. 321895
                                                                        Oakland Circuit Court
DANIEL EDWARD SAFRONENKO,                                               LC No. 2013-247831-FH

                  Defendant-Appellant.


Before: TALBOT, C.J., and WILDER and FORT HOOD, JJ.

PER CURIAM.

         Daniel Edward Safronenko appeals as of right his jury trial conviction of first-degree
retail fraud.1 The trial court sentenced Safronenko, a third habitual offender,2 to one year in jail,
with the sentence to be suspended after 30 days upon entry into a zero tolerance program. We
affirm.

        Safronenko argues that he was denied the right to a meaningful allocution at sentencing.
We disagree. Because Safronenko did not preserve this argument by raising it below, our review
is for plain error.3 To be entitled to relief, Safronenko must demonstrate that (1) an error
occurred, (2) the error was plain, i.e., clear or obvious, and (3) the plain error affected his
substantial rights.4 If Safronenko satisfies these three requirements, this Court “must exercise its
discretion in deciding whether to reverse. Reversal is warranted only when the plain, forfeited
error resulted in the conviction of an actually innocent defendant or when an error seriously
affected the fairness, integrity, or public reputation of judicial proceedings independent of the
defendant’s innocence.”5



1
    MCL 750.356c.
2
    MCL 769.11.
3
    People v Carines, 460 Mich 750, 763-764; 597 NW2d 130 (1999).
4
    Id. at 763.
5
    Id. at 763-764 (quotation marks, brackets, and citation omitted).


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        At sentencing, a trial court must, on the record, “give the defendant, the defendant’s
lawyer, the prosecutor, and the victim an opportunity to advise the court of any circumstances
they believe the court should consider in imposing sentence[.]”6 The record shows that the trial
court followed this mandate. Perhaps the most loquacious speaker was Safronenko himself, who
engaged in a thorough discussion with the trial court regarding his employment, housing, family,
past criminal activity, substance abuse, mental health issues, and treatments. Despite this
discussion, Safronenko now argues that he was incompetent at the time of sentencing, and thus,
was denied the right to a meaningful allocution.

         A criminal defendant is presumed competent unless it is determined that “ ‘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.’ ”7 The issue of a
defendant’s competence may be raised by the prosecution, the defense, or the trial court.8 A trial
court is obligated to raise the issue of incompetence sua sponte if facts are brought to its
attention that raise a bona fide doubt regarding whether the defendant is competent.9 “The test
for such a bona fide doubt is whether a reasonable judge, situated as was the trial court judge
whose failure to conduct an evidentiary hearing is being reviewed, should have experienced
doubt with respect to competency to stand trial.”10 “Evidence of a defendant’s irrational
behavior, a defendant’s demeanor, and a defendant’s prior medical record relative to competence
are all relevant in determining whether further inquiry in regard to competency is required.”11

       At sentencing, Safronenko engaged in a coherent and logical discussion with the trial
court. His discussion demonstrated that he was well aware of his past history and his present
circumstances. He expressed his understanding of the charge for which he stood to be sentenced.
He discussed his family, housing, and employment, as well as the effect a jail sentence would
likely have on these areas of his life. Overall, Safronenko’s allocution was a logical and
reasoned discussion of why a lesser sentence would be appropriate. Nothing from Safronenko’s
discussion with the trial court provides the slightest indication that he was incompetent.

       Safronenko argues that, due to his psychiatric history, there was a bona fide doubt with
regard to his competency. This psychiatric history consists of diagnoses of attention deficit
disorder in 1995 and bipolar disorder in 1997. Safronenko was born in 1985, meaning that these
diagnoses were made when he was 10 and 12 years old, respectively. Given that these diagnoses
were made when Safronenko was a child, it is doubtful that the diagnoses are of much relevance


6
    MCR 6.425(E)(1)(c). See also People v Petit, 466 Mich 624, 627; 648 NW2d 193 (2002).
7
  People v Kammeraad, 307 Mich App 98, 137; 858 NW2d 490 (2014), quoting MCL
330.2020(1).
8
    Id. at 138.
9
    Id.
10
     Id. at 138-139 (quotation and brackets omitted).
11
     Id. at 139.


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to his competency as an adult.12 Given Safronenko’s clear and cogent discussion with the trial
court at sentencing, the mere existence of these past diagnoses does not raise a bona fide doubt
regarding Safronenko’s competency.13 Accordingly, Safronenko has not demonstrated error.

       Affirmed.

                                                            /s/ Michael J. Talbot
                                                            /s/ Kurtis T. Wilder
                                                            /s/ Karen M. Fort Hood




12
   Nor does Safronenko offer any explanation of how these conditions would cause him to be
incompetent to speak on his own behalf.
13
   It is worth noting that Safronenko discussed his mental health history with the trial court and
indicated that while he was not currently taking medications on the advice of a counselor, his
treatment with this counselor had “proven to be very helpful.” That Safronenko was aware of his
mental health issues and was actively treating these issues further demonstrates that he was
competent at the time of sentencing.


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