                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     December 18, 2018
               Plaintiff-Appellee,

v                                                                    No. 339229
                                                                     Macomb Circuit Court
TONEY M. WILLIAMS,                                                   LC No. 2016-001926-FC

               Defendant-Appellant.


Before: M. J. KELLY, P.J., and METER and O’BRIEN, JJ.


        Defendant, Toney Williams, appeals as of right his jury trial conviction for assault with
intent to do great bodily harm less than murder, MCL 750.84, and his mandatory minimum
sentence of 25 years’ imprisonment as a fourth-offense habitual offender, MCL 769.12(1)(a).
For the reasons stated in this opinion, we affirm.

                             I. SUFFICIENCY OF THE EVIDENCE

                                  A. STANDARD OF REVIEW

        Williams first argues that the prosecution failed to prove beyond a reasonable doubt that
he was not acting in self-defense. “A challenge to the sufficiency of the evidence in a jury trial is
reviewed de novo, viewing the evidence in the light most favorable to the prosecution, to
determine whether the trier of fact could have found that the essential elements of the crime were
proved beyond a reasonable doubt.” People v Gaines, 306 Mich App 289, 296; 856 NW2d 222
(2014). “All conflicts in the evidence must be resolved in favor of the prosecution, and
circumstantial evidence and all reasonable inferences drawn therefrom can constitute satisfactory
proof of the crime.” People v Solloway, 316 Mich App 174, 180-181; 891 NW2d 255 (2016)
(citation omitted). “This Court will not interfere with the trier of fact’s determinations regarding
the weight of the evidence or the credibility of witnesses.” People v Stevens, 306 Mich App 620,
628; 858 NW2d 98 (2014).

                                          B. ANALYSIS

       Self-defense is an affirmative defense. People v Dupree, 486 Mich 693, 707; 788 NW2d
399 (2010). “A defendant asserting an affirmative defense must produce some evidence on all
elements of the defense before the trial court is required to instruct the jury regarding the
affirmative defense.” People v Guajardo, 300 Mich App 26, 35-36; 832 NW2d 409 (2013)

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(quotation marks and citation omitted). “Once a defendant raises the issue of self-defense and
satisfies the initial burden of producing some evidence from which a jury could conclude that the
elements necessary to establish a prima facie defense of self-defense exist, the prosecution must
exclude the possibility of self-defense beyond a reasonable doubt.” Stevens, 306 Mich App at
630 (quotation marks and citation omitted).

      The elements of self-defense are codified in the Self-Defense Act, MCL 780.971 et seq.
See Dupree, 486 Mich at 708. The act provides, in pertinent part:

               (1) An individual who has not or is not engaged in the commission of a
       crime at the time he or she uses deadly force may use deadly force against another
       individual anywhere he or she has the legal right to be with no duty to retreat if
       either of the following appears:

               (a) The individual honestly and reasonably believes that the use of deadly
       force is necessary to prevent the imminent death of or imminent great bodily harm
       to himself or herself or to another individual. [MCL 780.972(1).]

        Ample evidence existed in this case to discount Williams’s claim of self-defense. The
victim testified that Williams came up behind him unprovoked and hit him with a pellet gun
before grabbing him and saying “you’re going to die tonight.” The victim testified that, at the
time, he had his back to Williams and was filling up a glass of water. A scuffle ensued that,
according to the victim, resulted in the victim being beaten over the head with a pan, stabbed,
and bitten. He testified that throughout the ordeal, Williams continued to say “you’re going to
die tonight.” Although Williams testified to a different sequence of events, it is not the role of
this Court to interfere with a jury’s “determinations regarding the weight of the evidence or the
credibility of witnesses.” Stevens, 306 Mich App at 628. Thus, in light of the victim’s
testimony, a reasonable jury could find beyond a reasonable doubt that Williams attacked the
victim and did not honestly and reasonably believe the use of force was necessary for self-
defense. Accordingly, Williams’s sufficiency of the evidence argument is without merit.

                                       II. SENTENCING

                                 A. STANDARD OF REVIEW

        Williams next raises a number of sentencing issues. Generally, “[t]o preserve a
sentencing issue for appeal, a defendant must raise the issue ‘at sentencing, in a proper motion
for resentencing, or in a proper motion for remand filed in the court of appeals.’ ” People v
Clark, 315 Mich App 219, 223-224; 888 NW2d 309 (2016) (citation omitted). Here, although
Williams generally objected to the prosecution’s last-minute motion to amend the notice of intent
at sentencing, he failed to raise any of the arguments now raised on appeal before the trial court
or in the motion to remand filed with this Court. Accordingly, the sentencing issues raised on
appeal are unpreserved, and we review the challenge for plain error affecting Williams’s
substantial rights. See People v Pipes, 475 Mich 267, 270; 715 NW2d 290 (2006).




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                                         B. ANALYSIS

        It is undisputed that Williams’s criminal history is sufficient to trigger a 25-year
mandatory minimum enhanced sentence under MCL 769.12(1)(a). However, Williams contends
that the trial court erred by imposing such a sentence because the prosecution provided him with
a timely, but procedurally inaccurate notice of intent to seek enhanced sentencing. We disagree.

       MCL 769.12 provides:

                (1) If a person has been convicted of any combination of 3 or more
       felonies or attempts to commit felonies, whether the convictions occurred in this
       state or would have been for felonies or attempts to commit felonies in this state if
       obtained in this state, and that person commits a subsequent felony within this
       state, the person shall be punished upon conviction of the subsequent felony and
       sentencing under section 13 of this chapter as follows:

               (a) If the subsequent felony is a serious crime or a conspiracy to commit a
       serious crime, and 1 or more of the prior felony convictions are listed prior
       felonies, the court shall sentence the person to imprisonment for not less than 25
       years. Not more than 1 conviction arising out of the same transaction shall be
       considered a prior felony conviction for the purposes of this subsection only.
       [MCL 769.12(1)(a).]

In order to seek the enhanced sentence under MCL 769.12(1)(a), the prosecution must file “a
written notice of his or her intent to do so 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.” MCL 769.13(1).

        In showing that Williams had committed three or more felonies as required by MCL
769.12(1), the prosecution referenced a February 1, 1991 armed robbery conviction, a February
1, 1991 felony-firearm conviction, and an October 1, 1985 armed robbery conviction. The use of
the felony-firearm conviction created some confusion at sentencing as it was unclear to the trial
court whether the felony-firearm conviction arose out of the same transaction as the February 1,
1991 armed robbery conviction. See MCL 769.12(1)(a) (in determining whether the mandatory
minimum sentence applies, not more than one conviction arising out of the same transaction may
be considered).

        Yet, as is clear from Williams’s presentence investigative report (PSIR), Williams had
been convicted of more than three felonies such that MCL 769.12 was applicable. On February
1, 1991, Williams was convicted of two counts of armed robbery and two corresponding counts
of felony-firearm for separate crimes that occurred between September 5, 1990, and September
6, 1990. Nevertheless, because the prosecution failed to specify that the felony-firearm
conviction cited in the notice of intent was unrelated to the armed robbery conviction cited in the
notice, the trial court found that the notice was defective. In essence, the trial court’s holding
suggested that the notice would only have been proper if the prosecution either 1) listed other
convictions, or 2) listed the lower court file numbers so that it might be clear that the armed
robbery and felony-firearm convictions arose out of separate transactions. No law was cited by

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the court or either of the parties to suggest that such a level of specificity was required, and as
such, we conclude that the trial court’s finding was erroneous. The notice of intent clearly
indicates three felony convictions, and when juxtaposed with Williams’s criminal history, it is
clear that he was convicted of two counts of felony-firearm on February 1, 1991, and that one of
those convictions arose out of a separate transaction from the armed robbery conviction also
cited in the notice of intent.

        Moreover, even if the notice was faulty, the trial court granted the prosecution’s motion
to amend it. Williams contends that the late amendment should not have been permitted because
it was prejudicial to him. In support, he relies on three cases: People v Manning, 163 Mich App
641; 415 NW2d 1 (1987),1 overruled in part on other grounds by People v Bailey, 483 Mich 905
(2009), People v Ellis, 224 Mich App 752; 569 NW2d 917 (1997), and People v Hornsby, 251
Mich App 462, 471; 650 NW2d 700 (2002). The cases, however, do not support his position.
Instead, they provide that late amendments to a notice of intent or a felony information do not
frustrate the purpose of the notice requirement contained in MCL 769.13 so long as they do not
seek to impose “more severe adverse consequences.” Hornsby, 251 Mich App at 472. See also
Manning, 163 Mich App at 644-645 (despite a late amendment, the defendant was provided
notice beforehand that the prosecution sought to sentence him as a fourth-offense habitual
offender, and thus the purpose of the notice rule had been effectuated); and Ellis, 224 Mich App
at 757 (finding that a late amendment was impermissible because it materially altered the
potential consequences the defendant faced upon conviction). Here, Williams has failed to show
that the trial court’s allowance of the amendment violated the notice requirement contained in
MCL 769.13(1) insofar as there is nothing to show that the late amendment amounted to the
imposition of more severe adverse consequences. The court did not err by allowing the
amendment.

        Williams next asserts that the trial court erred by allowing the prosecution to make an
oral motion to amend because MCL 769.13(1) only speaks to “filing a written notice.” Williams
relies on People v Holibaugh, 38 Mich App 198; 195 NW2d 881 (1972), which is not binding on
this Court and does not support his argument. In Holibaugh, the defendant was charged with
armed robbery, and later the information was orally amended “to include larceny over $100.”
Holibaugh, 38 Mich App at 199. The defendant contended that “the failure to reduce [the
amendment] to writing inadequately informed him of the charge against him,” but this Court
declined to address the question because the defendant did not object to the amendment at his
arraignment. Id. The Court also concluded that “[a]n examination of the record disclose[d] no
prejudicial error.” Id. Similarly, in this case, Williams did not object to the fact that the
amendment was oral rather than written, and he cannot show that the amendment was
prejudicial. The purpose of the amendment was to clarify that the three felony convictions cited
in the notice of intent arose out of three, separate transactions, but nothing about the amendment
changed the potential consequences of Williams’s convictions. In other words, Williams had




1
  Manning is not binding on this Court as it was issued before November 1, 1990. See MCR
7.215(J)(1).


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notice of the prosecution’s intent to seek the 25-year mandatory minimum based upon his fourth-
offense habitual offender as early as May 26, 2016.

        Williams argues in the alternative that, because MCL 769.12(1)(a) imposes a mandatory
minimum sentence, the notice rules should be more strictly interpreted and no amendment should
ever be permitted outside the 21-day notice window. Williams provides no law to support this
argument, and we conclude that it has been abandoned on appeal. See People v Bowling, 299
Mich App 552, 559-560; 830 NW2d 800 (2013) (stating that failure to properly argue the merits
of an issue results in the issue being abandoned on appeal).

        Williams next contends that the notice of intent to seek the enhanced sentence was not
accompanied with a proof of service, which is required by statute to be filed with the notice.
There is no evidence in the lower court record that a proof of service was ever filed by the
prosecution in relation to the notice of intent, however, at Williams’s arraignment on May 31,
2016, his lawyer acknowledged that she had been handed a copy of the notice of intent to seek an
enhanced sentence. Furthermore, this Court recently held that failure to file a proof of service of
a notice of intent to enhance a defendant’s sentence constitutes harmless error where a defendant
has actual notice and is “not prejudiced in his ability to respond to the habitual offender
notification.” People v Head, 323 Mich App 526, 543-544; 917 NW2d 752 (2018). Thus,
Williams’s claim is without merit as he received actual notice and was not prejudiced by the
prosecution’s failure to file a proof of service.

       Williams next raises two constitutional arguments. First, he contends that the 25-year
mandatory minimum sentence violated the Eighth Amendment prohibition on cruel and unusual
punishments. Second, he argues that the sentencing statute violates the separation of powers
doctrine. We disagree.

        “We review issues of constitutional law de novo.” People v Benton, 294 Mich App 191,
203; 817 NW2d 599 (2011). “Statutes are presumed to be constitutional and must be so
construed unless their unconstitutionality is readily apparent.” People v Russell, 266 Mich App
307, 310; 703 NW2d 107 (2005) (quotation marks and citation omitted). The Eighth
Amendment to the United States Constitution prohibits the infliction of “cruel and unusual
punishments.” US Const, Am VIII. The Michigan Constitution prohibits the infliction of “cruel
or unusual punishment.” Const 1963, art 1, § 16. “If a punishment ‘passes muster under the
state constitution, then it necessarily passes muster under the federal constitution.’ ” Benton, 294
Mich App at 204 (citation omitted). “[W]hether a penalty may be considered cruel or unusual is
to be determined by a three-pronged test that considers (1) the severity of the sentence imposed
and the gravity of the offense, (2) a comparison of the penalty to penalties for other crimes under
Michigan law, and (3) a comparison between Michigan’s penalty and penalties imposed for the
same offense in other states.” Id. at 204. Here, although Williams recites the applicable law in
his brief on appeal, he makes no attempt to analyze the severity of the sentence imposed,
compare the sentence with penalties for other crimes under Michigan law, or compare the
sentence with penalties for the same offense in other states. “As we have repeatedly stated, an
appellant may not simply ‘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.’ ” Bowling, 299


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Mich App at 559-560, quoting People v Kevorkian, 248 Mich App 373, 389; 639 NW2d 291
(2001). Consequently, Williams has abandoned the issue on appeal, and we decline to address it.

        We also conclude that Williams’s separation-of-powers argument is without merit. The
separation of powers doctrine contained in the Michigan Constitution, which provides:

       The powers of government are divided into three branches: legislative, executive
       and judicial. No person exercising powers of one branch shall exercise powers
       properly belonging to another branch except as expressly provided in this
       constitution. [Const 1963, art 3, § 2.]

Williams contends that MCL 769.12(1)(a) violates the doctrine because it aggregates all
sentencing power in the Legislature and denies judges any discretion in sentencing. However,
“the ultimate authority to provide penalties for criminal offenses is constitutionally vested in the
Legislature,” and “the Legislature may impose restrictions on a judge’s exercise of discretion in
imposing [a] sentence.” People v Hegwood, 465 Mich 432, 436, 440; 636 NW2d 127 (2001),
citing Const 1963, art 4, § 45. The Legislature has the authority “to delegate various amounts of
sentencing discretion to the judiciary.” People v Garza, 469 Mich 431, 434; 670 NW2d 662
(2003). “[T]here are offenses with regard to which the judiciary has no sentencing discretion,
offenses about which discretion is sharply limited, and offenses regarding which discretion may
be exercised under the terms set forth in the sentencing guidelines legislation.” Id. at 434. The
mandatory minimum penalty prescribed by MCL 769.12(1)(a) is an example of an offense for
which the judiciary has no discretion based upon the Legislature’s exercise of its constitutional
authority to ascertain and fix the penalty for a criminal offense. Based upon the Legislature’s
authority to limit a trial court’s discretion with regard to particular sentences, the 25-year
mandatory minimum prescribed by MCL 769.12(1)(a) does not violate the separation of powers
doctrine.

       Affirmed.

                                                             /s/ Michael J. Kelly
                                                             /s/ Patrick M. Meter
                                                             /s/ Colleen A. O'Brien




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