            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PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    December 3, 2019
               Plaintiff-Appellee,

v                                                                   No. 342842
                                                                    Clinton Circuit Court
STEVEN ROSS SIMMONS,                                                LC No. 17-009776-FC

               Defendant-Appellant.


Before: CAVANAGH, P.J., and STEPHENS and O’BRIEN, JJ.

PER CURIAM.

STEPHENS, J. (Concurring).

        I concur in the result of this opinion because we are bound by this Court’s decision in
People v Head, 323 Mich App 526. See MCR 7.215(J)(1). While I believe that Head was
wrongly decided, I am aware that our Supreme Court recently declined to grant leave on the
application in People v Straughter, 501 Mich 944; 904 NW2d 633 (2017). People v Straughter,
___ Mich ___; 930 NW2d 384 (2019). In considering the application, the Court asked the
parties to address several questions regarding the filing and service of a request for habitual
offender enhancement including, “(1) whether the harmless error tests articulated in MCR 2.613
and MCL 769.26 apply to violations of the habitual offender notice requirements set forth in
MCL 769.13, compare People v. Cobley, 463 Mich. 893, 618 N.W.2d 768 (2000), with People v.
Johnson, 495 Mich. 919, 840 N.W.2d 373 (2013).” However, unless and until the Supreme
Court overrules or modifies Head, we are bound to follow the rule of law established therein.
MCR 7.215(J)(1). Further, I note that there is no record of the incarcerated defendant in this case
having access to the court file or actual notice of the supplemental filing of the habitual count.
However, the defendant in this case did not explicitly state that he had no notice of the habitual
or that had he been noticed, that he would not have pled nolo contendere. The objection at the
trial court level only noted an objection to the habitual based upon a lack of proof of service.
Therefore, if the burden is placed upon him as Head requires, to show actual harm, defendant has
not met that burden.

                                                            /s/ Cynthia Diane Stephens



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