                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   January 16, 2018
              Plaintiff-Appellee,

v                                                                  No. 334081
                                                                   Oakland Circuit Court
SHANNON GARRETT WITHERSPOON,                                       LC No. 2016-257358-FC

              Defendant-Appellant.


Before: TALBOT, C.J., and MURRAY and O’BRIEN, JJ.

PER CURIAM.

       Defendant appeals as of right his jury trial conviction for assault with intent to murder,
MCL 750.83. The trial court sentenced defendant as a fourth-offense habitual offender, MCL
769.12(1)(a), to 25 to 50 years’ imprisonment. We affirm.

        Defendant asserts that his 25-year mandatory minimum sentence, imposed under MCL
769.12(1)(a), unconstitutionally violates the separation of powers clause by restricting or
eliminating the trial judge’s sentencing discretion. We disagree. “For an issue to be preserved
for appellate review, it must be raised, addressed, and decided by the lower court.” People v
Metamora Water Serv, Inc, 276 Mich App 376, 382; 741 NW2d 61 (2007). At sentencing,
defendant questioned the mandatory 25-year sentence only in the context of the prosecution’s
unwillingness to offer a plea deal. Because defendant did not raise an objection regarding the
constitutionality of the statutorily mandated sentence, the issue is not preserved for appellate
review. Unpreserved constitutional issues are reviewed “for plain error affecting [a] defendant’s
substantial rights.” People v Henry (After Remand), 305 Mich App 127, 152; 854 NW2d 114
(2014).

        In accordance with MCL 769.12(1)(a), defendant was sentenced to 25 to 50 years’
imprisonment for his conviction of assault with intent to commit murder, MCL 750.83.
Defendant acknowledges on appeal that his current conviction and prior felony record meet the
statutory requirements for the imposition of MCL 769.12(1)(a). Defendant’s contention is that
the statute is constitutionally infirm because it violates the separation of powers clause by
impermissibly restricting or precluding a trial judge’s sentencing authority and discretion.

       At the outset, we recognize that “[s]tatutes are presumed to be constitutional and must be
so construed unless their unconstitutionality is readily apparent.” People v Russell, 266 Mich


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App 307, 310; 703 NW2d 107 (2005) (citation and quotation marks omitted). The separation of
powers doctrine is set forth in Const 1963, art 3, § 2 as follows:

       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.

As explained by this Court, the separation of powers doctrine

       does not mean . . . that all three branches must be kept completely separate, with
       no overlap of functions or powers. Rather, the evil to be avoided is the
       accumulation in one branch of the powers belonging to another. Thus, the
       impetus behind the separation of powers doctrine is that where the whole power
       of one department is exercised by the same hands which possess the whole power
       of another department, the fundamental principles of a free constitution are
       subverted. [People v Conat, 238 Mich App 134, 146; 605 NW2d 49 (1999)
       (citations and quotation marks omitted).]

        The Michigan Constitution also addresses criminal sentencing, stating that “[t]he
legislature may provide for indeterminate sentences as punishment for crime and for the
detention and release of persons imprisoned or detained under such sentences.” Const 1963, art
4, § 45. Consequently, “the ultimate authority to provide for penalties for criminal offenses is
constitutionally vested in the Legislature.” People v Hegwood, 465 Mich 432, 436; 636 NW2d
127 (2001); see also People v Raihala, 199 Mich App 577, 579 n 1; 502 NW2d 755 (1993)
(“[T]he power to establish sentences, including indeterminate sentences, is an exclusively
legislative function.”).

         It is the judiciary, however, that acts to impose criminal sentences and to administer the
sentencing statutes that are enacted by the Legislature. Hegwood, 465 Mich at 436-437. When
imposing a sentence, the judiciary is empowered to exercise discretion. Conat, 238 Mich App at
147. “However, this sentencing discretion is limited by the Legislature, which has the power to
establish sentences.” Id.; see also Hegwood, 465 Mich at 440 (“[T]he Legislature may impose
restrictions on a judge’s exercise of discretion in imposing [a] sentence.”). “[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.” People v Garza, 469 Mich 431, 434; 670 NW2d
662 (2003).

        Defendant is mistaken when he asserts that the minimum mandatory penalty of MCL
769.12(1)(a) violates the separation of powers doctrine because it invades the discretion of trial
courts in sentencing. The Legislature, through enactment of MCL 769.12(1)(a), decided to limit
the discretion that is available to the sentencing courts. See Garza, 469 Mich at 434. The
mandatory minimum penalty prescribed by MCL 769.12(1)(a) is merely the result of the
Legislature’s decision to limit the discretion of the sentencing court and the execution of its
constitutional authority to ascertain and fix the penalty for a criminal offense. Hegwood, 465
Mich at 436; Garza, 469 Mich at 434. Because the Legislature clearly has the constitutional

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authority to limit a trial court’s sentencing discretion with regard to habitual offenders,
defendant’s sentence does not violate the separation of powers doctrine.

        Next, defendant contends that the imposition of a mandatory 25-year minimum sentence
under MCL 769.12(1)(a) is unconstitutional because it amounts to cruel or unusual punishment.
Defendant failed to preserve this claim by objecting to the trial court’s imposition of the
statutorily required 25-year mandatory sentence as cruel or unusual punishment, so we review
defendant’s challenge “for plain error affecting defendant’s substantial rights.” Henry, 305 Mich
App at 152.

       MCL 769.12 provides, in relevant part:

                (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.

Defendant does not dispute that his current conviction of assault with intent to murder, MCL
750.83, meets the statutory criteria of a “serious crime,” or that his prior felony convictions
satisfy the statutory requirements of MCL 769.12(1)(a). Rather, he only challenges the
constitutionality of the statutory provision, asserting it constitutes cruel or unusual punishment in
the circumstances of his case.

       As recognized in Benton, 294 Mich App at 204:

       The Michigan Constitution prohibits cruel or unusual punishment, Const 1963, art
       1, § 16, whereas the United States Constitution prohibits cruel and unusual
       punishment, US Const Am VIII. If a punishment “passes muster under the state
       constitution, then it necessarily passes muster under the federal constitution.”
       People v Nunez, 242 Mich App 610, 618-619 n 2; 619 NW2d 550 (2000).

“In deciding if punishment is cruel or unusual, this Court looks to the gravity of the offense and
the harshness of the penalty, comparing the punishment to the penalty imposed for other crimes
in this state, as well as the penalty imposed for the same crime in other states.” People v
Bowling, 299 Mich App 552, 557-558; 830 N2d 800 (2013).

       A conviction for assault with intent to murder comprises “a felony, punishable by
imprisonment . . . for life or any number of years.” MCL 750.83. It is important to initially
recognize that defendant’s 25-year mandatory minimum sentence does not comprise a departure
from the guidelines range of 171 months to 570 months. “A sentence within the guidelines range

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is presumptively proportionate, and a proportionate sentence is not cruel or unusual.” Bowling,
299 Mich App at 558. “ ‘In order to overcome the presumption that the sentence is
proportionate, a defendant must present unusual circumstances that would render the
presumptively proportionate sentence disproportionate.’ ” Id., quoting People v Lee, 243 Mich
App 163, 187; 622 NW2d 71 (2000). Defendant is unable to meet this requirement.

        In contending that the imposition of the mandatory minimum sentence for his status as a
habitual offender is disproportionate to the circumstances of this case, defendant posits that,
although his crime was violent, it was the product of defendant’s mental illness and beyond his
control. Defendant further asserts that it is unlikely that he would commit such a violent crime
again and that there is little rehabilitative potential afforded by the sentence. However,
defendant’s arguments and reasons do not rise to the level of “unusual circumstances” sufficient
to overcome the presumption of proportionality. Bowling, 299 Mich App at 558.

        While defendant has mental health issues, the Forensic Center found him competent to
stand trial. At sentencing, defendant implied that his behavior and attack on Smith was
attributable to his election to discontinue his prescribed medication and self-medicate through the
use of alcohol and illegal drugs. This does not constitute an unusual circumstance, nor serve to
defend or excuse defendant’s behavior. Defendant voluntarily elected to forego his prescribed
medication and self-medicate with illegal drugs and alcohol, and the enactment of MCL 768.37
abolished the use of voluntary intoxication as a defense. Therefore, defendant’s contention that
he had no control over his mental illness and resultant behavior is meritless.

        In addition, defendant has a prolonged and varied criminal history, including numerous
drug and alcohol-related offenses, an assault with intent to rob in 1998, and bank robbery in
2009. This history, combined with his use of alcohol and cocaine immediately before the current
assault on Smith, does not comport with defendant’s assertion that a future violent crime is
highly unlikely. Defendant’s criminal record serves to demonstrate that he has previously
engaged in violent crimes, with the trajectory of those crimes evidencing an increase in severity
and violence.

       Defendant also asserts that imposition of the mandatory minimum sentence provides little
or no opportunity for defendant’s rehabilitation. However, defendant commensurately ignores
that his extensive criminal history calls into serious question his rehabilitative potential.
According to the PSIR, defendant’s criminal history or contacts with police initiated when he
was 17 years of age; at the time of sentencing, defendant was 47 years old. Despite previous
opportunities for probation and parole, defendant has continued and escalated in his criminal
behavior, and his use of illegal substances has not abated. “Defendant has failed to demonstrate
anything about his rehabilitative potential that overcomes the presumption of proportionality.”
People v Powell, 278 Mich App 318, 324; 750 NW2d 607 (2008). “Because defendant has not
overcome the presumption of proportionality, and because a proportionate sentence is not cruel
or unusual, defendant has not established a constitutional violation.” Id.

        Further, defendant fails to identify or explain how his crime and criminal history render
his sentence to be disproportionate. Defendant acknowledges that his current conviction was the
result of a violent assault on Smith, wherein Smith incurred approximately 12 stab wounds.
Contrary to defendant’s contention, testimony at trial confirms that defendant was the aggressor

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in this situation and that no immediately identifiable preceding event could account for his
behavior. Defendant has failed to explain or provide this Court with citation to any authority to
substantiate that his sentence is “abnormally harsh” when compared to other crimes and other
states. Bowling, 299 Mich App at 559. “[A]n appellant may not simply announce a position or
assert an error and then leave it up to this Court to discovery 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.” Id. at 559-560. Further, given the violent nature of defendant’s
crime and the statutory penalty associated with it of imprisonment “for life or any number of
years,” MCL 750.83, a minimum sentence of 25 years is not conspicuously disproportionate.

       Affirmed.

                                                           /s/ Michael J. Talbot
                                                           /s/ Christopher M. Murray
                                                           /s/ Colleen A. O'Brien




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