                            STATE OF MICHIGAN

                             COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     July 28, 2015
                 Plaintiff-Appellee,

v                                                                    No. 321842
                                                                     Kent Circuit Court
KENNETH EDWARD BOLTON, III,                                          LC No. 13-009772-FC

                 Defendant-Appellant.


Before: SERVITTO, P.J., and BECKERING and BOONSTRA, JJ.

PER CURIAM.

       Defendant appeals as of right his jury trial conviction of first-degree criminal sexual
conduct (CSC), MCL 750.520b(1)(f) (force or coercion; personal injury).1 Defendant was
sentenced as a second-offense habitual offender, MCL 769.10, to 28 to 90 years’ imprisonment.
We affirm.

        At approximately 11:00 p.m. on September 29, 2013, defendant met the victim, a 50-
year-old woman, near St. James Catholic Church, which is located in Grand Rapids, Michigan.
Defendant and the victim had never met each other before that time. Defendant asked the victim
whether she had a cellular telephone he could use. After she answered no, defendant hit her in
the head and dragged her by her hair and hooded sweatshirt into a field near the church. Then,
defendant pulled the victim’s pants down, took off her shoes and underwear, and told her to put a
condom on him. She complied. Defendant then put his penis inside the victim’s vagina. The
victim testified that she never consented to sex with defendant.

        Shaine Cartwright and Scott Burkman left their apartment at approximately 11:00 p.m.
that night. Their apartment was across the street from the church. As they walked outside, they
heard a woman’s “blood curdling screams” coming from behind the church. Cartwright knew
Christopher Wright, a clergyman who was living in the rectory of the church. Cartwright called
Wright and Wright went outside. He saw defendant thrusting on top of a woman, and the
woman was screaming for help. Wright called 911 and the police arrived. Adam Ickes was the
police officer who arrested defendant. Defendant gave several inconsistent accounts to Ickes of


1
    Defendant was acquitted of a second count of first-degree CSC.


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events that night. For example, defendant told Ickes that the victim was his girlfriend, but then
told him she was a prostitute. A medical examination of the victim indicated that she suffered
over 20 injuries on her body resulting from defendant. At trial, defendant maintained that the
victim was a prostitute and that she consented to have sex with him in exchange for $15.

        Before trial, the prosecution offered defendant a dismissal of the second count of first-
degree CSC and dismissal of the supplemental information charging defendant as a second-
offense habitual offender, in exchange for defendant pleading guilty to the first count of first-
degree CSC. The prosecution estimated that defendant’s minimum sentence range under the
legislative guidelines would be 108 to 180 months without the supplemental information, but
would be 108 to 225 months with the supplemental information. Defendant’s counsel stated that
he believed that the prosecution’s estimate of the minimum sentence ranges was correct. At
sentencing, after scoring the prior record variables (PRVs) and the offense variables (OVs), the
trial court determined that defendant’s minimum sentence range under the legislative guidelines
was 171 to 356 months.

        Defendant first argues that his counsel was ineffective for estimating during plea
negotiations that defendant’s recommended sentence range would be 108 to 225 months with the
supplemental information charging defendant as a second-offense habitual offender. Because no
evidentiary hearing has been held on defendant’s claim, our review of the claim is limited to
facts on the record. People v Wilson, 242 Mich App 350, 352; 619 NW2d 413 (2000). “In all
criminal prosecutions, the accused shall enjoy the right to . . . the Assistance of Counsel for his
defense.” US Const, Am VI. “[T]he right to counsel is the right to effective assistance of
counsel.” Strickland v Washington, 466 US 668, 686; 104 S Ct 2052; 80 L Ed 2d 674 (1984)
(quotation marks omitted). “[T]he proper standard for attorney performance is that of reasonably
effective assistance.” Id. at 687. Michigan law does not grant a different level of protection with
regard to assistance of counsel from that of federal law. People v Pickens, 446 Mich 298, 318;
521 NW2d 797 (1994). A defendant is entitled to effective assistance of counsel both at trial and
“in the plea-bargaining process.” People v Douglas, 496 Mich 557, 591-592; 852 NW2d 587
(2014), citing Lafler v Cooper, 566 US ___, ___; 132 S Ct 1376, 1384; 182 L Ed 2d 398 (2012).

        In a claim for ineffective assistance of counsel, the defendant has the burden of showing
“that counsel made errors so serious that counsel was not functioning as the counsel guaranteed
the defendant by the Sixth Amendment . . . .” People v LeBlanc, 465 Mich 575, 578; 640 NW2d
246 (2002) (quotation marks omitted). Specifically, counsel’s performance must fall “below an
objective standard of reasonableness.” Strickland, 466 US at 688. Second, the defendant must
show that “the deficient performance prejudiced the defense.” LeBlanc, 465 Mich at 578
(quotation marks omitted). To show such prejudice in the context of the plea-bargaining process,

       a defendant must show that but for the ineffective advice of counsel there is a
       reasonable probability that the plea offer would have been presented to the court
       (i.e., that the defendant would have accepted the plea and the prosecution would
       not have withdrawn it in light of intervening circumstances), that the court would
       have accepted its terms, and that the conviction or sentence, or both, under the
       offer’s terms would have been less severe than under the judgment and sentence
       that in fact were imposed. [Douglas, 496 Mich at 592, quoting Lafler, 566 US at
       __; 132 S Ct at 1385.]

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        However, a defense counsel’s performance at plea negotiations does not fall “below an
objective standard of reasonableness,” Strickland, 466 US at 688, merely because counsel
incorrectly predicted the defendant’s sentence; rather, “[c]ounsel’s incorrect prediction
concerning defendant’s sentence . . . is not enough to support a claim of ineffective assistance of
counsel.” In re Oakland Co Prosecutor, 191 Mich App 113, 124; 447 NW2d 455 (1991).

       Based upon In re Oakland Co Prosecutor, 191 Mich App at 124, defense counsel’s
agreement with the prosecution’s stated estimate of the minimum sentence guidelines did not
amount to a performance that fell “below an objective standard of reasonableness.” Strickland,
466 US at 688. Furthermore, even if counsel did err in making this estimate, defendant has not
shown that this performance “prejudiced the defense,” LeBlanc, 465 Mich at 578, because he has
not shown that “but for the ineffective advice of counsel there is a reasonable probability that . . .
[he] would have accepted the plea . . . .” Douglas, 496 Mich at 592.

        There is no indication on the record that defendant would have accepted the prosecution’s
plea offer even if he had known exactly what his guidelines range would be after losing at trial.
Defendant rejected the plea offer and chose to go to trial immediately after the prosecution made
its offer, even though the trial court told defendant that he could have five minutes with his
counsel to discuss the matter. Defendant indefatigably maintained his own innocence throughout
trial. And, at his sentencing hearing, defendant stated that he hoped that “one day someone will
apologize to me . . . for what’s been done to me.”

       Indeed, “the record amply supports the conclusion that, even had the defendant been
properly advised of the consequences he faced if convicted at trial, it was not reasonably
probable that he would have accepted the prosecution’s plea offer” because he maintained his
own innocence throughout the proceedings and appeared to never even consider the possibility
of accepting a plea. Douglas, 496 Mich at 598. Therefore, defendant has not shown that “but for
the ineffective advice of counsel there is a reasonable probability that . . . [he] would have
accepted the plea . . . .” Douglas, 496 Mich at 592. Defendant’s claim of ineffective assistance
of counsel is without merit.

       Defendant next argues that the prosecution committed misconduct by being
presumptively vindictive by arguing at sentencing for an increase in defendant’s OV score. We
review this unpreserved claim of error for plain error affecting defendant’s substantial rights.
People v Carines, 460 Mich 750, 764; 597 NW2d 130 (1999). “[T]he test for prosecutorial
misconduct is whether a defendant was denied a fair and impartial trial.” People v Dobek, 274
Mich App 58, 63; 732 NW2d 546 (2007).

        Defendant argues in the alternative that his right to due process was violated when the
prosecution did not keep its word to defendant, thereby misleading him into believing his
guidelines range would not exceed 225 months, even after trial. “[F]undamental fairness
requires that promises made during plea-bargaining and analogous contexts be respected . . . .”
Ryan, 451 Mich at 41 (quotation omitted). The prosecution violates a defendant’s right to due
process when it punishes him “for asserting a protected statutory or constitutional right.” People
v Ryan, 451 Mich 30, 35; 545 NW2d 612 (1996). This is known as prosecutorial vindictiveness.
Id. at 36. However, the fact that the prosecution merely argued at sentencing for a change in the


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scoring of defendant’s OVs does not warrant a presumption of prosecutorial vindictiveness. Cf.
People v Goeddeke, 174 Mich App 534, 537; 436 NW2d 407 (1988).

        In this case, defendant has failed to indicate what “promise” was made by the prosecution
and in what way it failed to keep its word to defendant and has, therefore, abandoned this
argument. See, e.g., People v Kevorkian, 248 Mich App 373, 389; 639 NW2d 291 (2001). The
prosecution stated what it had “estimated” defendant’s guidelines range to be and indicated that
upon a successful plea, it would make a sentencing recommendation that the trial court stay
within the estimated guidelines. While the estimated guidelines were apparently incorrectly
estimated, there is no indication that the prosecution gave its word that they were correct.
Moreover, if defendant intends to argue that the prosecution failed to keep a promise to not seek
to increase defendant’s guidelines range beyond what was estimated at plea negotiations, there is
no indication on the record that the prosecution ever made such a promise. Because the factual
predicate for defendant’s argument is unsupported, his argument necessarily fails. See, People v
Geno, 261 Mich App 624, 629; 683 NW2d 687 (2004).

       Finally, defendant argues that the trial court erred in assessing 50 points for OV 7
(aggravated physical abuse). A trial court’s factual determinations in scoring the sentencing
guidelines are reviewed for clear error and must be supported by a preponderance of the
evidence. People v Hardy, 494 Mich 430, 438; 835 NW2d 340 (2013). “The clear error
standard asks whether the appellate court is left with a definite and firm conviction that a mistake
has been made.” People v Rhodes, 495 Mich 938, 938; 843 NW2d 214 (2014).

        A score of 50 points for OV 7 is appropriate where “[a] victim was treated with sadism,
torture, or excessive brutality or conduct designed to substantially increase the fear and anxiety a
victim suffered during the offense.” MCL 777.37(1)(a). “A trial court can properly assess 50
points under OV 7 if it finds that a defendant’s conduct falls under one of the four categories of
conduct listed in [MCL 777.37(1)(a)].” Hardy, 494 Mich at 439-440. Although the Legislature
did not define “excessive brutality,” in MCL 777.37, this Court has previously interpreted the
term to mean “savagery or cruelty beyond even the ‘usual’ brutality of a crime.” People v
Glenn, 295 Mich App 529, 533; 814 NW2d 686 (2012), rev’d on other grounds Hardy, 494 Mich
430.

         A preponderance of the evidence supported the trial court’s finding that defendant treated
the victim with excessive brutality. Hardy, 494 Mich at 438. Conviction of first-degree CSC
under MCL 750.520b(1)(f) required defendant to cause “personal injury” to the victim and use
“force or coercion . . . to accomplish sexual penetration.” MCL 750.520b(1)(f). The victim here
testified that defendant hit her in the head, that she fell to the ground, and that defendant dragged
her by her hair and her hooded sweatshirt into a field. She testified that defendant told her as he
dragged her that he would “screw [her] in the ass,” that he pulled some of her hair out, and that
when they arrived in the field defendant continuously hit her. A medical examination of the
victim revealed that she had more than 20 injuries and that these injuries were not inconsistent
with defendant having dragged, beaten, and sexually assaulted her.

       This is beyond mere “personal injury” and “force or coercion . . . to accomplish sexual
penetration.” MCL 750.520b(1)(f). Defendant dragged, beat, and threatened the victim far
beyond what was necessary to commit first-degree CSC pursuant to MCL 750.520b(1)(f). Thus,

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a preponderance of the evidence suggests that defendant’s brutality exceeded what was required
for him to commit first-degree CSC pursuant to MCL 750.520b(1)(f). Glenn, 295 Mich App at
533; Hardy, 494 Mich at 443. Because a preponderance of the evidence supports a finding that
defendant treated the victim with excessive brutality, the trial court did not clearly err in
assessing 50 points for OV 7. Hardy, 494 Mich at 438.

       Affirmed.

                                                         /s/ Deborah A. Servitto
                                                         /s/ Jane M. Beckering
                                                         /s/ Mark T. Boonstra




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