                          STATE OF MICHIGAN

                           COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   October 25, 2018
              Plaintiff-Appellee,

v                                                                  No. 339505
                                                                   Branch Circuit Court
JAMIE LYNN COYLE,                                                  LC No. 16-081816-FC

              Defendant-Appellant.


Before: BOONSTRA, P.J., and O’CONNELL and TUKEL, JJ.

PER CURIAM.

        A jury convicted defendant of five counts of second-degree criminal sexual conduct
(CSC-II) under MCL 750.520c(1)(b)(i) or (iii) (sexual contact with a person between 13 and 15
years of age when the actor was a member of the same household as the victim or the actor used
his/her position of authority over the victim). As defendant was a fourth-offense habitual
offender, MCL 769.12, the trial court sentenced defendant to 228 to 480 months’ imprisonment
for each of the five counts, to run concurrently. We affirm.

       This case arises from defendant’s sexual misconduct with the victim, the 13-year-old
daughter of his girlfriend.

       Defendant contends on appeal that he was denied due process of law because the trial
court did not advise him of his right to testify, depriving him of the opportunity to make a
voluntary, informed decision. We disagree.

        “Constitutional questions . . . are reviewed de novo.” People v Pipes, 475 Mich 267, 274;
715 NW2d 290 (2006). But because defendant failed to preserve his claim of constitutional
error, our review is for plain error affecting defendant’s substantial rights. Id.

        A criminal defendant has a constitutional right to testify in his own defense. Rock v
Arkansas, 483 US 44, 51-52; 107 S Ct 2704; 97 L Ed 2d 37 (1987); People v Bonilla-Machado,
489 Mich 412, 419; 803 NW2d 217 (2011). “Although counsel must advise a defendant of this
right, the ultimate decision whether to testify at trial remains with the defendant.” Bonilla-
Machado, 489 Mich at 419. If the defendant “decides not to testify or acquiesces in his
attorney’s decision that he not testify, the right will be deemed waived.” People v Simmons, 140
Mich App 681, 685; 364 NW2d 783 (1985) (quotation marks and citation omitted).

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        In People v Harris, 190 Mich App 652, 661-662; 476 NW2d 767 (1991), this Court held
that the trial court has no duty to advise a defendant of the right to testify on one’s own behalf.
Harris further held that, at trial, a court is not required to determine whether a defendant’s failure
to testify was the result of a knowing and intelligent waiver of that right. Id. Defendant
acknowledges Harris but requests that we overrule it. However, Harris is binding precedent,
and even if we were inclined to agree with defendant (and we are not), we could not overrule it.
MCR 7.215(J)(1).

        First and foremost, defendant provides no support for his position that Harris should be
overruled. Second, this Court has adhered to the view set forth in Harris since 1985. See
Simmons, 140 Mich App at 684 (“We agree with the majority of courts which have addressed
this issue and decline to require an on-the-record waiver of defendant’s right to testify. Such a
requirement would necessarily entail the trial court’s advising defendant of his right to testify.”).
And third, subsequent panels of this Court have cited Harris for the proposition that the trial
court has no duty to inquire as to whether defendant made a knowing and intelligent waiver of
the right to testify. See, e.g., People v Bell, 209 Mich App 273, 277; 530 NW2d 167 (1995)
(“Defendant’s argument that the trial court should have ascertained on the record whether he
intelligently and knowingly waived his right to testify is without merit. The court has no such
duty.”). In fact, we could find no case questioning the holding and no negative treatment of the
decision, nor does defendant present any. Accordingly, not only are we bound by Harris, but we
also decline to question its holding and decline to call for a conflict panel. See MCR
7.215(J)(2).1

       Affirmed.

                                                              /s/ Mark T. Boonstra
                                                              /s/ Peter D. O'Connell
                                                              /s/ Jonathan Tukel




1
  Defendant also makes a curious reference in his brief on appeal that defense counsel acted
unreasonably in not allowing defendant to testify at trial. However, defendant also concedes that
he cannot meet the necessary prejudice requirement to succeed on an ineffective assistance of
counsel claim. See People v Rockey, 237 Mich App 74, 76; 601 NW2d 887 (1999). Therefore,
to the extent defendant is raising such a claim, that claim is waived.


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