                            STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                      UNPUBLISHED
                                                                      August 4, 2015
               Plaintiff-Appellant,

v                                                                     No. 322857
                                                                      Tuscola Circuit Court
TAMMY LOUISE HARBIN,                                                  LC No. 13-012672-FH

               Defendant-Appellee.


Before: WILDER, P.J., and SHAPIRO and RONAYNE KRAUSE, JJ.

SHAPIRO, J. (concurring).

        I do not agree with the majority’s analysis as I believe it is inconsistent with the United
States Supreme Court’s decision in Alabama v Shelton, 535 US 654; 122 S Ct 1764; 152 L Ed 2d
888 (2002), which must be read as applying to both suspended and probationary sentences. For
the same reason, I question whether People v Reichenbach, 459 Mich 109; 587 NW2d 1 (1998),
remains good law given that it was decided before Shelton and is inconsistent with it.

        I nevertheless concur in affirming the sentence in light of Shelton’s discussion of Nichols
v United States, 511 US 738, 746; 114 S Ct 1921; 128 L Ed 2d 745 (1994), in which the Court
distinguished the use of a prior uncounseled misdemeanor sentence as a general sentence
consideration from the use of the same sentence to elevate defendant’s new conduct to a more
serious crime than it would otherwise constitute. Shelton, 535 US at 663.

                Nichols is further distinguishable for the related reason that the Court there
       applied a “less exacting” standard “consistent with the traditional understanding
       of the sentencing process.” Once guilt has been established, we noted in Nichols,
       sentencing courts may take into account not only “a defendant’s prior convictions,
       but . . . also [his] past criminal behavior, even if not conviction resulted from that
       behavior.” Thus, in accord with due process, Nichols “could have been sentenced
       more severely based simply on evidence of the underlying conduct that gave rise”
       to his previous conviction, even if he had never been charged with that conduct,
       and even if he had been acquitted of the misdemeanor with the aid of appointed
       counsel. [Shelton, 535 US at 665 (citations omitted).]

Accordingly, I concur.

                                                              /s/ Douglas B. Shapiro


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