                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   September 18, 2018
               Plaintiff-Appellee,

v                                                                  No. 339054
                                                                   Berrien Circuit Court
JUSTIN THOMAS BEALL,                                               LC No. 2015-015254-FH

               Defendant-Appellant.


Before: MURRAY, C.J., and CAMERON and LETICA, JJ.

PER CURIAM.

       Defendant, Justin Thomas Beall, appeals by delayed leave granted1 his sentence
following his guilty plea to violating the terms of his probation imposed after his plea-based
conviction of larceny in a building. See MCL 750.360. The trial court revoked Beall’s
probation and sentenced him to serve 24 to 48 months in prison. We affirm.

        Beall lived in an adult foster-care home while on probation. According to a probation
violation report, the police were contacted after a staff member entered the bedroom of a resident
who suffered from dementia and discovered Beall with his shorts dropped down to his ankles,
standing a few feet away from the other resident. When the staff member asked the resident
what was happening, the resident pointed to Beall’s penis. The resident became confused during
his conversation with the responding police officer and began talking about an earlier instance of
sexual assault perpetrated by yet another resident the previous month. However, the victim
eventually indicated that Beall made him perform fellatio and was “playing with himself.”

        Beall was arrested for violating his probation by engaging in assaultive, abusive,
threatening, or intimidating behavior. The trial court held a probation violation hearing at which
Beall pleaded guilty to the violation. The trial court imposed a sentence of imprisonment that
exceeded the recommended minimum sentence range for Beall’s underlying larceny conviction
by seven months. Beall later moved to withdraw his plea and to correct his minimum sentence,
but the trial court denied the motion. Beall now appeals.


1
 People v Beall, unpublished order of the Court of Appeals, entered October 6, 2017 (Docket
No. 339054).


                                               -1-
       Beall first argues that he was sentenced based on inaccurate information in his
presentence investigation report (PSIR) and probation violation report, resulting in an
unreasonable and disproportionate upward departure sentence. We disagree.

        We review a trial court’s resolution of a challenge to the accuracy of information in a
PSIR for an abuse of discretion. People v Lucey, 287 Mich App 267, 275; 787 NW2d 133
(2010). A trial court abuses its discretion when it chooses an outcome falling outside the range
of principled outcomes. People v Babcock, 469 Mich 247, 269; 666 NW2d 231 (2003). We
review departure sentences for reasonableness, People v Lockridge, 498 Mich 358, 392; 870
NW2d 502 (2015), and the trial court’s determination of reasonableness for an abuse of
discretion, People v Steanhouse, 500 Mich 453, 459-460; 902 NW2d 327 (2017). A departure
sentence is reasonable if it is “proportionate to the seriousness of the circumstances surrounding
the offense and the offender.” Id. (quotation marks and citation omitted).

         While trial courts are no longer obligated to find a substantial and compelling reason to
depart from the minimum sentence range as calculated under the statutory sentencing guidelines,
the trial courts are still required to score and consider the guidelines when imposing a sentence.
Lockridge, 498 Mich at 391-392. When calculating the sentencing guidelines range, a trial court
may consider all record evidence, including the contents of a PSIR and admissions from plea
proceedings. People v Johnson, 298 Mich App 128, 131; 826 NW2d 170 (2012). A PSIR “is
presumed to be accurate and may be relied on by the trial court unless effectively challenged by
the defendant.” People v Callon, 256 Mich App 312, 334; 662 NW2d 501 (2003).

       Beall contends that the trial court determined his sentence based on purported
inaccuracies in the PSIR and probation violation report and on the trial court’s confusion
regarding Beall’s conduct and admissions. We disagree.

        Beall did not challenge the accuracy of the PSIR at his initial sentencing for the
underlying larceny offense or his sentencing following his guilty plea for violating his probation.
At the latter hearing, Beall affirmatively stated that the probation violation report required no
correction. Instead, Beall raised his claim of inaccuracies in these documents for the first time in
his motion to withdraw his plea and to correct his sentence. There, as here, Beall claimed that
the reports contained inaccurate statements regarding his history of community supervision,
mental health treatment, and use of illegal drugs and alcohol. According to Beall, the trial
court’s reliance on these inaccurate statements resulted in an invalid sentence. However, as the
trial court correctly noted in denying Beall’s motion, Beall presented no evidence of
inaccuracies.2 In other words, he failed to carry the burden of establishing an effective challenge
to the reports. People v Lloyd, 284 Mich App 703, 705; 774 NW2d 347 (2009). Accordingly,


2
  The only evidence provided in Beall’s motion was the probation violation report itself. To the
extent that the lower court file already contained records from Beall’s probation review hearings,
a number of which stated “good report” in the area designated for additional information, those
records do not undermine the probation officer’s report that Beall had a poor history of
community supervision because Beall had previously violated the terms of probation imposed in
connection with past offenses.


                                                -2-
the contents of the reports were presumptively accurate, Callon, 256 Mich App at 334, and the
trial court did not abuse its discretion by declining to resentence Beall on the basis of his
unsupported claim of inaccuracies.

        Beall also contends that the trial court confused and misunderstood the facts underlying
his probation violation. By way of example, Beall notes that the trial court incorrectly referred to
the elderly victim as a young man and relied upon Beall’s own false, coerced admissions. To the
extent that Beall argues that the trial court relied on inaccurate admissions he made in pleading
guilty to the probation violation, we find his argument unpersuasive. Beall’s sworn testimony
included an affirmation that he chose to plead guilty of his own volition. While it is true that
Beall initially denied exposing his genitals to the victim, he acknowledged that conduct after
consulting with counsel and after the trial court reiterated that he had the right to a full hearing
on the matter if he did not wish to plead guilty. To permit Beall to now deny the accuracy of
admissions he made under oath, and after having been advised of the possible consequences of a
guilty plea, would be contrary to public policy. See People v White, 307 Mich App 425, 430-
431; 862 NW2d 1 (2014).3 We will not fault the trial court for rejecting Beall’s attempt to refute
his earlier admissions.

        With respect to Beall’s complaint concerning the trial court’s reference to the victim as a
young man, the victim’s age is not apparent from the record. However, the trial court’s
understanding of the victim’s age was supported by Beall’s own testimony: Beall answered in
the affirmative when the trial court asked if he was facing the “young man” while his genitals
were exposed. In any event, the trial court’s later emphasis on the vulnerability of the victim
was reasonable regardless of the victim’s age, as it is undisputed that the victim suffered from
dementia and had been assaulted by another resident shortly before the events at issue in this
case.

       Having determined that Beall failed to establish that the trial court relied upon inaccurate
information, we turn to his argument regarding the proportionality of his sentence. Recently, in


3
  In White, 307 Mich App at 428-429, the trial court denied the defendant’s request for an
evidentiary hearing as to the voluntariness of his plea and the effectiveness of his counsel, which
the defendant supported with affidavits contradicting his previous testimony. In affirming the
defendant’s convictions and sentences, this Court reasoned that the trial court properly relied on
the following rationale expressed in People v Serr, 73 Mich App 19; 250 NW2d 535 (1976):
               It is the opinion of this court that where a defendant has been found guilty
       by reason of his own statements as to all of the elements required to be inquired
       into by GCR 1963, 785.7, and his attorney has also confirmed the agreement and
       the defendant has been sentenced, neither he nor his attorney will be permitted
       thereafter to offer their own testimony to deny the truth of their statements made
       to induce the court to act. To do so would be to permit the use of its own process
       to create what amounts to a fraud upon the court. This is based on public policy
       designed to protect the judicial process. [White, 307 Mich App at 430-431,
       quoting Serr, 73 Mich App at 28.]



                                                -3-
People v Dixon-Bey, 321 Mich App 490, 524-525; 909 NW2d 458 (2017),4 this Court provided
additional guidance for determining whether a departure sentence satisfies the principle of
proportionality, stating:

       Because the guidelines embody the principle of proportionality and trial courts
       must consult them when sentencing, it follows that they continue to serve as a
       “useful tool” or “guideposts” for effectively combating disparity in sentencing.
       Therefore, relevant factors for determining whether a departure sentence is more
       proportionate than a sentence within the guidelines range continue to include (1)
       whether the guidelines accurately reflect the seriousness of the crime, (2) factors
       not considered by the guidelines, and (3) factors considered by the guidelines but
       given inadequate weight. When making this determination and sentencing a
       defendant, a trial court must “ ‘justify the sentence imposed in order to facilitate
       appellate review,’ ” which “includes an explanation of why the sentence imposed
       is more proportionate to the offense and the offender than a different sentence
       would have been.” [Citations omitted.]

       In this case, the trial court considered Beall’s lengthy criminal history and the gravity of
the conduct surrounding his probation violation. The record establishes that Beall admitted to
engaging in assaultive, abusive, threatening, or intimidating behavior by exposing his genitalia in
close proximity to the face of a man he knew suffered from a mental condition. The trial court
considered the minimum sentence range provided by the sentencing guidelines but reasoned that
imposing a sentence within the range would not account for Beall’s admitted victimization of the
vulnerable resident without regard for his mental condition. Because the sentencing guidelines
did not account for Beall’s egregious misconduct involved in the probation violation, the trial
court exercised its discretion and declined to impose its sentence based on the guidelines.

       The trial court explained that the sentencing guidelines failed to adequately and
accurately reflect the seriousness of Beall’s conduct because it merely reflected consideration of
his underlying conviction of larceny from a building. The trial court correctly understood that,
pursuant to People v Schaafsma, 267 Mich App 184, 185-186; 704 NW2d 115 (2005), it could
consider Beall’s verified probation violation and impose an upward departure from the
sentencing guidelines because such violations represent “an affront to the court and an indication
of an offender’s callous attitude toward correction and toward the trust the court has granted the
probationer.”


4
 We acknowledge our Supreme Court has ordered briefing and argument in part to address “to
what extent the sentencing guidelines should be considered to determine whether the trial court
abused its discretion in applying the principle of proportionality under” Steanhouse. People v
Dixon-Bey, ___ Mich ___; 910 NW2d 303 (2018). At present, we are bound by our Court’s
published opinion. See MCR 7.215(J)(1) (“A panel of the Court of Appeals must follow the rule
of law established by a prior published decision of the Court of Appeals issued on or after
November 1, 1990 . . . .”)




                                                -4-
         The trial court was not required to disregard Beall’s probation violation. We believe that
the trial court properly considered the seriousness of Beall’s probation violation and concluded,
based on Beall’s criminal history, underlying conviction, and failed probation, that the
sentencing guidelines inadequately protected the public and failed to provide an appropriate
punishment for Beall. Under the circumstances of this case, the trial court’s departure sentence
was reasonable and well supported by the evidence in the record. Beall has not established that
the upward departure fell outside the range of principled outcomes. Babcock, 469 Mich at 269.
Therefore, we hold that the trial court did not abuse its discretion by upwardly departing from the
sentencing guidelines minimum range by seven months because the sentence satisfied the
principle of proportionality. See Steanhouse, 500 Mich at 459-460; Dixon-Bey, 321 Mich App at
524-525.

       Beall also argues that the trial court erred by accepting his guilty plea and by not allowing
him to withdraw it because he lacked mental competency to make the plea and his defense
counsel provided ineffective assistance. We disagree.

         A trial court’s ruling on a motion to withdraw a plea is reviewed for an abuse of
discretion. People v Brown, 492 Mich 684, 688; 822 NW2d 208 (2012). A claim of ineffective
assistance of counsel “presents a mixed question of fact and constitutional law.” People v
Armstrong, 490 Mich 281, 289; 806 NW2d 676 (2011). This Court reviews the trial court’s
findings of fact, if any, for clear error, and reviews de novo its conclusions of law. People v
Petri, 279 Mich App 407, 410; 760 NW2d 882 (2008). A trial court abuses its discretion when it
chooses an outcome falling outside the range of principled outcomes. Babcock, 469 Mich at 269.
“Clear error exists if the reviewing court is left with a definite and firm conviction that the trial
court made a mistake.” Armstrong, 490 Mich at 289.

       Pursuant to MCR 6.445(F), a probationer may plead guilty to violating the terms of his or
her probation. Before accepting a guilty plea, the court must:

               (1) advise the probationer that by pleading guilty the probationer is giving
       up the right to a contested hearing and, if the probationer is proceeding without
       legal representation, the right to a lawyer’s assistance as set forth in subrule
       (B)(2)(b),

               (2) advise the probationer of the maximum possible jail or prison sentence
       for the offense,

              (3) ascertain that the plea is understandingly, voluntarily, and accurately
       made, and

               (4) establish factual support for a finding that the probationer is guilty of
       the alleged violation. [MCR 6.445(F)(1) through (4).]

Once the trial court has accepted a defendant’s plea, there is no absolute right to withdraw the
plea. People v Patmore, 264 Mich App 139, 149; 693 NW2d 385 (2004). A defendant who
moves to withdraw a plea “must demonstrate a defect in the plea-taking process.” People v
Pointer-Bey, 321 Mich App 609, 615-616; 909 NW2d 523 (2017) (quotation marks and citation
omitted).
                                                -5-
        In this case, review of the probation violation plea proceeding as a whole does not reveal
a defect in the plea-taking process. Beall reviewed and signed an advice of rights form
explaining that he would give up the right to a probation violation hearing by pleading guilty.
Beall confirmed that counsel reviewed the form with him and “thoroughly” advised him of his
rights. The trial court advised Beall that he faced potential revocation of his probation and a
maximum four-year sentence. Among other things, Beall also affirmed that he understood the
nature and consequences of the proceeding; that he was satisfied with counsel’s performance;
that he had been diagnosed with attention deficit hyperactivity disorder and bipolar disorder, but
felt capable of thinking clearly and making good decisions; that he was not suffering from any
other condition or under the influence of any substance that would impair his ability to
understand what was happening; and that he had not been threatened, coerced, or improperly
lured into making his plea. Beall unequivocally agreed that he believed that he was guilty of the
charged probation violation and he made his plea freely of his own choice.

        After establishing that Beall was acting of his own free will and with a full understanding
of his rights, the trial court questioned Beall regarding the probation violation in order to
establish a factual basis for the plea. Beall stated that he and the victim, who he knew suffered
from dementia, were in the victim’s bedroom with the door closed. Beall further testified that his
pants were down when a staff member entered the room. When asked what he was doing to the
victim just before the staff member arrived, Beall answered, “Standing there,” and added, “I did
not expose myself.” The trial court explained that the terms of his probation did not bar him
from merely standing next to another person and allowed Beall to consult with defense counsel
off the record. The trial court then reminded Beall that he had the right to an evidentiary hearing
and advised he would need to testify to facts that constituted a probation violation if he still
wanted to plead guilty. Beall said he understood and then proceeded to admit that he exposed his
genital area to the victim, though he denied any physical contact. Given the court’s clear
compliance with MCR 6.445(F), we conclude that it did not err by denying Beall’s motion to
withdraw his guilty plea.

        Likewise, we find no merit in Beall’s argument that he was denied the effective
assistance of counsel. A defendant raising a claim of ineffective assistance of counsel bears the
burden of establishing that “(1) counsel’s performance fell below an objective standard of
reasonableness and (2) but for counsel’s deficient performance, there is a reasonable probability
that the outcome would have been different.” People v Trakhtenberg, 493 Mich 38, 51; 826
NW2d 136 (2012). “A reasonable probability is a probability sufficient to undermine confidence
in the outcome.” People v Carbin, 463 Mich 590, 600; 623 NW2d 884 (2001) (quotation marks
and citation omitted). Under Michigan law, “[e]ffective assistance of counsel is presumed, and
the defendant bears a heavy burden of proving otherwise.” People v Solmonson, 261 Mich App
657, 663; 683 NW2d 761 (2004). Defense counsel’s performance must be measured against an
objective standard of reasonableness and without the benefit of hindsight. People v Rockey, 237
Mich App 74, 76-77; 601 NW2d 887 (1999). “This Court will not substitute its judgment for
that of counsel regarding matters of trial strategy . . . .” Id. at 76.

       Beall’s various arguments concerning defense counsel’s performance fall into three
general categories: (1) failure to investigate or raise Beall’s competency, as well as the
competency of the victim; (2) failure to consider and investigate the implications of Beall’s
mental health, including the availability of an insanity defense; and (3) coercing Beall’s

                                                -6-
admissions despite his lack of capacity to understand the factual basis for his plea or how those
facts related to the law. Beall has not demonstrated entitlement to relief, as he has failed to rebut
the presumption of effective assistance, Solmonson, 261 Mich App at 663, or establish the
factual predicate for these claims, Carbin, 463 Mich at 600.

        First, there is simply no evidence that Beall was incompetent or otherwise incapable of
understanding the nature of the proceedings. To the contrary, the record suggests that Beall
presented as a rational and aware individual who had been fully advised of, and understood, his
rights. He agreed that he was thinking clearly and understood the reason for the hearing. In fact,
he asked the court to repeat certain questions he did not understand, which showed that he was
focused and involved with the proceedings and both willing and able to speak up when he
required clarification. Further, his initial testimony stating that he did not expose himself to the
victim suggests that he was not merely agreeing with the court’s questions as a matter of course.
After acknowledging that he did, in fact, expose his genitals to the victim, he also clarified that
he did not touch the victim, again demonstrating that he understood the importance of providing
clear and accurate admissions. Furthermore, it is evident that counsel was fully aware of Beall’s
background and mental health diagnoses, as counsel referred to those issues before the court
announced its sentence.

        With respect to defense counsel’s investigation of the victim’s competency, the extent of
any such investigation is not apparent from the record. Nonetheless, it was undisputed that the
victim suffered from dementia, from which we can infer that the victim’s credibility would
almost certainly have been at issue if a contested hearing had taken place. However, the victim’s
allegations would have been corroborated by the foster-care worker who entered the room and
discovered Beall with his pants down. In light of the lower preponderance-of-the-evidence
standard of proof applicable to the determination of whether a probation violation occurred,
People v Breeding, 284 Mich App 471, 487; 772 NW2d 810 (2009), counsel could have
reasonably concluded that the evidence was sufficient for the trial court to find Beall guilty of the
probation violation.

        The record also lacks any evidence that defense counsel failed to adequately investigate
or consider the availability of an insanity defense in light of Beall’s mental health deficiencies.
Beall testified about his mental health disorders and both diagnoses were identified in the PSIR
counsel reviewed before the hearing. But as our Supreme Court explained, a person can be
mentally ill without being legally insane, People v Toma, 462 Mich 281, 318; 613 NW2d 694
(2000), and a criminal defendant cannot rely on mental abnormalities short of legal insanity to
avoid or reduce criminal responsibility, People v Carpenter, 464 Mich 223, 226; 627 NW2d 276
(2001). A defendant asserting an insanity defense has the burden of proving, by a preponderance
of the evidence, that “as a result of mental illness or being mentally retarded as defined in the
mental health code, [MCL 330.1001 et seq.,] the defendant lacked ‘substantial capacity either to
appreciate the nature and quality or the wrongfulness of his or her conduct or conform his or her
conduct to the requirements of the law.’ ” Id. at 231, quoting MCL 768.21a(1). See also MCL
768.21a(3) (regarding burden of proof).

       Counsel could have reasonably concluded from the available evidence that Beall would
be unable to meet this high standard. Immediately after being discovered in the victim’s room
with his pants down, Beall told the staff member that he was not doing anything sexual and that

                                                -7-
his shorts simply fell down when he was assisting the victim was an innocuous task. Beall’s
prompt exculpatory statement suggests that he was aware of the wrongfulness of his actions. In
addition, counsel may have inferred from the gradually increasing length of time between each
of the four most recent offenses in Beall’s criminal history and the 16 months of probation that
he had successfully completed before this incident that Beall was, in fact, capable of conforming
his conduct to the requirements of the law. Under these circumstances, we will not find
counsel’s failure to raise an insanity defense objectively unreasonable merely because Beall
suffered mental health disorders for which he was receiving medication.

        Lastly, for the reasons already explained throughout this opinion, we find no evidence
that defense counsel coerced Beall’s admissions or that Beall lacked the capacity to understand
the factual basis for his plea or the legal repercussions of pleading guilty to the probation
violation. Therefore, Beall has failed to overcome the presumption that defense counsel
provided effective assistance of counsel. Solmonson, 261 Mich App at 663.

        In sum, Beall was repeatedly advised of his rights; he was aware that he could be
sentenced to a maximum term of four years’ imprisonment if he pleaded guilty to the probation
violation; he opted to admit facts from which the court could find that he committed a probation
violation, rather than have the matter determined at a later hearing; and appeared to participate in
the proceedings in a rational state of mind and of his own volition. We hold that the trial court
correctly ruled that Beall knowingly and voluntarily pleaded guilty to violating the terms of his
probation and properly refused to allow him to withdraw it. The record establishes that Beall
competently, knowingly, and voluntarily made a valid plea and defense counsel provided him
effective assistance of counsel. Accordingly, Beall has not presented meritorious claims of error,
nor established entitlement to appellate relief.

       Affirmed.



                                                             /s/ Christopher M. Murray
                                                             /s/ Thomas C. Cameron
                                                             /s/ Anica Letica




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