People of Michigan v. Rudy Frank Fabela

STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
June 26, 2018
Plaintiff-Appellee,

v No. 337365
Allegan Circuit Court
RUDY FRANK FABELA, LC No. 16-019935-FH

Defendant-Appellant.

Before: MURRAY, C.J., and HOEKSTRA and GADOLA, JJ.

PER CURIAM.

Defendant appeals as of right his jury convictions of two counts of third-degree criminal
sexual conduct (CSC-III) with a victim at least 13 years of age but under 16 years of age, MCL
750.520d(1)(a). The trial court sentenced defendant to serve concurrent terms of 51 months to
180 months in prison for each conviction and credited defendant for 85 days of time served. For
the reasons explained below, we affirm but remand to correct the judgment of sentence to reflect
that defendant should have received credit for 95 days of time served in jail.

I. FACTUAL BACKGROUND

In approximately 2012, defendant met and became close friends with Shandra
Dominguez at their mutual workplace. Ms. Dominguez testified that defendant became like a
brother to her and that, in September 2015, he moved into the home where she resided with her
four children. Ms. Dominguez testified that defendant was also close with her children,
seemingly serving as a father figure to her daughter CD, who had been struggling with the
absence of her father since he had been deported six years earlier.

CD testified that her relationship with defendant became romantic in November 2015,
when CD was 15 years old and defendant was 31 years old. According to CD’s testimony, she
and defendant had sexual intercourse approximately ten times between November 2015 and
January 2016. In November 2015, CD learned that she was pregnant. Ms. Dominguez testified
that she learned of CD’s pregnancy in January 2016, and although CD refused to identify the
father, Ms. Dominguez confronted defendant. Defendant denied being the father; however, he
immediately moved out of the family’s residence, quit his job, and cut off all communication
with Ms. Dominguez. Shortly thereafter, Ms. Dominguez discovered a cell phone she
recognized as belonging to defendant hidden in CD’s closet. She testified that the phone
contained a video of defendant and CD kissing and declaring their love for each other. On
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approximately January 7, 2016, Ms. Dominguez reported defendant to the Kentwood Police
Department. Although Ms. Dominguez forbade CD from seeing defendant, CD admitted that
she continued to see him.

On February 3, 2016, CD took the bus to school, where defendant immediately picked
her up in his vehicle. CD testified that she intended to run away with defendant and that the two
had sexual intercourse that night and the following morning. Further, CD testified that she loved
defendant and that he did not force her either to leave her home or to have a sexual relationship
with him. Detective Kelly Baldwin of the Kentwood Police Department testified that on
February 4, 2016, she investigated a missing person report regarding CD. Detective Baldwin
stated that, after finding CD at a movie theater, she seized CD’s clothing for inspection. Ann
Hunt and David Hayhurst, forensic scientists at the Michigan State Police laboratory, both
testified that CD’s underwear tested positive for seminal fluid matching defendant’s DNA.

Defendant was charged with two counts of first-degree criminal sexual conduct (CSC-I),
MCL 750.520b, taking place on or about February 4, 2016. The charges against defendant
proceeded to trial, and the jury ultimately found him not guilty of two counts of CSC-I, but
guilty of two counts of the lesser included offense of CSC-III, MCL 750.520d(1)(a). The trial
court sentenced defendant to concurrent terms of 51 to 180 months in prison for each conviction,
with 85 days of sentence credit for time served.

II. DISCUSSION

A. SEX OFFENDERS REGISTRATION ACT

Defendant first contends that his mandatory registration under the Sex Offenders
Registration Act (SORA), MCL 28.721 et seq., amounts to cruel or unusual punishment.
Although this Court has previously rejected this argument in a number of cases, defendant
maintains that they were wrongly decided and invites the Court to reconsider those decisions.
Alternatively, he compares the present case to other cases in which SORA was found to be
unconstitutional as applied. We reject defendant’s arguments.

Because defendant failed to raise this issue before the trial court, it is unpreserved. See
People v Bass, 317 Mich App 241, 272; 893 NW2d 140 (2016). Generally, this Court reviews
de novo issues of constitutional law, People v Bosca, 310 Mich App 1, 56; 871 NW2d 307
(2015); however, unpreserved claims of constitutional error are reviewed for plain error affecting
the defendant’s substantial rights, People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999).
In order to establish a plain error warranting relief, the defendant must show that the error was
plain or obvious and that it affected the outcome of the lower court proceedings. Id.

The Michigan Legislature enacted SORA to protect the public by requiring an individual
who has been convicted of a listed offense to register as a sex offender. See MCL 28.723.
Under SORA, CSC-III is considered a Tier III offense. MCL 28.722(w)(iv). The Legislature,
however, provided that CSC-III would not constitute a Tier III offense if the victim consented to
the conduct and if the defendant was not more than four years older than the victim. MCL
28.722(w)(iv). Here, because defendant was more than four years older than CD, this statutory
exception is inapplicable. As such, defendant’s convictions constitute Tier III offenses, and he

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will be required to register in compliance with SORA, MCL 28.723(1), and maintain this
registration for life, MCL 28.725(12).

As defendant recognizes on appeal, this Court has repeatedly upheld SORA’s registration
requirements and determined that those requirements do not amount to punishment, let alone
cruel or unusual punishment. See Bosca, 310 Mich App at 72-73, appeal held in abeyance by
unpublished order of the Michigan Supreme Court, entered May 25, 2018 (Docket No. 151610)
(holding that “this Court has consistently ruled that SORA’s registration requirement, as applied
to adult offenders, does not constitute punishment” and therefore does not constitute cruel or
unusual punishment); People v Fonville, 291 Mich App 363, 381; 804 NW2d 878 (2011)
(holding that SORA’s registration requirement does not amount to a “a punitive measure
intended to chastise, deter or discipline an offender” (quotation marks and citations omitted)).
Rather, SORA registration is considered “merely a ‘remedial regulatory scheme furthering a
legitimate state interest.’ ” Fonville, 291 Mich App at 381, quoting People v Golba, 273 Mich
App 603, 617; 729 NW2d 916 (2007); see also People v Pennington, 240 Mich App 188, 197;
610 NW2d 608 (2000) (“[W]e conclude that the legislation in issue, directed at protecting the
public and having no punitive purpose, does not violate the prohibition against ex post facto
laws.”). Because these decisions establish binding precedent, see MCR 7.215(J)(1), we decline
defendant’s invitation to reconsider them.

Defendant maintains that Bosca and Fonville were wrongly decided and urges this Court
to adopt the rationale set forth by the United States Court of Appeals for the Sixth Circuit in
Does #1-5 v Snyder, 834 F3d 696 (CA 6, 2016). In Snyder, the Sixth Circuit held that SORA
imposes punishment and that its retroactive application to the plaintiffs was unconstitutional
under the Ex Post Facto clause of US Const, art I, § 10. Snyder, 834 F3d at 705-706. However,
unlike previously published decisions of this Court, decisions by the federal courts other than the
United States Supreme Court are not binding on this Court. See Abela v Gen Motors Corp, 469
Mich 603, 606-607; 677 NW2d 325 (2004). Because the earlier decisions of this Court are
binding, MCR 7.215(J)(1), we are not at liberty to follow a conflicting decision rendered by the
Sixth Circuit.

Defendant also contends that this Court’s decision in People v Dipiazza, 286 Mich App
137; 778 NW2d 264 (2009), is controlling in the present case. Dipiazza involved a consensual
sexual relationship between an 18-year-old defendant and his 14-year-old girlfriend, whom he
later married. Id. at 140. The defendant was adjudicated under the Holmes Youthful Trainee
Act (HYTA), see MCL 762.11 et seq., for attempted CSC-III, and, after he successfully
completed probation, his case was dismissed with no conviction on his record. Id. at 140. But
because he was assigned trainee status only weeks before the Legislature modified SORA to
exclude trainees from registration requirements, the defendant was compelled to register. Id. at
143. This Court considered the “devastating effects” SORA registration had on the defendant,
which frustrated the purpose of the HYTA to prevent trainees from “ ‘suffer[ing] a civil
disability or loss of right or privilege.’ ” Id. at 150-153, quoting MCL 762.14(2). Accordingly,
this Court concluded that the registration requirement amounted to cruel or unusual punishment
as applied to the defendant. Id. at 156-157.

The present case is readily distinguishable from Dipiazza. Far from the teenage
defendant involved in a sexual relationship with his girlfriend four years his junior, defendant in

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this case was 31 years of age when he engaged in a sexual relationship with a 15-year-old living
in the same household. More significantly, defendant has been convicted and was not
adjudicated under – nor was he eligible to be adjudicated under – the HYTA. Accordingly,
Dipiazza is inapposite. To the extent that defendant emphasizes that his relationship with CD
was consensual, MCL 28.722(w)(iv)1 provides that, even if a victim consents to a sexual
relationship, CSC-III remains a Tier III offense if the defendant is more than four years older
than his or her victim. Accordingly, the Legislature has clearly conveyed its intent that persons,
such as defendant, who are more than four years older than a victim are subject to SORA
registration requirements.

Finally, defendant requests that his appeal be held in abeyance pending our Supreme
Court’s resolution of the appeal in People v Temelkoski, 307 Mich App 241; 859 NW2d 743
(2014), rev’d 905 NW2d 593 (2018). Our Supreme Court has now issued its decision reversing
this Court’s judgment that the defendant was required to register under SORA. Temelkoski, ___
Mich ___; 905 NW2d 593, 593 (2018). In Temelkoski, after the defendant pleaded guilty to
second-degree criminal sexual conduct, he was adjudicated under the HYTA, and the case
against him was ultimately dismissed without a conviction upon his successful completion of
probation. Temelkoski, 307 Mich App at 244. However, the defendant was required to register
under SORA, which took effect after he pleaded guilty. Id. Our Supreme Court determined that
retroactive application of SORA’s registration requirements to the defendant violated due
process, as the defendant’s guilty plea was induced by the benefit of receiving a HYTA
disposition, thus avoiding the civil impairments that would have resulted from a conviction.
Temelkoski, 905 NW2d at 594. However, the Supreme Court did not address whether SORA
imposed a punishment or whether it constituted cruel or unusual punishment. Id.

Because the Supreme Court’s decision in Temelkoski concerns a defendant who was
adjudicated under HYTA, it is inapplicable here. Moreover, unlike the defendant in Temelkoski,
defendant did not plead guilty; he was tried, found guilty, and convicted. Finally, the application
of SORA in defendant’s case is not retroactive, as he committed the offenses at issue after the
statute’s enactment and amendment. Our Supreme Court’s decision is thus unavailing to
defendant’s argument. Accordingly, as we are bound to follow the prior decisions of this Court
upholding the constitutionality of SORA’s registration requirements, MCR 7.215(J)(1), we
conclude that defendant’s mandatory SORA registration does not amount to cruel or unusual
punishment.

B. OFFENSE VARIABLE 10

Defendant next argues that the trial court erred by assessing ten points for Offense
Variable (OV) 10 of the sentencing guidelines when there was no evidence that he exploited
CD’s vulnerability in committing CSC-III. We disagree.

1
The Legislature amended SORA to add MCL 28.722(w)(iv) in direct response to Dipiazza.
People v Temelkoski, 307 Mich App 241; 859 NW2d 743 (2014), rev’d ___ Mich ___; 905
NW2d 593 (2018)

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 “Under the sentencing guidelines, the circuit court’s factual determinations 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). Whether the factual findings are sufficient to support the
trial court’s determinations relative to scoring “is a question of statutory interpretation, which an
appellate court reviews de novo.” Id.

OV 10, MCL 777.40, governs the assessment of points for the exploitation of a
vulnerable victim and provides as follows:

(1) Offense variable 10 is exploitation of a vulnerable victim. Score offense
variable 10 by determining which of the following apply and by assigning the
number of points attributable to the one that has the highest number of points:

* * *

(b) The offender exploited a victim’s physical disability, mental disability, youth
or agedness, or a domestic relationship, or the offender abused his or her authority
status …………………………………………………………………….. 10 points

“Exploit” is defined by the statute as “to manipulate the victim for selfish or unethical purposes.”
MCL 777.40(3)(b). The statute provides that “[t]he mere existence of 1 or more factors
described in subsection (1) does not automatically equate with victim vulnerability.” MCL
777.40(2). Accordingly, a victim’s youth alone is an insufficient basis to score this variable.
Rather, a victim is “vulnerable” if he or she exhibits a “readily apparent susceptibility . . . to
injury, physical restraint, persuasion, or temptation.” MCL 777.40(3)(c).

In addressing defendant’s objection to the calculation of his score, the trial court did not
discuss the evidence in support of assigning ten points for OV 10, merely stating that a
preponderance of the evidence established that defendant had exploited the victim’s youth.
However, in deciding an appropriate sentence, the trial court more fully analyzed how defendant
had exploited CD’s family situation and youth:

What did the defendant do? Well, he came into this family’s picture, the family
of the 15 year old victim as a co-employee of the mother, then a friend to the
mother, then eventually a roommate in the house who was not engaged in an
intimate relationship with the mother of the victim. But he was welcomed into
the house because he needed a place to stay and one gets the impression the
mother needed the rent money that could generate. There’s nothing wrong with
that. But it became something else and the defendant didn’t—had plenty of
opportunities to withdraw when he felt temptation surging. But no, did he? No,
he betrayed the mother of this child and then betrayed the immaturity of the child
which he pretended to have some actual genuine human appreciation of her
immaturity, of her fragility. He was helpful to the children. Now in retrospect I
see that only as scheming with some kind of advantage. It’s kind of heartless for
somebody [31] years old to be taking advantage of a 15 year old and I don’t care
how ardently the 15 year old solicits attention. This 15 year old doesn’t have the
maturity to decide when to have sexual relations.

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 Overwhelming evidence supports the trial court’s finding that defendant exploited CD’s
youth and her family situation. According to Ms. Dominguez, defendant was well aware that CD
was struggling to cope with her father’s deportation, as defendant participated in some of her
counseling sessions. Ms. Dominguez stated that defendant did many of the things for CD that a
father would do and that, as a result, CD became clingy with him. The evidence establishes that,
far from discouraging CD’s affections, defendant recorded video professing his love for her.
Additionally, defendant was aware that Ms. Dominguez would disapprove of a relationship
between CD and himself, as he moved out of the home and quit his job immediately after she
developed suspicions. Nonetheless, defendant secretly continued a sexual relationship with CD.

This evidence permits an inference that defendant was aware that CD was struggling with
the loss of her father and sought the attention of an adult male. It also permitted an inference that
defendant provided the attention that she desired and used his involvement with her family to
spend time with her alone. That is, the trial court could, on the basis of this evidence, find that it
was readily apparent to defendant that, because of her youth and family situation, CD was
susceptible to persuasion or temptation by an adult male who provided her with the affirmation
and attention she desired. See MCL 777.40(3)(c). Defendant eventually professed his love for
CD, engaged in romantic behaviors, and allowed his relationship with her to become sexual.
Based on these facts, the trial court could reasonably find that defendant exploited CD’s youth
and family situation to convince her that they were in love and encourage her to voluntarily
engage in sexual relations with him. See MCL 777.40(3)(b). We thus conclude the trial court
did not err in assigning ten points for OV 10.

C. CREDIT FOR TIME SERVED

Defendant next argues that the trial court erred when it relied on the presentence
investigation report (PSIR) to calculate his credit for time served because the PSIR erroneously
indicated that the date of sentencing was December 9, 2016, ten days earlier than the actual date
of sentencing on December 19, 2016. The prosecution concedes this error on appeal.
Consequently, we agree that defendant is entitled to correction of the judgment of sentence to
reflect credit for 95 days already served. See MCL 769.11b.

D. EXTRANEOUS INFLUENCE ON THE JURY

Defendant contends in his Standard 4 brief that the jury was improperly exposed to
extraneous influence when the trial court directed the prosecuting attorney and a detective to
escort prospective jurors to the jury room for the duration of a lock down drill that occurred
during voir dire. We reject defendant’s argument.

This Court reviews de novo questions of constitutional law. See People v Rose, 289
Mich App 499, 505; 808 NW2d 301 (2010). However, because defendant failed to preserve this
issue by raising it before the trial court, see Bass, 317 Mich App at 272, this Court reviews the
matter for plain error affecting the defendant’s substantial rights, see Carines, 460 Mich at 763.

A defendant has an absolute right to an impartial jury. People v Tyburski, 445 Mich 606,
618; 518 NW2d 441 (1994) (opinion by MALLETT, J.). That right includes the right to have the
jury consider during their deliberations only the evidence presented in open court. People v

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Budzyn, 456 Mich 77, 88; 566 NW2d 229 (1997). “Where the jury considers extraneous facts
not introduced in evidence, this deprives a defendant of his rights of confrontation, cross-
examination, and assistance of counsel embodied in the Sixth Amendment.” Id. To establish
that a jury was improperly influenced by extraneous information, a defendant must prove two
elements: (1) “that the jury was exposed to extraneous influences,” and (2) “that these extraneous
influences created a real and substantial possibility that they could have affected the jury’s
verdict.” Id. at 88-89. If the defendant establishes these two elements, then the burden shifts to
the prosecution to demonstrate that the error was harmless beyond a reasonable doubt. Id.

During voir dire on the first day of trial, the trial court informed the jury that a test drill
for lock down training would take place later in the day. The court anticipated that the drill
would occur sometime before 3:00 p.m. and informed the persons in the courtroom how the drill
would proceed:

Detective Gardiner and Ms. Koch [the prosecutor] are going to remove
themselves with the jurors in the box and the jurors in the front of the box to the
jury room, close and lock the door and remain there until we get an authoritative
voice that it’s all clear. The spectators and prospective jurors back in the jury—
the gallery area, along with myself and Mrs. Meade and Ms. Hiscock will go
through that door to my left and into the chambers area and the area just outside
chambers. Alright? The defendant and Mr. Johnson will go in a nearby separate
area. Everybody understand what their location assignment is going to be?

The trial transcript indicates that, after the alarm went off, the court recessed at 3:15 p.m. and
reconvened at 3:21 p.m.2 Thereafter, the court continued with voir dire until the panel was
sworn at 4:28 p.m.

Defendant maintains that the jury was exposed to extraneous influences during the drill
because the prosecutor and detective escorted the jury to the jury room for the duration of the
drill. The record, however, does not reflect whether the prosecutor or detective actually escorted
the jury to the jury room in accordance with the trial court’s earlier instruction. Even assuming
they did, defendant has presented no evidence that they discussed the trial with the jurors or
otherwise attempted to influence the jury. Defendant’s argument simply presumes, with no basis
in fact, that such attempts occurred, when the contrary presumption that no such attempts took
place is equally likely. Such bald assertions are insufficient to sustain findings either that the
jury was exposed to an extraneous influence or that such an influence affected the jury’s verdict.
See People v Nick, 360 Mich 219, 231-232; 103 NW2d 435 (1960) (holding that a mere
possibility of prejudice is insufficient to set aside a jury verdict and that “the improper remark of
a stranger, not shown to have been given consideration or even heard, does not justify a
conclusion that prejudice to defendant may have resulted”).

2
To the extent that defendant has questioned the accuracy and reliability of the trial transcript on
appeal, he has abandoned any such claim by failing to offer any meaningful discussion of the
issue. See People v Martin, 271 Mich App 280, 315; 721 NW2d 815 (2006).

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 Moreover, immediately before recessing for lunch at 12:34 p.m., the trial court
admonished the jury as follows:

During this break don’t perform any research, don’t allow anybody to
discuss any aspect of this case or the witnesses that have been discussed in the
court hearing today to any degree on any related subject and don’t let anybody
discuss it in your presence. If they do tell them you’re on jury duty and can’t
engage or listen to such conversation and report that to me as soon – or to Mrs.
Meade as soon as you come back.

The trial court repeated this warning when it delivered the jury instructions after the panel was
sworn. “It is well established that jurors are presumed to follow their instructions.” People v
Graves, 458 Mich 476, 486; 581 NW2d 229 (1998). Accordingly, we may presume that the
jurors did not permit anyone to discuss the case with them outside of trial and that any attempt to
do so would have been reported. No jury member made any such report. Therefore, we
conclude that defendant has failed to establish that the jury was exposed to an extraneous
influence.

E. INEFFECTIVE ASSISTANCE

Finally, defendant argues in his Standard 4 brief that defense counsel did not provide him
with effective assistance. First, he maintains that defense counsel should have questioned the
jurors after they returned from the lock down drill to discern whether they had been exposed to
an extraneous influence. Second, defendant submits that defense counsel should have advised
him to ask that his bond be revoked in Allegan County in order to obtain additional credit for
time served in Kent County for unrelated misconduct. Again, we reject defendant’s arguments.

Initially, we note that defendant’s claim of ineffective assistance of trial counsel is
unpreserved, as he failed to move for a new trial or for an evidentiary hearing. See People v
Lopez, 305 Mich App 686, 693; 854 NW2d 205 (2014). “Whether the defendant received the
effective assistance of counsel guaranteed him under the United States and Michigan
Constitutions is a mixed question of fact and law.” People v Ackley, 497 Mich 381, 388; 870
NW2d 858 (2015). This Court reviews the trial court’s findings of fact for clear error and
questions of constitutional law de novo. Id. However, when claims of ineffective assistance of
counsel are unpreserved, this Court’s review is limited to errors apparent on the record. Lopez,
305 Mich App at 693.

Generally, in order to obtain a new trial on the grounds of ineffective assistance of
counsel, “a defendant must show 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). That is, a defendant must demonstrate that counsel’s performance
was “outside the wide range of professionally competent assistance” and that this deficient
performance resulted in prejudice to defendant. Strickland v Washington, 466 US 668, 690, 692;
104 S Ct 2052; 80 L Ed 2d 674 (1984). Further, a defendant “must overcome the strong
presumption that counsel’s performance was born from a sound trial strategy.” Trakhtenberg,
493 Mich at 52.

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 First, defendant contends that defense counsel’s failure to question the potential jurors
about any potentially improper interaction with the prosecutor and detective during the lock
down drill amounted to ineffective assistance. As detailed above, defendant has failed to
demonstrate that the jury was actually exposed to an extraneous influence that may have affected
the verdict as a result of the lock down drill. As such, he has failed to establish either the factual
predicate for his claim or that he was actually prejudiced. See People v Carbin, 463 Mich 590,
600; 623 NW2d 884 (2001). In any event, overwhelming evidence supported the jury’s verdict.
Not only did CD testify regarding her sexual relationship with defendant, but DNA testing
confirmed that the seminal fluids discovered in CD’s underwear were a match for defendant.
Accordingly, defendant cannot show that defense counsel’s failure to question the jurors
prejudiced the outcome of trial.

Second, defendant contends that defense counsel erred by failing to advise him to ask that
his bond be revoked in Allegan County to enable him to receive credit for time he was serving in
Kent County. Defendant was initially arrested for the present charges in Allegan County on
February 24, 2016, and was released on bond on March 29, 2016. However, after defendant
violated the conditions of a separate no-contact bond issued in Kent County regarding his contact
with CD, that bond was revoked and defendant was lodged in the Kent County Jail. During the
sentencing hearing in the present case, defense counsel requested sentence credit for 183 days
served in Kent County. However, the trial court denied this request because defendant had not
sought to revoke or set aside his bond in Allegan County.

Pursuant to MCL 769.11b, a defendant convicted of a crime is entitled to credit for time
served “in jail prior to sentencing because of being denied or unable to furnish bond for the
offense of which he is convicted . . . .” Our Supreme Court has held that, in enacting this statute,
the Legislature sought “to give a criminal defendant a right to credit for any presentence time
served ‘for the offense of which he is convicted,’ and not upon any other conviction.” People v
Prieskorn, 424 Mich 327, 341; 381 NW2d 646 (1985), quoting MCL 769.11b. Thus, a
defendant is not entitled to sentence credit in instances when

a defendant is released on bond following entry of charges arising from one
offense and, pending disposition of those charges, is subsequently incarcerated as
a result of charges arising out of an unrelated offense or circumstance and then
seeks credit in the former case for that latter period of confinement.

Id. at 340. Subsequently, our Supreme Court reaffirmed this principle in holding that a
defendant was not entitled to credit for time served for unrelated offenses committed while he
was free on bond for the original offense, even when a “hold” was placed on him “by the
[original] jurisdiction where he was being sentenced while he was imprisoned elsewhere . . . .”
People v Adkins, 433 Mich 732, 739, 750-751; 449 NW2d 400 (1989).

Additionally, sentence credit is not authorized under MCL 769.11b unless a defendant
serves time in jail prior to sentencing “because of being denied or unable to furnish bond for the
offense of which he is convicted . . . .” (Emphasis added). In interpreting this language, our
Supreme Court has held that “a showing that presentence confinement was the result of inability
to post bond is an essential prerequisite to the award of sentence credit under the statute.”
People v Whiteside, 437 Mich 188, 196; 468 NW2d 504 (1991). The Supreme Court reasoned

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that this interpretation was consistent with the statute’s primary purpose of “equaliz[ing] the
position of one who cannot post bond with that of a person who is financially able to do so . . . .”
Id.

In the instant case, defendant is clearly not entitled under Prieskorn and Adkins to
sentence credit for time served in Kent County for misconduct unrelated to the charges presently
at issue. As stated by the trial court, defendant was incarcerated in Kent County for “additional
misconduct . . . specific to contacting the victim in this case,” and not for the present CSC-III
charges. Moreover, defendant is incapable of demonstrating that he would have been unable to
post bond in Allegan County. To the contrary, defendant had successfully posted bond on the
Allegan County charges. Rather, revocation of that bond would amount to a voluntary surrender,
which does not serve as a basis for sentence credit under MCL 769.11b. Because revocation of
defendant’s bond would not have entitled him to additional sentence credit, defendant’s claim of
ineffective assistance is without merit. See People v Goodin, 257 Mich App 425, 433; 668
NW2d 392 (2003) (holding that defense counsel is “not required to make a meritless motion or a
futile objection”). Therefore, in reviewing defendant’s claims of ineffective assistance, we find
no errors apparent on our review of the record.

Affirmed, but remanded for the ministerial task of correcting the judgment of sentence to
reflect that defendant is entitled to 95 days of sentence credit for time served. We do not retain
jurisdiction.

/s/ Christopher M. Murray
/s/ Joel P. Hoekstra
/s/ Michael F. Gadola

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