If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
June 24, 2021
Plaintiff-Appellee,
v No. 352279
Wayne Circuit Court
CHRISTOPHER ALLEN PROCTOR, LC No. 19-001788-01-FH
Defendant-Appellant.
Before: GLEICHER, P.J., and CAVANAGH and LETICA, JJ.
PER CURIAM.
The circuit court conducted a bench trial and convicted defendant of domestic violence,
third offense, MCL 750.81(5), a felony. The court sentenced defendant as a domestic violence
third offender to two years’ probation. On appeal, defendant contends that the court, prosecutor,
and his own counsel proceeded under the wrong statutory framework. He asserts that the
prosecutor was required to establish his two prior convictions at trial, not sentencing. Absent such
evidence, defendant argues, the court could not convict and sentence him to an enhanced felony
offense. We discern no error and affirm.
I. BACKGROUND
Defendant was charged with assault and battery of a domestic partner, MCL 750.81(2), for
assaulting his ex-girlfriend in November 2018. The felony complaint included a “third offense
notice,” stating that defendant had prior domestic violence convictions in 2001 and 2011. 1 The
complaint notified defendant that he would be subject to an enhanced sentence as contemplated in
MCL 750.81(5). Following the preliminary examination, the district court bound defendant over
for trial on the charge of domestic violence, third offense. The prosecutor filed a notice of intent
to present evidence of defendant’s prior acts of domestic violence, which included defendant’s two
prior convictions against his ex-wife and two prior uncharged acts of violence against the current
victim. The prosecutor again noted that defendant was subject to an enhanced sentence as a third
1
The prosecutor later corrected the complaint to reflect two prior convictions in 2001.
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habitual domestic violence offender. At the circuit court arraignment, the court stated that
defendant was charged with domestic violence, third offense, and defendant made no objection.
And at the final pretrial conference, defendant personally affirmed that he understood that he was
charged with domestic violence, third offense, and could face up to five years in prison if
convicted.
At trial, the prosecutor did not attempt to present evidence of defendant’s prior convictions,
and the court sustained defense counsel’s objection to questions about other uncharged acts against
the victim. Ultimately, the circuit court convicted defendant as charged.
Defendant’s sentencing was twice adjourned. At the second hearing, the court discovered
that although the presentence investigation report (PSIR) included defendant’s two domestic
violence convictions, the report failed to recognize that defendant currently was charged with
domestic violence, third offense, which rendered the offense a felony rather than a misdemeanor.
The court ordered the correction and defendant personally acknowledged the propriety of that
change. Defendant also personally expressed understanding that the offense came with a potential
five-year maximum sentence. The court later sentenced defendant to two years’ probation.
II. ANALYSIS
On appeal, defendant contends that the court erroneously relied on MCL 750.81b, which
provides that evidence of a defendant’s prior offenses for enhanced sentencing purposes need not
be presented at trial, only at sentencing. This statute, defendant urges, does not apply to MCL
750.81(5), the domestic violence third offense enhancement provision. Therefore, the prosecutor
was required to establish at the bench trial that defendant had been convicted of two prior offenses.
As this was not done, defendant insists that his conviction and sentence are insupportable.
Alternatively, defendant contends that his counsel was ineffective for failing to present this issue
to the trial court.
We generally review de novo a trial court’s interpretation of a sentencing statute and
determination of a statute’s applicability. People v Jackson, 487 Mich 783, 789; 790 NW2d 340
(2010). However, defendant raised his challenge for the first time on appeal. We review such
unpreserved challenges for plain error affecting defendant’s substantial rights. People v Carines,
460 Mich 750, 763; 597 NW2d 130 (1999).
Defendant was convicted of domestic violence as proscribed by MCL 750.81(2), which
provides:
Except as provided in subsection (3), (4), or (5), an individual who assaults
or assaults and batters his or her spouse or former spouse, an individual with whom
he or she has or has had a dating relationship, an individual with whom he or she
has had a child in common, or a resident or former resident of his or her household,
is guilty of a misdemeanor punishable by imprisonment for not more than 93 days
or a fine of not more than $500.00, or both. [Emphasis added.]
The exceptions cited provide:
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(3) An individual who assaults or assaults and batters an individual who is
pregnant and who knows the individual is pregnant is guilty of a misdemeanor
punishable by imprisonment for not more than 93 days or a fine of not more than
$500.00, or both.
(4) An individual who commits an assault or an assault and battery in
violation of subsection (2) or (3), and who has previously been convicted of
assaulting or assaulting and battering an individual described in either subsection
(2) or subsection (3) under any of the following, is guilty of a misdemeanor
punishable by imprisonment for not more than 1 year or a fine of not more than
$1,000.00, or both:
(a) This section or an ordinance of a political subdivision of this state
substantially corresponding to this section.
(b) Section 81a, 82, 83, 84, or 86.
(c) A law of another state or an ordinance of a political subdivision of
another state substantially corresponding to this section or section 81a, 82, 83, 84,
or 86.
(5) An individual who commits an assault or an assault and battery in
violation of subsection (2) or (3), and who has 2 or more previous convictions for
assaulting or assaulting and battering an individual described in either subsection
(2) or subsection (3) under any of the following, is guilty of a felony punishable by
imprisonment for not more than 5 years or a fine of not more than $5,000.00, or
both:
(a) This section or an ordinance of a political subdivision of this state
substantially corresponding to this section.
(b) Section 81a, 82, 83, 84, or 86.
(c) A law of another state or an ordinance of a political subdivision of
another state substantially corresponding to this section or section 81a, 82, 83, 84,
or 86. [Emphasis added.]
Defendant was charged with and convicted of domestic violence, third offense, under MCL
750.81(5). This is a felony offense, which carries an enhanced prison sentence “for not more than
5 years or a fine of not more than $5,000.00, or both.” Id. Defendant does not deny that he was
twice convicted of domestic violence in 2001.
The prosecutor cited MCL 750.81b as the statutory authority for imposing an enhanced
sentence. Defendant correctly posits that MCL 750.81b does not apply in this case. MCL 750.81b
applies when the prosecutor seeks an enhanced sentence for a conviction under MCL 750.81(3) or
(4), or MCL 750.81a(3). MCL 750.81b(a). By its plain language, MCL 750.81b does not apply
when the prosecutor seeks an enhanced sentence under MCL 750.81(5). Accordingly, MCL
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750.81b(b)’s mandate that “[t]he defendant’s prior conviction or convictions . . . be established at
sentencing” does not apply here.
The Legislature amended MCL 750.81 in 2016, and added subsection (3). 2016 PA 87.
Before that amendment, the language of the current subsection (5) was located in MCL 750.81(4).
At that time, MCL 750.81b applied to the currently charged offense of domestic violence, third
offense. The Legislature failed to update MCL 750.81b in 2016, and has yet to do so. This was
likely an oversight on the Legislature’s part and should be remedied by legislative action. As the
statutory language stands, however, MCL 750.81b does not apply in this case.
Contrary to defendant’s insistence, the prosecutor was not required to prove defendant’s
prior convictions during the bench trial just because MCL 750.81b was inapplicable. Trial is
designed to test the elements of an offense, not the sentencing consequences. A prior conviction
used to enhance a defendant’s sentence is not an element of the criminal offense to be proven at
trial, but a factor to be considered by the judge at sentencing. People v Miles, 454 Mich 90, 100;
559 NW2d 299 (1997); People v Eason, 435 Mich 228, 246-247; 458 NW2d 17 (1990). Indeed,
this Court recently held in People v Joseph, unpublished per curiam opinion of the Court of
Appeals, issued December 29, 2020 (Docket No. 349734), that the Legislature’s failure to amend
MCL 750.81b along with MCL 750.81 did not change the purpose and process of the enhanced
sentencing provision: “In this case, defendant had more than two prior qualifying domestic
violence convictions, and he did not object to the accuracy of that information. This subjected
defendant to the sentence enhancement for domestic violence, third offense. See MCL
750.81(5). . . .” Joseph, slip op at 4. As in Joseph, defendant in this case was well aware that the
prosecutor was seeking an enhanced sentence based on his prior convictions and never challenged
the accuracy of those convictions.
Due process required that defendant be sentenced on the basis of accurate
information and have the opportunity to challenge such information. At the
sentencing hearing, defendant was able to object to, and change, information in the
presentence investigation report . . . . Defendant made no claims below, and makes
none on appeal, that he was sentenced on the basis of inaccurate information or did
not have an opportunity to challenge such information. [Id. at 5.]
Even had defense counsel demanded proof of the prior convictions at the trial, the court
would have been required to consider that evidence for its only relevant purpose—to determine
whether an enhanced sentence was warranted. And defense counsel “cannot be faulted for failing
to raise an objection or motion that would have been futile.” People v Fike, 228 Mich App 178,
182; 577 NW2d 903 (1998). Defendant is not entitled to relief.
We affirm.
/s/ Elizabeth L. Gleicher
/s/ Mark J. Cavanagh
/s/ Anica Letica
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