People of Michigan v. Kevin Allen Dubose ( 2018 )

STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
May 10, 2018
Plaintiff-Appellee,
v No. 338158
Calhoun Circuit Court
KEVIN ALLEN DUBOSE, LC No. 2010-003025-FC
Defendant-Appellant.
Before: SHAPIRO, P.J., and M. J. KELLY and O’BRIEN, JJ.
PER CURIAM.
Following a jury trial, defendant was found guilty of armed robbery, MCL 750.529, and
felonious assault, MCL 750.82(1). Defendant was sentenced as a third-offense habitual offender,
MCL 769.11, to concurrent prison terms of 20 to 40 years for the armed robbery conviction and
to two to eight years for the felonious assault conviction. We affirmed defendant’s convictions
but remanded for resentencing because during sentencing the court made inaccurate statements
concerning the proofs at trial. 1 Defendant was resentenced to concurrent prison terms of 15 to 40
years for the armed robbery conviction and two to eight years for the felonious assault
conviction. For the reasons set forth below, we affirm defendant’s sentence but remand for the
limited purpose of recalculating defendant’s sentence credit.
This case arose on June 28, 2010, when an adult novelty and lingerie store was robbed,
and an employee was stabbed. We summarized the facts of the case in our previous opinion as
follows:
Kristin Smyth was working at the store on June 28, 2010. She testified
that she wiped down the glass cabinets in the store early in the day, before the
robbery. Between 5:00 and 6:00 p.m., a man came into the store. Smyth
described the man to police officers as between 5’7” and 5’8” tall, about 200
pounds, and with a thin or medium build. She told police he had a dark
complexion, short hair, and that he wore a white t-shirt, grayish white shorts, and
1
People v DuBose, unpublished per curiam opinion of the Court of Appeals, issued June 27,
2013 (Docket No. 304072), p 6.
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sunglasses. Smyth testified that she described the man to police as “clean
shaven,” but that he also had a mustache or goatee. Smyth testified that by “clean
shaven,” she meant “not scraggly looking” and “clean, not long, goatee kind of
short, you know, not extra—extra hair features.” The man touched the glass
cabinets while looking at merchandise. He then asked Smyth to show him an
item in another room of the store and, when she did, the man stabbed Smyth four
times with what appeared to be a steak knife and then demanded that she open the
cash register. Smyth escaped from the store before she gave defendant any
money, but she testified that the cash register could be easily opened.
Officers received a tip that defendant was involved in the robbery and
assault and took him into custody the following day. At that time, defendant had
facial hair and a goatee. Police found fingerprints on the glass cabinet in the
precise area where Smyth says the robber placed his hand on the glass. One
fingerprint and one palm print matched defendant’s prints. After a police
interview, defendant made a telephone call to his wife. Detective Randy
Reinstein heard the conversation and testified that defendant was crying and
saying, “I’m sorry,” “I’m going away for a long time,” and “I got into some
trouble.”
Smyth was unable to identify defendant in a corporeal lineup. She noted
that all of the people in the lineup, including defendant, had no facial hair, and she
recalled that the robber had a goatee or mustache.2
During defendant’s first sentencing, the sentencing court made the following statement:
Well, Mr. Dubose, I have had a chance to review that presentence
investigation report. And I’m well aware of the facts in this case. And I disagree
with you, Mr. Dubose, about the accuracy of the jury verdict. You were
identified. This is not a fleeting glimpse of you by Ms. Smyth. You were
supposedly a customer. You talked to her. You left your sunglasses on the
counter. You had questions about things. She went with you into a side room.
This was not, as I say, a fleeting glimpse. She saw you. She knows it was you.
In remanding the case back to the trial court, we held that contrary to the sentencing court’s
comments, “the victim never identified defendant as her assailant despite multiple opportunities
to do so” and “the sunglasses found on the counter were never identified as belonging to
defendant and the fingerprints found on them were determined to belong to an identifiable person
other than the defendant.” Dubose, unpub op at 6.
Defendant’s resentencing was conducted before a different judge due to the original
judge’s retirement. During the resentencing, defendant admitted, with the exception of an
2
Dubose, unpub op at 1-2.
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allegation of bribery, which was struck, that the information in the updated presentence
investigation report (PSIR) was correct.
On appeal, defendant first argues that he was entitled to resentencing where the
resentencing court failed to correct the inaccurate assumptions of the original sentencing judge.
We disagree.3
During resentencing, the court specifically stated that it was not relying on the sentencing
judge’s comments but rather, it was focusing on the facts as presented in the PSIR, defendant’s
criminal history before the instant offense, and defendant’s conduct while incarcerated. “A
judge is entitled to rely on the information in the presentence report, which is presumed to be
accurate unless the defendant effectively challenges the accuracy of the factual information.”
People v Grant, 455 Mich. 221, 233-234; 565 NW2d 389 (1997). A judge is also allowed to
consider a defendant’s criminal history, People v Smith, 482 Mich. 292, 339; 754 NW2d 284
(2008), and a defendant’s misbehavior after arrest, People v Houston, 448 Mich. 312, 323; 532
NW2d 508 (1995). Thus, the resentencing judge in this case did not err by relying on the facts as
set out in the PSIR, and defendant’s criminal and misconduct history.
Next, defendant argues that the resentencing judge failed to award him the correct
amount of sentence credit. We agree.4
3
Claims that the trial court relied on inaccurate information at sentencing are preserved if the
trial defendant “raised the issue at or before sentencing[.]” People v McLaughlin, 258 Mich. App.
635, 670; 672 NW2d 860 (2003). See also MCL 769.34(10); MCR 6.429(C). Defendant never
objected to and, in fact, affirmed the accuracy of the information in the PSIR. We review
unpreserved issues for plain error affecting substantial rights. People v Cain, 498 Mich. 108,
116; 869 NW2d 829 (2015). Defendant must satisfy the four-part test articulated in People v
Carines, 460 Mich. 750, 763-764; 597 NW2d 130 (1999), to prevail under this standard. Id.
Defendant must show “that (1) an error occurred, (2) the error was ‘plain’—i.e., clear or obvious,
and (3) the error affected substantial rights—i.e., the outcome of the lower court proceedings was
affected.” Id. Furthermore, even if the first three prongs are satisfied, this Court should
“exercise its discretion in deciding whether to reverse” and “(4) relief is warranted only when the
court determines that the plain, forfeited error resulted in the conviction of an actually innocent
defendant or seriously affected the fairness, integrity or public reputation of the judicial
proceedings.” Id. (quotation marks and citation omitted).
4
Generally, “[f]or an issue to be preserved for appellate review, it must be raised, addressed, and
decided by the lower court.” People v Metamora Water Serv, Inc, 276 Mich. App. 376, 382; 741
NW2d 61 (2007). “The issue of entitlement to sentence credit can be preserved by “request[ing]
credit for time served at sentencing or object[ing] to the trial court order that denied
[defendant’s] sentence credit.” People v Clark, 315 Mich. App. 219, 224; 888 NW2d 309 (2016).
Defendant did not preserve this issue on appeal by failing to object to the calculation of the
amount of sentence credit when the trial court announced its sentence.
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When a challenge to sentence credit is preserved on appeal, this Court reviews the issue
de novo. People v Armisted, 295 Mich. App. 32, 49; 811 NW2d 47 (2011). However, because
defendant did not preserve the issue, this Court will review whether defendant is entitled to
additional sentence credit for plain error affecting substantial rights. Cain, 498 Mich. at 116.
MCL 769.11b provides:
Whenever any person is hereafter convicted of any crime within this state
and has served any time in jail prior to sentencing because of being denied or
unable to furnish bond for the offense of which he is convicted, the trial court in
imposing sentence shall specifically grant credit against the sentence for such
time served in jail prior to sentencing.
“A defendant who is unable to post bond must be awarded credit for all time served in jail before
sentencing.” People v Lyons, 222 Mich. App. 319, 321; 564 NW2d 114 (1997). Additionally,
“when a void sentence is set aside and a new sentence is imposed, any time served with regard to
the void sentence must be credited against the sentence then imposed.” Id.
We conclude that the trial court plainly erred in awarding only 1,633 days of sentence
credit to defendant. Defendant was arrested on June 30, 2010. At his original sentencing on
April 22, 2011, he was awarded 296 days of sentence credit, which was consistent with his arrest
date. During resentencing, the resentencing court, without explaining its calculation, awarded
defendant 1,633 days of sentence credit. If defendant was continuously incarcerated from the
date of his original sentencing hearing until his resentencing hearing for the present charges, then
the trial court erred in its calculations by more than 800 days, where there is no evidence that
defendant was incarcerated for any other offenses. In Lyons, 222 Mich. App. at 321, this Court
remanded for a recalculation of the amount of sentence credit to which the defendant was
entitled when the defendant was given sentence credit that did not accurately account for the
amount of time that the defendant was incarcerated between initial sentencing and resentencing.
An error occurred in the calculation of defendant’s sentence credit. The error was plain,
considering that there was a discrepancy of more than 800 days. The error affected the outcome
of the proceedings in that defendant was not awarded the entire sentence credit to which he was
entitled. This error affects his substantial rights as it will result in additional incarceration.
Thus, the error in the calculation of the sentence credit was plain and affected defendant’s
substantial rights. See Cain, 498 Mich. at 116.
Accordingly, we affirm defendant’s sentence but remand for “a recalculation of the
amount of time served for which defendant is entitled to credit.” Lyons, 222 Mich. App. at 321.
We do not retain jurisdiction.
/s/ Douglas B. Shapiro
/s/ Michael J. Kelly
/s/ Colleen A. O'Brien
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