People of Michigan v. Abel Nodarse ( 2022 )

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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
August 11, 2022
Plaintiff-Appellee,
v No. 356870
Kent Circuit Court
ABEL NODARSE, LC No. 16-001622-FC
Defendant-Appellant.
Before: RICK, P.J., and BOONSTRA and O’BRIEN, JJ.
PER CURIAM.
Defendant appeals by leave granted1 his jury-trial convictions of two counts of first-degree
criminal sexual conduct (CSC-I), MCL 750.520b(1)(f), and one count of assault by strangulation,
MCL 750.84(1)(b). The trial court sentenced defendant as a fourth-offense habitual offender,
MCL 769.12, to concurrent prison terms of 30 to 60 years for one CSC-I conviction and 25 to 60
years for the assault-by-strangulation conviction, and a consecutive prison term of 30 to 60 years
for the second CSC-I conviction. The trial court awarded defendant 865 days’ credit for time
served. We affirm.
II. PERTINENT FACTS AND PROCEDURAL HISTORY
Defendant previously appealed by right his convictions and sentences. People v Nodarse,
unpublished per curiam opinion of the Court of Appeals, issued October 22, 2019 (Docket
No. 344865). This Court’s opinion in the previous appeal summarized the underlying facts and
procedural history of this case:
Defendant sexually assaulted a female victim (BE) at a party on the evening
of February 6, 2016. During the party, he entered a room with BE, refused to let
her leave the room, pushed her onto the bed, and began strangling her. As he did
1
People v Nodarse, unpublished order of the Court of Appeals, entered June 16, 2021 (Docket
No. 356870).
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so, he sexually assaulted her. This occurred for roughly an hour before one of BE’s
friends walked into the room.
After the police were called, BE stated to the responding officer that
defendant had inserted both his penis and a finger into her. A sexual assault nurse
examiner (SANE) examined BE and found no trauma to the vaginal area. However,
the SANE observed significant damage to BE’s neck and a number of other injuries,
including scratches near her pelvic area and lower stomach. BE did not describe
any digital penetration to the SANE. The SANE also collected DNA swabs from
BE’s vagina. Subsequent testing of those swabs revealed the presence of
defendant’s DNA.
Defendant was charged with two counts of CSC-I (one count for penile
penetration and one count for digital penetration) and one count of assault by
strangulation. Before trial, defendant pleaded guilty to one count of CSC-I and one
count of assault by strangulation. The trial court sentenced defendant to concurrent
terms of 30 to 60 years for the CSC-I conviction and 6 to 10 years for the assault
conviction. However, defendant later moved to withdraw his plea, noting that the
trial court had not informed him of the lifetime electronic monitoring he would face
by pleading guilty to CSC-I. During the hearing on defendant’s motion, the trial
court specifically recognized and informed defendant of its discretion to impose
consecutive sentences if he were to be convicted of multiple CSC-I charges. The
prosecution also warned defendant that the trial court could impose consecutive
sentences. Finally, defense counsel explained consecutive sentencing to defendant
on the record and stated that he had discussed with defendant the risks of
withdrawing his plea. Notwithstanding these warnings, defendant indicated that he
wished to withdraw his plea; the trial court granted defendant’s motion and the case
proceeded to trial. [Id. at 1-2.]
The jury convicted defendant on all three counts. Id. at 2. The trial court sentenced
defendant as described. At sentencing, defendant was represented by counsel, who objected to
certain scoring variables and offered comments on defendant’s behalf.
Defendant appealed his conviction and sentence, arguing in part that the trial court’s
imposition of consecutive sentences had resulted in a disproportionate sentence. Id. at 7. This
Court declined to reach that issue because it remanded the case to the trial court “for the articulation
of reasons for imposing consecutive sentences or for resentencing.” Id. at 9-10.
On remand, defendant moved the trial court for resentencing. Defendant states on appeal
that he filed a sentencing memorandum with the trial court that put forth reasons why consecutive
sentences were not appropriate in this matter; however, no such memorandum appears in the lower
court record and the copy attached to defendant’s application for leave to appeal does not bear a
stamp or other indication that it was filed with the trial court. Without explicitly addressing
defendant’s motion or any sentencing memorandum, and without holding a resentencing hearing,
the trial court entered into the record a document entitled Explanatory Memoranda – Articulation
of Reasons for Consecutive Sentencing. In the memorandum, the trial court addressed various
reasons for imposing consecutive sentences; these included the lack of remorse shown by
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defendant, the unlikelihood of rehabilitation based on defendant’s criminal history, the fact that a
child was present and witnessed the crime, and defendant’s attempt to manipulate a witness by
instructing a witness to lie to police.
This appeal followed.
III. RIGHT TO COUNSEL
Defendant argues that he was denied his right to counsel at sentencing because the trial
court’s explanatory memorandum did not provide any indication that the trial court considered his
sentencing memorandum, and because defendant was not otherwise able to present arguments
regarding consecutive sentencing. We disagree. We review de novo constitutional issues. People
v Idziak, 484 Mich 549, 554; 773 NW2d 616 (2009).
Defendant’s argument is based on a misunderstanding of the procedural posture of this
matter following this Court’s remand to the trial court. “The power of the lower court on remand
is to take such action as law and justice may require so long as it is not inconsistent with the
judgment of the appellate court.” People v Fisher, 449 Mich 441, 446-447; 537 NW2d 577 (1995).
This Court remanded this matter to the trial court “for the articulation of reasons for imposing
consecutive sentences or for resentencing.” Therefore, the trial court had the option of either
articulating the reasons for imposing consecutive sentences or resentencing defendant. In this
case, the trial court chose the former option and issued an explanatory memorandum that addressed
its reasons for imposing consecutive sentences. The trial court was not required to, and did not,
resentence defendant. Defendant was therefore not denied representation during sentencing, and
reversal on this ground is not required.
IV. PROPORTIONALITY OF CONSECUTIVE SENTENCES
Defendant also argues that the trial court abused its discretion when it imposed a sentence
for Count 2, CSC-I (digital penetration), that was consecutive to the sentence imposed for Count 1,
CSC-I (penile penetration). We disagree.
This Court reviews for an abuse of discretion a trial court’s decision regarding the
imposition of discretionary consecutive sentences. People v Norfleet, 317 Mich App 649; 664;
897 NW2d 195 (2016). A trial court abuses its discretion when its decision falls outside the range
of reasonable and principled outcomes. People v Yost, 278 Mich App 341, 379; 749 NW2d 753
(2008). This Court reviews for clear error a trial court’s findings of fact at sentencing. People v
Dilling, 222 Mich App 44, 52; 564 NW2d 56 (1997). “Clear error occurs if the reviewing court is
left with a definite and firm conviction that the trial court made a mistake.” People v Johnson, 502
Mich 541, 565; 918 NW2d 676 (2018) (quotation marks and citation omitted).
“In Michigan, concurrent sentencing is the norm, and a consecutive sentence may be
imposed only if specifically authorized by statute.” People v Ryan, 295 Mich App 388, 401; 819
NW2d 55 (2012) (quotation marks and citation omitted). Our Supreme Court has described the
imposition of consecutive sentences as “strong medicine.” People v Chambers, 430 Mich 217,
231; 421 NW2d 903 (1988).
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MCL 750.520b pertains to criminal sexual conduct in the first degree and specifically
authorizes consecutive sentencing. Under this statute, the trial court “may order a term of
imprisonment imposed under this section to be served consecutively to any term of imprisonment
imposed for any other criminal offense arising from the same transaction.” MCL 750.520b.
MCL 769.34(10) provides the following directive to this Court for minimum sentences that
are within the sentencing guidelines:
If a minimum sentence is within the appropriate guidelines sentence range,
the court of appeals shall affirm that sentence and shall not remand for resentencing
absent an error in scoring the sentencing guidelines or inaccurate information relied
upon in determining the defendant’s sentence. A party shall not raise on appeal an
issue challenging the scoring of the sentencing guidelines or challenging the
accuracy of information relied upon in determining a sentence that is within the
appropriate guidelines sentence range unless the party has raised the issue at
sentencing, in a proper motion for resentencing, or in a proper motion to remand
filed in the court of appeals.
“[A] proportionality challenge to a given sentence must be based on the individual term
imposed and not cumulative effect of multiple sentences.” Norfleet, 317 Mich App at 663. “[T]he
combined term [of consecutive sentences imposed] is not itself subject to a proportionality
review.” Id. at 664.
“A sentencing court cannot base a sentence even in part on a defendant’s refusal to admit
guilt.” People v Dobek, 274 Mich App 58, 104; 732 NW2d 546 (2007), lv den 480 Mich 897(2007). “However, evidence of a lack of remorse can be considered in determining an individual’s
potential for rehabilitation.” Id.; see also People v Houston, 448 Mich 312, 323; 532 NW2d 508
(1995).
To determine whether sentencing was improperly influenced by the defendant’s
failure to admit guilt, this Court focuses on three factors: “(1) the defendant’s
maintenance of innocence after conviction; (2) the judge’s attempt to get the
defendant to admit guilt; (3) the appearance that had the defendant affirmatively
admitted guilt, his sentence would not have been so severe.” [Dobek, 274 Mich
App at 104, quoting People v Wesley, 428 Mich 708, 713; 411 NW2d 159 (1987).]
In this case, the trial court sentenced defendant as a fourth-offense habitual offender. The
sentencing guidelines for each of defendant’s two CSC-I convictions ranged from 221/2 years to
75 years. The trial court’s sentence of 30 years for each CSC-I conviction was within the
sentencing guidelines range, and defendant does not argue that either of these sentences departed
from the sentencing guidelines or that the trial court erred in calculating the sentencing guidelines.
Instead, defendant argues that the trial court abused its discretion by imposing a sentence for
Count 2, CSC-I (digital penetration), that was consecutive to the sentence imposed for Count 1
(CSC-I (penile penetration). We disagree.
The trial court provided four reasons for imposing consecutive sentences: (1) lack of
remorse; (2) unlikelihood of rehabilitation and misconduct while in custody; (3) the presence of a
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child during the sexual assault; and (4) attempted witness manipulation. On appeal, defendant
only challenges the first reason (lack of remorse) and the fourth reason (attempted witness
manipulation). Defendant does not put forth any argument regarding the second reason
(unlikelihood of rehabilitation and misconduct while in custody) or the third reason (the presence
of a child during the sexual assault).
Defendant argues that by considering defendant’s “lack of remorse” as one of the reasons
for imposing consecutive sentences, the trial court actually punished defendant for refusing to
admit guilt. This argument is not supported by the record. After his convictions, but before he
was sentenced, defendant submitted a handwritten letter to the trial court in which he maintained
that he was innocent, along with a list of grievances about how the case unfolded. In the trial
court’s memorandum, it explicitly acknowledged that it could not base its sentence on a refusal to
admit guilt, and it stated that it was not penalizing defendant for his refusal to admit guilt.
Although defendant generally implies that the trial court erred by punishing him for maintaining
his innocence, defendant does not provide any analysis of relevant caselaw or how it relates to this
issue. When a defendant has not offered any meaningful analysis of the relevant facts and law,
this Court will treat the claim as abandoned on appeal. See People v Martin, 271 Mich App 280,
315; 721 NW2d 815 (2006), aff’d in part 482 Mich 851 (2008). Therefore, defendant has
abandoned the argument that his refusal to admit guilt improperly influenced the sentence. See id.Even if this argument were not abandoned, defendant has not established that the
sentencing was improperly influenced by defendant’s failure to admit guilt. Defendant has
satisfied the first Wesley factor: that he maintained his innocence after conviction. See Wesley,
428 Mich at 713. However, under the second Wesley factor, defendant has not directed this Court
to any attempts by the sentencing judge to get defendant to admit guilt. See id. Furthermore,
defendant has not established that there is an appearance that, had defendant affirmatively admitted
guilt, his sentence would have been less severe. See id. Defendant has therefore failed to establish
any error in this regard.
Defendant also argues that the trial court erred when it found that he had attempted to
manipulate a witness. Although not named in the trial court’s memorandum, Yadira Martinez
testified at trial that, after she witnessed the assault, defendant told her to help him by lying to the
police. Thus, although these allegations do not appear in the Presentence Investigation Report
(PSIR), there was evidence at trial of defendant’s attempts to convince a witness to lie to police.
Defendant has not cited any authority to support his argument that the trial court cannot rely on
evidence presented at trial and can only rely on evidence that is contained in the PSIR or the
sentencing transcript. The trial court did not clearly err when it found that defendant had instructed
a witness to lie to police. See Dilling, 222 Mich App at 52.2
2
Defendant has cited no authority, and has presented no detailed argument, in support of his one-
sentence contention that his attempt at manipulating a witness would more appropriately have been
included as part of an offense variable scoring (rather than as a reason for consecutive sentencing).
That argument is therefore abandoned, and we decline to consider it. See Martin, 271 Mich App
at 315.
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Defendant has failed to establish any error with regard to the trial court’s stated reasoning
in support of its imposition of consecutive sentences. Further, to the extent that defendant argues
that the cumulative effect of his consecutive sentences creates a disproportionate sentence, that
argument is unpersuasive.3 The caselaw is clear that “a proportionality challenge to a given
sentence must be based on the individual term imposed and not cumulative effect of multiple
sentences.” Norfleet, 317 Mich App at 663. “[T]he combined term [of consecutive sentences
imposed] is not itself subject to a proportionality review.” Id. at 664.
Defendant has not established that the trial court abused its discretion when it imposed
consecutive sentences. Norfleet, 317 Mich App at 649. Nor has defendant established any error
in the procedure followed by the trial court in complying with our remand order.
Affirmed.
/s/ Michelle M. Rick
/s/ Mark T. Boonstra
/s/ Colleen A. O’Brien
3
In the first appeal in this case, this Court deemed abandoned any challenge by defendant to the
proportionality of his sentence for his conviction of Count 2 based on a lack of evidence because
defendant failed to support the argument with facts or law. Nodarse, unpub op at 8. The Court
already dealt with this issue in the first appeal; therefore, we need not address it again in the current
appeal.
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