People of Michigan v. Jeremiah Allen Dewey ( 2020 )

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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
March 19, 2020
Plaintiff-Appellee,
v Nos. 340063; 346208; 346215
Presque Isle Circuit Court
JEREMIAH ALLEN DEWEY, LC Nos. 13-092844-FC;
13-092851-FC
Defendant-Appellant.
Before: BOONSTRA, P.J., and RIORDAN and REDFORD, JJ.
PER CURIAM.
In 2014, in two cases, separate juries found defendant guilty of first-degree criminal sexual
conduct (CSC-I) in violation of MCL 750.520b. In lower court Case No. 13-092851-FC, the jury
convicted defendant of one count of CSC-I (multiple variables), and in lower court Case No. 13-
092844-FC, the jury convicted defendant of four counts of CSC-I (multiple variables, victim under
age 13). At sentencing the trial court departed upward from the sentencing guidelines range and
in Case No. 13-092851-FC, sentenced defendant to 13 to 25 years, and in Case No. 13-092844-
FC, sentenced defendant to four concurrent terms of 22 to 40 years. Defendant appealed and in
light of People v Steanhouse, 313 Mich. App. 1; 880 NW2d 297 (2015) (Steanhouse I), aff’d in part
and rev’d in part on other grounds, 500 Mich. 453; 902 NW2d 327 (2017) (Steanhouse II), and
People v Lockridge, 498 Mich. 358; 870 NW2d 502 (2015), a panel of this Court remanded for
further proceedings.1 On remand, the trial court resentenced defendant to the same sentences as
his original sentences. In Docket No. 340063, this Court denied defendant’s delayed application
1
People v Dewey, unpublished per curiam opinion of the Court of Appeals, issued February 16,
2016 (Docket No. 324275), p 3, lv den 500 Mich. 855 (2016). Judge RONAYNE KRAUSE would
have affirmed the departure sentences and declined to remand the case. Id. (RONAYNE KRAUSE,
P.J., concurring in part and dissenting in part), pp 1-3.
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for leave to appeal,2 but our Supreme Court remanded to this Court as on leave granted. 3 This
Court consolidated defendant’s appeal in Docket No. 340063 with his appeals in Docket Nos.
346208 and 346215.4 We affirm.
I. FACTUAL BACKGROUND
At trial, evidence established that defendant began sexually assaulting his girlfriend’s
approximately five-year-old daughter, BG, “almost every other day” and continued for as long as
defendant resided with his girlfriend and BG in the same household. He led BG upstairs to a
bedroom, shut and locked the door, then anally penetrated her with his penis on each occasion.
One time he also orally penetrated her with his penis. When she turned seven years old, BG’s
mother sent her to live elsewhere. BG returned to live with her mother and defendant at age 13
and defendant sexually assaulted her again. After a track practice, while helping BG stretch out,
defendant massaged her back, then pulled down her shorts and digitally penetrated her vagina.
After declining defendant’s request to repeat this on a daily basis, BG reported the years of abuse
to her grandmother, a friend, her mother, and a counselor.5
On remand from this Court, the trial court reviewed the circumstances of the case and
reiterated its reasons for the original upward departure sentences as follows:
Well, when I consider those things and the directives under Lockridge and
Steanhouse, as well as considering proportionality under [People v ]Milbourn[, 435
Mich. 630; 461 NW2d 1 (1990)] and [United States v ]Booker[, 543 U.S. 220; 125 S
Ct 738; 160 L Ed2d 621 (2005)], I—really, when—on this type of remand, the only
thing that would make sense to me is that the Court would go higher. At the time
of the initial sentencing, the guideline range was mandatory. The Court was bound
by that unless it found substantial and compelling reasons to go outside the
guideline range. I did at the time of initial sentencing indicate I felt there were
substantial and compelling reasons to go outside the guideline range and that the
guidelines did not take into consideration and account for the fact that the young
girl who is the victim in this case had been previously sexually molested by the
defendant when she was six years old, and then separated from the defendant while
he pursued a relationship with the victim’s mother. The mother and the defendant
then left Washington for several years. The guideline range did not consider the
fact that the defendant previously sexually abused her, abusing his authority over
her, and then years later, when reunited with her, engaged in similar conduct with
2
People v Dewey, unpublished order of the Court of Appeals, entered November 8, 2017 (Docket
No. 340063).
3
People v Dewey, 503 Mich. 879 (2018).
4
People v Dewey, unpublished order of the Court of Appeals, entered November 26, 2018 (Docket
Nos. 340063, 346208, and 346215).
5
See Dewey, unpublished per curiam opinion of the Court of Appeals issued February 16, 2016
(Docket No. 324275), p 1.
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her. The damage is hard to fathom and calculate, I indicated at that time, and I
think it is. I think to reabuse [sic] somebody after a period of time really could
escalate the damage, which is already hard to fathom, and make it that much worse.
I don’t think the guideline range took that into consideration.
And I gave further reasons, that when you were left alone with the girl when
she was very young, about six years of age, it appeared that on multiple occasions
you had sex with her and infected her with an STD. I think that’s an aggravating
factor that needs to be considered; that the guideline range did not take into account
the number of times she was violated, which was many, many, many times here,
that were not factored in the guidelines. The guidelines did not accurately reflect
the problems that she’s now faced with, having been infected with STD, and the
repeated violations of her after you’re reunited after a multiple year absence. I think
all those factors were not adequately considered in the guideline range, and I gave
those as reasons. I think they were good reasons.
The trial court considered whether it would have sentenced defendant differently had it
known the guidelines were advisory only. The trial court stated on the record multiple aggravating
circumstances that it found again warranted imposing sentences outside of the calculated minimum
sentence ranges under the guidelines. It declined to impose higher sentences. Regarding the
proportionality of defendant’s sentences under Milbourn and Booker, the trial court explained,
“Considering the nature of the offense, your prior record, all the reasons I gave at the initial
sentencing I think were valid, and I think they continue to be valid, and I would simply resentence
you to the initial sentence of 22 to 40 years.”
II. REASONABLENESS OF DEFENDANT’S SENTENCES
Defendant argues that his sentences are neither reasonable nor proportionate. We disagree
because the trial court appropriately considered and articulated factors that warranted sentences
outside of the guidelines minimum sentence ranges.
We review for an abuse of discretion a trial court’s sentence outside of the guidelines range
for reasonableness under the principle of proportionality standard. Steanhouse II, 500 Mich. at
476. Sentencing courts must consult the sentencing guidelines, calculate the minimum sentence
range, and take the range into account when sentencing the defendant. Lockridge, 498 Mich. at
391-392. However, trial courts are not compelled to impose a minimum sentence within the
calculated range. Id. at 365. The sentencing guidelines are advisory only. Id. at 392. In
Steanhouse II, 500 Mich. at 471, our Supreme Court reaffirmed the principle of proportionality test
articulated in Milbourn, 435 Mich. 630. Under the principle of proportionality standard, a sentence
must be “proportionate to the seriousness of the circumstances surrounding the offense and the
offender.” Id. at 636. Sentencing courts must take “into account the nature of the offense and the
background of the offender.” Id. at 651. Trial courts may impose a sentence outside of the
guidelines range if they determine that “the recommended range under the guidelines is
disproportionate, in either direction, to the seriousness of the crime.” Id. at 657. The trial court
may consider whether the guidelines adequately took into account defendant’s conduct and such
factors as the seriousness of the offense, the relationship between the victim and the defendant, the
defendant’s expression of remorse, the defendant’s potential for rehabilitation, or the defendant’s
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misconduct while in custody. People v Lawhorn, 320 Mich. App. 194, 207; 907 NW2d 832 (2017)
(citation omitted).
In this case, the trial court imposed its original sentences before our Supreme Court decided
Lockridge and Steanhouse. On remand at defendant’s resentencing hearing, the trial court
adequately articulated its justification for the outside of the guidelines range from the minimum
sentences and the extent they were outside of the ranges as required under the principle of
proportionality standard. Milbourn, 435 Mich. at 659-660. The trial court reiterated its reliance on
factors previously found at defendant’s original sentencing and appropriately articulated the
numerous factors warranting outside of the minimum sentence ranges under the guidelines. In
Case No. 13-092851, the minimum sentence range equaled 42 to 70 months (3.5 to approximately
5.8 years). The trial court’s minimum sentence of 13 years in this case for defendant’s CSC-I
conviction took into account defendant’s vile conduct toward a very young child. In Case No. 13-
092844, the minimum sentence range equaled 135 to 225 months (11.25 to 18.75 years) and the
trial court’s imposition of concurrent 22-year minimum sentences for his multiple CSC-I
convictions in that case exceeded the high end of the calculated range by 39 months.
The record establishes that, at the sentencing hearing following remand, the trial court
adequately explained its rationale for imposing outside of the guidelines range sentences based on
consideration of the offenses and the offender. The trial court did not abuse its discretion in this
regard because it appropriately explained its justification for imposing the sentences considering
defendant’s repeated heinous crimes committed against a vulnerable victim. The trial court
remarked that nothing convinced it upon further reflection of the facts of these cases that
defendant’s sentences should be reduced. Accordingly, it appropriately reinstated its previous
sentences. The trial court’s articulated reasons and the evidence supporting its rationale sufficed
to explain the extent of its sentences. Accordingly, the trial court did not abuse its discretion by
imposing the minimum sentences outside of the guidelines ranges in both cases.
Defendant argues that the trial court abused its discretion when it justified its departure
sentences with reasons already considered by the sentencing guidelines offense variables (OV) 3
and 13. However, these arguments were explicitly waived at defendant’s original sentencing when
defense counsel stated, “we have no objections to the guidelines on the 13-092851-FC,” and he
failed to raise a challenge to OV 3 scoring in Case No. 13-092844-FC before acknowledging that
there were no further challenges to the scoring. At his resentencing on remand, defendant did not
raise challenges to OV scoring. Nevertheless, we will address these claims of error which we
conclude lack merit for the following reasons.
OV 3 is scored for all felony offenses where physical injury to the victim has occurred.
MCL 777.33. A trial court may assess 10 points where the victim suffered bodily injury requiring
medical treatment, five points where medical treatment did not occur, and zero points if no physical
injury occurred. Id. OV 13 is scored for all felony offenses where a continuing pattern of criminal
behavior existed. MCL 777.43. A trial court may assess 50 points where the offense constituted
part of a pattern of felonious criminal activity involving three or more sexual penetrations against
a person less than 13 years of age and the sentencing offense is CSC-I. Id. Twenty-five points
may be assessed if the offense was part of a pattern of felonious criminal activity involving three
or more crimes against a person. Id.
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The record reflects that, in Case No. 13-092851 in which the jury convicted defendant of
one count of sexually assaulting BG as a teenager, the trial court assessed defendant 10 points for
OV 4 (MCL 777.34) for serious psychological injury caused to BG, 10 points under OV 10 (MCL
777.40) for exploitation of a vulnerable victim, and 25 points under OV 13 for a pattern of
felonious activity. The record evidence supported the trial court’s assessments of points for the
OVs. In Case No. 13-092844 in which the jury convicted defendant of four counts of sexually
assaulting BG at around age five, the trial court assessed defendant 10 points for OV 3, 10 points
for OV 4, 10 points for OV 10, 25 points for OV 11 (MCL 777.41) for criminal sexual penetration,
and 50 points for OV 13. This Court previously held that the trial court properly scored OV 13 in
Case No. 13-092844.6 The record evidence supported the trial court’s assessments of points for
these OVs in Case No. 13-092844.
As grounds for imposing outside of guidelines sentences, the trial court properly considered
defendant’s relationship with the victim as a member of the household. See People v Sabin (On
Second Remand), 242 Mich. App. 656, 662-663; 620 NW2d 19 (2000); Steanhouse I, 313 Mich
App at 46. The trial court also considered defendant’s repeated sexual abuse of BG over a lengthy
period from approximately five to seven years old. The trial court also considered his resumption
of sexual abuse against BG years later after she again lived in the same household with him. The
record reflects that BG suffered physical injury and sought medical treatment on several occasions.
BG’s mother testified that, in 2005, when BG was approximately seven years old, she had herself
and BG tested for sexually transmitted diseases (STDs) which resulted in the determination that
both she and BG were infected with herpes simplex virus type 2 (HSV-2), which is genital herpes.
She affirmed that when she gave birth to BG, medical personnel did not inform her that she or BG
were infected with HSV-2. Pursuant to a warrant, defendant was tested for STDs which
determined he was infected with HSV-2. The trial court could reasonably infer from the evidence
that defendant transmitted the STD to BG causing her bodily injury that required medical
treatment. Further, the record indicates that defendant engaged in a pattern of felonious criminal
sexual activity perpetrated against BG while a young girl. We find no merit to defendant’s
contention that the trial court erred by assessing 10 points for OV 3 or by assessing 25 points for
OV 13.
We also find no merit to defendant’s argument that the trial court could not impose outside
the guidelines sentences because the guidelines accounted for his conduct. The frequency and
accumulated severity of defendant’s sexual predation against BG and infliction of an incurable
sexually transmitted disease are circumstances that are not taken into account adequately by the
sentencing guidelines OVs. Defendant’s infliction of sexual abuse against BG occurred when she
was a very young child and then again as a teenager. The OVs related to criminal sexual
penetration fail to adequately take into account the age of the victim in this case where defendant
perpetrated his sexual abuse over a lengthy duration during two separate periods of BG’s life. The
trial court, therefore, did not abuse its discretion in this regard.
6
See Dewey, unpublished per curiam opinion of the Court of Appeals issued February 16, 2016
(Docket No. 324275), pp 2-3.
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Defendant further contends that, in Case No. 13-092844-FC, the trial court abused its
discretion by imposing an outside the guidelines sentence on the ground that defendant infected
BG with an STD because the fact that defendant infected BG was not conclusively proven at trial.
In determining an appropriate sentence, a court may draw inferences about the defendant’s
behavior from the objective evidence. See People v Petri, 279 Mich. App. 407, 422; 760 NW2d
882 (2008). Moreover, the trial court may consider the background of the offender. Milbourn,
435 Mich. at 651. As previously described, the evidence presented at trial and information within
defendant’s presentencing investigation report (PSIR) supported a reasonable inference that
defendant infected BG with HSV-2. That STD presently has no cure. Consequently, BG continues
to live with this infection. Although OV 3 takes into account the victim’s need for medical
treatment, it does not differentiate between a one-time treatment and the potential for ongoing
treatment over a lifetime for an STD like HSV-2, nor does OV 3 take into account the physical
discomfort she will likely suffer for her lifetime because of defendant’s conduct. The trial court
appropriately considered the facts established by the record evidence and drew reasonable
inferences from the facts that supported its assessment of points for the various OVs including OV
3 and OV 13 in both cases. The trial court, therefore, did not abuse its discretion in this regard.
Considering the record as a whole, the trial court identified many valid reasons for its outside the
guidelines sentences that were not adequately considered by the sentencing guidelines. Therefore,
the trial court did not abuse its discretion when it determined that sentences outside the sentencing
guidelines minimum sentence ranges were warranted.
III. INFORMATION WITHIN PSIR
Defendant also argues that the trial court erred by allowing irrelevant information related
to his brother’s criminal history to remain within his presentence investigation report (PSIR), and
therefore, that he is entitled to a remand for correction of the PSIR. We disagree.
We review for an abuse of discretion a trial court’s response to a claim of inaccuracy in
information contained in the PSIR. People v Uphaus (On Remand), 278 Mich. App. 174, 181; 748
NW2d 899 (2008). “A trial court abuses its discretion when it selects an outcome outside the range
of reasonable and principled outcomes.” Id. (citation omitted). At sentencing, either party may
challenge the accuracy or relevancy of any information contained in the PSIR. MCL 771.14(6);
MCR 6.425(E)(1)(b); People v Lloyd, 284 Mich. App. 703, 705; 774 NW2d 347 (2009). The
information is presumed to be accurate unless the defendant effectively challenges the accuracy of
the factual information. See People v Grant, 455 Mich. 221, 233-234; 565 NW2d 389 (1997). The
defendant bears the initial burden but once the defendant effectively challenges the factual
accuracy of information in the PSIR, the burden shifts to the prosecutor to prove the fact by a
preponderance of the evidence. Lloyd, 284 Mich. App. at 705. The trial court “must allow the
parties to be heard and must make a finding as to the challenge or determine that the finding is
unnecessary because the court will not consider it during sentencing.” People v Waclawski, 286
Mich. App. 634, 689-690; 780 NW2d 321 (2009), citing MCR 6.425(E)(2). If the court finds that
challenged information is inaccurate or irrelevant, that finding must be made part of the record,
and the information must be corrected or stricken from the report. MCL 771.14(6); MCR
6.425(E)(2)(a); Lloyd, 284 Mich. App. at 705. The failure to strike inaccurate or irrelevant
information, however, may be deemed harmless error if the trial court expressly states on the
record that the information was not considered in passing sentence. People v Fisher, 442 Mich.
560, 567 n 4; 503 NW2d 50 (1993).
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As a preliminary matter, defendant did not raise this issue during his first appeal as of right.
Further, he also did not raise this issue before the sentencing court on remand. A defendant may
waive the right to an updated PSIR at resentencing if he does not suggest that the report is
erroneous. People v Hemphill, 439 Mich. 576, 582; 487 NW2d 152 (1992). Accordingly, we
conclude that defendant has waived this issue. We review this claim of error under the standard
for unpreserved, nonconstitutional error, the plain error standard. People v Jones, 468 Mich. 345,
355; 662 NW2d 376 (2003). Under the plain error standard, defendant must show that an “(1)
error occurred, (2) the error was plain, i.e., clear or obvious, and (3) the plain error affected
substantial rights.” Id. (citation omitted). “Reversal is warranted only when the plain, unpreserved
error resulted in the conviction of an actually innocent defendant or when an error seriously
affected the fairness, integrity, or public reputation of the judicial proceedings independent of the
defendant’s innocence.” Id. (citation omitted).
Defendant does not dispute the accuracy of the information. He challenges the relevance
of the information but he fails to cite authority to support his argument that a family member’s
criminal history should be excluded from the section of his PSIR that discussed his family
background. The record indicates that defendant objected at his initial sentencing to the
information, and the trial court addressed his objection and concluded that the information had
relevance regarding defendant’s family background. There is no indication in the record that the
trial court considered the information for any other purpose. Further, nothing in the record
indicates that this information influenced the trial court’s sentencing decisions. Therefore, even if
the trial court plainly erred by not striking the information as irrelevant, defendant has not
established that such plain error affected his substantial rights. He has not established his
innocence or that the plain error seriously affected the fairness, integrity, or public reputation of
the judicial proceedings independent of his innocence. Accordingly, defendant is not entitled to
remand for correction of the PSIR.
IV. STANDARD 4 BRIEF
In a Standard 4 brief, defendant recites a rendition of various facts and vaguely contends
that he was deprived a fair trial and due process of law for a host of reasons to which he alludes
including misconduct by officers of the district and circuit courts and the prosecutor, that the trial
court and prosecutor had purported but unexplained conflicts of interest, that evidence had been
suppressed, and that his various counsel provided him ineffective assistance because they were
only interested in being paid. Defendant states that he suffered malicious prosecution and
conspiracy, jury tampering, and that the prosecution failed to present sufficient evidence of guilt.
He attacks the credibility of the victim and other witnesses all of whom were cross-examined by
defense counsel.
Defendant, however, failed to include a statement of questions presented within his
Standard 4 brief. This Court is not required to address any issues not raised in the statement of
questions presented. Caldwell v Chapman, 240 Mich. App. 124, 132; 610 NW2d 264 (2000); MCR
7.212(C)(5).
Additionally, none of the issues presented within defendant’s Standard 4 brief were raised
before the trial court at any time or even within defendant’s previous appeal by right. The record
indicates that defendant has not sought relief from judgment on any of these grounds. Further, the
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issues are not related to the sole issue for which this case was remandedthe reasonableness and
proportionality of defendant’s sentence. Moreover, in his Standard 4 brief, defendant cites no
authority to support his allegations of error regarding either trial in the two cases, and we find no
support for the various claims of error within the trial court records. This Court has explained that,
“where a party fails to brief the merits of an allegation of error, the issue is deemed abandoned by
this Court.” Yee v Shiawassee Co Bd of Commrs, 251 Mich. App. 379, 406; 651 NW2d 756 (2002)
(citation omitted). Further, we are not required to unravel and elaborate on defendant’s arguments
and may deem his unsupported arguments abandoned. People v Cameron, 319 Mich App, 215,
232; 900 NW2d 658 (2017). Because defendant has failed to support his claims of error in cogent
arguments supported by legal authority, he abandoned them and we decline to address them.
Affirmed.
/s/ Mark T. Boonstra
/s/ Michael J. Riordan
/s/ James Robert Redford
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