Opinion
352770
10-21-2021
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. TYLER WAYNE JUDY, Defendant-Appellant.
UNPUBLISHED
Lenawee Circuit Court LC No. 19-019385-FH
Before: Shapiro, P.J., and Borrello and O'Brien, JJ.
Per Curiam.
Following a jury trial, defendant was convicted of two counts of indecent exposure by a sexually delinquent person, MCL 750.335a(2)(c). The trial court sentenced defendant to a prison term of 135 months to 40 years for each conviction, to be served concurrently. Defendant appeals as of right. We affirm defendant's convictions but remand for resentencing.
The prosecution presented evidence that on February 20, 2019, and again on February 27, 2019, defendant entered a Little Caesars store in Tecumseh and intentionally exposed his genitals to employee BP. In addition to this conduct, which formed the basis for the two charged offenses, the prosecution presented evidence of three other incidents that occurred in 2017, when defendant exposed his genitals to three different women, all in public places of business. At trial, the defense did not call any witnesses, but argued that defendant did not intend for his genitals to be seen, and that any exposure was accidental.
Defendant pleaded guilty in 2018 to indecent exposure and aggravated indecent exposure in relation to two of the 2017 incidents.
I. BIFURCATION
Defendant first argues that the trial court abused its discretion by denying his request for separate trials for the indecent exposure charges and the sexually delinquent person enhancement. We disagree.
We review the trial court's decision to join or sever cases for an abuse of discretion. See People v Breidenbach, 489 Mich. 1, 14; 798 N.W.2d 738 (2011).
Separate juries are not necessarily required when a defendant is charged with being a sexually delinquent person in addition to another sexual offense. People v Breidenbach, 489 Mich. 1, 8; 798 N.W.2d 738 (2011). Instead, MCR 6.120(B) provides the proper framework for courts to determine whether a separate jury should be empaneled to decide a sexual delinquency charge. Id. at 14. MCR 6.120(B) provides in pertinent part:
On its own initiative, the motion of a party, or the stipulation of all parties . . . the court may join offenses charged in two or more informations or indictments against a single defendant . . . when appropriate to promote fairness to the parties and a fair determination of the defendant's guilt or innocence of each offense.
(1) Joinder is appropriate if the offenses are related. For purposes of this rule, offenses are related if they are based on
(a) the same conduct or transaction, or
(b) a series of connected acts, or
(c) a series of acts constituting parts of a single scheme or plan.
(2) Other relevant factors include the timeliness of the motion, the drain on the parties' resources, the potential for confusion or prejudice stemming from either the number of charges or the complexity or nature of the evidence, the potential for harassment, the convenience of witnesses, and the parties' readiness for trial.
On the defendant's motion, the trial court must sever unrelated offenses for separate trials. MCR 6.120(C).
In this case, the trial court did not abuse its discretion by allowing the charges to be joined for trial. Joinder is appropriate when the charges are "logically related" and "there is a large area of overlapping proof." People v Williams, 483 Mich. 226, 237; 769 N.W.2d 605 (2009) (quotation marks and citation omitted). Defendant was charged with two counts of indecent exposure for exposing his genitals to a female employee at a Little Caesars's restaurant. The prosecution presented evidence of defendant's earlier acts of exposing himself to other women, occurring at the Country Market in May or June 2017, a Family Video store in August 2017, and an Ace Hardware store in December 2017, to prove that the charged offenses involved a pattern of sexual behavior characterized by repetitive or compulsive acts that indicated a disregard of consequences or the recognized rights of others, thereby making defendant a sexually delinquent person as defined by MCL 750.10a. In each of the cases, defendant exposed himself to women in public places of business. There was little potential for confusion; the cases were presented distinctively, and the facts were not complex.
Moreover, defendant has not established prejudice. Had defendant received separate trials, his offenses against the other complainants would have been admissible at the trial on the indecent exposure counts under MRE 404(b)(1) to prove his intent and to refute any claim that the charged exposures were accidental. Indeed, the prosecutor filed notices of intent to offer MRE 404(b) evidence, and defendant did not object. And defendant does not argue that a jury deciding his sexual delinquency charge could not have heard this evidence. Thus, if separate juries or trials had been used, there would have been a complete overlap in the evidence. Accordingly, the trial court did not abuse its discretion by denying defendant's request for separate trials.
"The admissibility of evidence in other trials is an important consideration because '[j]oinder of . . . other crimes cannot prejudice the defendant more than he would have been by the admissibility of the other evidence in a separate trial.'" Williams, 483 Mich. at 237 (citation omitted).
II. JUROR MISCONDUCT
Next, defendant argues that he is entitled to a new trial because of juror misconduct. Defendant notes that, at sentencing, "it was bought to the Trial Court's attention that two jurors had been asleep at the trial during closing arguments." We disagree that defendant is entitled to a new trial on this basis.
Defendant did not object or otherwise raise this issue at trial or in an appropriate posttrial motion. Therefore, the issue is unpreserved and our review is limited to plain error affecting defendant's substantial rights. See People v Carines, 460 Mich. 750, 763-764; 597 N.W.2d 130 (1999). An error is plain if it is "clear or obvious." Id. "Substantial rights are affected when the defendant is prejudiced, meaning the error affected the outcome of the trial." People v Jones, 297 Mich.App. 80, 83; 823 N.W.2d 312 (2012). The defendant has the burden of establishing entitlement to relief under plain-error review. Carines, 460 Mich. at 763.
A criminal defendant has a constitutional right to a fair and impartial jury. U.S. Const, Am VI; Const 1963, art 1, § 20; People v Miller, 482 Mich. 540, 547; 759 N.W.2d 850 (2008). Misconduct on the part of a juror does not automatically require a new trial. Id. at 551. A new trial should be granted on the basis of juror misconduct only if
the misconduct was such that it affected the impartiality of the jury or disqualified its members from exercising the powers of reason and judgment. A new trial will not be granted if no substantial harm was done thereby to the defendant, even though the misconduct may merit a rebuke from the trial court if brought to its notice. [People v Messenger, 221 Mich.App. 171, 175; 561 N.W.2d 463 (1997).]
"Prejudice must be shown, or facts clearly establishing the inference that it occurred from what was said or done." People v Fetterley, 229 Mich.App. 511, 545; 583 N.W.2d 199 (1998).
In People v Dunigan, 299 Mich.App. 579, 586; 831 N.W.2d 243 (2013), this Court specifically considered a defendant's right to a new trial where a juror "had been observed to be sleeping" during witness testimony. This Court concluded that the defendant had not demonstrated that the sleeping juror affected the outcome of the trial. Id. This Court held that "[t]he trial court properly admonished the juror," and noted, "there is no indication of what, if any, testimony the juror missed." Id. This Court further stated that the defendant "fails to articulate how he was prejudiced," and instead made only "the bare assertion that the juror could not fairly and competently consider the charges against him and therefore was not qualified to give a verdict." Id. Accordingly, there was no factual support for the defendant's challenge. Id.
In this case, the record does not establish that defendant endured substantial harm from any juror misconduct. There is no evidence supporting defendant's allegation at sentencing that any juror was sleeping at trial. The record does not clearly establish that any juror actually fell asleep, and there is no evidence of the number of jurors who allegedly were inattentive or asleep, or if so, how long this may have lasted. Despite defendant's assertion at sentencing that he observed two jurors fall asleep at trial, and that his attorney also mentioned this to him at trial, no such claim was made on the record by any party at trial, or in any posttrial motion. Because there is no record support for defendant's claim that two jurors were actually asleep or inattentive at trial, defendant has failed to establish a clear or obvious error.
Further, even accepting as true defendant's assertion at sentencing that he saw two jurors fall asleep during closing argument, defendant has not provided any basis for concluding that the outcome of trial was affected. Defendant fails to articulate how he was prejudiced. He does not contend that any juror fell asleep or was inattentive during any witness's testimony. Further, defendant does not specify how long any juror was sleeping or inattentive during closing argument, or what arguments the jurors may have missed. The fact that two jurors allegedly might not have heard some portion of the attorneys' arguments does not establish that those jurors would have been incapable of fairly deliberating on the evidence presented during trial.
For these reasons, defendant has not met his burden of establishing a plain error affecting his substantial rights.
Defendant also raises a related claim of ineffective assistance of counsel, arguing that trial counsel was ineffective for failing to move for a mistrial on the basis of juror misconduct, or for failing to request the removal of the allegedly sleeping jurors. "To demonstrate ineffective assistance of counsel, a defendant must show that his or her attorney's performance fell below an objective standard of reasonableness under prevailing professional norms and that this performance caused him or her prejudice." People v Nix, 301 Mich.App. 195, 207; 836 N.W.2d 224 (2013) (citation omitted). "To demonstrate prejudice, a defendant must show the probability that, but for counsel's errors, the result of the proceedings would have been different." Id.
Because defendant failed to raise this ineffective-assistance claim in a motion for a new trial or request for an evidentiary hearing, our review is limited to mistakes apparent from the record. People v Heft, 299 Mich.App. 69, 80; 829 N.W.2d 266 (2012).
As discussed, defendant has failed to establish the factual predicate for this ineffective-assistance claim-that two jurors were actually sleeping during trial. See People v Hoag, 460 Mich. 1, 6; 594 N.W.2d 57 (1999) (the burden is on the defendant to establish factual support for his claim of ineffective assistance of counsel). Moreover, regarding trial counsel's failure to move for a mistrial, defendant has failed to demonstrate a reasonable probability that any motion for a mistrial would have been successful. A "mistrial should be granted only for an irregularity that is prejudicial to the rights of the defendant, and impairs his ability to get a fair trial." People v Haywood, 209 Mich.App. 217, 228; 530 N.W.2d 497 (1995) (citation omitted). According to defendant's statements at sentencing, trial counsel was aware that two jurors were sleeping during closing arguments. As noted, the record does not substantiate how long any jurors allegedly were sleeping or what arguments they may have missed, and defendant otherwise "fails to articulate how he was prejudiced." Dunigan, 299 Mich.App. at 586. Accordingly, defendant has not shown that there was any viable basis for a mistrial. Trial counsel cannot be deemed ineffective for failing to advocate a meritless position. See People v Ericksen, 288 Mich.App. 192, 201; 793 N.W.2d 120 (2010).
III. EFFECTIVE ASSISTANCE - JUROR BIAS
Next, defendant argues that trial counsel was ineffective for failing to challenge for cause a juror who admitted knowing the trial court's bailiff, being a friend of the former Adrian Chief of Police, and having a niece who was married to a police officer in another state. We disagree.
Again, because defendant failed to raise this ineffective-assistance claim in the trial court in a motion for a new trial or request for an evidentiary hearing, our review is limited to mistakes apparent from the record. Heft, 299 Mich.App. at 80.
"Jurors are presumptively competent and impartial, and the party alleging the disqualification bears the burden of proving its existence." People v Johnson, 245 Mich.App. 243, 256; 631 N.W.2d 1 (2001). But a prospective juror may be removed for cause if, inter alia, the challenging party shows that the juror has a bias for or against a party, a state of mind that will prevent the juror from rendering a just verdict, or if the juror has opinions that would improperly influence the juror's verdict. MCR 2.511(D)(2), (3) and (4).
Generally, trial counsel's failure to challenge a juror does not provide a basis for a claim of ineffective assistance of counsel. People v Robinson, 154 Mich.App. 92, 95; 397 N.W.2d 229 (1986). Instead, an attorney's decision relating to the selection of a juror is generally a matter of trial strategy. Johnson, 245 Mich.App. at 259. This Court is generally "disinclined to find ineffective assistance of counsel on the basis of an attorney's failure to challenge a juror." People v Unger, 278 Mich.App. 210, 258; 749 N.W.2d 272 (2008). This is because a reviewing court "cannot see the jurors or listen to their answers to voir dire questions," and "[p]erhaps the most important criteria in selecting a jury include a potential juror's facial expressions, body language, and manner of answering questions." Id. (quotation marks and citations omitted).
Defendant has not met his burden of demonstrating entitlement to relief. It is not apparent from the record that trial counsel lacked a sound strategic reason for retaining the juror, or that trial counsel's decision affected the outcome of the proceedings. During voir dire, the trial court inquired of the prospective jurors about any associations with the law enforcement community. The juror in question disclosed that he knew the trial court's bailiff and the city of Adrian's former police chief, and that his niece was married to a police officer in Cincinnati. In response to further questioning by the trial court, the prospective juror indicated that he did not believe that these relationships would make it difficult for him to be fair and impartial. The purpose of voir dire is to expose potential juror bias so that a defendant may be tried by a fair and impartial jury. People v Sawyer, 215 Mich.App. 183, 186; 545 N.W.2d 6 (1996). "[W]hen citizens have been sworn to tell the truth, and testify under oath that they can be impartial, the initial presumption is that they are honoring their oath and are being truthful." People v DeLisle, 202 Mich.App. 658, 663; 509 N.W.2d 885 (1993) (citation omitted).
Defendant presents no valid reason for concluding that trial counsel should have rejected the juror's statement that he could be fair and impartial. Consequently, defendant has not established a claim of ineffective assistance of counsel with respect to this issue.
IV. SUFFICIENCY OF THE EVIDENCE
Defendant challenges the sufficiency of the evidence supporting his convictions.
We review de novo a challenge to the sufficiency of the evidence. People v Bailey, 310 Mich.App. 703, 713; 873 N.W.2d 855 (2015). When ascertaining whether sufficient evidence was presented at trial to support a conviction, this Court must view the evidence in a light most favorable to the prosecution and determine whether a rational trier of fact could find that the essential elements of the crime were proven beyond a reasonable doubt. See People v Reese, 491 Mich. 127, 139; 815 N.W.2d 85 (2012). "[A] reviewing court is required to draw all reasonable inferences and make credibility choices in support of the jury verdict." People v Nowack, 462 Mich. 392, 400; 614 N.W.2d 78 (2000).
A. INDECENT EXPOSURE
Under MCL 750.335a, "[a] person shall not knowingly make any open or indecent exposure of his or her person or of the person of another." MCL 750.335a. "[T]he use of the word 'or' reveals that the plain language of the statute provides that one may be guilty of open exposure or indecent exposure, as it prohibits two different types of conduct." People v Neal, 266 Mich.App. 654, 656; 702 N.W.2d 696 (2005). Indecent exposure is "the exhibition of those private parts of the person which instinctive modesty, human decency or natural self-respect requires shall be customarily kept covered in the presence of others." People v Huffman, 266 Mich.App. 354, 369; 702 N.W.2d 621 (2005) (quotation marks and citation omitted). Open exposure is a "display of any part of the human anatomy under circumstances that create a substantial risk that someone might be offended." People v Williams, 256 Mich.App. 576, 585; 664 N.W.2d 811 (2003) (quotation marks and citation omitted).
BP testified that defendant exposed his genitals to her on both February 20 and 27, 2019 while she was working at Little Caesars. Given defendant's movements, BP "definitely" believed that defendant's act of exposing himself "was planned." This evidence, viewed in a light most favorable to the prosecution, was sufficient to enable a rational jury to find beyond a reasonable doubt that defendant knowingly indecently exposed his "private parts" to BP on two different occasions. Defendant argues that his actions on both occasions "were purely innocent" and that he was merely reaching into his pocket to obtain money to pay for his food. This same argument was made at trial, but the jury was also presented with BP's version of how the exposures occurred, including BP's opinion from viewing defendant's conduct that the exposures were planned. The credibility of BP's testimony and the weight to be accorded to her opinions of defendant's conduct were matters for the jury to decide. The jury was free to believe or disbelieve all or any portion of her testimony in light of the issues explored by the defense. This Court "will not interfere with the jury's determinations regarding weight of the evidence and the credibility of the witnesses." Unger, 278 Mich.App. at 222. Further, this Court is required to draw all reasonable inferences and make credibility choices in support of the jury's verdict. People v Nowack, 462 Mich. 392, 400; 614 N.W.2d 78 (2000). The evidence was sufficient to support defendant's two convictions of indecent exposure.
B. SEXUALLY DELINQUENT PERSON
MCL 750.10a defines a "sexually delinquent person" as "any person whose sexual behavior is characterized by repetitive or compulsive acts which indicate a disregard of consequences or the recognized rights of others ..... In this case, evidence was presented that defendant exposed his genitals to four different women on five separate occasions. Two of the five incidents involved the charged indecent exposures at Little Caesars in February 2019, for which the jury found defendant guilty. Three additional women testified at trial about defendant exposing his penis to them at other places of business that were open to the public (Ace Hardware, Country Market, and Family Video) in May or June 2017, August 2017, and December 2017. On each occasion, defendant exposed his penis while facing or staring at the women. These five incidents are sufficient to support a finding that defendant's actions were repetitive or compulsive. See People v Helzer, 404 Mich. 410, 417-418; 273 N.W.2d 44 (1978), overruled on other grounds by Breidenbach, 489 Mich. at 1. In addition, evidence supports that defendant's behavior made the women uncomfortable, "shocked," or "flustered," resulting in the police ultimately being contacted in relation to each of the incidents. This evidence is sufficient to support a finding that defendant acted with a disregard of the consequences or the recognized rights of others. Although defendant denied intentionally engaging in the sexual behavior, defendant's intent was a factual issue properly left to the jury. Unger, 278 Mich.App. at 222. Viewed in a light most favorable to the prosecution, the evidence was sufficient to sustain the jury's finding that defendant is a sexually delinquent person.
V. DEFENDANT'S STANDARD 4 BRIEF
Defendant raises additional issues in a pro se supplemental brief filed pursuant to Supreme Court Administrative Order No. 2004-6, Standard 4, none of which have merit.
A. BINDOVER TO CIRCUIT COURT
Defendant argues that the district court erred by binding him over on two charges of indecent exposure because there was insufficient evidence at the preliminary examination to support the charges.
To preserve the issue whether a district court erred in binding a defendant over, the defendant must file a motion to quash before the circuit court. People v Noble, 238 Mich.App. 647, 658; 608 N.W.2d 123 (1999). Because defendant did not file a motion to quash, this issue is unpreserved and review is limited to plain error affecting defendant's substantial rights. Carines, 460 Mich. at 763.
"If a defendant is fairly convicted at trial, no appeal lies regarding whether the evidence at the preliminary examination was sufficient to warrant a bindover." People v Wilson, 469 Mich. 1018; 677 N.W.2d 29 (2004). See also People v Green, 313 Mich.App. 526, 530; 884 N.W.2d 838 (2015) ("A defendant may not appeal whether the evidence at the preliminary examination was sufficient to warrant a bindover if the defendant was fairly convicted of the crimes at trial."). The jury found defendant guilty beyond a reasonable doubt at trial. As discussed earlier, sufficient evidence at trial supported defendant's convictions. There is no indication that defendant was otherwise prejudiced by the claimed error. See People v Hall, 435 Mich. 599, 601; 460 N.W.2d 520 (1990) (holding that "an evidentiary deficiency at the preliminary examination is not ground for vacating a subsequent conviction where the defendant received a fair trial and was not otherwise prejudiced by the error."). Because defendant was fairly convicted at trial, we decline to review whether the evidence at the preliminary examination was sufficient to warrant a bindover. Green, 313 Mich.App. at 531.
B. PROSECUTOR'S CONDUCT
Defendant also argues that the prosecutor engaged in two instances of misconduct.
Defendant did not object to the challenged conduct and therefore failed to preserve the issue. See People v Bennett, 290 Mich.App. 465, 475; 802 N.W.2d 627 (2010). We review unpreserved claims of prosecutorial misconduct for plain error affecting defendant's substantial rights. People v Brown, 294 Mich.App. 377, 382; 811 N.W.2d 531 (2011).
Defendant's first claim of misconduct is premised on his assertion that the prosecutor did not introduce any evidence at the preliminary examination that defendant was a sexually delinquent person. We conclude that this claim of error was waived.
During the preliminary examination, before any testimony, the following exchange occurred regarding the sexually delinquent person enhancement:
The prosecutor: The final thing I would ask to place on the record is that I believe there's a stipulation but if there isn't I would ask for judicial notice that Tyler Judy is a sexually delinquent person based on repetitive acts per the statute. And the repetitive acts being that he was charged with the same act in June of 2016. He ended up pleading guilty to a Disorderly in that matter. And again in August, 2017, there were three counts of this same act and two counts in January, 2018. Those five charges together were disposed of in a plea to two counts with the
remaining three being dismissed. And I would just indicate for the record that case law does support repetitive acts being acts that were not charged, acts that were charged, and convictions, so.
The court: Any objection, Counsel?
Defense counsel: For purposes of exam-I'm not stipulating, Your Honor, but for purposes for exam, I'm sure the Court can take judicial notice of his prior record.
The court: I can and-and will. And I believe that that is an accurate representation of the statutory requirements; however, certainly subject to appeal. All right. [Emphasis added.]
By expressly approving that the trial court could take judicial notice of defendant's prior record for purposes of the sexually delinquent person enhancement, defendant waived appellate review of this claim. See People v Kowalski, 489 Mich. 488, 504; 803 N.W.2d 200 (2011).
Defendant's second claim is that the prosecutor engaged in misconduct by failing to amend the complaint to add a second count of indecent exposure. The record does not support this second claim of error.
"A trial court may permit amendment of the information at any time to correct a variance between the information and the proofs, unless doing so would unfairly surprise or prejudice the defendant." Unger, 278 Mich.App. at 221, citing MCL 767.76 and MCR 6.112(H). Unacceptable prejudice includes unfair surprise, inadequate notice, or inadequate opportunity to defend. People v Hunt, 442 Mich. 359, 364; 501 N.W.2d 151 (1993). This Court has "concluded that no unfair surprise, inadequate notice, or insufficient opportunity to defend exists when the elements of both the charged offenses and an offense the prosecutor moves to add at the end of the preliminary examination, are shown by testimony." People v McGee, 258 Mich.App. 683, 691; 672 N.W.2d 191 (2003).
Defendant does not argue that any of the grounds that constitute unacceptable prejudice were present here; he argues only that the prosecutor never requested to amend the complaint to add the second count of indecent exposure. This claim is without merit. The complaint charged defendant with one count of indecent exposure (with a sexually delinquent person notice) and listed the offense date as March 5, 2019. At the outset of the preliminary examination, the prosecutor stated that the complaint improperly reflected an offense date of March 5, which was the date that the police were contacted, and that the actual dates of the offenses were February 20 and 27, 2019, and "are charged in the same complaint." She further stated that she intended to request to add a second count of indecent exposure, which would be consistent with the dates of the offenses, if the facts disclosed during the preliminary examination supported it. During her preliminary examination testimony, BP testified that defendant "did expose himself on two different dates, February 20 and 27, 2019, and described the circumstances surrounding both incidents. At the conclusion of the testimony, the prosecutor requested that defendant be bound over on two counts of indecent exposure on the basis of the testimony, and defendant did not object. The district court allowed the prosecutor's request and found, on the basis of the evidence presented at the preliminary examination, that there was probable cause to conclude that defendant committed two counts of indecent exposure. Thus, contrary to what defendant argues, the prosecutor requested to amend the complaint to add a second count of indecent exposure, which the district court permitted on the basis of the testimony presented at the preliminary examination. Accordingly, there is no merit to this claim.
C. EFFECTIVE ASSISTANCE - BILL OF PARTICULARS
Defendant's last claim is that trial counsel was ineffective for failing to request a bill of particulars.
Our review of this claim is limited to mistakes apparent from the record. Heft, 299 Mich.App. at 80.
MCR 6.112(E) provides: "The court, on motion, may order the prosecutor to provide the defendant a bill of particulars describing the essential facts of the alleged offense."
In this case, defendant exercised his right to a preliminary examination, heard the victim's testimony at the hearing describing two incidents in which defendant exposed his genitals on February 20 and 27, 2019, and was informed that he was being charged with two counts of indecent exposure for those incidents. Defendant fails to explain why a bill of particulars was necessary. Further, defendant fails to explain how a bill of particulars could have affected the outcome of trial. Indeed, defendant does not contend that BP's trial testimony materially differed from her preliminary examination testimony, which provided defendant with sufficient notice of the factual bases for the indecent exposure charges. Thus, defendant has not established a reasonable probability that, but for counsel's failure to request a bill of particulars, the result of the proceedings would have been different. Nix, 301 Mich.App. at 207.
VI. SENTENCE
Pursuant to the sentencing guidelines class A offense grid, MCL 777.62, defendant was sentenced to a prison term of 135 months to 40 years on each count, to be served concurrently. Defendant did not challenge his sentence on appeal. However, since the briefs were filed in this case, the Supreme Court decided People v Arnold, __Mich __; __N.W.2d __(2021) (Docket No. 160046), which held "that individuals convicted of an indecent-exposure offense under [MCL 750.335a] as sexually delinquent persons must be sentenced pursuant to the penalties prescribed in that statute" and that the trial court may not rely on the sentencing guidelines. Id. at __; slip op at 2. The defendant in that case was entitled to resentencing because he was sentenced according to the sentencing guidelines rather than the sentencing options provided by MCL 750.335a. See id. at __; slip op at 20.
MCL 750.335a provides the following sentencing options:
(1) A person shall not knowingly make any open or indecent exposure of his or her person or of the person of another.
(2) A person who violates subsection (1) is guilty of a crime, as follows:
(a) Except as provided in subdivision (b) or (c), the person 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.
(b) If the person was fondling his or her genitals, pubic area, buttocks, or, if the person is female, breasts, while violating subsection (1), the person is guilty of a misdemeanor punishable by imprisonment for not more than 2 years or a fine of not more than $2,000.00, or both.
(c) If the person was at the time of the violation a sexually delinquent person, the violation is punishable by imprisonment for an indeterminate term, the minimum of which is 1 day and the maximum of which is life.In People v Arnold, 502 Mich. 438; 918 N.W.2d 164 (2018), the Supreme Court held that a "1 day to life" sentence was not mandatory for a person convicted under MCL 750.335a(2)(c) and that the trial court could consider other available sentencing options.
The same is true in this case: defendant's sentences were based on the sentencing guidelines, not the sexually delinquent person statute. Accordingly, we vacate defendant's sentences and remand for resentencing pursuant to MCL 750.335a.
VII. CONCLUSION
We affirm defendant's convictions but vacate his sentences. Remanded for resentencing consistent with this opinion. We do not retain jurisdiction.
Douglas B. Shapiro Stephen L. Borrello Colleen A. O'Brien