Sentencing; Fourth-offense habitual offender enhancement; MCL 769.13; Notice; People v Head; Claim that the prosecution filed & served the notice of intent too early; Ineffective assistance of counsel; Prejudice; Scoring of OVs 11 & 13; MCL 777.43(1)(c) & (2)(a); The law of the case doctrine; Reasonableness & proportionality challenge to a within-guidelines sentence; People v Armisted; Unusual circumstances; People v Lee

The court disagreed with defendant that the prosecution violated MCL 769.13 by filing the notice of intent to seek an enhanced sentence before the arraignment, and concluded that any error was harmless given that he received actual notice at the arraignment. His challenge to OV 11 was barred by the law of the case doctrine, and the court upheld the 25-point score for OV 13. Finally, he did not show unusual circumstances allowing it to find that his within-guidelines sentences were disproportionate. Thus, it affirmed his CSC III and IV convictions, as well as his sentences as a fourth-offense habitual offender to concurrent terms of 18 years and 2-1/2 months to 40 years for CSC III, and 5 to 15 years for CSC IV. Defendant argued “that under MCL 769.13(1) the notice must be filed after the arraignment or, if arraignment is waived, after the filing of the information.” The court declined to adopt this interpretation, noting that it reads statutory language in context and construes it reasonably. The purpose of the statute is to provide a defendant notice. Thus, “the Legislature likely intended ‘within 21 days after the defendant’s arraignment’ and ‘within 21 days after the filing of the information’ to be a deadline after which the prosecutor cannot file the notice.” He did not offer any reason why it “would have intended to preclude filing of notice before the arraignment or information.” In addition, in light of the holding in Head “that the failure to strictly comply with MCL 769.13’s proof of service requirement is harmless error when the defendant received timely notice of the prosecutor’s intent to seek an enhanced sentence,” the court did not see how early filing of the notice warranted reversal when he “received actual notice at the arraignment. In sum, under the circumstances of this case the prosecution’s failure to file a proof of service of the notice of intent to seek an enhanced sentence was a harmless error. Defendant received timely notice of his fourth-offense habitual offender status, which fulfilled the purpose of the statute.” The court also rejected his related ineffective assistance of counsel claim due to the lack of prejudice.