Sentencing; Proportionality; People v Steanhouse; People v Posey; Claim that defendant incurred a “trial tax” for declining a Cobbs agreement; People v Brown; People v Cobbs; Attorney fees under MCL 769.1k(1)(b)(iv); The Michigan Indigent Defense Commission Act (MIDCA); Plain error review; Constitutionality of MCL 769.1k(1)(b)(iv); Const 1963, art 8, § 9; People v Barber

The court held that defendant could not overcome the presumption his within-guidelines sentence was proportionate, and rejected his challenges to the imposition of attorney fees under MCL 769.1k(1)(b)(iv). He was convicted of AWIGBH and sentenced as a fourth-offense habitual offender to 84 to 240 months. He first asserted that he could “overcome the presumption that his within-guidelines sentence was proportionate by merely observing that the trial court did not provide an on-the-record justification for” it. The court noted “a within-guidelines sentence is reviewable without an on-the-record explanation. This is because the reviewing court can simply look to the trial court’s scoring of the guidelines to assess whether [it] abused its discretion by imposing a sentence that was not proportionate to the seriousness of the offense and the background of the offender.” Defendant’s sentence “accounted for the severe physical and psychological injuries to the victim; defendant’s history of criminal activity, including” his 8 prior felony convictions and 29 prior misdemeanor convictions; as well as his habitual offender status. He next asserted a “trial tax” was imposed on him where only a month before he was sentenced the trial court offered to sentence him to 48 months if he pled guilty as part of a Cobbs agreement. The court disagreed. It was “not apparent how a risk that the trial court punished defendant for exercising his right to trial relates to the proportionality of [his] sentence, and” it found that his argument was “otherwise plainly insufficient to carry his burden of establishing that his within-guidelines sentence was disproportionate under the circumstances.” The court noted “the fact that the trial court imposed a higher sentence than it would have imposed as part of the Cobbs agreement . . . establishes nothing. A Cobbs agreement is not intended to bind a trial court’s sentencing discretion.” Further, when the agreement was placed on the record, the trial court had not heard from the victim, whose trial testimony highlighted “the brutality of defendant’s attack” and the fact that it “was essentially unprovoked.” The court also found “no basis to conclude that the Legislature intended to repeal MCL 769.1k(1)(b)(iv) by implication as applied to indigent defendants when it passed the MIDCA” and that the statute “still applies to indigent defendants . . . .” Finally, it rejected his claim that the statute is unconstitutional under Article 8, § 9, of the Michigan Constitution. Affirmed.