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Heiss v. Berghuis

United States District Court, Western District of Michigan, Southern Division

March 5, 2015

JOSHUA HEISS, Petitioner,
v.
MARY BERGHUIS, Respondent.

OPINION

ROBERT HOLMES BELL, UNITED STATES DISTRICT JUDGE.

This is a habeas corpus action brought by a state prisoner pursuant to 28 U.S.C. § 2254. Following a jury trial in the Kent County Circuit Court, Petitioner was convicted of two counts of first-degree criminal sexual conduct (CSC I) involving personal injury, MICH. COMP. LAWS § 750.520b(1)(f), and one count of assault with intent to commit great bodily harm less than nurder (GBH), MICH. COMP. LAWS § 750.84. On June 4, 2007, the court sentenced Petitioner to two prison terms of 12 to 25 years for the CSC I convictions and one term of 5 to 10 years for the GBH conviction. In his pro se petition, Petitioner raises five grounds for relief, as follows:

I. THE PROSECUTOR NOTIFIED THE COURT AND THE DEFENSE THAT IT MIGHT SEEK TO ADD AN ALTERNATIVE COUNT OF ASSAULT WITH INTENT TO COMMIT GREAT BODILY HARM AT THE CONCLUSION OF THE PROOFS. THE TRIAL COURT ABUSED ITS DISCRETION BY ALLOWING THIS ADDED COUNT 3 TO GO TO THE JURY AS A SEPARATE COUNT. THE TRIAL COURT AND THE PROSECUTOR DENIED MR[.] HEISS HIS RIGHT TO NOTICE AND THUS DENIED MR. HEISS HIS CONSTITUTIONAL RIGHT TO DUE PROCESS OF LAW. HEISS IS ENTITLED TO A REVERSAL.
II. THE TRIAL COURT DELIVERED EXTENSIVE, EXTEMPORANEOUS JURY INSTRUCTIONS. THESE INSTRUCTIONS CONVEYED THE CLEAR MESSAGE THAT THE JUDGE HAD DETERMINED MR. HEISS TO BE GUILTY. THESE INSTRUCTIONS ERRONEOUSLY TOLD THE JURY THAT MR. HEISS' DEFENSE WAS NOT A DEFENSE. THE TRIAL COURT DENIED MR. HEISS HIS RIGHT TO A NEUTRAL JUDGE AND TO A PROPERLY INSTRUCTED JURY. THE CONVICTION MUST BE REVERSED.
III. APPELLANT WAS DENIED HIS DUE PROCESS RIGHT TO BE CONVICTED OF FIRST DEGREE CRIMINAL SEXUAL CONDUCT ONLY ON THE BASIS OF LEGALLY SUFFICIENT EVIDENCE WHERE THE PROSECUTION FAILED TO ESTABLISH THE ELEMENT OF FORCE OR COERCION.
IV. THE DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL WHERE TRIAL COUNSEL DID NOT HAVE ENOUGH TIME TO PREPARE[.] COUNSEL DID NOT CALL ANY WITNESSES OR PRESENT AVAILABLE DEFENSE EVIDENCE.
V. APPELLANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO DUE PROCESS TO A FAIR TRIAL WHERE THE PROSECUTION MADE HARMFUL PREJUDICIAL ERROR PERSUADING THE JURY IN AN OPENING STATEMENT ABOUT HIS KEY WITNESS MS. HAWKINS.

(Pet., docket #1-3, Page ID ##26, 29, 36-38.) Respondent has filed an answer to the petition (docket #5) stating that the grounds should be denied because they are both procedurally defaulted and lack merit. Upon review and applying the AEDPA standards, the Court concludes that all of Petitioner's claims are meritless. Accordingly, the petition will be denied.

Procedural History

A. Trial Court Proceedings

The state prosecution arose from an interaction between Petitioner and the mother of his child on April 24, 2006, during which Petitioner engaged in oral and vaginal penetration and inflicted significant injuries on the victim. Petitioner was charged with two counts of CSC I, and he was bound over on both counts on September 14, 2006, after he waived his preliminary examination. (See Cir. Ct. Register of Action, docket #7.) Petitioner was tried before a jury beginning April 23, 2007, and concluding on April 26, 2007.[1]

Prior to jury selection, the trial court heard and decided two motions filed by the defense. In the first motion, defense counsel moved to exclude the expert testimony of Jennifer Marcum, a domestic violence expert. Defense counsel represented that, at a hearing on April 13, the then-presiding judge had found that the expert's testimony was relevant and admissible. The judge also had denied defense counsel's request for additional time to find an expert witness for the defense. Defense counsel argued that, in the absence of a report from the expert, he was unable to know what a defense expert needed to counter. (Tr. I at 4-5.) Counsel renewed his request to exclude the testimony of the prosecution's expert, or, in the alternative, sought a four-week continuance of the trial. The prosecutor responded that the expert would testify only to the characteristics of battered-woman syndrome, to explain whysomeone who has experienced a history of violence might change her story. The expert would not testify about the specifics of the underlying case. The court denied the defense motion because the substance of the testimony was limited and was fully disclosed as early as January 2007. (Id. at 6-8.) Defense counsel next sought a remand to the district court for a preliminary hearing on the proposed suplemental charge of GBH. The prosecutor responded that he had given notice as early as January 12, 2007 that he would file an amended information to include the charge of GBH, if the proofs at trial supported that charge. The court held that, under Michigan law, because Petitioner had waived his preliminaryexamination, jurisdiction properly was with the circuit court for all purposes, including additional charges. The court also held that Petitioner had ample notice of the charges. (Id. at 9-13.)

Dr. Stuart Allen Malafa testified that he had been an emergency room physician for 20 years, seeing an average of 6, 700 patients each year. (Tr. II at 71-72.) On August 25, 2006, he was working at the United Memorial Hospital in Greenville, Michigan. He dictated a medical record of his treatment of Kristee Lee Hawkins (K. Hawkins) on that date at 2:00 a.m. (Id. at 73-75.) Malafa testified that K. Hawkins sought treatment for bruises sustained that evening. In the course of seeking treatment, Hawkins told Malafa that, after she left a bar and was driving away, her ex- boyfriend jumped through the window and forced her to drive to 14 Mile and Edgerton, where she was physically assaulted, sexually assaulted and choked. She eventually convinced her boyfriend to allow her to go home. (Id. at 76-77.) Hawkins had multiple bruises to her right, upper facial area and bruises on her chest, particularly and excessively on her left chest area. (Id. at 77.) Malafa did not perform a sexual assault examination, because the county relies upon the rape crisis intervention team of the YWCA for such examinations. Malafa testified that he would have referred Hawkins to the YWCA for examination or would have called social services. (Id. at 78.) From his medical records, Malafa saw no indication that Hawkins was obviously intoxicated. He noted that she was alert, oriented, conversive, and otherwise appropriate. He testified that he would have made a note of any impairment caused by intoxication – symptoms with which he was very familiar. (Id. at 79, 83.)

Kent County Sheriff's Department employee Stacy Albers testified as the member of the Scientific Support Unit who photographed Hawkins' injuries on the afternoon of August 25, 2006. Albers identified the photographs she took, which reflected bruises on the face, including a significant bruise around the nose and others around the eye and chin. Other photographs showed injury to the inner tissue of the mouth, significant bruising in the upper left chest area and bruising in the right chest area, scratches and pinch-bruises on the victim's upper left arm, a significant bruise on the forearm, and bruising and scratches on the hand. (Id. at 89-96.)

Dr. Matthew Dewis testified that he had been an emergency room physician for 16 years and had seen thousands of patients. He was working in the emergency room at United Memorial Hospital in Greenville on August 25, 2006, at about 6:00 or 7:00 p.m. Hawkins had been treated at the hospital early in the morning, after which she went to the YWCA for a sexual assault evaluation. Hawkins told Dewis that she also had been photographed by the authorities. She had returned to the emergency room because she had a headache and neck pain, as well as bleeding in her eyes. (Id. at 103-04.) Hawkins testified that hemorrhages in both eyes typically were associated with pressure, trauma, or choking to the patient's head or neck. (Id. at 105.)

Kristee'Kee Lynn Hawkins testified that Petitioner was the father of her child. She had been his boyfriend for five years. On August 24, 2006, K. Hawkins, Petitioner and K. Hawkins' friend Kelli and Kelli's boyfriend had gone to see a comedy show at the Crazy Horse Saloon. (Id. at 110-12.) Over one to two hours, K. Hawkins drank beer and tequila. (Id. at 112.) They decided to leave at 10:00 or 11:00 p.m., and the four drove toward another bar in Howard City. (Id. at 113- 14.) On the way there, they were pulled over by the police. All were given breathalyzer tests and told they could not drive. The police officer drove them to a gas station. They called Kelli's friend, Cassie, to come back and pick them up. (Id. at 114.) Cassie dropped Bill at his car and dropped K. Hawkins at hers. Then K. Hawkins, Kelli and Petitioner drove back to the Crazy Horse. (Id. at 115.) When K. Hawkins got out of her car at the Crazy Horse, she told Petitioner that she did not want to drive him home at that time because they had just been pulled over and told that they should not be driving. (Id. at 115.) Petitioner got out of the car and started arguing with K. Hawkins about driving him home. They got back in the car and there was a physical altercation during which she dropped her keys. K. Hawkins testified that she could not remember the exact events, though she was pretty sure that Petitioner hit her. At some point, she went back into the bar and called the police. (Id. at 115-16.) As she was calling the police, Petitioner came in, and K. Hawkins hung up on the 911 call. K. Hawkins returned to the car, picked her keys up from the ground and started her car. (Id. at 117- 18.) She tried to roll up her windows and close her doors so that she could leave. (Id. at 118.) She drove away quickly, but Petitioner grabbed onto the side of the car, and she dragged him 20 or 30 feet, before he managed to get into the car. She stopped the car and tried to get out her driver's door, but her locks did not work properly. (Id. at 121-22.) Petitioner got control of the vehicle and they left the parking lot of the Crazy Horse. They argued and fought, and Petitioner drove quite recklessly. K. Hawkins was frightened, and she offered to give him oral sex to calm him down, which was a pattern in their relationship. (Id. at 122.) K. Hawkins was concerned about the car, and she was afraid that, if she brought home another damaged vehicle, her family would send her to a homeless shelter. (Id. at 123-24.) She gave Petitioner oral sex and urged him to go home and stop fighting. (Id. at 124.) Instead, Petitioner drove to a two-track road off "Egner" Road, where Petitioner ordered K. Hawkins out of the car. They had sex on the trunk of K. Hawkins' car. K. Hawkins testified that Petitioner did not force her out of the car or force her to take her pants off, and she did not remember telling the police that. (Id. at 125-26.) K. Hawkins testified that she wanted to have sex to stop fighting with Petitioner and to prevent anything else from happening. (Id. at 126.) The fighting did not stop, however. K. Hawkins ended up on the ground, where Petitioner strangled her. (Id.) K. Hawkins testified that she was unsure whether she lost consciousness. (Id. at 127.) They eventually got back into the car and drove down the road, but they heard Petitioner's phone ringing. Petitioner stopped the car at Egner and 13 Mile Road to look for it, and they then drove back to his house. Petitioner got out of the car, and K. Hawkins drove to her own home. (Id. at 127.)

At the time of the incident in August 2006, an outstanding personal protection order (PPO) barred Petitioner from having contact with K. Hawkins. K. Hawkins applied for the PPO after Petitioner assaulted her in June 2006. (Id. at 129.) K. Hawkins acknowledged that violence between the two was an ongoing problem. Despite the PPO, she continued to have contact with Petitioner, visiting him, calling him and writing him letters. (Id. at 129-30.) K. Hawkins identified a letter she wrote to Petitioner on November 16, 2006. (Id. at 130-31.) The letter was admitted over objection. (Id. at 131-32.) At that time K. Hawkins stated that she did not remember whether she had suggested sex or whether she was raped. (Id. at 132.) K. Hawkins testified that she agreed to the sex; she did not absolutely desire having sex, but she wanted to have sex to protect her car and to avoid being sent to a homeless shelter. (Id. at 133.) K. Hawkins identified another letter she wrote to Petitioner on November 28, 2006. At that time, she told Petitioner that she felt humiliated to tell people old enough to be her father that she had given someone a blow-job. (Id. at 137.) The letter impeached her testimonial denials of humiliation. The letter also stated that she had been afraid she would lose her breast because of the injury, in contrast with her testimonial denial of such fear. (Id.) K. Hawkins admitted that she "was pretty bruised up" and that she looked like she was attacked by a bear. (Id. at 139-40.) K. Hawkins also identified 29 photos taken by the police of her injuries, and she testified that the injuries depicted in the photographs were caused by Petitioner, some before and some after sex. (Id. at 140.)

Sherry Lynne Hawkins (S. Hawkins), K. Hawkins' mother, testified that the relationship between K. Hawkins and Petitioner had been troubled. (Id. at 154-55.) In the early morning of August 25, 2006, S. Hawkins was sleeping when her daughter came home. K. Hawkins woke her up, saying that Petitioner had tried to kill her. (Id. at 155.) K. Hawkins was crying and saying that she hurt. S. Hawkins went into the bathroom, saw that her daughter was beaten up, and said, "You have to go to the hospital." (Id. at 156-57.) K. Hawkins told her mother that Petitioner tried to strangle her and that she had passed out twice. (Id. at 157.) K. Hawkins also told her mother that she had to do some really degrading and humiliating things so that she could live to be with her daughter. (Id.) S. Hawkins took her daughter to the hospital sometime after 1:00 a.m. (Id. at 158.)

Suzanne Reiter testified that she was a nurse practitioner at Planned Parenthood and sexual assault nurse examiner for the YWCA. At 4:30 a.m. on August 25, 2006, Reiter conducted a sexual assault examination of K. Hawkins at United Memorial Hospital in Greenville. (Tr. III at 6-7.) Reiter testified that K. Hawkins told her that the incident began at about 11:30 p.m. on August 24, 2006. K. Hawkins told Reiter that she was at the Crazy Horse Saloon and went outside. K. Hawkins reported that Petitioner pushed her, hit her in the face, and ripped her shirt off of her. (Id. at 15.) K. Hawkins went back into the bar and called 911. She then went back out to her car, where Petitioner eventually got control of the car and then hit her several times. K. Hawkins stated that Petitioner made her perform fellatio while he was driving. They eventually went somewhere in the country, where Petitioner pushed her down and choked her until she passed out. He then told her to take off her pants and he put his penis in her vagina while she was sitting on the trunk of her car. (Id. at 16.) K. Hawkins had several contusions on her face, including over her eyes and across her nose. As the examination proceeded, Reiter noted that bruises continued to form. (Id. at 16, 18.) An extremely dark bruise formed on her lip. K. Hawkins had red spots on her chest, particularly her right breast, and she had cuts on the right areola, one of which was like a puncture. She also had bruises on her back and on her neck. (Id. at 17-19.) Reiter testified that K. Hawkins made good eye contact and answered questions and showed no impairment from drinking. (Id. at 21.) Reiter did not perform an opthalmologic examination by stretching her eyes; K. Hawkins was very tender in that area. (Id. at 23.)

Kelli Gibbs testified that she had been a friend of K. Hawkins for three years. (Id. at 30-31.) K. Hawkins had called her to say that there would be a comedy show at the Crazy Horse, and she asked Gibbs to go. K. Hawkins picked up Gibbs at about 7:00 p.m. on August 24, 2006. They went to Petitioner's house to pick him up, but Petitioner rode with Bill. They drove to the Crazy Horse, arriving at 8:30 or 9:00 p.m. (Id. at 31.) They found a table and ordered a pitcher of beer, waiting for the comedy show to begin. (Id. at 32.) Bill bought K. Hawkins a shot of tequila, and Petitioner became irritated that another man had bought her a drink, asking for several minutes why K. Hawkins would allow that. (Id.) When the comedy show began a few minutes later, Gibbs thought everything was fine. (Id. at 32-33.) Gibbs testified that K. Hawkins and Petitioner were separated at the time. After the comedians were finished, the four got up to leave. They all got into Bill's car, and he was going to drive. They got pulled over by a police officer on the highway on- ramp. (Id. at 33.) The officer eventually gave all four breathalyzer tests and told them that none of them was fit to drive. (Id. at 33-34.) Gibbs called her friend Cassie from the gas station, where the police officer had dropped them. Cassie came and drove them all back to the Crazy Horse, and all of them planned to go home. (Id. at 34-35.) At the Crazy Horse, Petitioner and K. Hawkins got out of the car, and Gibbs drove away with Cassie. (Id. at 35.) Gibbs assumed that K. Hawkins was going to drive Petitioner home in her car and then drive herself home. She did not see them again that night. (Id.)

John Poe testified that he was at the Crazy Horse on August 24, 2006 with his fiancee. At about 10:30, as he was standing near his car and putting his wheelchair inside, he saw a distraught and crying woman head toward the entrance doors of the bar. (Id. at 41-42, 45.) He went up to see what was going on, and the woman said something about being unable to find her keys. The woman went inside to use the phone. A man was standing next to her, and Poe asked the man what was happening. The man said, "We're arguing[.]" Poe asked, "You didn't hit her or anything[?]" Poe opposed such behavior, and he thought they were acting strangely. (Id. at 41-42.) The woman came back out and went to her car, a white Tempo. The man was leaning in through the passenger door when K. Hawkins put the car in gear and drove away quickly, with the man hanging out the door. Poe called 911, because he was afraid the man was going to fall out and get hurt. (Id. at 43.) Poe saw them drive out toward the end of the parking lot and then lost sight of them. (Id.)

Kent County Sheriff Department Deputy Ronald Kimbrough testified that he was dispatched to the Crazy Horse at approximately 11:15 on August 24, 2006, after a 911 call was made and disconnected from there. (Id. at 49.) He was less than one and one-half miles from the bar, and he arrived quickly. He arrived as the bar was closing. He drove through the lot, but did not find any suspicious people. (Id. at 50.) He was there under five minutes before he proceeded on his usual routine. At approximately 1:30 a.m., Montcalm County received a phone call from a woman, who they determined had suffered an incident at the Crazy Horse. At about 2:30 a.m., Kimbrough received a call from United Memorial Hospital, indicating that they had the woman about whom Montcalm County had received a call. He went to the hospital. (Id. at 51.) Kimbough met K. Hawkins at the hospital. She had already made an appointment with the YWCA in Grand Rapids to be examined at 4:00 a.m., so he interviewed her briefly. (Id. at 52.) Kimbrough testified that K. Hawkins looked like she had been in a fight. She had numerous red marks about her neck and swelling and darkness underneath the left eye. She also had a bump on the right forehead that looked like it was developing into a black eye. She had bruising on the bridge of her nose, and he was told of a few other injuries that he could not see. (Id. at 52-53.)

According to Kimbrough, K. Hawkins told him that she had gone out for the evening with her friend Kelli. They had seen a comedy show at the Crazy Horse Saloon, where they met other people they knew, including Petitioner, the father of her child, against whom she had a current PPO. (Id. at 53-54.) When the show ended, they attempted to go to another bar for further drinks, but they made it only a half-mile before the driver was stopped by a police officer. They were transported to a nearby gas station, after which another person took them back to the bar. Some time had passed, and K. Hawkins reported that she had no longer wanted to go out and drink and that she was intending to go home. (Id. at 54-55.) Petitioner wanted her to go with him and to continue partying at his house, but she did not wish to do so, so an altercation began. She got out of the car in which they were transported and began to walk toward her own car. Petitioner became irritated and began grabbing her hair, hitting her around the face and shoulders. As she was standing between the open door of the car and the vehicle, she was thrown to the ground. During the altercation, her sweatshirt, top and bra were pushed up, and she found herself sitting topless in the middle of the parking lot. (Id. at 55-56.) Both of her breasts were bitten while she was on the ground. She managed to get away and to throw her keys across the parking lot so that Petitioner could not take her vehicle. She grabbed her tank top, put it on, and ran for the bar. (Id. at 56.) She went to the pay phone in the foyer of the bar and dialed 911. She screamed something at dispatch that they did not understand. She then realized that Petitioner had followed her inside, and she believed that she could make it to her vehicle and escape. (Id. at 56.) She reached her vehicle, got in, and attempted to drive away, but Petitioner grabbed onto the passenger-side window, and she drove around the lot trying to get him off. When he would not get off, she slowed down, and he climbed inside. He began to punch her and assault her, dragged her awayfrom the driver's seat and pushed her onto the passenger floorboard. (Id. at 57.) Petitioner took the driver's seat and threatened to rip her face off before driving away. (Id. at 57-58.) He continued to punch K. Hawkins an unknown number of times, and he demanded that she provide him oral sex. She complied. (Id. at 57.) After the sex act was completed, K. Hawkins was able to see where they are going. She described driving down Edgerton Road, going by the Algoma township fire barn, and crossing 13 Mile Road. (Id. at 58.) After they stopped, Petitioner forced K. Hawkins out of the passenger seat, and he followed her out the same door. They moved toward the back of the car, where he ordered her to take off her pants. He then vaginally raped her against the trunk of the vehicle. (Id. at 59.) After having sex with her, Petitioner twice grabbed her by the throat and choked her until she became unconscious. When she regained consciousness, Petitioner threw her pants at her and ordered her to put them on. (Id. at 59.) He then hit and pushed her into the vehicle, causing her to hit her head. They drove back to his address, which was located a few miles away. When they arrived, he told her he was sorry, and she left to go to her own home. (Id. at 59-60.)

Based on K. Hawkins' description, another officer tentatively identified the location. (Id. at 58, 60.) At the end of the interview, Deputy Kimbrough drove K. Hawkins to her appointment at the YWCA. On the way, they took a detour to the location found by the other officer. K. Hawkins identified the location and identified the panties found at the scene as her own. (Id. at 60.)

Kent County Deputy Brian Mercer testified that he received a call from Deputy Kimbrough at approximately 3:00 a.m. on August 25, 2006. Kimbrough asked Mercer to go to the area of Edgerton and Wolven in an attempt to locate a crime scene. Once he got there, he went to a gravel area next to the Rogue River where people sometimes park. He got out on foot and he could see some tire tracks and foot tracks in the parking area. He saw a pair of red women's underwear off to the side. (Id. at 66-67.) He did not touch anything; he simply waiting until Deputy Kimbrough arrived. (Id. at 68.)

During the morning recess, counsel for Petitioner indicated that, although he had advised to the contrary, Petitioner intended to take the stand in his own defense. (Id. at 70.) The court advised Petitioner of his right not to testify, and Petitioner expressed his understanding. (Id. at 70-72.) Petitioner then requested that counsel be withdrawn and that he be given an opportunity to retain a lawyer. (Id. at 72.) Petitioner asserted that he had not been informed of a plea offer, and he expressed his dissatisfaction with counsel's refusal to ask certain questions Petitioner proposed. (Id. at 73-74.) The court denied Petitioner's request to grant a continuance in the middle of a trial so that Petitioner could attempt to retain an attorney, for which he had failed to demonstrate an ability to pay. (Id. at 76.)

Jennifer Markum, the executive director of Safe Haven Ministries, was qualified as an expert in the field of domestic violence. (Id. at 78, 81.) Markum testified about the types of power and control exercised over victims of domestic violence to ensure that they do what the abuser wants. She indicated that frequently the victim is placed in fear that something is going to happen to her, to her children, or to her family members, if the victim does not do exactly what the abuser asks her to do. (Id. at 84.) Because of this fear and because they do not trust the system, victims often recant their reports of abuse. (Id. at 85.) In addition, the cycle of violence includes several phases: a tension-building phase in which the victim "walk[s] on eggshells"; an explosive episode; followed by a period in which the abuser acts loving, expresses remorse and makes promises that the behavior will not be repeated. (Id.) Most abused women who come to Safe Haven do not hate – in fact frequently love – their abusers. They want to end the abuse, but not necessarily the relationship. (Id. at 85-86.)

Kent County Detective Jason Van Dyke testified that he interviewed K. Hawkins at approximately 5:00 p.m. on August 25, 2006, after she had been examined at the YWCA. Van Dyke authorized the taking of photographs of K. Hawkins' injuries. (Id. at 90-91.)

The prosecution rested, and defense counsel advised the court that the defense would present no witnesses. The court recessed for the day. (Id. at 92-93.) After the jury left the courtroom, the parties made a record of the plea offers made by the prosecution and the transmittal of those offers by defense counsel. (Id. at 74.) The prosecutor had initially offered Petitioner the opportunity to plead to one count of third-degree CSC, predicting a sentencing-guideline range of 36 to 60 months. (Id. at 95.) The offer was open until the morning trial began. The prosecutor had indicated a guideline range of 51 to 85 months on the CSC I charge. (Id. at 96.) Petitioner complained that he did not have the guideline information until a few days before trial. (Id.) During the break, Petitioner expressed his willingness to accept the earlier plea offer, but the offer was no longer open after the trial began and the charge of GBH had been added. (Id. at 96-97.)

At the conclusion of trial, on April 26, 2007, the jury found Petitioner guilty of two counts of CSC I and one count of GBH. (Tr. IV, 89-94.) On June 4, 2007, Petitioner was sentenced to a prison term of five to ten years on the GBH conviction and twelve to twenty-five years on each of ...


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