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VanRhee v. Parish

United States District Court, W.D. Michigan, Southern Division

January 16, 2020

Kevin Scott VanRhee, Petitioner,
Les Parish, Respondent.


          Paul L. Maloney United States District Judge.

         This is a habeas corpus action brought by a state prisoner under 28 U.S.C. § 2254. Promptly after the filing of a petition for habeas corpus, the Court must undertake a preliminary review of the petition to determine whether “it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court.” Rule 4, Rules Governing § 2254 Cases; see 28 U.S.C. § 2243. If so, the petition must be summarily dismissed. Rule 4; see Allen v. Perini, 424 F.2d 134, 141 (6th Cir. 1970) (district court has the duty to “screen out” petitions that lack merit on their face). A dismissal under Rule 4 includes those petitions which raise legally frivolous claims, as well as those containing factual allegations that are palpably incredible or false. Carson v. Burke, 178 F.3d 434, 436-37 (6th Cir. 1999). After undertaking the review required by Rule 4, the Court concludes that the petition must be dismissed because it fails to raise a meritorious federal claim.


         I. Factual allegations

         Petitioner Kevin Scott VanRhee is incarcerated with the Michigan Department of Corrections at the Oaks Correctional Facility (ECF) in Manistee County, Michigan. On March 16, 2015, Petitioner pleaded nolo contendere in the Allegan County Circuit Court to one count of first-degree criminal sexual conduct (CSC-I), in violation of Mich. Comp. Laws § 750.520b, one count of second-degree criminal sexual conduct (CSC-II), in violation of Mich. Comp. Laws § 750.520c, and one count of fourth-degree criminal sexual conduct (CSC-IV), in violation of Mich. Comp. Laws § 750.520e. On April 20, 2015, the court sentenced Petitioner to concurrent prison terms of 25 to 45 years for CSC-I, 10 to 15 years for CSC-II, and 1 year, 4 months to 2 years for CSC-IV.[1]

         Petitioner filed his petition in pro per; however, he is presently represented by counsel. Petitioner's supplemental brief (ECF No. 11), submitted by counsel, provides a detailed procedural history of Petitioner's challenges to his convictions and sentences in the state courts. Petitioner describes the proceedings in the trial court as follows:

On February 2, 2015, the Allegan County Prosecutor charged Mr. Vanrhee with five counts (Counts 1-5) of Criminal Sexual Conduct-First Degree (CSC 1st) (penetration, person under 13, defendant 17 years of age or older), in violation of MCL750.520b(1)(a)and MCL 750.520b(2)(b); two counts(Counts 6-7) of CSC 3rd (incest), in violation of MCL 750.520d(1)(d); two counts (Counts 8-9) of CSC 2nd (sexual contact, person under thirteen, defendant 17 years of age or older) in violation of MCL 750.520c(2)(b); and one count (Count 10) of assault with intent to commit sexual conduct in the 2nd degree, in violation of MCL 750.520g(2). (Felony Information, February 2, 2015, p. 1-3). Mr. Vanrhee's three minor daughters were the victims.
On March 16, 2015, pursuant to a plea agreement, the Allegan County Prosecutor filed an amended felony information adding one count (Count 11) of CSC 4th (contact, person aged 15, incest) in violation of MCL 750.520e(1)(g). (Amended Felony Information, March 16, 2015, p. 1-2). According to the plea agreement, in exchange for Mr. Vanrhee's plea to one count of CSC 1st (Count 1), one count of CSC 2nd (Count 9), and the single added count of CSC 4th (Count 11), the prosecutor would dismiss the remaining counts. (Transcript, Plea Hearing, p. 5-6). The plea agreement also provided that Mr. Vanrhee would not be subject to the 25-year mandatory minimum sentence prescribed MCL 750.520b(2)(b)for violations of MCL 750.520b(1)(a), which was the precise subsection of the CSC 1st statute under which Mr. Vanrhee was charged.
During the plea hearing, the court inquired of the parties: “the plea . . . to a criminal sexual conduct in the first degree . . . sits under the elements which would not include a maximum-or minimum of 25 years. Is that correct?” (Transcript, Plea Hearing, March 16, 2015, p. 3). The prosecutor affirmed, “[t]hat is correct, without . . . . Count 1 does indicate on here that there is a minimum, but we are stating on the record that it does not apply.” Id. Mr. Vanrhee's attorney agreed that pursuant to the plea agreement it was his client's understanding that he was not subject to the 25-year mandatory minimum. Id. at 4.
After affirming that the parties agreed as to the terms of the plea agreement, the trial court explained the agreement to Mr. Vanrhee. The trial court stated: “It's my understanding you are pleading guilty to criminal sexual conduct in the first degree, maximum time you could be incarcerated is a life offense . . . It is pursuant to the plea agreement it's my understanding that this particular count does not mandate a minimum of 25 years.” (Tr., Plea Hearing, p. 5). When the court asked if it had stated the plea agreement correctly, Mr. Vanrhee replied, “Yes, ma'am.” (Tr., Plea Hearing, p. 6). The transcript of the plea hearing incontrovertibly shows that the trial court, defense counsel, prosecutor, and Mr. Vanrhee all intended for Mr. Vanrhee not to be subject to the 25-year mandatory minimum otherwise applicable to violations of MCL 750.520b(2)(b)where the victim is under 13 years old and the defendant is over age 17.
Mr. Vanrhee was permitted to enter a no contest plea to Counts 1, 9, and 11 because “intoxication bars Mr. Vanrhee from remembering the elements of the crime.” (Tr., Plea Hearing, p. 8). Defense counsel offered the police report from the Allegan County Sheriff's Department to establish the factual basis for the no contest plea. (Tr., Plea Hearing, p. 8). The court reviewed the police report and read aloud the portions that appeared to satisfy the essential elements of the counts of conviction; specifically, the court articulated the approximate dates of the incidents at issue, the ages of Mr. Vanrhee's daughters at the time of the incidents, and the type of contact or penetration that occurred. (Tr., Plea Hearing, p. 10-15). Both parties indicated that they believed the court had established a sufficient factual basis to accept the plea. (Tr., Plea Hearing, pp, 13-14).

(Pet'r's Supp. Br., ECF No. 11, PageID.184-186.) At sentencing, the trial court resolved offense variable scoring issues favorably to Petitioner. The resulting sentencing guidelines minimum sentence range was 108 to 180 months. Nonetheless, for the CSC-I conviction, the court determined “that the guidelines did not accurately reflect the number of sexual penetrations, the level of predatory activity, or the seriousness of the psychological injury to the victims.” (Id., PageID.186.) Accordingly, the court departed from the guidelines with respect to the CSC-I sentence, imposing a minimum sentence of 25 years.

         Three months after Petitioner was sentenced, the Michigan Supreme Court issued its opinion in People v. Lockridge, 870 N.W.2d 502 (2015). The Lockridge decision was based on a line of federal cases regarding Sixth Amendment issues and sentencing beginning with Apprendi v. New Jersey, 530 U.S. 466 (2000), and including Blakely v. Washington, 542 U.S. 296 (2004), United States v. Booker, 543 U.S. 220 (2005), and Alleyne v. United States, 570 U.S. 99 (2013).

         In Apprendi, the Supreme Court held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi, 530 U.S. at 490. Apprendi enunciated a new rule of Sixth Amendment jurisprudence.

         In the subsequent case of Blakely, the Court applied the rule of Apprendi to a state sentencing-guideline scheme, under which the maximum penalty could be increased by judicial fact-finding. The Blakely Court held that the state guideline scheme violated the Sixth and Fourteenth Amendments, and reiterated the rule that any fact that increased the maximum sentence must be “admitted by the defendant or proved to a jury beyond a reasonable doubt.” See Booker, 543 U.S. at 232 (citing Blakely, 542 U.S. at 303).

         In United States v. Booker, 543 U.S. 220 (2005), the Supreme Court determined its conclusion with regard to the state sentencing guideline scheme in Blakely would also apply to the federal sentencing guidelines. One group of five justices concluded that the federal sentencing guidelines ran afoul of the Sixth Amendment. Another group of five justices determined the appropriate remedy was to make the guidelines discretionary.

         Subsequently, in Alleyne v. United States, 570 U.S. 99 (2013), the Supreme Court held that the Blakely line of cases applies equally to mandatory minimum sentences.

         At the time Petitioner was sentenced, however, the Michigan Court of Appeals had already concluded that Alleyne only prohibited judicial factfinding used to determine a mandatory minimum sentence; it had no impact on judicial factfinding in scoring the sentencing guidelines producing a minimum range for an indeterminate sentence, the maximum of which is set by law. See People v. Herron, 845 N.W.2d 533, 539 (Mich. App. 2013). The Sixth Circuit also suggested that Alleyne did not decide the question whether judicial factfinding under Michigan's indeterminate sentencing scheme violated the Sixth Amendment and, as a consequence, the question was not a matter of clearly established Supreme Court precedent. Kittka v. Franks, 539 Fed.Appx. 668, 673 (6th Cir. 2013); see also Saccoccia v. Farley, 573 Fed.Appx. 483, 485 (6th Cir. 2014) (“But Alleyne held only that ‘facts that increase a mandatory statutory minimum [are] part of the substantive offense.'. . . It said nothing about guidelines sentencing factors . . . .”) (emphasis added). The Sixth Circuit has since clarified that “Michigan's sentencing regime violated Alleyne's prohibition on the use of judge-found facts to increase mandatory minimum sentences.” Robinson v. Woods, 901 F.3d 710, 716 (6th Cir. 2018).

         The Michigan Supreme Court granted leave to appeal on an application that raised the Alleyne issue. People v. Lockridge, 846 N.W.2d 925 (Mich. 2014). The court concluded the Herron decision was wrong, reasoning that, because the “guidelines require judicial fact-finding beyond facts admitted by the defendant or found by the jury to score offense variables (OVs) that mandatorily increase the floor of the guidelines minimum sentence range, ” they increase the “mandatory minimum” sentence under Alleyne. People v. Lockridge, 870 N.W.2d 502, 506 (Mich. 2015) (emphasis in original). As a consequence, the Lockridge court held that the mandatory application of Michigan's sentencing guidelines was unconstitutional. The Court's remedy, consistent with Booker, was to make the guidelines advisory only. Id. at 520-21.

         The Michigan Supreme Court made its holding in Lockridge applicable to cases still “pending on direct review.” Id. at 523. The Lockridge court identified a limited group of defendants that might demonstrate the potential for plain error sufficient to warrant a remand to the trial court: “defendants (1) who can demonstrate that their guidelines minimum sentence range was actually constrained by the violation of the Sixth Amendment and (2) whose sentences were not subject to an upward departure . . . .” Id. at 522 (footnote omitted). If a remand was appropriate, the supreme court called upon the trial court, on remand, to determine if it “would have imposed a materially different sentence but for the unconstitutional restraint . . . .” Id. at 524. The remand remedy adopted by the Lockridge court was the same remedy proposed by the Second Circuit Court of Appeals in United States v. Crosby, 397 F.3d 103, 117-18 (2d Cir. 2005), after and in response to the Booker decision.

         After the Lockridge decision, Petitioner, with the assistance of counsel, filed an application for leave to appeal his convictions and sentences in the Michigan Court of Appeals, raising two issues: “[t]he trial court erred when it imposed a sentence above the guidelines . . . and [t]he trial court erred when it found substantial and compelling reasons to depart from the guidelines and it failed to cite reasons for the extent of the departure.” (Pet'r's Supp. Br., ECF No. 11, PageID.187.) Petitioner claims that the first issue was grounded in a claim that his plea was not voluntarily and knowingly made.

         By order entered December 18, 2015, the Michigan Court of Appeals, in lieu of granting the delayed application for leave to appeal, remanded the case to the Allegan County Circuit Court for further proceedings consistent with the process set forth in Lockridge and Crosby. (Mich. Ct. App. Order, ECF No. 1, PageID.68.) Because the CSC-I sentence was an upward departure, according to Lockridge, a Crosby remand was unnecessary with regard to that sentence. The remand may have been necessary, however, for Petitioner's other sentences.

         The trial court resolved the remand as if Petitioner had moved for resentencing. Although Petitioner takes issue with that characterization, it is entirely consistent with the Lockridge framework. The Lockridge decision advises that even where a remand is appropriate, the trial court should give the defendant an opportunity to decline to seek resentencing, see Lockridge, 870 N.W.2d at 524, presumably because resentencing may also involve the risk of a higher sentence. Logic suggests that a defendant who is not declining to seek resentencing is actually seeking resentencing-an act that would be appropriately characterized as a motion for resentencing.

         The trial court concluded it would not impose a materially different sentence absent the sentencing guideline mandates that existed prior to Lockridge. (Pet'r's Supp. Br., ECF No. 11, PageID.188-189.) ...

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