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STATE OF MICHIGAN 

COURT OF APPEALS 

PEOPLE OF THE STATE OF MICHIGAN, 

 Plaintiff-Appellee, 

UNPUBLISHED 

June 23, 2016 

v No. 325985 

Oakland Circuit Court 

THOMAS JAMES LUNDY, LC No. 10-233240-FC 

 Defendant-Appellant. 

Before: METER, P.J., and SHAPIRO and O’BRIEN, JJ. 

PER CURIAM. 

 Defendant, Thomas James Lundy, was convicted by a jury of one count of first-degree 

home invasion, MCL 750.110a(2), and two counts of first-degree criminal sexual conduct (CSC 

I), MCL 750.520b(1)(c). He was originally sentenced as a fourth-offense habitual offender, 

MCL 769.12, to concurrent prison terms of 47 to 75 years. Defendant appealed, and this Court 

remanded for resentencing due to an incorrectly scored offense variable. People v Lundy, 

unpublished opinion per curiam of the Court of Appeals, issued February 25, 2014 (Docket No. 

309114). On remand, defendant was resentenced to concurrent prison terms of 37-and-a-half to 

60 years for the CSC I convictions and a consecutive prison term of nine-and-a-half to 60 years 

for the first-degree home invasion conviction. Due to a clerical error, defendant was resentenced 

again on January 12, 2015. This time, he was sentenced to concurrent prison terms of 37 to 60 

years for the CSC I convictions and a consecutive prison term of 10 to 60 years for the firstdegree home invasion conviction. He now appeals as of right the January 12, 2015 amended 

judgment of sentence. We affirm. 

 The sole issue raised by defendant on appeal is that the consecutive nature of his 

sentences violates the principle of proportionality and constitutes cruel and unusual punishment. 

We disagree. Because defendant did not argue that his sentences violated the principle of 

proportionality or constituted cruel and unusual punishment before the trial court, this argument 

is unpreserved for appellate review. People v Costner, 309 Mich App 220, 232; 870 NW2d 582 

(2015). Unpreserved constitutional issues are reviewed for plain error affecting a defendant’s 

substantial rights. Id. “Plain error affects a defendant’s substantial rights when it affects the 

outcome of the proceedings.” People v Ackah-Essien, 311 Mich App 13, 21-22; 874 NW2d 172 

(2015), citing People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). 
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 The principle of proportionality requires that “sentences imposed by the trial court be 

proportionate to the seriousness of the circumstances surrounding the offense and the offender.” 

People v Milbourn, 435 Mich 630, 636; 461 NW2d 1 (1990); see also People v Steanhouse, ___ 

Mich App ___, ___; ___ NW2d ___ (2015); slip op at 24. A sentence that falls within the range 

calculated under the sentencing guidelines is presumed to be proportionate, and, generally, a 

proportionate sentence is not cruel or unusual. People v Powell, 278 Mich App 318, 323; 750 

NW2d 607 (2008). “In order to overcome the presumption that the sentence is proportionate, a 

defendant must present unusual circumstances that would render the presumptively proportionate 

sentence disproportionate.” People v Lee, 243 Mich App 163, 187; 622 NW2d 71 (2000). While 

“concurrent sentencing is the norm” in Michigan, consecutive sentencing is permissible if 

specifically authorized by statute. People v Brown, 220 Mich App 680, 682; 560 NW2d 80 

(1996). Pursuant to MCL 750.520b(3), courts, in their discretion, may impose a sentence for a 

CSC I conviction consecutive to a sentence imposed for another criminal offense arising from 

the same transaction. In determining whether a sentence is proportional, courts measure the 

individual sentence, not the cumulative length of multiple sentences, and “where a defendant 

receives consecutive sentences and neither sentence exceeds the maximum punishment allowed, 

the aggregate of the sentences will not be disproportionate . . . .” People v Miles, 454 Mich 90, 

95; 559 NW2d 299 (1997). 

 In this case, because defendant’s argument on appeal only challenges the consecutive 

nature of his sentences, all of which do not exceed the maximum punishment allowed, the 

aggregate of the sentences is not disproportionate. Miles, 454 Mich at 95. It is undisputed that 

the trial court was able, in its discretion, to sentence defendant to consecutive prison terms. 

MCL 750.520b(3). It is equally undisputed that the sentences imposed are within the appropriate 

guideline range, and, thus, they are presumptively proportionate. Powell, 278 Mich App at 323. 

In an attempt to overcome this presumption, defendant relies on his age, 32 years old, and the 

fact that he has received supplemental security income (SSI) benefits in the past. First, as our 

Supreme Court has recognized before, courts are not required to consider a defendant’s age in 

determining whether a sentence is disproportionate. People v Lemons, 454 Mich 234, 258-259; 

562 NW2d 447 (1997). “Furthermore, defendant’s age is insufficient to overcome the 

presumption proportionality of his sentences, especially considering his lengthy criminal record 

and the gravity of his offenses.” People v Bowling, 299 Mich App 552, 558-559; 830 NW2d 800 

(2013). As it relates to defendant’s receipt of SSI benefits, he merely claims that his sentence 

should have been more lenient because he is “disabled.” He provides no details regarding his 

disability, and, at the very least, it is his burden to do so. People v Kevorkian, 248 Mich App 

373, 389; 639 NW2d 291 (2001). Furthermore, a defendant’s disability is only one of many 

factors that courts may consider in sentencing a defendant. People v Portellos, 298 Mich App 

431, 455; 827 NW2d 725 (2012). Moreover, as discussed in greater detail below, defendant’s 

argument completely fails to account for the gravity of the underlying offense, his criminal 

history, and a variety of other applicable factors. Therefore, we conclude that defendant has not 

sufficiently demonstrated that his sentence violates the principle of proportionality. 

 “The United States Constitution prohibits cruel and unusual punishment. US Const, Am 

VIII. The Michigan Constitution prohibits cruel or unusual punishment, Const 1963, art 1, § 16. 

If a punishment passes muster under the state constitution, then it necessarily passes muster 

under the federal constitution.” Costner, 309 Mich App at 232 (citations and internal quotation 

marks omitted; emphasis by the Costner Court). “In determining whether a sentence is cruel or 
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unusual we look to the gravity of the offense and the harshness of the penalty, comparing the 

penalty to those imposed for other crimes in this state as well as the penalty imposed for the 

same offense by other states and considering the goal of rehabilitation.” People v Poole, 218 

Mich App 702, 715; 555 NW2d 485 (1996). Where “sentences are not disproportionate in 

relation to the crimes, they are therefore not cruel or unusual.” People v Williams (After 

Remand), 198 Mich App 537, 543; 499 NW2d 404 (1993). 

 In this case, the fact that defendant’s sentences are not disproportionate in relation to the 

crimes, alone, is dispositive. Williams, 198 Mich App at 543. Moreover, defendant’s argument 

on appeal is meritless. He claims that his age, 32 years old, and his disability compel a more 

lenient sentence. We disagree. First, defendant completely ignores the gravity of the underlying 

offenses in this matter. Specifically, defendant broke into a home and raped a 16-year-old girl. 

Second, while defendant claims that the trial court ignored his rehabilitative potential given his 

young age, he conveniently overlooks his status as a fourth-offense habitual offender. 

Specifically, defendant has six prior felony convictions, eight prior misdemeanor convictions, 

and four prior juvenile adjudications. And, although defendant describes a majority of these 

convictions as “low severity offenses,” we would be remiss not to mention that defendant’s “low 

severity” felony convictions include unlawfully driving away a motor vehicle, MCL 750.413, 

resisting and obstructing, MCL 750.479, third-degree fleeing and eluding, MCL 750.479a(3), 

third-degree home invasion, MCL 750.110a(4), and domestic violence (third offense), MCL 

750.81(4). Those offenses, coupled with three misdemeanor convictions of assault and battery, 

MCL 750.81, and two juvenile convictions of assault and battery, certainly do not reflect the 

obvious rehabilitate nature that defendant relies upon on appeal. This is true without mentioning 

what defendant describes as his only “high severity conviction”—assault with intent to do great 

bodily harm less than murder, MCL 750.84. Third, defendant makes no effort whatsoever to 

compare the sentences imposed in this case to those imposed for similar offenses in this or other 

jurisdictions, and we need not do so for him. Kevorkian, 248 Mich App at 389. Finally, aside 

from pointing out that he receives SSI benefits, defendant provides no further support for his 

disability-related argument, nor does he explain, in any detail, why his disability entitles him to a 

more lenient sentence. 

 Accordingly, because the consecutive nature of the defendant’s sentences does not violate 

the principle of proportionality or constitute cruel and unusual punishment, we affirm 

defendant’s convictions and sentence. 

 Affirmed. 

/s/ Patrick M. Meter 

/s/ Colleen A. O’Brien