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STATE OF MICHIGAN 

COURT OF APPEALS 

PEOPLE OF THE STATE OF MICHIGAN, 

 Plaintiff-Appellee, 

UNPUBLISHED 

January 14, 2016 

v No. 323952 

Ingham Circuit Court 

WILLARD EUGENE PAYNE, LC No. 14-000171-FH 

 Defendant-Appellant. 

Before: RONAYNE KRAUSE, P.J., and GADOLA and O’BRIEN, JJ. 

PER CURIAM. 

 Defendant, Willard Eugene Payne, was convicted by a jury of perjury, MCL 750.422, and 

sentenced as a third-offense habitual offender, MCL 769.11, to 57 months to 30 years in prison. 

He appeals as of right from his September 10, 2014 judgment of sentence. We affirm. 

 This case arises out of a shooting in which defendant was the intended victim. Law 

enforcement sought defendant’s cooperation as a witness against the shooter, but defendant 

refused to cooperate. After failing to appear at the shooter’s preliminary examination despite 

being under subpoena, defendant was arrested pursuant to a bench warrant. At the rescheduled 

preliminary examination, defendant denied being present at the shooting. He was thereafter 

charged with and convicted of perjury, MCL 750.422. 

 On appeal, defendant’s sole argument is that his sentence violates the constitutional 

prohibitions against cruel and unusual punishment, US Const, Am VIII, and cruel or unusual 

punishment, Const 1963, art 1, § 16. Defendant did not raise this issue before the trial court. 

Thus, it is unpreserved. 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, ___ Mich App ___, ___; ___ NW2d ___ (2015) (Docket 

No. 317411); slip op at 4, citing People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). 

 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, and “[i]f a punishment ‘passes muster under 

the state constitution, then it necessarily passes muster under the federal 

constitution.’ ” People v Benton, 294 Mich App 191, 204; 817 NW2d 599 (2011), 
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quoting People v Nunez, 242 Mich App 610, 618-619 n 2; 619 NW2d 916 (2007). 

[Costner, 309 Mich App at 232 (emphasis by Benton Court).] 

“In determining whether a sentence is cruel or 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). 

 In People v Steanhouse, ___ Mich App ___, ___; ___ NW2d ___ (2015) (Docket No. 

318329); slip op at 24, this Court held “that a sentence that fulfills the principle of 

proportionality under [People v Milbourn, 435 Mich 630; 461 NW2d 1 (1990)] and its progeny 

constitutes a reasonable sentence under [People v Lockridge, 498 Mich 358; 870 NW2d 502 

(2015)].” Under Milbourn and its progeny, a sentence falling within the minimum range 

specified by the advisory judicial guidelines was presumptively proportionate. People v 

Kennebrew, 220 Mich App 601, 609; 560 NW2d 354 (1996) (“As a general rule, a sentence that 

falls within the guidelines’ range is presumed to be neither excessive nor disparate.”); People v 

Dukes, 189 Mich App 262, 266; 471 NW2d 651 (1991) (“Milbourn left intact the Court’s prior 

observation, in People v Broden, 428 Mich 343, 354; 408 NW2d 789 (1987), that sentences 

falling within the recommended guidelines range are presumptively not excessively severe or 

unfairly disparate.”). Further, as noted in People v Williams (After Remand), 198 Mich App 537, 

543; 499 NW2d 404 (1993), citing People v Bullock, 440 Mich 15, 40-41; 485 NW2d 866 

(1992), where “sentences are not disproportionate in relation to the crimes, they are therefore not 

cruel or unusual.” 

 In this case, defendant acknowledges that his sentence is within the appropriate 

sentencing guidelines range and, therefore, presumptively proportionate. Further, defendant has 

failed to set forth a meritorious argument that would render the presumptively proportionate 

sentence disproportionate. See People v Daniel, 207 Mich App 47, 54; 523 NW2d 830 (1994) 

(concluding that the defendant had not cited “unusual circumstances that would overcome” the 

presumption of proportionality). Defendant claims that in deciding his sentence, the trial court 

impermissibly “focused” on a suggestive jailhouse telephone conversation between defendant 

and a woman other than his pregnant fiancée. The trial court did note the fact that defendant, 

despite purporting to be a “family man,” had discussed engaging in sexual relations with this 

other woman upon his release. However, the trial court considered much more than this 

telephone conversation. For example, it considered the fact that defendant was not “a candidate 

for probation,” explaining how, despite having incarceration “hung over [his] head so that [he]’d 

tell the truth,” defendant deliberately lied under oath. The trial court also considered the fact that 

defendant remained involved in criminal activity despite having two prior felony convictions and 

having been incarcerated and on probation and parole. Furthermore, the trial court recognized 

that defendant has continually failed to tell the truth. It is also important to recognize that 

defendant’s argument does not take into account the gravity of the underlying offense. 

Defendant was convicted by a jury of perjury after failing to tell the truth under oath in the 

preliminary examination of an individual with whom, according to several witnesses, he has a 

history of violent confrontation, which resulted in the shooting of an innocent bystander in the 

underlying offense. 
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 Additionally, defendant has failed to provide any argument or evidence demonstrating 

that his sentence is constitutionally deficient in comparison to the penalties imposed for other 

crimes in this state or for the same crimes in other states, Poole, 218 Mich App at 715, and this 

Court need not do so for him, People v Kevorkian, 248 Mich App 373, 389; 639 NW2d 291 

(2001). In any event, the sentence in this case is similar to that imposed for like crimes in 

Michigan, see, e.g., People v Ramos, 430 Mich 544, 546; 424 NW2d 509 (1988) (imposing a 

ten-to-fifteen-year prison sentence for a perjury conviction, although that conviction was 

reversed based on the trial court’s failure to administer an oath); People v Peña, 224 Mich App 

650, 652; 569 NW2d 871 (1997), mod in part, remanded in part, lv den in part on other grounds 

457 Mich 885 (1998) (imposing a two-to-five-year sentence for obstruction of justice as a nonhabitual offender), as well as perjury in other states, see, e.g., State v Crawford, 164 Wash App 

617, 620; 267 P3d 365 (2011) (imposing a 62-month sentence for a perjury plea-based 

conviction); State v LaRoche, 883 A2d 1151, 1157 (2005) (imposing a 10-year sentence for a 

perjury plea-based conviction); Mosley v State, 820 So2d 395, 396 (2002) (imposing a five-year 

sentence for a perjury conviction). 

 Accordingly, because defendant has failed to establish that the presumptively 

proportionate sentence was disproportionate, Daniel, 207 Mich App at 54, he has failed to 

establish that the sentence imposed violated the constitutional prohibitions against cruel and 

unusual punishment, US Const, Am VIII, and cruel or unusual punishment, Const 1963, art 1, 

§ 16. 

 Affirmed. 

/s/ Amy Ronayne Krause 

/s/ Michael F. Gadola 

/s/ Colleen A. O’Brien