Michigan Supreme Court

Lansing, Michigan

Bridget M. McCormack, Chief Justice

David F. Viviano,

Chief Justice Pro Tem

Stephen J. Markman

Brian K. Zahra

Richard H. Bernstein

Elizabeth T. Clement

Megan K. Cavanagh,

Justices

Order 

July 19, 2019

156198

PEOPLE OF THE STATE OF MICHIGAN, 

Plaintiff-Appellant,

v SC: 156198

COA: 328956

Wayne CC: 15-000755-FC

ALPHONSO L. STRAUGHTER, JR.,

Defendant-Appellee. 

_________________________________________/

On October 9, 2018, the Court heard oral argument on the application for leave to 

appeal the April 11, 2017 judgment of the Court of Appeals. On order of the Court, the

application is again considered, and it is DENIED, there being no majority in favor of 

granting leave to appeal or taking other action.

VIVIANO, J. (concurring).

I concur with the Court’s order denying leave to appeal by equal division and 

write separately to explain my reasoning.

Defendant, Alphonso Straughter Jr., was convicted of carjacking, armed robbery, 

conspiracy to commit armed robbery, second-degree home invasion, and unlawful 

imprisonment and, relevant for the purposes of this appeal, was sentenced as a secondoffense habitual offender. Notwithstanding the prosecutor’s failure to comply with the 

habitual-offender statute, the trial court sentenced defendant as a second-offense habitual 

offender. In his subsequent appeal, the Court of Appeals affirmed defendant’s 

convictions, but vacated defendant’s sentence and remanded for resentencing without the 

habitual-offender sentencing enhancement because the prosecutor failed to show that 

notice was served on defendant, since no proof of service was filed with the trial court as 

required under MCL 769.13. In the prosecutor’s application for leave to appeal in our 

Court, the prosecutor argues for the first time that the trial court’s error was harmless 

because the record reflects that defendant had actual notice of his habitual-offender status 

within the time period set forth in the statute.

In relevant part, MCL 769.13 reads as follows:

(1) In a criminal action, the prosecuting attorney may seek to 

enhance the sentence of the defendant as provided under section 10, 11, or 

12 of this chapter, by filing a written notice of his or her intent to do so 

within 21 days after the defendant’s arraignment on the information 
2

charging the underlying offense or, if arraignment is waived, within 21 

days after the filing of the information charging the underlying offense.

(2) A notice of intent to seek an enhanced sentence filed under 

subsection (1) shall list the prior conviction or convictions that will or may 

be relied upon for purposes of sentence enhancement. The notice shall be 

filed with the court and served upon the defendant or his or her attorney 

within the time provided in subsection (1). The notice may be personally 

served upon the defendant or his or her attorney at the arraignment on the 

information charging the underlying offense, or may be served in the 

manner provided by law or court rule for service of written pleadings. The 

prosecuting attorney shall file a written proof of service with the clerk of 

the court.

In People v Head, the Court of Appeals held that “[t]he failure to file a proof of 

service of the notice of intent to enhance the defendant’s sentence may be harmless if the 

defendant received the notice of the prosecutor’s intent to seek an enhanced sentence and 

the defendant was not prejudiced in his ability to respond to the habitual offender 

notification.”1

 In concluding that the error in that case was harmless, the Court of 

Appeals relied on the following facts: (1) “[d]efendant does not claim that he and 

defense counsel never received a copy of the charging documents”; (2) “[a]t the 

arraignment on the information, defendant waived a formal reading of the information”; 

(3) “[t]here was no indication at the arraignment hearing that defendant or his attorney 

had not received a copy of the felony information”; (4) “defendant and defense counsel 

exhibited no surprise at sentencing when defendant was sentenced as a fourth-offense 

habitual offender”; and (5) “[d]efendant has not asserted in the trial court or on appeal 

that he had any viable challenge to his fourth-offense habitual offender status.”2

 

Because this case was decided before Head, the Court of Appeals in this case was 

not bound by Head. While this Court has the discretion to remand for reconsideration in 

 1 People v Head, 323 Mich App 526, 543-544 (2018). 

2 Id. at 544-545. The Court of Appeals also noted that “defendant received actual notice 

on the record at the preliminary examination that he was being charged as a fourthoffense habitual offender” and that “the fact that the prosecutor was seeking to enhance 

defendant’s sentence as a fourth-offense habitual offender was acknowledged on the 

record by defendant and defense counsel at a pretrial hearing during the discussion of the 

prosecutor’s final plea offer.” Id. The Court of Appeals does not explain, however, 

whether either of these hearings took place “within 21 days after the defendant’s 

arraignment on the information,” such that the defendant would have received actual 

notice within the time period required under MCL 769.13(1).
3

light of Head, because I have concerns with Head’s analysis, I do not believe that we 

should exercise our discretion to do so. 

In particular, I question whether the Court of Appeals in Head erred by placing the 

burden on the defendant of proving that the prosecutor’s error was harmless. Typically, 

the burden is on the defendant to show that a preserved nonconstitutional error is 

harmless.3

 In this context, however, placing the burden on the prosecutor may be 

appropriate since the prosecutor committed the error and the prosecutor is best able to 

prove whether the defendant received actual notice. The Court of Appeals’ analysis in 

Head, which relies almost exclusively on negative inferences from the record, reflects the 

concerns with placing this burden on the defendant.4

Therefore, while the Court of Appeals’ decision in this case is at odds with Head, 

because of my concerns with Head’s framework, I would not exercise our discretion to 

remand this case for reconsideration in light of Head. Instead, I believe that denying 

leave to appeal is appropriate. 

MARKMAN, J. (dissenting). 

I respectfully dissent from the order denying leave to appeal. Instead, I would

reverse the Court of Appeals’ judgment and reinstate defendant’s sentences for 

carjacking, armed robbery, conspiracy to commit armed robbery, second-degree home 

invasion, and unlawful imprisonment because defendant here possessed actual notice of 

the prosecutor’s intention to seek to enhance defendant’s sentence as a second-offense 

habitual offender under MCL 769.10.

The prosecutor committed clear error by failing to comport with the procedures set 

forth in MCL 769.13. In particular, she failed to show service of written notice of her 

 3

 See People v Lukity, 460 Mich 484, 491-496 (1999). 

4 Unlike Justice MARKMAN, I would be hesitant to conclude that simply filing the 

relevant charging documents with the court—something that happens in every case—is 

sufficient to render harmless the prosecutor’s error in failing to serve the habitual notice 

on the defendant or his attorney within the time period set forth in MCL 769.13. Among 

other things, this would render nugatory the remaining requirements of the statute since 

the prosecutor would never be penalized for ignoring them. It would also be strange to 

excuse the prosecutor’s noncompliance when the defendant waives his arraignment on 

the information, since the statute expressly contemplates such waivers and makes no 

exceptions from its requirements for them. See MCL 769.13(1) (providing that a habitual 

notice must be filed “within 21 days after the defendant’s arraignment on the information 

charging the underlying offense or, if arraignment is waived, within 21 days after the 

filing of the information charging the underlying offense”).
4

intention to seek sentencing enhancement within 21 days of defendant’s arraignment on 

the information by filing written proof of service with the circuit court. See MCL 

769.13(1) and (2). Nonetheless, such error here was harmless because defendant 

possessed actual notice of the prosecutor’s intention to seek sentencing enhancement. 

MCL 769.26. First, each of the relevant charging documents filed in the district and 

circuit courts, i.e., the felony warrant, the felony complaint, and the felony information, 

specifically informed defendant that he was “subject to the penalties provided by MCL 

769.10” and detailed the effect of sentencing enhancement under MCL 769.10. Indeed, 

defendant himself concedes in his brief that the language contained in the charging 

documents would constitute habitual-offender notice. Moreover, Black’s Law Dictionary

(6th ed) defines “subject to” as “governed or affected by.” Therefore, the prosecutor 

informed defendant that he was “governed or affected by” habitual-offender sentencing 

enhancement. There is no apparent reason for the prosecutor to have included this 

information in the charging documents other than to apprise defendant that she intended 

to seek sentencing enhancement under MCL 769.10, and this is not disputed by 

defendant. Second, at his arraignment on the information, defendant waived a formal 

reading of the information. This waiver effectively communicated that defendant already 

possessed a copy of the felony information and thus possessed notice of the prosecutor’s 

intent to seek habitual-offender sentencing enhancement.5

 Third, at sentencing, defense

counsel displayed no surprise at the enhanced sentence, and neither counsel nor 

defendant objected to the enhancement. In fact, defense counsel actually corrected the 

trial court that defendant was only a second-offense, rather than third-offense, habitual 

offender. 

 5 Contrary to Justice VIVIANO’s concurrence, this dissent does not “conclude that simply 

filing the relevant charging documents with the court—something that happens in every 

case—is sufficient to render harmless the prosecutor’s error in failing to serve the 

habitual notice on the defendant or his attorney within the time period set forth in MCL 

769.13.” More precisely, I conclude that the inclusion of the habitual-offender notice

within the charging documents may in certain circumstances indicate the defendant’s 

actual notice of the prosecutor’s intention to seek habitual-offender enhancement. That 

is, where such notice is included within the information and the defendant has waived 

arraignment on the information, it has been effectively established that the defendant or 

the defendant’s attorney has physical possession of the information and thus from the 

very onset of the case possesses notice of the prosecutor’s intention to seek enhancement. 

While this process plainly does not satisfy the requirements of MCL 769.13, it does 

nonetheless fully satisfy the obvious purpose of the statute-- to ensure that the defendant 

has been timely notified of an intention to pursue habitual-offender enhancement. While 

indisputably an error on the part of the prosecutor, the failure to satisfy MCL 769.13 was 

a manifestly harmless error in this case. 
I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the

foregoing is a true and complete copy of the order entered at the direction of the Court.

 July 19, 2019

s0716

5

Clerk

Because defendant here possessed actual notice of the prosecutor’s intention to 

seek a habitual-offender enhancement to his sentence, the error by the prosecutor, in my 

judgment, was altogether harmless. And as a result, defendant has failed to show that it 

is “more probable than not that the error was outcome determinative.” People v Lukity, 

460 Mich 484, 496 (1999). Accordingly, in my judgment, he was properly sentenced as a 

second-offense habitual offender.

ZAHRA, J., joins the statement of MARKMAN, J. 

CLEMENT, J. (dissenting).

I respectfully dissent from this Court’s order denying leave to appeal because I 

believe the more prudent disposition would be to vacate the Court of Appeals opinion and 

remand to the Court of Appeals so that it may engage in a harmless-error analysis 

pursuant to People v Head, 323 Mich App 526, 544-546 (2018).

CAVANAGH, J., did not participate in the disposition of this case because the Court 

considered it before she assumed office.