If this opinion indicates that it is “FOR PUBLICATION,” it is subject to 

revision until final publication in the Michigan Appeals Reports.

-1-

S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

UNPUBLISHED

December 29, 2020

v No. 349734

Genesee Circuit Court

JAMES PAUL JOSEPH, LC No. 18-044224-FC

Defendant-Appellant.

Before: BOONSTRA, P.J., and GADOLA and TUKEL, JJ.

PER CURIAM.

Defendant appeals by right his jury-trial conviction of domestic violence, MCL 750.81(2).1 

On the basis of defendant’s prior domestic violence convictions, the trial court sentenced him 

under MCL 750.81(5) to serve two to five years in prison. We affirm.

I. PERTINENT FACTS AND PROCEDURAL HISTORY

On August 17, 2018, several physical altercations occurred between defendant and LJ, his 

wife. Defendant and LJ disputed the extent and nature of these altercations at trial, with defendant 

arguing that he was defending himself from LJ’s attacks. Defendant was originally charged with 

 

1 The jury was presented with the option of finding defendant guilty of either aggravated domestic 

violence, MCL 750.81a(2), or the lesser-included offense of domestic violence, MCL 750.81(2). 

The judgment of sentence reflects that defendant was convicted of violating MCL 750.81(2) and 

MCL 750.81(4) (domestic violence, second offense); however, because defendant had two or more 

previous domestic violence convictions, he was actually sentenced under MCL 750.81(5) 

(domestic violence, third offense). As we will discuss in this opinion, the prosecution amended 

the information after trial to reflect this fact, but it does not appear that the judgment of sentence 

was amended. Defendant was also charged with other offenses, but the jury acquitted him of those 

charges.
-2-

aggravated domestic violence, MCL 750.81a(2)2as well as first-degree criminal sexual conduct, 

MCL 750.520b(1)(f) (actor causes personal injury to victim and force or coercion is used to 

accomplish sexual penetration), and assault with intent to do great bodily harm less than murder, 

MCL 750.84. After the close of proofs, the jury was instructed that, instead of aggravated domestic 

violence, it was permitted to find defendant guilty of the lesser-included offense of domestic 

violence, MCL 750.81(2).

3

 Defendant did not object to this instruction. The jury returned its 

verdict and found defendant guilty of the lesser-included offense of domestic violence, and it 

acquitted him of the other charges. After the jury’s verdict, the prosecution informed the trial court 

that, in light of his multiple prior convictions for domestic violence, defendant was guilty under 

MCL 750.81(5),

4

domestic violence, third offense, which is a five-year felony. Defendant

objected, arguing that he was unfairly surprised and prejudiced by the prosecution’s late actions in 

requesting the lesser-included offense instruction and in not amending the information before trial 

to include notice of the possibility of a sentencing enhancement under MCL 750.81(5). Defendant 

essentially contended that enhancing the penalty for his domestic violence conviction

circumvented the jury’s verdict, arguing that the jury intended to convict defendant of a 

 

2 MCL 750.81a(2) provides:

Except as provided in subsection (3), an individual who assaults his or her spouse 

or former spouse, an individual with whom he or she has or has had a dating 

relationship, an individual with whom he or she has had a child in common, or a 

resident or former resident of the same household without a weapon and inflicts 

serious or aggravated injury upon that individual without intending to commit 

murder or to inflict great bodily harm less than murder is guilty of a misdemeanor 

punishable by imprisonment for not more than 1 year or a fine of not more than 

$1,000.00, or both.

3 MCL 750.81(2) provides:

Except as provided in subsection (3), (4), or (5), an individual who assaults or 

assaults and batters his or her spouse or former spouse, an individual with whom 

he or she has or has had a dating relationship, an individual with whom he or she 

has had a child in common, or a resident or former resident of his or her household, 

is guilty of a misdemeanor punishable by imprisonment for not more than 93 days 

or a fine of not more than $500.00, or both.

4 MCL 750.81(5) provides:

An individual who commits an assault or an assault and battery in violation of 

subsection (2) or (3), and who has 2 or more previous convictions for assaulting or 

assaulting and battering an individual described in either subsection (2) or 

subsection (3) under any of the following, is guilty of a felony punishable by 

imprisonment for not more than 5 years or a fine of not more than $5,000.00, or 

both[.]
-3-

misdemeanor, not a felony, and that his due-process rights were violated by the sentence 

enhancement. The trial court overruled defendant’s objection, and sentenced him as described.

II. STANDARD OF REVIEW

We review de novo the interpretation and application of statutes, People v Comer, 500 

Mich 278, 287; 901 NW2d 553 (2017), as well as preserved constitutional questions, People v 

Calloway, 469 Mich 448, 450; 671 NW2d 733 (2003).

III. ANALYSIS

Defendant argues that his due-process rights were violated when the trial court applied 

MCL 750.81(5) to enhance his sentence. We disagree.

As noted, MCL 750.81 provides in relevant part:

(2) Except as provided in subsection (3), (4), or (5), an individual who 

assaults or assaults and batters his or her spouse or former spouse, an individual 

with whom he or she has or has had a dating relationship, an individual with whom 

he or she has had a child in common, or a resident or former resident of his or her 

household, is guilty of a misdemeanor punishable by imprisonment for not more 

than 93 days or a fine of not more than $500.00, or both.

* * *

(5) An individual who commits an assault or an assault and battery in 

violation of subsection (2) or (3), and who has 2 or more previous convictions for 

assaulting or assaulting and battering an individual described in either subsection 

(2) or subsection (3) under any of the following, is guilty of a felony punishable by 

imprisonment for not more than 5 years or a fine of not more than $5,000.00, or 

both[.] [MCL 750.81 (emphasis added).]

Defendant was convicted of a violation of MCL 750.81(2), and does not dispute that he has “2 or 

more previous convictions for assaulting or assaulting and battering an individual described in 

either subsection (2) or subsection (3) . . . .” He therefore met the criteria for the sentence

enhancement of MCL 750.81(5).

Our Supreme Court has distinguished sentence enhancements from proceedings under the 

habitual offender statutes, with respect to the level of due process protection required. See People 

v Eason, 435 Mich 228, 232; 458 NW2d 17 (1990). “[D]ue process does not require the state to 

proceed by notice of a separate charge, the right to trial by jury, and proof beyond a reasonable 

doubt wherever sentence enhancement is authorized.” Id. at 233. Our Supreme Court has

recognized that our Legislature has chosen not to provide the notice requirements and other due 

process protections found in the habitual offender statutes to “subsequent offenders under the same 

statute,” noting that a “sentence enhancement provision is a legislative authorization for judges to 

tailor punishment to the criminal on the basis of an objective factor, i.e., a prior conviction under 

the same statute.” Id. at 232. Additionally, “[d]ue process does not require the prosecutor to 

charge the prior . . . conviction in the information in order for the defendant’s sentence to be 
-4-

enhanced on the basis of the prior conviction because the prior offense is not an element of a 

separate charge.” Id. at 233. In sentence enhancement situations, “due process requires a 

reasonable opportunity to challenge the accuracy of the information relied on in passing sentence.” 

Id. at 234; see also People v Williams, 215 Mich App 234-235; 544 NW2d 480 (1996) (holding 

that the defendant was not denied due process when he was charged and convicted of felonyfirearm, MCL 750.227b, but sentenced as a second-time felony-firearm offender, 

MCL 750.227b(1)); People v Miles, 454 Mich 90, 100; 559 NW2d 299 (1997) (stating that “[d]ue

process protections afforded defendants subject to such sentence enhancement provisions are less 

than those afforded defendants for the substantive offense, because the enhancement is not a 

separate element that must be proved beyond a reasonable doubt,” and holding that due process 

required only that a defendant be sentenced on the basis of accurate information and have an 

opportunity to challenge that information.)

In this case, defendant had more than two prior qualifying domestic violence convictions,

and he did not object to the accuracy of that information. This subjected defendant to the sentence

enhancement for domestic violence, third offense. See MCL 750.81(5). This enhancement is 

separate and distinct from the habitual offender statutes, see MCL 769.10, MCL 769.11, 

MCL 769.12, and the notice requirements of those statutes do not apply, see MCL 769.13. 

Therefore, defendant was not entitled to earlier notice of the sentence enhancement because

MCL 750.81(5) did not provide for such notice.

5

 See Eason, 435 Mich at 232.

Defendant’s arguments center around the fact that the sentence enhancement elevated his

conviction from a 93-day misdemeanor to a five-year felony (as is, indeed, the entire purpose of 

MCL 750.81(5) and happens in every instance in which that statutory provision is applied to a 

conviction under MCL 750.81(2)). Given the distinction between a misdemeanor and felony, 

defendant contends that he was prejudiced by a lack of early notice by the prosecution that this 

enhancement could occur, but he presents no authority to support this position. We discern no 

indication from Eason, Williams, or Miles that an exception is made when a misdemeanor is 

elevated to a felony; rather, all three decisions advance general rules that apply to all sentence 

enhancements. See Eason, 435 Mich at 232-234; Miles, 454 Mich at 100; Williams, 215 Mich 

App at 236.

Furthermore, defendant fails to demonstrate how he was unfairly surprised or prejudiced

by the prosecution’s request for a lesser-included offense instruction or by its failure to provide 

pretrial notice that it would be seeking sentence enhancement if defendant was convicted of 

domestic violence. Defendant concedes that he knew of his prior convictions. He was, therefore,

on notice of the effect that these convictions would have on a domestic violence conviction. 

Defendant states that he is not an attorney and should not be held to such a standard; however, 

parties are presumed to know the law, see Mudge v Macomb Co, 458 Mich 87, 109 n 22; 580 

NW2d 845 (1998), and ignorance of the law is no excuse, People v Lockett (On Rehearing), 253 

Mich App 651, 655 n 1; 659 NW2d 681 (2002). Moreover, defendant was represented by counsel. 

 

5 Although notice is required when the prosecutor intends to seek an enhanced sentence under 

MCL 750.81(3) or (4) or MCL 750.81a(3), there is no such requirement under MCL 750.81(5). 

See MCL 750.81b(a).
-5-

Due process required that defendant be sentenced on the basis of accurate information and have 

the opportunity to challenge such information. At the sentencing hearing, defendant was able to 

object to, and change, information in the presentence investigation report, and was able to object 

to the scoring of several variables. Defendant made no claims below, and makes none on appeal, 

that he was sentenced on the basis of inaccurate information or did not have an opportunity to 

challenge such information. Accordingly, his due-process rights were not violated. Eason, 435

Mich 228, 232.

Affirmed.

/s/ Mark T. Boonstra

/s/ Michael F. Gadola

/s/ Jonathan Tukel