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

revision until final publication in the Michigan Appeals Reports.

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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UNPUBLISHED

September 24, 2020

v No. 347538

Macomb Circuit Court

DAVID PAUL TURNER, LC No. 2017-003760-FH

Defendant-Appellant.

Before: LETICA, P.J., and FORT HOOD and GLEICHER, JJ.

PER CURIAM.

Defendant appeals as of right his jury trial convictions of assault with a dangerous weapon 

(felonious assault), MCL 750.82, domestic violence (third-offense notice), MCL 750.81(5), and 

assault and battery, MCL 750.81. Defendant was sentenced, as a fourth-offense habitual offender, 

MCL 769.12, to 6 to 15 years’ imprisonment for his felonious assault conviction, and 6 to 28 years’ 

imprisonment for his domestic violence conviction. Defendant was sentenced to 90 days in jail 

for his assault and battery conviction. On appeal, defendant contends that he is entitled to 

resentencing without a sentencing enhancement because the prosecution failed to file a written 

proof of service of its fourth-offense habitual-offender notice. Defendant contends in the 

alternative that it was error to sentence him as a fourth-offense habitual offender because he only 

had two, rather than three, prior felony convictions. We vacate defendant’s sentences for his 

felonious assault and domestic violence convictions, and remand to the trial court to hold an 

evidentiary hearing to determine whether defendant may be resentenced as a habitual offender. If 

so, we conclude that defendant may be resentenced as a third-offense, rather than a fourth-offense, 

habitual offender.

I. FACTUAL BACKGROUND

This case arises out of an assault on Rosemary Turner on August 26, 2017, at defendant’s

home. Katherine Turner is Rosemary and defendant’s daughter. Rosemary and defendant were 

divorced, however, during the event at issue, Rosemary and Katherine were temporarily residing 

with defendant. 
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On the night of the incident, Rosemary and defendant were drinking at bar near defendant’s 

home. Defendant left the bar, went home, told Katherine that Rosemary was in the bathroom with 

a girl at the bar, and called Rosemary a number of derogatory, sexual slurs. When Katherine 

defended Rosemary, defendant allegedly pushed Katherine against a wall and choked her. 

Katherine testified that, after Katherine fell on the floor, defendant grabbed Katherine by her hair, 

dragged her out of the house, punched her, and locked the door. Katherine walked to the bar and 

told Rosemary about what had just occurred between herself and defendant.

Rosemary and Katherine went back to defendant’s house, and Rosemary and defendant 

argued. Defendant punched Rosemary in the face and body, grabbed her hair, and dragged her out 

the back door. When Katherine tried to help Rosemary, defendant grabbed Katherine by her hair, 

punched Katherine’s face and body, and dragged her out of the back door as well. While Rosemary 

and Katherine were still in the backyard, defendant exited his house, entered his vehicle, drove 

into the backyard, and ran over Rosemary’s body. Defendant put his vehicle in reverse, and ran 

over Rosemary’s body again. Officer Steven Wietecha of the Clinton Township Police 

Department was dispatched to defendant’s home. Officer Wietecha had Rosemary transported to 

the hospital for medical treatment, and arrested defendant.

II. PRESERVATION AND STANDARD OF REVIEW

“To preserve a sentencing issue for appeal, a defendant must raise the issue ‘at sentencing, 

in a proper motion for resentencing, or in a proper motion to remand filed in the court of appeals.’ 

” People v Clark, 315 Mich App 219, 223; 888 NW2d 309 (2016), quoting MCR 6.429(C). 

Defendant did not raise an issue regarding the accuracy of his prior convictions listed in the 

prosecution’s fourth-offense habitual-offender notice at sentencing, nor did defendant raise an 

issue regarding the prosecution’s failure to file a written proof of service of the notice. Further, 

defendant did not move for resentencing below, and he has not moved this Court to remand for 

resentencing. Accordingly, the issues defendant raises on appeal are unpreserved. Id.

Generally, “[t]he trial court’s discretionary decisions—including its exercise of sentencing 

discretion—are reviewed for an abuse of discretion,” People v Odom, 327 Mich App 297, 303; 

933 NW2d 719 (2019) (citations omitted), whereas whether the prosecutor failed to file a proof of 

service pertaining to a habitual offender notice is an issue we review “de novo as a question of law 

because it involves the interpretation and application of statutory provisions and court rules,” 

People v Head, 323 Mich App 526, 542; 917 NW2d 752 (2018) (citations omitted). However, 

because defendant’s issues on appeal are unpreserved, this Court’s review is for plain error 

affecting defendant’s substantial rights. People v Carines, 460 Mich 750, 763; 597 NW2d 130 

(1999) (citation omitted). “To avoid forfeiture under the plain error rule, three requirements must 

be met: 1) error must have occurred, 2) the error was plain, i.e., clear or obvious, 3) and the plain 

error affected substantial rights.” Id. “The third requirement generally requires a showing of 

prejudice, i.e., that the error affected the outcome of the lower court proceedings.” Id. “Reversal 

is warranted only when the plain, forfeited error resulted in the conviction of an actually innocent 

defendant or when an error seriously affect[ed] the fairness, integrity or public reputation of 

judicial proceedings’ independent of the defendant’s innocence.” Id. at 763-764 (citation and 

quotation marks omitted). 
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III. FAILURE TO FILE A PROOF OF SERVICE OF THE SENTENCING ENHANCEMENT 

NOTICE

Defendant argues he is entitled to resentencing, without any enhancement, because the 

prosecution failed to file a written proof of service of its fourth-offense habitual-offender notice. 

We remand for further findings as to this issue. 

MCL 769.13 enables the prosecution to seek an enhanced sentence on the basis of a 

defendant’s prior convictions. MCL 769.13 states, in relevant part:

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

of the defendant as provided under [MCL 769.10, MCL 769.11, or MCL 769.12] 

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 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. 

[MCL 769.13(1) and (2) (footnote omitted).]

This Court considered MCL 769.13 in Head, 323 Mich App at 543, and noted that MCR 6.112(F)

contains the same requirements. MCR 6.112(F) governs notice of intent to seek enhanced 

sentencing, and states:

A notice of intent to seek an enhanced sentence pursuant to MCL 769.13 must list 

the prior convictions that may be relied upon for purposes of sentence enhancement. 

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

information charging the underlying offense or, if arraignment is waived or 

eliminated as allowed under MCR 6.113(E), within 21 days after the filing of the 

information charging the underlying offense.

“The purpose of the notice requirement ‘is to provide the accused with notice, at an early 

stage in the proceedings, of the potential consequences should the accused be convicted of the 

underlying offense.’ ” Head, 323 Mich App at 543, quoting People v Morales, 240 Mich App 

571, 582; 618 NW2d 10 (2000). This Court has held that the prosecution’s “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.” Head, 
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323 Mich App at 543-544,

1

citing People v Walker, 234 Mich App 299, 314-315; 593 NW2d 673 

(1999) (citation omitted).

The prosecution admits that it failed to file a proof of service of its notice of intent to seek 

an enhanced sentence. This failure was plain and obvious error, however, the prosecution contends 

that the error was harmless because defendant received actual notice of the sentencing 

enhancement and was not prejudiced in his ability to respond. Defendant asserts that the record 

does not show he received actual notice within the required 21-day time period. 

Considering the trial court held defendant’s arraignment on October 23, 2017, the 

prosecution was required to file its habitual-offender notice—within 21 days after defendant’s 

October 23, 2017 arraignment—by November 13, 2017. MCL 769.13(1). The record shows, 

however, that the prosecution simultaneously filed its felony information and habitual-offender 

notice on October 19, 2017—before it was due. While the statute requires the prosecution to file 

the habitual-offender notice within 21 days after the arraignment, the statute does not preclude the 

prosecution from filing the notice before the arraignment. See e.g., People v Marshall, 298 Mich 

App 607, 627; 830 NW2d 414 (2012), vacated in part on other grounds 493 Mich 1020 (2013)

(noting that a sentencing enhancement notice was timely when it was filed with the felony 

information). Unlike in Head, however, the prosecution in this case did not include defendant’s 

sentencing enhancement in the felony information. See Head, 323 Mich App at 544. As 

referenced above, the notice of defendant’s sentence enhancement existed in a separate document, 

and defendant only acknowledged receipt of the information at his arraignment. 

Thereafter, there was no discussion of defendant’s sentencing enhancement until a pretrial 

hearing on February 13, 2018. At that time, defendant appears to have been aware of the 

sentencing enhancement and raised no objections, but there is no record evidence that defendant 

was made aware of the enhancement within 21-days after defendant’s arraignment as required by 

MCL 769.13(1). See People v Cobley, 463 Mich 893, 893 (2000) (vacating a defendant’s sentence 

because the prosecutor could not prove “that the notice of sentence enhancement was served on 

[the] defendant within 21 days after the defendant was arraigned.”). With that in mind, we cannot 

conclude on the record available to us that the prosecution’s failure to file a proof of service of its 

notice of defendant’s sentencing enhancement was harmless. Similarly, to the extent defendant 

was not made aware of the sentencing enhancement in a timely manner, the error affected his 

 

1 We note defendant’s assertion that Head was wrongly decided and should be overruled by this 

Court. We disagree, and further note that “[a] published opinion of the Court of Appeals has 

precedential effect under the rule of stare decisis.” MCR 7.215(C)(2); People v Bensch, 328 Mich 

App 1, 7 n 6; 935 NW2d 382 (2019). “A panel of the Court of Appeals must follow the rule of 

law established by a prior published decision of the Court of Appeals issued on or after November 

1, 1990, that has not been reversed or modified by the Supreme Court, or by a special panel of the 

Court of Appeals as provided in this rule.” MCR 7.215(J)(1). Head is binding precedent on this 

Court. MCR 7.215(C)(2); MCR 7.215(J)(1). 
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substantial rights because it led to a substantial increase in his sentence that otherwise would have 

been illegal.2 

We remand for further findings as to whether defendant received timely notice of the 

sentencing enhancement. 

IV. FOURTH-OFFENSE HABITUAL OFFENDER ERROR

As this issue is otherwise moot, we address the next issue only for the possibility that the 

trial court finds on remand that defendant did receive actual notice of his sentencing enhancement

in a timely manner. Should the trial court uncover evidence supporting a finding that defendant 

received timely, actual notice, we conclude that he may be resentenced as a third-offense, rather 

than a fourth-offense, habitual offender. 

MCL 769.11 governs punishment for the subsequent felony of persons convicted of two or 

more felonies. “MCL 769.11(1) permits sentence enhancement if a defendant has been ‘convicted 

of any combination of 2 or more felonies or attempts to commit felonies.’ ” People v Jones, 297 

Mich App 80, 86; 8 NW2d 312 (2012), citing MCL 769.11. In contrast, MCL 769.12 governs 

punishment for the subsequent felony of persons convicted of three or more felonies. “[A]n 

individual is subject to MCL 769.12 if the person commits a subsequent felony in Michigan when 

that person has been convicted of any combination of three or more felonies or attempts to commit 

felonies[.]” People v Pointerbey, 321 Mich App 609, 622; 909 NW2d 523 (2017), citing MCL 

769.12. 

In sentencing defendant as a fourth-offense habitual offender, the trial court relied on the 

prosecution’s fourth-offense habitual-offender notice, which indicated defendant had three felony 

convictions: (1) a July 13, 1992 conviction of delivering or manufacturing a controlled substance; 

(2) a January 6, 2004 conviction of first-degree retail fraud; and (3) an April 6, 2004 conviction of 

 

2 We note that the record does not indicate, nor does defendant assert, that the prosecution’s failure 

to file a written proof of service prejudiced defendant’s ability to present any relevant challenges 

to his fourth-offense habitual offender status at his pretrial hearings. Defendant did not contest his 

fourth-offense habitual-offender status. At defendant’s sentencing, defense counsel stated that he 

and defendant found defendant’s PSIR to be factually accurate. In relevant part, defendant’s PSIR 

indicated defendant was subject to sentencing as a fourth-offense habitual offender, for his 

felonious and domestic violence convictions. Thus, “[t]he conclusion that defendant was not 

prejudiced and that he received actual notice of the habitual-offender enhancement is further 

supported by the fact that defendant and defense counsel exhibited no surprise at sentencing when 

defendant was sentenced as a fourth-offense habitual offender.” Head, 323 Mich App at 545. In 

any event, we are inclined to follow the directive of our Supreme Court that actual notice within 

21 days after arraignment is a requirement of MCL 769.13(2). See People v Parrish, unpublished 

per curiam opinion of the Court of Appeals, issued April 2, 2020 (Docket No. 344604), p 3, citing 

Cobley, 463 Mich at 893.
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assault with a dangerous weapon. As defendant’s presentence investigation report (PSIR) notes, 

however, and as the prosecution concedes, defendant was actually convicted of second-degree 

retail fraud rather than first-degree retrial fraud. The former is a misdemeanor, and 

“[m]isdemeanors are not subject to enhancement under the habitual-offender statute[.]” People v 

Stricklin, 322 Mich App 533, 539; 912 NW2d 601 (2018). Thus, because defendant was convicted 

of only two felonies before he was convicted of the instant offenses, MCL 769.11, the trial court 

erred when it enhanced defendant’s sentence under MCL 769.12. Jones, 297 Mich App at 86. 

To the extent that a sentence enhancement may be applied at all, we conclude that 

defendant may be sentenced as a third-offense habitual offender rather than a fourth-offense 

habitual offender.

3

 

V. CONCLUSION

We vacate defendant’s sentences for his felonious assault and domestic violence 

convictions, and remand to the trial court to determine whether defendant received actual notice 

of the prosecution’s intent to seek a sentencing enhancement within 21 days of his arraignment. If 

defendant did not receive timely notice, defendant must be resentenced without a sentencing 

enhancement. If defendant did receive timely notice, he may be resentenced as a third-offense 

habitual offender. We do not retain jurisdiction. 

/s/ Anica Letica 

/s/ Karen M. Fort Hood 

/s/ Elizabeth L. Gleicher 

 

3 We note defendant’s alternative argument that he is entitled to resentencing on the basis of his 

counsel’s failure to object to the fourth-offense habitual-offender notice. Having already 

concluded that defendant is entitled to relief, however, we need not address the argument.