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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UNPUBLISHED

February 27, 2018

v No. 334167

St. Clair Circuit Court

ROBERT DOUGLAS BLANCHARD, LC No. 15-002322-FH

Defendant-Appellant.

Before: GLEICHER, P.J., and BORRELLO and SWARTZLE, JJ.

PER CURIAM.

Defendant appeals as of right from his jury trial convictions of one count of first-degree 

criminal sexual conduct (CSC), MCL 750.520b(1)(c), and two counts of first-degree home 

invasion, MCL 750.110a(2). As a fourth-offense habitual offender, MCL 769.12, defendant was 

sentenced to 35 to 75 years in prison for the first-degree CSC conviction and to 20 to 30 years in 

prison for each of the first-degree home invasion convictions. All three sentences were to be 

served consecutive to each other. We affirm in part but remand with respect to the consecutive 

nature of the sentences.

I. BACKGROUND

The instant case arose from a sexual assault on July 25, 2016. That afternoon, defendant 

invited his neighbor, KZ, to sit with him on his patio and to have a beer. Sometime later, 

defendant’s wife and KZ’s infant son joined defendant and KZ on the patio. After having 

several beers, KZ asked defendant’s wife to feed KZ’s son because KZ was not feeling well and 

wanted to go back to her apartment to lie down. KZ told defendant’s wife that she would leave 

her apartment door unlocked so that defendant’s wife could bring the baby back when he was 

done feeding. Defendant was “in earshot” during KZ’s conversation with defendant’s wife. 

Once back at her apartment, KZ laid down on the bed. In addition to consuming several 

beers, KZ had also taken the prescription medication, Klonopin. She testified that she had a 

headache, felt nauseous, and was in “a dream-like state.” The next thing KZ remembered was 

defendant kissing her. According to KZ, she told defendant to stop, defendant said, “it’s okay, 

it’s me,” and proceeded to assault her by biting her nipples, digitally penetrating her vagina, and 

putting his tongue on her vagina. KZ described the penetration as “rather hard, forceful[]” and 

stated that both the penetration and the biting caused her pain.
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KZ testified that she told defendant to stop a second time, and he abruptly left the 

apartment after exclaiming “oh, shit.” Just then, defendant’s wife entered the bedroom with 

KZ’s son and placed him on the bed next to KZ. According to KZ, after defendant’s wife left the 

apartment, defendant returned and began kissing KZ. KZ testified that defendant left upon 

seeing that the baby was in the bed with her. 

According to KZ, she and her fiancé confronted defendant about the encounter later that 

night and then called the police. KZ was examined by a forensic nurse the next day. The nurse 

testified that KZ complained to her of vaginal soreness following the incident.

At trial, defendant testified that his sexual conduct with KZ was consensual. He claimed 

that KZ’s facial expressions and body language while drinking with him on the patio indicated 

that she wanted defendant to follow her to her apartment. Defendant further testified that he 

honored her wishes when she told him to stop touching her. The jury found defendant guilty of 

one count of CSC and two counts of first-degree home invasion, but found defendant not guilty 

of a second count of CSC.

The trial court sentenced defendant within the sentencing-guidelines range to 35 to 70 

years imprisonment for the CSC conviction and 20 to 30 years imprisonment for each of the 

home invasion convictions. Relevant to this appeal, the trial court’s sentencing-guidelines 

calculation was based in part upon its score of five points for Offense Variable (OV) 3. The trial 

court stated that it was ordering each of the three sentences to be served consecutive to each 

other under the discretion afforded it by the home-invasion statue, MCL 750.110a(8). The trial 

court also addressed defendant’s Georgia state conviction for child molestation. The record 

indicates that defendant was given a split sentence of 25 years for this conviction, with the first 

13 years to be spent in prison. Defendant was released from a Georgia prison in 2004, at which 

time he began serving 12 years of supervised probation which had been transferred to Michigan 

supervision by the time of the instant offenses. The trial court noted that it would find the instant 

sentences would be served consecutive to his Georgia sentence “because [defendant] was under a 

state’s equivalent system of parole” at the time of the instant offenses. The trial court, however, 

subsequently ordered that the instant sentences be served consecutive to each other, but not to 

any other sentence. This appeal followed.

II. ANALYSIS

Offense Variable 3. On appeal, defendant first argues that the sentencing court erred in 

scoring OV 3 at five points. We review a trial court’s factual findings at sentencing for clear 

error. People v Hardy, 494 Mich 430, 438; 835 NW2d 340 (2013).

Offense Variable 3, which relates to physical injury to a victim, should be scored with 

five points where “[b]odily injury not requiring medical treatment occurred to a victim.” MCL 

777.33(1)(e). “‘[B]odily injury’ encompasses anything that the victim would, under the 

circumstances, perceive as some unwanted physically damaging consequence.” People v 

McDonald, 293 Mich App 292, 298; 811 NW2d 507 (2011). Here, KZ testified that defendant 

caused her physical pain by biting her nipples and digitally penetrating her vagina. A forensic 

examiner testified that KZ was still reporting vaginal soreness the day after the assault. A 
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preponderance of the evidence supports the trial court’s conclusion that defendant caused the 

victim bodily injury not requiring medical attention. Defendant’s argument is without merit.

Consecutive Sentencing. Defendant next argues that he is entitled to resentencing 

because the trial court erred in imposing consecutive sentences. A trial court may impose 

consecutive sentences only if authorized by statute. People v Clark, 315 Mich App 219, 224; 

888 NW2d 309 (2016). This Court reviews any consecutive sentences for an abuse of discretion. 

People v Norfleet, 317 Mich App 649, 654; 897 NW2d 195 (2016).

Defendant first argues that the trial court erred in using his Georgia conviction and 

sentence as grounds to impose consecutive sentences in the instant case. Defendant argues that 

the trial court erroneously concluded that his term of probation was the equivalent of parole in 

Michigan thereby subjecting him to consecutive sentencing under MCL 768.7a(2). Under MCL 

768.7a(2), a defendant who is convicted of a felony while on parole must serve the remaining 

portion of the term of imprisonment for which he was paroled before he may begin to serve any 

time for the new offenses. 

We need not answer the question of whether defendant’s probation is the equivalent of 

parole in Michigan because the trial court did not impose consecutive sentences based upon 

defendant’s probationary status. While the trial court indicated that it would determine that

defendant’s probation could serve as the basis for consecutive sentencing, the trial court’s written 

sentencing order does not order defendant’s Michigan sentences to be served consecutive to his 

Georgia sentence. See People v Jones, 203 Mich App 74, 82; 512 NW2d 26 (1993) (stating that 

the trial court speaks through its written orders, not its oral pronouncements). While the trial 

court did order defendant’s instant sentences be served consecutive to each other, there is no 

indication in the record that this decision was based upon the trial court’s belief that defendant 

was subject to the equivalent of Michigan parole at the time of the instant offense. Indeed, MCL 

768.7a(2) only authorizes the trial court to order the instant offenses consecutive to a previous 

sentence, not to each other. 

The trial court ordered defendant’s instant sentences to be served consecutive to each 

other under the home invasion statute, MCL 750.110a(8). Under that statute, the trial court “may 

order a term of imprisonment imposed for home invasion in the first degree to be served 

consecutively to any term of imprisonment imposed for any other criminal offense arising from 

the same transaction.” Id. Because defendant was convicted of two counts of first-degree homeinvasion and one count of CSC from the same criminal transaction, the trial court had discretion 

to order that each sentence be served consecutive to the others. 

Defendant argues that the consecutive sentences imposed in this case, which amount to a 

mandatory 75 years of imprisonment, are an abuse of discretion. Defendant also argues that his 

consecutive sentences violate the principle of proportionality and constitute cruel-and-unusual 

punishment given that he will likely serve the remainder of his life in prison.

Addressing defendant’s proportionality argument first, we note that “a proportionality 

challenge to a given sentence must be based on the individual term imposed and not on the 

cumulative effect of multiple sentences.” Norfleet, 317 Mich App at 663. In determining 

whether a sentence is disproportionate to the circumstances surrounding the offense and 
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offender, we review each sentence “on its own merits.” Id. Here, each of defendant’s sentences 

fell within the minimum sentencing-guidelines range. Sentences falling within the minimum 

sentencing guidelines range are presumptively proportionate, People v Jackson, 320 Mich App 

514, 527; ___ NW2d ___ (2017), and are not reviewed for proportionality absent a scoring error 

or proof that the trial court relied on inaccurate information to calculate the sentence, see People 

v Schrauben, 314 Mich App 181, 196; 886 NW2d 173 (2016). Because defendant has not 

identified a scoring error or any inaccurate information affecting his sentence, defendant is not 

entitled to proportionality review. 

Next, regarding defendant’s argument that the trial court abused its discretion under MCL 

750.110a(8) by imposing consecutive sentences, the trial court must articulate on the record the 

reasons for each consecutive sentence it imposes. See Norfleet, 317 Mich App at 654, 665. 

Because the trial court did not articulate on the record the reasons underlying its decision to 

impose three consecutive sentences in this case, we are unable to review the trial court’s exercise 

of discretion. Accordingly, we remand to the trial court so that it may articulate on the record the 

reasoning underlying each consecutive sentence. 

Effective Assistance of Counsel. Finally, defendant argues in a Standard-41 brief that he 

was denied the effective assistance of counsel at trial because defense counsel failed to present 

evidence regarding the victim’s past sexual conduct and lifestyle. In particular, defendant argues 

that counsel should have presented evidence that KZ frequently wore revealing clothing, 

previously exposed herself to defendant and others, and indicated “through innuendo and body 

language” on the night of the assault that she was open to a sexual encounter. 

To establish ineffective assistance of counsel, the defendant must show that (1) counsel’s 

performance was deficient, meaning that it fell below an objective standard of reasonableness 

under prevailing professional norms and (2) the result of the proceeding would have been 

different but for counsel’s deficient performance. People v Carbin, 463 Mich 590, 599-600; 623 

NW2d 884 (2001). In proving deficient performance, the “defendant must overcome a strong 

presumption that counsel’s assistance constituted sound trial strategy.” People v Stanaway, 446 

Mich 643, 687; 521 NW2d 557 (1994). “Decisions regarding what evidence to present and 

whether to call or question witnesses are presumed to be matters of trial strategy.” People v 

Rockey, 237 Mich App 74, 76; 601 NW2d 887 (1999). 

Here, defendant has not overcome the presumption that defense counsel’s decision not to 

present certain evidence regarding the victim’s past conduct and lifestyle was sound trial 

strategy. To begin with, the evidence regarding KZ’s past sexual conduct with others would be 

inadmissible under the rape-shield statute, MCL 750.520j(1). Moreover, defendant’s assertion 

that defense counsel did not present evidence that KZ used body language to suggest to 

defendant that she was open to a sexual encounter is belied by the record. Indeed, defendant 

provided this testimony himself. Finally, to the extent that the remaining evidence of KZ’s prior 

conduct was admissible, the presentation of this evidence could have been viewed by the jury as 

 1 Supreme Court Administrative Order No. 2004–6, Standard 4.
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“victim shaming.” Given the limited relevance that the evidence presented, and given that 

defendant did testify regarding KZ’s alleged conduct on the night in question, we conclude that 

counsel’s decision to avoid this evidence was sound trial strategy. Defendant has failed to 

overcome the presumption that his counsel provided effective assistance.

III. CONCLUSION

We affirm defendant’s convictions and individual sentences. We remand for the limited 

purpose of having the trial court articulate on the record the reasoning underlying each 

consecutive sentence it imposed. We do not retain jurisdiction.

/s/ Elizabeth L. Gleicher

/s/ Stephen L. Borrello

/s/ Brock A. Swartzle