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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED September 10, 2015

v No. 321895 Oakland Circuit Court DANIEL EDWARD SAFRONENKO, LC No. 2013-247831-FH

Defendant-Appellant.

Before: T ALBOT , C.J., and W ILDER and F ORT H OOD , JJ.

P ER C URIAM

. Daniel Edward Safronenko appeals as of right his jury trial co nviction of first-degree retail fraud. 1 The trial court sentenced Saf ronenko, a third habitual offend er, 2 to one year in jail, with the sentence to be suspended after 30 days upon entry into a zero tolerance program. We affirm.

Safronenko argues that he was denied the right to a meaningful allocution at sentencing. We disagree. Because Safronenko did not preserve this argument by raising it below, our review is for plain error. 3 To be entitled to relief, Safronenko must demonstrate that (1 ) an error occurred, (2) the error was pl ain, i.e., clear or obvious, and (3) the plain error affected his substantial rights. 4 If Safronenko satisfies these th ree requirements, this Court “must exercise its discretion in deciding whether t o reverse. Reversal is warrant ed only when the plain, forfeited error resulted in the conviction of an actually innocent defend ant or when an error seriously affected the fairness, integrit y, or public reputation of judic ial proceedings independent of the defendant’s innocence.” 5

1 MCL 750.356c.

2 MCL 769.11.

3 People v Carines , 460 Mich 750, 763-764; 597 NW2d 130 (1999).

4 Id . at 763.

5 Id . at 763-764 (quotation marks, brackets, and citation omitted).-2- At sentencing, a trial court mu st, on the record, “give the de fendant, the defendant’s lawyer, the prosecutor, and the victim an opportunity to advise the court of any circumstances they believe the court should c onsider in imposing sentence[.]” 6 The record shows that the trial court followed this mandate. Perhaps the most loquacious speak er was Safronenko himself, who engaged in a thorough discussion w ith the trial co urt regarding his employment, housing, family, past criminal activity, substance abuse, mental health issues, and treatments. Despite this discussion, Safronenko now argues that he was incompetent at th e time of sentencing, and thus, was denied the right to a meaningful allocution.

A criminal defendant is presumed competent unless it is determ ined that “ ‘he is incapable because of his mental condition of understanding the nature and object of the proceedings against him or of assisting in his defense in a rat ional manner.’ ” 7 The issue of a defendant’s competence may be raised by the prosecution, the de fense, or the trial court. 8 A trial court is obligated to raise the issue of incompetence sua sponte if facts are brought to its attention that raise a bona fide doubt regarding whether the de fendant is competent. 9 “The test for such a bona fide doubt is whether a reasonable judge, situa ted as was the trial court judge whose failure to conduct an evid entiary hearing is being review ed, should have experienced doubt with respect to competency to stand trial.” 10 “Evidence of a defendant’s irrational behavior, a defendant’s demeanor, and a defendant’s prior medic al record relative to competence are all relevant in determining w hether further inquiry in rega rd to competency is required.” 11

At sentencing, Safronenko engaged in a coherent and logical di scussion with the trial court. His discussion demonstrat ed that he was well aware of h is past history and his present circumstances. He expressed hi s understanding of the charge fo r which he stood t o be sentenced. He discussed his family, housing, and employment, as well as th e effect a jail sentence would likely have on these areas of his life. Overall, Safronenko’s allocution was a logical and reasoned discussion of why a lesser sentence would be appropria te. Nothing from Safronenko’s discussion with the trial court provides the slightest indicati on that he was incompetent.

Safronenko argues that, due to hi s psychiatric history, there was a bona fide doubt with regard to his competency. This psychiatric history consists of diagnoses of attention deficit disorder in 1995 and bipolar disorder in 1997. Safronenko was born in 1985, meaning that these diagnoses were made when he was 10 and 12 years old, respective ly. Given that these diagnoses were made when Safronenko was a child, it is doubtful that the diagnoses are of much relevance

6 MCR 6.425(E)(1)(c). See also People v Petit , 466 Mich 624, 627; 648 NW2d 193 (2002).

7 People v Kammeraad , 307 Mich App 98, 137; 858 NW2d 490 (2014), quoting MCL 330.2020(1).

8 Id . at 138.

9 Id

.
10 Id . at 138-139 (quotation and brackets omitted).

11 Id . at 139.-3- to his competency as an adult. 12 Given Safronenko’s clear and c ogent discussion with the trial court at sentencing, the mere existence of these past diagnoses does not raise a bona fide doubt regarding Safronenko’s competency. 13 Accordingly, Safronenko has not demonstrated error.

Affirmed.

/s/ Michael J. Talbot /s/ Kurtis T. Wilder /s/ Karen M. Fort Hood

12 Nor does Safronenko offer any explanation of how these conditi ons would cause him to be incompetent to speak on his own behalf.

13 It is worth noting that Safronenko discussed his mental health history with the trial court and indicated that while he was not c urrently taking medications on the advice of a counselor, his treatment with this counselor had “proven to be very helpful.” That Safronenko was aware of his mental health issues and was actively treating these issues fur ther demonstrates that he was competent at the tim e of sentencing.