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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,

FOR PUBLICATION

January 9, 2018

9:15 a.m.

v No. 335616

Muskegon Circuit Court

RICKY THEODORE STRICKLIN, LC No. 15-066431-FH

Defendant-Appellant.

Before: METER, P.J., and BORRELLO and BOONSTRA, JJ

BOONSTRA, J.

Defendant appeals by delayed leave granted1 his convictions, following a bench trial, of 

third-offense domestic violence, MCL 750.81(4),

2 and witness intimidation, 

MCL 750.122(7)(b).3 The trial court sentenced defendant as a fourth-offense habitual offender, 

MCL 769.12, to concurrent prison terms of 2 to 12 years for each offense. We affirm.

I. PERTINENT FACTS AND PROCEDURAL HISTORY

On appeal, defendant challenges only his sentence, not his convictions. Defendant’s 

domestic violence conviction arose from an incident in which he repeatedly punched his 

girlfriend in the face. His witness intimidation conviction arose from his placement of a call to 

the victim from jail, while he was awaiting trial, during which he told the victim not to come to 

court for his trial. This call was recorded and admitted into evidence. It was undisputed that 

defendant had two previous domestic violence convictions, and that he had committed sufficient 

 1 People v Stricklin, unpublished order of the Court of Appeals, issued March 20, 2017 (Docket 

No. 335616).

2 At the time of defendant’s sentencing on May 9, 2016, the applicable subsection of the statute 

was MCL 750.81(4). See 2012 PA 366 (effective April 1, 2013). However, as of July 25, 2016, 

the statute was amended, and the third-offense domestic violence provision now falls under 

MCL 750.81(5). See 2016 PA 87 (effective July 25, 2016).

3 The trial court acquitted defendant of interfering with an electronic communication, 

MCL 750.540(5)(a).
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prior felonies to be charged as a fourth-offense habitual offender; defendant does not contest 

these facts on appeal.

At sentencing, defendant argued that his convictions should only be enhanced to a 

maximum sentence of 15 years by virtue of his habitual offender status. Defendant further 

argued that his witness intimidation sentence should be based on the underlying offense of 

domestic violence without any habitual offender enhancements. The trial court rejected both 

arguments, holding that defendant’s habitual offender status warranted an enhancement of his 

maximum sentence for domestic violence to life imprisonment, and indicated that it would 

proceed on that basis.4 With regard to the witness intimidation conviction, the trial court based 

its sentence on the underlying crime of third-offense domestic violence as enhanced by 

defendant’s habitual offender status.5

The trial court sentenced defendant as described. This appeal followed.

II. DOMESTIC VIOLENCE SENTENCE

Defendant argues that he is entitled to resentencing because his sentence for domestic 

violence was erroneously enhanced under both the domestic violence statute and the habitual 

offender act. We disagree. Defendant’s argument presents a question of statutory interpretation, 

which we review de novo. See People v Flick, 487 Mich 1, 9; 790 NW2d 295 (2010).

MCL 750.81 provides in pertinent part:

(2) Except as provided in subsection (3) or (4), 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) An individual who commits an assault or an assault and battery in 

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

assaulting or assaulting and battering 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, under any of the following, is guilty of a felony 

 4 The trial court did not actually sentence defendant to a maximum sentence of life 

imprisonment; indeed, the maximum sentence imposed was less than the 15 year maximum 

sentence advocated for by defendant.

5 The trial court concluded that a sentence imposed under the witness intimidation statute must 

reflect the severity of the underlying offense.
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punishable by imprisonment for not more than 5 years or a fine of not more than 

$5,000.00, or both:

(a) This section or an ordinance of a political subdivision of this state 

substantially corresponding to this section.

(b) Section 81a, 82, 83, 84, or 86.

(c) A law of another state or an ordinance of a political subdivision of another 

state substantially corresponding to this section or section 81a, 82, 83, 84, or 86.

MCL 750.81b(b) permits the fact of defendant’s prior domestic violence convictions to 

be established at sentencing. As stated, it was undisputed that defendant had two prior 

convictions for domestic violence, and he does not challenge his conviction for third-offense 

domestic violence. Rather, he argues that the domestic violence statute contains a method for 

enhancing his punishment based on recidivism and that his conviction should therefore not also 

be enhanced by the habitual offender act, MCL 769.12, which provides in pertinent part:

(1) If a person has been convicted of any combination of 3 or more 

felonies or attempts to commit felonies, whether the convictions occurred in this 

state or would have been for felonies or attempts to commit felonies in this state if 

obtained in this state, and that person commits a subsequent felony within this 

state, the person shall be punished upon conviction of the subsequent felony and 

sentencing under section 13 of this chapter as follows:

. . .

(b) If the subsequent felony is punishable upon a first conviction by 

imprisonment for a maximum term of 5 years or more or for life, the court, except 

as otherwise provided in this section or section 1 of chapter XI, may sentence the 

person to imprisonment for life or for a lesser term.

(c) If the subsequent felony is punishable upon a first conviction by 

imprisonment for a maximum term that is less than 5 years, the court, except as 

otherwise provided in this section or section 1 of chapter XI, may sentence the 

person to imprisonment for a maximum term of not more than 15 years. 

[Footnote omitted.]

In other words, defendant argues that the “first conviction” for the purposes of his 

habitual offender enhancement should be taken to mean a conviction for a first offense of 

domestic violence, which is a misdemeanor. MCL 750.81(2). Misdemeanors are not subject to 

enhancement under the habitual offender act, which enhances a defendant’s sentence based on 

prior and subsequent felonies. MCL 769.12.

The primary goal in construing a statute is “to ascertain and give effect to the intent of the 

Legislature.” See People v Pasha, 466 Mich 378, 382; 645 NW2d 275 (2002); People v Morey,

461 Mich 325, 329-330; 603 NW2d 250 (1999). In doing so, this Court must begin by 

examining the plain language of the statute itself. See Pasha, 466 Mich 382. If the language of 
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the statute is clear and unambiguous, it is assumed that the Legislature intended its plain meaning 

and the statute is enforced as written. See People v Stone, 463 Mich 558, 562; 621 NW2d 702 

(2001). We avoid literal constructions if they produce unreasonable and unjust results that are 

inconsistent with the purpose of the act in question. People v Fetterley, 229 Mich App 511, 526; 

583 NW2d 199 (1998).

The Legislature has demonstrated its ability to exclude certain categories of felonies from 

the sentence enhancement provisions of the habitual offender act when it intends to do so. See 

People v Bewersdorf, 438 Mich 55, 72; 475 NW2d 231 (1991). In this case, however, nothing in 

the habitual offender act or the domestic violence statute indicates an intent by the Legislature to 

exclude third-offense domestic violence from the enhancement provisions of MCL 769.12. The 

plain language of the relevant statutes thus does not aid defendant’s argument. See Pasha, 466 

Mich 382.

Further, “[w]here the legislative scheme pertaining to the underlying offense elevates the 

offense, rather than enhances the punishment, on the basis of prior convictions, both the 

elevation of the offense and the enhancement of the penalty under the habitual offender provision 

is permitted.” Fetterley, 229 Mich App at 540-541. This Court held in Fetterley that the retailfraud statutory scheme does not “provide for gradations of punishment. Rather, it punishes the 

commission of a second-degree retail-fraud offense by a person with a prior conviction for a 

subsection 2 offense as a separate substantive offense.” Id. at 536. Our Supreme Court has held 

similarly with regard to statutory schemes in place regarding operation of a motor vehicle while 

under the influence of intoxicating liquor (OUIL) offenses, see Bewersdorf, 438 Mich at 68, and 

failure to comply with the sex offenders registration act (SORA) offenses, see People v Allen, 

499 Mich 307, 311; 884 NW2d 548 (2016). In all three of those circumstances, the reviewing 

court concluded that a statutory scheme similar to the one found in the domestic violence statute 

did not merely enhance punishment based on recidivism, but instead created separate substantive 

crimes such that the habitual offender act applied to those offenses. In fact, the Supreme Court 

in Allen stated, albeit in dicta, that “[t]his is likewise true of other statutory schemes of 

commonly charged offenses, such as domestic violence, MCL 750.81(2) to (4).” Allen, 499 Mich

at 325.

Our caselaw is clear. There is no qualitative difference in the statutory scheme found in 

the domestic violence statute, which elevates an offense from a misdemeanor to a felony and 

increases the penalty for the offense based on prior convictions of similar offenses, that compels 

a different outcome than that reached in Allen, Bewersdorf, and Fetterley. Cases cited by 

defendant are distinguishable. In People v Honeycutt, 163 Mich App 757, 760-763; 415 NW2d 

12 (1987), this Court held that a felony-firearm conviction was not subject to habitual offender 

enhancement because the felony-firearm statute imposes mandatory determinate sentences for its 

violation. See also Allen, 499 Mich at 325 n 51 (noting that imposition of a mandatory 

determinate sentence as required by the felony-firearm statute would “necessarily conflict with a 

trial court’s discretion to impose an indeterminate sentence under the [habitual offender act]”),

Fetterley involved the interplay of the public health code and the habitual offender act. This 

Court merely interpreted the plain meaning of MCL 769.12(1)(d) (“if the subsequent felony is a 

major controlled substance offense, the person shall be punished as provided by part 74 of the 

public health code”) and concluded that subsequent major controlled substance offenses must be 

enhanced as directed by the public health code, not the habitual offender statute. Fetterley, 229 
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Mich at 540-541. Finally, defendant is of course not aided by his reference to People v Allen, 

310 Mich App 328, 348-351; 872 NW2d 21 (2015), inasmuch as the case was reversed by Allen, 

499 Mich at 311, 327.

The domestic violence statute does not impose mandatory determinate sentences for its 

violation; nor is it explicitly excepted from the habitual offender act. Rather, the statute contains 

the type of “statutory scheme[] of commonly charged offenses,” Allen, 499 Mich at 325, that 

courts have repeatedly found to be subject to habitual offender enhancement. The trial court 

therefore did not err by enhancing defendant’s sentence for third-offense domestic violence 

under the habitual offender act. Defendant further argues, however, that even if the trial court 

was permitted to enhance his sentence, it erred by determining that the maximum sentence it 

could impose was life imprisonment, rather than a prison term of 15 years. Defendant thus 

argues that the he is entitled to resentencing based on the trial court’s misunderstanding of the 

law. We disagree.

Defendant contends that the trial court should have based its enhancement of his sentence 

on the maximum penalty for a first-offense conviction for domestic violence (93 days in jail).

Had the trial court done so, it would have concluded that the offense being enhanced by 

defendant’s habitual offender status was “punishable upon a first conviction by imprisonment for 

a maximum term that is less than 5 years” and thus could only be enhanced to a maximum of 15 

years. See MCL 769.12(1)(c). We disagree. Defendant was convicted of violating

MCL 750.81(4), not MCL 750.81 generally. Third-offense domestic violence is, as discussed 

earlier in this opinion, a separate offense, the first conviction of which is punishable by a 

maximum of 5 years imprisonment. Therefore, the trial court’s application of MCL 769.12(1)(b) 

was appropriate, because the subsequent felony was “punishable upon a first conviction by 

imprisonment for a maximum term of 5 years or more or for life.” See Allen, 499 Mich at 322 

(applying the same rationale to second-offense failures to comply with SORA). The trial court 

did not err by recognizing that it was authorized to enhance defendant’s sentence to a maximum 

of life imprisonment.

III. WITNESS INTIMIDATION SENTENCE

Defendant also argued that the trial court erred by basing his sentence for witness 

intimidation on an underlying offense of third-offense domestic violence conviction as enhanced 

by the habitual offender act. We disagree. Defendant’s argument involves a question of 

statutory interpretation, which we review de novo. See Flick, 487 Mich at 9.

The witness intimidation act, MCL 750.122, provides in pertinent part:

(7) A person who violates this section is guilty of a crime as follows:

(a) Except as provided in subdivisions (b) and (c), the person is guilty of a 

felony punishable by imprisonment for not more than 4 years or a fine of not 

more than $5,000.00, or both.

(b) If the violation is committed in a criminal case for which the maximum 

term of imprisonment for the violation is more than 10 years, or the violation is 

punishable by imprisonment for life or any term of years, the person is guilty of a 
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felony punishable by imprisonment for not more than 10 years or a fine of not 

more than $20,000.00, or both.

(c) If the violation involves committing or attempting to commit a crime 

or a threat to kill or injure any person or to cause property damage, the person is 

guilty of a felony punishable by imprisonment for not more than 15 years or a fine 

of not more than $25,000.00, or both.

Defendant argues that the underlying “violation” in the instant case is a first-offense 

violation of MCL 750.81, i.e., a 93-day misdemeanor. For the reasons stated earlier in this 

opinion, however, the trial court correctly determined that the underlying offense was thirdoffense domestic violence, MCL 750.81(4), as enhanced by the habitual offender act. The act of 

witness intimidation was thus “committed in a criminal case for which the maximum term of 

imprisonment is more than 10 years, or . . . imprisonment for life.” MCL 750.122(7)(b). 

Although defendant argues that this reading will produce absurd results, we see nothing absurd 

in the Legislature’s determination to structure the level of punishment for witness intimidation 

according to the severity of the underlying offense. See Fetterley, 229 Mich App at 526.

Affirmed.

/s/ Mark T. Boonstra

/s/ Patrick M. Meter

/s/ Stephen L. Borrello