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STATE OF MICHIGAN 

COURT OF APPEALS 

PEOPLE OF THE STATE OF MICHIGAN, 

 Plaintiff-Appellee, 

UNPUBLISHED 

July 28, 2015 

v No. 321842 

Kent Circuit Court 

KENNETH EDWARD BOLTON, III, LC No. 13-009772-FC 

 Defendant-Appellant. 

Before: SERVITTO, P.J., and BECKERING and BOONSTRA, JJ. 

PER CURIAM. 

 Defendant appeals as of right his jury trial conviction of first-degree criminal sexual 

conduct (CSC), MCL 750.520b(1)(f) (force or coercion; personal injury).1 Defendant was 

sentenced as a second-offense habitual offender, MCL 769.10, to 28 to 90 years’ imprisonment. 

We affirm. 

 At approximately 11:00 p.m. on September 29, 2013, defendant met the victim, a 50-

year-old woman, near St. James Catholic Church, which is located in Grand Rapids, Michigan. 

Defendant and the victim had never met each other before that time. Defendant asked the victim 

whether she had a cellular telephone he could use. After she answered no, defendant hit her in 

the head and dragged her by her hair and hooded sweatshirt into a field near the church. Then, 

defendant pulled the victim’s pants down, took off her shoes and underwear, and told her to put a 

condom on him. She complied. Defendant then put his penis inside the victim’s vagina. The 

victim testified that she never consented to sex with defendant. 

 Shaine Cartwright and Scott Burkman left their apartment at approximately 11:00 p.m. 

that night. Their apartment was across the street from the church. As they walked outside, they 

heard a woman’s “blood curdling screams” coming from behind the church. Cartwright knew 

Christopher Wright, a clergyman who was living in the rectory of the church. Cartwright called 

Wright and Wright went outside. He saw defendant thrusting on top of a woman, and the 

woman was screaming for help. Wright called 911 and the police arrived. Adam Ickes was the 

police officer who arrested defendant. Defendant gave several inconsistent accounts to Ickes of 

 

1

 Defendant was acquitted of a second count of first-degree CSC.
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events that night. For example, defendant told Ickes that the victim was his girlfriend, but then 

told him she was a prostitute. A medical examination of the victim indicated that she suffered 

over 20 injuries on her body resulting from defendant. At trial, defendant maintained that the 

victim was a prostitute and that she consented to have sex with him in exchange for $15. 

 Before trial, the prosecution offered defendant a dismissal of the second count of firstdegree CSC and dismissal of the supplemental information charging defendant as a secondoffense habitual offender, in exchange for defendant pleading guilty to the first count of firstdegree CSC. The prosecution estimated that defendant’s minimum sentence range under the 

legislative guidelines would be 108 to 180 months without the supplemental information, but 

would be 108 to 225 months with the supplemental information. Defendant’s counsel stated that 

he believed that the prosecution’s estimate of the minimum sentence ranges was correct. At 

sentencing, after scoring the prior record variables (PRVs) and the offense variables (OVs), the 

trial court determined that defendant’s minimum sentence range under the legislative guidelines 

was 171 to 356 months. 

 Defendant first argues that his counsel was ineffective for estimating during plea 

negotiations that defendant’s recommended sentence range would be 108 to 225 months with the 

supplemental information charging defendant as a second-offense habitual offender. Because no 

evidentiary hearing has been held on defendant’s claim, our review of the claim is limited to 

facts on the record. People v Wilson, 242 Mich App 350, 352; 619 NW2d 413 (2000). “In all 

criminal prosecutions, the accused shall enjoy the right to . . . the Assistance of Counsel for his 

defense.” US Const, Am VI. “[T]he right to counsel is the right to effective assistance of 

counsel.” Strickland v Washington, 466 US 668, 686; 104 S Ct 2052; 80 L Ed 2d 674 (1984) 

(quotation marks omitted). “[T]he proper standard for attorney performance is that of reasonably 

effective assistance.” Id. at 687. Michigan law does not grant a different level of protection with 

regard to assistance of counsel from that of federal law. People v Pickens, 446 Mich 298, 318; 

521 NW2d 797 (1994). A defendant is entitled to effective assistance of counsel both at trial and 

“in the plea-bargaining process.” People v Douglas, 496 Mich 557, 591-592; 852 NW2d 587 

(2014), citing Lafler v Cooper, 566 US ___, ___; 132 S Ct 1376, 1384; 182 L Ed 2d 398 (2012).

 In a claim for ineffective assistance of counsel, the defendant has the burden of showing 

“that counsel made errors so serious that counsel was not functioning as the counsel guaranteed 

the defendant by the Sixth Amendment . . . .” People v LeBlanc, 465 Mich 575, 578; 640 NW2d 

246 (2002) (quotation marks omitted). Specifically, counsel’s performance must fall “below an 

objective standard of reasonableness.” Strickland, 466 US at 688. Second, the defendant must 

show that “the deficient performance prejudiced the defense.” LeBlanc, 465 Mich at 578 

(quotation marks omitted). To show such prejudice in the context of the plea-bargaining process, 

a defendant must show that but for the ineffective advice of counsel there is a 

reasonable probability that the plea offer would have been presented to the court 

(i.e., that the defendant would have accepted the plea and the prosecution would 

not have withdrawn it in light of intervening circumstances), that the court would 

have accepted its terms, and that the conviction or sentence, or both, under the 

offer’s terms would have been less severe than under the judgment and sentence 

that in fact were imposed. [Douglas, 496 Mich at 592, quoting Lafler, 566 US at 

__; 132 S Ct at 1385.] 
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 However, a defense counsel’s performance at plea negotiations does not fall “below an 

objective standard of reasonableness,” Strickland, 466 US at 688, merely because counsel 

incorrectly predicted the defendant’s sentence; rather, “[c]ounsel’s incorrect prediction 

concerning defendant’s sentence . . . is not enough to support a claim of ineffective assistance of 

counsel.” In re Oakland Co Prosecutor, 191 Mich App 113, 124; 447 NW2d 455 (1991). 

 Based upon In re Oakland Co Prosecutor, 191 Mich App at 124, defense counsel’s 

agreement with the prosecution’s stated estimate of the minimum sentence guidelines did not 

amount to a performance that fell “below an objective standard of reasonableness.” Strickland, 

466 US at 688. Furthermore, even if counsel did err in making this estimate, defendant has not 

shown that this performance “prejudiced the defense,” LeBlanc, 465 Mich at 578, because he has 

not shown that “but for the ineffective advice of counsel there is a reasonable probability that . . . 

[he] would have accepted the plea . . . .” Douglas, 496 Mich at 592. 

 There is no indication on the record that defendant would have accepted the prosecution’s 

plea offer even if he had known exactly what his guidelines range would be after losing at trial. 

Defendant rejected the plea offer and chose to go to trial immediately after the prosecution made 

its offer, even though the trial court told defendant that he could have five minutes with his 

counsel to discuss the matter. Defendant indefatigably maintained his own innocence throughout 

trial. And, at his sentencing hearing, defendant stated that he hoped that “one day someone will 

apologize to me . . . for what’s been done to me.” 

 Indeed, “the record amply supports the conclusion that, even had the defendant been 

properly advised of the consequences he faced if convicted at trial, it was not reasonably 

probable that he would have accepted the prosecution’s plea offer” because he maintained his 

own innocence throughout the proceedings and appeared to never even consider the possibility 

of accepting a plea. Douglas, 496 Mich at 598. Therefore, defendant has not shown that “but for 

the ineffective advice of counsel there is a reasonable probability that . . . [he] would have 

accepted the plea . . . .” Douglas, 496 Mich at 592. Defendant’s claim of ineffective assistance

of counsel is without merit. 

 Defendant next argues that the prosecution committed misconduct by being 

presumptively vindictive by arguing at sentencing for an increase in defendant’s OV score. We 

review this unpreserved claim of error for plain error affecting defendant’s substantial rights. 

People v Carines, 460 Mich 750, 764; 597 NW2d 130 (1999). “[T]he test for prosecutorial 

misconduct is whether a defendant was denied a fair and impartial trial.” People v Dobek, 274 

Mich App 58, 63; 732 NW2d 546 (2007). 

 Defendant argues in the alternative that his right to due process was violated when the 

prosecution did not keep its word to defendant, thereby misleading him into believing his 

guidelines range would not exceed 225 months, even after trial. “[F]undamental fairness 

requires that promises made during plea-bargaining and analogous contexts be respected . . . .” 

Ryan, 451 Mich at 41 (quotation omitted). The prosecution violates a defendant’s right to due 

process when it punishes him “for asserting a protected statutory or constitutional right.” People 

v Ryan, 451 Mich 30, 35; 545 NW2d 612 (1996). This is known as prosecutorial vindictiveness. 

Id. at 36. However, the fact that the prosecution merely argued at sentencing for a change in the 
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scoring of defendant’s OVs does not warrant a presumption of prosecutorial vindictiveness. Cf. 

People v Goeddeke, 174 Mich App 534, 537; 436 NW2d 407 (1988). 

 In this case, defendant has failed to indicate what “promise” was made by the prosecution 

and in what way it failed to keep its word to defendant and has, therefore, abandoned this 

argument. See, e.g., People v Kevorkian, 248 Mich App 373, 389; 639 NW2d 291 (2001). The 

prosecution stated what it had “estimated” defendant’s guidelines range to be and indicated that 

upon a successful plea, it would make a sentencing recommendation that the trial court stay 

within the estimated guidelines. While the estimated guidelines were apparently incorrectly 

estimated, there is no indication that the prosecution gave its word that they were correct. 

Moreover, if defendant intends to argue that the prosecution failed to keep a promise to not seek 

to increase defendant’s guidelines range beyond what was estimated at plea negotiations, there is 

no indication on the record that the prosecution ever made such a promise. Because the factual 

predicate for defendant’s argument is unsupported, his argument necessarily fails. See, People v 

Geno, 261 Mich App 624, 629; 683 NW2d 687 (2004). 

 Finally, defendant argues that the trial court erred in assessing 50 points for OV 7 

(aggravated physical abuse). A trial court’s factual determinations in scoring the sentencing 

guidelines are reviewed for clear error and must be supported by a preponderance of the 

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

standard asks whether the appellate court is left with a definite and firm conviction that a mistake 

has been made.” People v Rhodes, 495 Mich 938, 938; 843 NW2d 214 (2014). 

 A score of 50 points for OV 7 is appropriate where “[a] victim was treated with sadism, 

torture, or excessive brutality or conduct designed to substantially increase the fear and anxiety a 

victim suffered during the offense.” MCL 777.37(1)(a). “A trial court can properly assess 50 

points under OV 7 if it finds that a defendant’s conduct falls under one of the four categories of 

conduct listed in [MCL 777.37(1)(a)].” Hardy, 494 Mich at 439-440. Although the Legislature 

did not define “excessive brutality,” in MCL 777.37, this Court has previously interpreted the 

term to mean “savagery or cruelty beyond even the ‘usual’ brutality of a crime.” People v 

Glenn, 295 Mich App 529, 533; 814 NW2d 686 (2012), rev’d on other grounds Hardy, 494 Mich 

430. 

 A preponderance of the evidence supported the trial court’s finding that defendant treated 

the victim with excessive brutality. Hardy, 494 Mich at 438. Conviction of first-degree CSC 

under MCL 750.520b(1)(f) required defendant to cause “personal injury” to the victim and use 

“force or coercion . . . to accomplish sexual penetration.” MCL 750.520b(1)(f). The victim here 

testified that defendant hit her in the head, that she fell to the ground, and that defendant dragged 

her by her hair and her hooded sweatshirt into a field. She testified that defendant told her as he 

dragged her that he would “screw [her] in the ass,” that he pulled some of her hair out, and that 

when they arrived in the field defendant continuously hit her. A medical examination of the 

victim revealed that she had more than 20 injuries and that these injuries were not inconsistent 

with defendant having dragged, beaten, and sexually assaulted her. 

This is beyond mere “personal injury” and “force or coercion . . . to accomplish sexual 

penetration.” MCL 750.520b(1)(f). Defendant dragged, beat, and threatened the victim far 

beyond what was necessary to commit first-degree CSC pursuant to MCL 750.520b(1)(f). Thus, 
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a preponderance of the evidence suggests that defendant’s brutality exceeded what was required 

for him to commit first-degree CSC pursuant to MCL 750.520b(1)(f). Glenn, 295 Mich App at 

533; Hardy, 494 Mich at 443. Because a preponderance of the evidence supports a finding that 

defendant treated the victim with excessive brutality, the trial court did not clearly err in 

assessing 50 points for OV 7. Hardy, 494 Mich at 438. 

 Affirmed. 

/s/ Deborah A. Servitto 

/s/ Jane M. Beckering 

/s/ Mark T. Boonstra