Johnny Bonilla-Machado was serving prison terms for unarmed robbery and attempted carjacking in the Bellamy Creek Correctional Facility in Ionia County. While in prison, Bonilla-Machado caused his toilet to overflow onto the floor of his cell and then splashed water onto Corrections Officers Shawn Fuller and Ryan Kohl. Bonilla-Machado was charged, as a second habitual offender, with two counts of assaulting a prison employee. He was tried before a jury; Fuller and Kohl testified for the prosecution. At the close of the prosecution’s case, the trial judge asked if Bonilla-Machado wanted to testify. After being advised by his attorney that anything that he said could be used against him, Bonilla-Machado told the trial judge that he did not intend to testify. The jury convicted Bonilla-Machado as charged.
At sentencing, Bonilla-Machado raised several objections; among other things, he argued that the trial court improperly scored Offense Variable 13, (MCL 777.43, continuing pattern of criminal behavior), for which the court assessed 10 points toward the sentence. The trial court overruled the objections and sentenced Bonilla-Machado to concurrent prison terms of 2.5 to 7.5 years, consecutive to the prison terms that he was already serving. Bonilla-Machado objected to the sentence, and the trial judge responded: “Well, you’re getting 2 years and 6 months to 7 years and 6 months. That’s the sentence. That’s what the statute says it has to be.”
Bonilla-Machado appealed by right to the Court of Appeals, claiming that he had been misinformed about his right to testify at trial. He also challenged the scoring of two offense variables, including OV 13, and argued that the trial court did not understand that it had some discretion with regard to his sentencing. Finally, he claimed that his trial attorney provided constitutionally ineffective counsel. But, in an unpublished per curiam opinion, the Court of Appeals affirmed Bonilla-Machado’s convictions, finding no error in the handling of defendant’s right to testify. With respect to the maximum sentence, the Court of Appeals accepted the prosecutor’s recommendation to remand the case to the trial court to clarify whether the judge understood that he had discretion with respect to the habitual-offender enhanced maximum sentence. The Court of Appeals directed that, if the judge had not understood that he had discretion regarding sentencing, the judge was to resentence Bonilla-Machado. The Court of Appeals agreed with Bonilla-Machado that the trial court improperly scored OV 13 and should resentence – but on its own motion, the appellate court determined that OV 13 should be scored at 25 points rather than 10 points, as the trial court had done. The 25-point assessment was appropriate because assaulting a prison employee is a crime against a person, despite the statutory categorization of this crime as a crime against public safety, the appellate court said. Bonilla-Machado appeals.