BY BENJAMIN J. GOHS, NEWS EDITOR
Robert James Cronk of Boyne City got a partial win recently when the Michigan Court of Appeals sent his case back to Charlevoix 33rd Circuit Court to reconsider his sentence.
Justices upheld Cronk’s guilty verdict for his conviction of fourth-degree arson, three counts of intimidating a witness, malicious destruction of property between $1,000 and $20,000, and furnishing alcohol to a minor—but questioned his prison term.
“Because there were no errors warranting a new trial, we affirm Cronk’s convictions,” wrote justices David H. Sawyer, Michael J. Kelly and Douglas B. Shapiro in a Sept. 1 opinion. “However, we remand this case to the trial court for a determination as to whether it would have imposed a materially different sentence but for the constitutional error in the calculation of the minimum sentence range.”
According to court documents, Cronk contended that the trial court erred when it imposed a mandatory minimum sentence calculated on the basis of facts not found by a jury.
“Our Supreme Court recently held that Michigan’s sentencing scheme is unconstitutional to the extent that it compels an increase in a defendant’s mandatory minimum sentence using facts not found by a jury,” justices stated… “Where, as here, the minimum sentence range was increased on the basis of such findings, but where the defendant did not properly preserve a challenge to the constitutionality of his or her sentencing, our Supreme Court has stated that this Court should remand the case to the trial court to ‘determine whether that court would have imposed a materially different sentence but for the constitutional error.’”
They added, “In this case, the trial court considered the recommended minimum sentence range, but recognized that it could not impose a minimum sentence greater than two-thirds of the statutory maximum, even though the sentencing guidelines range exceeded that threshold…. It then exercised its discretion to impose the two-thirds maximum for the minimum sentence of each offense. Although it appears evident that the trial court felt that Cronk’s offenses warranted the maximum minimum sentence allowed by law.”
History of the case
According to court documents, in June 2013, three men along with Cronk were hanging out in downtown Boyne City. Cronk purchased some alcohol and was drinking with two of the men, who were minors.
The group eventually went to the parking lot of an Auto Value store and tried unsuccessfully to push a car into the river.
Cronk tried to break a truck’s window, but was unable to do so.
He then pulled a brake line near the truck’s front passenger-side tire and lit it on fire.
According to one of the witnesses, Cronk told the group “[i]f you say anything, I’ll kill you.”
Another witness testified that Cronk told them not to tell or he would hurt them.
All four ran away and eventually split up.
Cronk denied being involved with the fire; he said he was home that night by 11 p.m. and stayed home until 8 a.m. the next morning. He later admitted to buying beer, hanging out with the three other young men, and attempting to push a car into the river, but continued to deny that he set the fire.
Instead, he said he rode his bicycle home before the fire.
At trial, Cronk’s theory of the case was that someone else set the fire but the jury rejected that theory.
The Charlevoix Circuit Court sentenced Cronk to serve 60 days in jail for his conviction of furnishing alcohol to a minor, and prison terms of 40 to 60 months for the arson conviction, 32 to 48 months for each witness intimidation conviction, and 40 to 60 months for the malicious destruction of property conviction.
“On appeal, Cronk argues that he did not receive a fair trial on a variety of grounds,” the justices wrote.
Cronk’s appeal consisted
of several claims
Cronk first argued that his trial lawyer’s failure to subpoena a witness and request a short continuance to obtain testimony amounted to ineffective assistance of counsel.
Where the trial court has not held a hearing on a defendant’s claim of ineffective assistance, which is the case here, the appeals court’s review is limited to mistakes that are apparent on the record alone.
According to the appeals court, Cronk did not show that he was denied the effective assistance of counsel.
Cronk next argues that the trial court erred when it gave a non-standard jury instruction, which “vitiated” his defense that he was not present when someone else allegedly set the fire.
Cronk’s trial lawyer, however, twice expressed satisfaction with the trial court’s proposed instructions and, by approving the instructions in this way, the lawyer waived any claim that the instructions were erroneous.
According to the justices, Cronk did not establish error with regard to the instructions.
Cronk also claimed the prosecutor in the case erred in several respects during closing arguments.
Specifically, Cronk said the prosecutor’s comments improperly shifted the burden of proof and denigrated his trial lawyer.
During closing argument, the prosecutor said it was essentially undisputed that Cronk furnished alcohol to the minors, to wit, Cronk’s lawyer objected and the trial court warned the prosecutor that he was getting close to implicitly shifting the burden of proof.
However, the judge’s warning that the burden of proof was not on the defense was sufficient.
The appeals court found no prosecutorial errors that would warrant a new trial.
In his appeal, Cronk argued that the prosecutor failed to present sufficient evidence to prove beyond a reasonable doubt that he intimidated at least one witness.
According to the appeals court, one witness testified that, after Cronk set the fire, all four of the men ran off together and Cronk told them not to say anything and threatened them before they split up.
Another witness also similarly testified that Cronk threatened to harm them if they said anything and that he did so before they split up.
One witness testified that he did not recall Cronk making any threats.
But, because the jury was free to accept the version of events related by the two witnesses who claimed Cronk made threats, the testimony was considered sufficient to establish that Cronk was guilty.
Cronk also argued that the trial court erred when it found him to be the leader in a multiple offender situation.
The court stated that, although the evidence may not have supported a finding that the arson was a multiple offender situation, the entire transaction was a multiple offender situation, because the evidence showed that more than one person violated the law while part of a group.
The appeals court decided that Charlevoix Circuit Court did not clearly err when it found Cronk to be leader in the situation.