Validity of a jury trial waiver; People v Lafey; MCR 6.402; Admission of the victim’s statements to a sexual assault nurse examiner (SANE); People v Shaw; MRE 803(4) hearsay exception for statements made for purposes of medical treatment or diagnosis; Whether the admission of inadmissible hearsay constituted plain error; Distinguishing People v Thorpe & People v Harbison; Ineffective assistance; Failure to object; Prejudice; Sentencing; 25-year mandatory minimum under MCL 769.12(1)(a); Presumptive proportionality of a within-guidelines sentence; Cruel or unusual punishment; People v Burkett

The court held that defendant-Banks failed to “establish plain error affecting his substantial rights from the trial court’s acceptance of” his jury trial waiver or from the admission of the victim’s statements during a SANE exam. The court also determined that any “error by defense counsel by not objecting to the victim’s statements as read by” the SANE “was harmless and did not amount to ineffective assistance of counsel.” Further, it concluded the trial court did not abuse its discretion in “imposing a mandatory minimum sentence of 25 years for each” of his CSC III convictions, and his sentence did not constitute cruel or unusual punishment. Thus, the court affirmed his CSC III and IV convictions and his sentence, as a fourth offense habitual offender, to concurrent terms of 25 to 45 years for the CSC III convictions and time served for the CSC IV conviction. He first claimed that he was denied his constitutional right to a jury trial because he did not knowingly and voluntarily waive it. But based on “the questioning by defense counsel and the trial court, it is evident Banks understood his right to a jury trial and voluntarily waived it.” The court noted that he “does not dispute he requested a bench trial, nor does he dispute that he consented to the waiver hearing itself taking place via Zoom. The trial court fully complied with the procedures mandated under MCR 6.402(B), creating a presumption that the waiver ‘was voluntary, knowing, and intelligent.’” The court held that he did not “rebut this presumption and thus, the trial court did not commit plain error by accepting the waiver.” It also held that most of the SANE’s testimony was admissible evidence but that some portions of it did not fall under the MRE 803(4) hearsay exception. Nonetheless, they were “not the same as a medical expert opining that the victim told the truth. These statements are distinguishable from those made in Thorpe and Harbison, as [the SANE] was not giving a stamp of approval to the victim’s testimony, but was repeating what the victim said. It was not plainly erroneous for the trial court to admit these portions of” the testimony. The court also rejected Banks’ sentencing challenges, finding among other things that he did not present “any information about him or his offense that would allow him to overcome the presumption” that his within-guidelines sentence was proportionate.