A Plainwell man who was sent to prison for abusing his 2-month-old daughter has been denied his request for a new trial but was given the chance to have a new sentencing hearing.
Anthony Ray McFarlane Jr., 28, was convicted in April 2015 by an Allegan County Circuit Court jury of first-degree child abuse and sentenced to 15 to 25 years in prison.
The Michigan Court of Appeals ruled that now retired Judge Kevin Cronin erred in calculating the sentencing guidelines in the case.
Specifically, a three-judge panel ruled Cronin had scored an offense variable which required that the defendant had committed three crimes against a person within 18 months, including the sentencing offense. McFarlane’s record showed only two.
“On this record, the trial court clearly erred to the extent that it found that defendant had committed three felony offenses against a person within the past five years,” Judges Christopher M. Murray, Jane E. Markey and Jonathan Tukel wrote in the ruling.
Cronin sentenced McFarlane with a sentencing guidelines range for a minimum sentence of 135 to 225 months. The court ruled that because of the error, the range should have been 126 to 210 months.
McFarlane’s appeal argued that his lawyer, Robert Champion, had erred in failing to raise the issue.
The appeals court said, “Had defense counsel raised this issue at sentencing, the trial court would have had to recalculate the applicable grid and sentence within the appropriate range. Therefore, defendant has established that defense counsel’s failure to raise this claim at sentencing fell below an objective standard of reasonableness and prejudiced his sentencing.”
The court ordered the case remanded for resentencing consistent with the opinion.
McFarlane maintained his innocence at the sentencing hearing and said, “I’m going to continue until the day that it’s all over to say that I didn’t do it. I’m going to keep fighting to the end.
“I’m a firm believer in being a Christian as well and being involved in my daughter’s life—and I’m going to fight for that as well.”
The appeals court ruled against McFarlane on every other point in his appeal, including requesting a new trial on several grounds.
In the appeal, McFarlane’s lawyer attacked the testimony of Dr. Sarah Brown, who’d testified as an expert for the prosecution during the trial.
The appeal argued Cronin had erred in allowing Brown to testify that she’d diagnosed the victim with “definite pediatric physical abuse.”
The labeling of the girls’ injuries as “classic shaken baby syndrome” touched on a debate in the scientific community over the proper diagnosis. The court noted that the majority view of medical experts is that there are some injuries that are highly correlated with abusive head trauma, while noting other experts believe those injuries are not as unique to head trauma caused by abuse as has been previously supposed.
The court ruled that “...the trial court plainly erred to the extent that it allowed Brown to use the phrase ‘abusive head trauma’ to label her diagnosis rather than a less prejudicial label, such as inflicted or nonaccidental head trauma, and erred by allowing her to agree that (the victim’s) injuries amounted to ‘child abuse.’”
The judges noted that Champion had brought in expert witnesses whose testimony had challenged these statements by Dr. Brown.
The court ruled this did not mean the jury’s conviction of McFarlane could be disregarded.
“The totality of the evidence strongly supported that defendant became angry with (the girl), violently shook her out of frustration, and caused the injuries at issue. Given the strength of the evidence, to the extent that the trial court plainly erred by allowing Brown to use the labels abusive head trauma or child abuse, we find it unlikely that the error affected the outcome of the trial...Therefore, the error does not warrant relief.”
The court also ruled that McFarlane hadn’t received ineffective assistance of counsel because Champion hadn’t objected to having Dr. Brown testify. The court found that the lawyer might have had a plausible strategic reason to let Brown testify and because it had already ruled that testimony hadn’t decided the outcome of the trial, McFarlane was not entitled to a new trial.
The court of appeals also ruled against McFarlane on several other motions.
Before the child abuse arrest, McFarlane had earlier pleaded guilty to stabbing a man in Otsego.
A group of supporters and family members of McFarlane protested outside the Allegan County Courthouse calling for him to receive leniency and treatment because they said he was suffering from post traumatic stress disorder and other aftereffects of serving with the U.S. Army in Afghanistan.
A plea deal that would have let McFarlane take part in the veterans’ court program in that case was cancelled because of the child abuse charges.
Contact Dan Pepper at dpepper@allegannews.com or at (269) 673-5534.
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