IONIA — A Portland man was given a last chance to stay in the community and warned that prison could be his next stop if he doesn’t change his ways.
David Merrill Kern II, 32, was sentenced March 2 in Ionia County Circuit Court by Judge Suzanne Kreeger. He appeared via Polycom from the Ionia County Jail. His attorney, John Danian, appeared via Zoom.
Kern will serve 12 months in jail, with credit for 91 days previously served, for possession of methamphetamine. He also must complete the Westside Residential Alternative to Prison (WRAP) program, and pay $698 in costs and fees.
The WRAP program, a collaboration between the Eaton County Jail and the Michigan Department of Corrections, offers probation violators an alternative to prison by giving them a chance to address thinking errors and attitudes that lead to criminal behavior, while also acquiring vocational skills.
Kreeger authorized early release from the jail to the WRAP program after Kern completes 11 months of his sentence if he is “a model inmate” at the jail. He will be on probation for the two years he is in WRAP, and if he fails to complete the program satisfactorily, he will be sent to prison.
Kern pleaded guilty to the charge on Jan. 19. In exchange for his plea, additional charges of carrying a concealed weapon, driving without insurance and unlawful use of a license plate were dismissed by the Ionia County Prosecutor’s Office.
Danian argued his client had a knife on his belt “out in the open,” that he didn’t threaten anyone with it, and since the charge was dismissed it shouldn’t have been used in scoring to determine sentencing guidelines. Kern also had two machetes, wrapped in cloth, in the vehicle, but he wasn’t wielding them around, Danian said. He said that his client uses them for work.
Butler disagreed, noting that, once a weapon is inside a vehicle, it becomes concealed and illegal unless the person has a concealed weapons permit.
“In this case, the item was not only found in the vehicle strapped to his hip, but it was found with scales, meth and a meth pipe,” Butler said. “The argument that this was for work purposes simply doesn’t fly.”
Kreeger sustained Danian’s objection to points assigned for interfering with the administration of justice by breaking a meth pipe found in the vehicle, reducing the sentencing guidelines from five to 23 months to zero to 17 months.
“I don’t know if it was broken before or he admitted that he broke it. I don’t think it was an effort to destroy evidence,” Danian told the court.
Butler said “the bigger context” was Kern’s interaction with the police, including arguing and screaming at the officer.
“But for COVID, he would have been taken right to jail, but the officer had to let him go,” he told the court.
Butler noted the MDOC recommendation was for a sentence of two years. He asked for a sentence at the top of the guidelines and recounted Kern’s criminal history, which includes assault with intent to do get bodily harm, failing probation, a marijuana charge, failing probation again, then in 2020 two run-ins with police.
“I was shocked at how he paints himself (as) a family man and great father to his 9-year-old. He wants to be, but he’s not. … He’s as far from a great family man as you can get,” said Butler. “He talks about falling in with the wrong crowd. He is the wrong crowd. Look in the mirror.”
Danian said his client is an individual struggling with an addiction and asked the court to get him the help he needs.
“He wants to be a good father to his son and take care of his family. He has had a difficult time being addicted to methamphetamine,” said Danian. “He can’t erase his record, he can only move forward. He should recognize this is a turning point.”
Kern told the court his son is his “number one goal.”
“You’ve seen on paper about me, but no one knows who I am. I’ve made some bad choices in my life, and I’ve paid the price being away from my son,” he said, adding that he is on medication now, which is helping him with his “attitude.” “My short-term goal is to do this one day at a time because that’s what it takes.”
“To say you made a few bad choices in your life is an understatement,” Kreeger answered, listing his two felonies and five misdemeanors, and reminding Kern that he was on probation at the time of the offense.
“What concerns me here, sir, is you’ve been given an opportunity to make changes in your life. Your probation terms were designed to keep you safe, the community safe and so you can work on you,” she continued. “Your son has paid the price along with you. You are establishing a normal pattern for him for you to be removed from him and people going to jail.”
Kreeger encouraged Kern to consider finding a job that requires him to be accountable, with a set schedule and rules he must abide by. She told him he is fortunate to have family support, but reminded him that he is “just a step away” from a prison sentence.
“I need to send a strong message to you. If you continue to choose to break the law, you chose a prison sentence. You will be removed from (his son) and research shows you’ll be putting him on a path to prison himself,” Kreeger said. “I hope you are going to step up, put away childish things of youth, and work hard to rectify the situation. You’ll either step up and do the right thing, or you’re going to prison.”