Whether a trial court can find the fact of a defendant's age as an element of the offense of first-degree criminal sexual conduct under Michigan law

QUESTIONS PRESENTED 1. Whether a trial court can find the fact of a defendant’s age as an element of the offense of first-degree criminal sexual conduct under Michigan law if the defendant’s age is considered by the court to be an immutable fact not in dispute, and merely applied by the court to impose a mandatory minimum sentence of 25 years? A. Under Michigan law, a court can take judicial notice of a party’s age. B. Because Bailey presents no challenge to the accuracy of his age calculation, the trial court’s failure to instruct the jury on this question did not have a substantial and injurious effect in determining the outcome of this proceeding. 2. Whether Michigan’s procedural framework, by reason of its design and operation, makes it highly unlikely in a typical case that a defendant would have a meaningful opportunity to raise an ineffective assistance of trial counsel (LATC) claim on direct appeal? ; A. Under Michigan law, a defendant who wishes to advance a claim of ; IATC that depends on matters not of record can properly be required to seek at the trial court level an evidentiary hearing for the purpose of establishing his claim with evidence as a precondition to invoking the process of appellate courts. B. Michigan’s procedural framework makes it highly unlikely that a defendant will be able to raise an IATC claim on direct appeal. C. Waiting to raise a claim of IATC until Michigan’s postappeal proceedings adds an additional burden. ; D. Waiting to raise a claim of IATC until Michigan’s postappeal proceedings has serious practical problems. E. Michigan’s procedural framework to raise an ineffective assistance of trial counsel (LATC) claim on direct appeal is identical in operation as the procedure that existed in Texas. i