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PEOPLE of the State of Michigan, Plaintiff–Appellee, v. Clifford Lucas BIDDLES, Defendant–Appellant.
Defendant was convicted by a jury of felon in possession of a firearm, MCL 750.224f, and he was sentenced as a fourth-offense habitual offender, MCL 769.12, to 76 to 156 months' imprisonment. Defendant appeals as of right, challenging his conviction and sentence. We affirm defendant's conviction, vacate his sentence, and remand for resentencing.
I. FACTUAL BACKGROUND
Defendant and his cousin, codefendant Charles Johnson, were both charged with second-degree murder, MCL 750.317, assault with intent to commit murder, MCL 750.83, possession of a firearm during the commission of a felony, MCL 750.227b, and felon-in-possession in connection with the shooting death of Timothy Kirby and the assault of Kirby's nephew, Christopher Johnson, which occurred outside the victims' apartment complex. The prosecution presented evidence that the victims were inside the apartment, and defendant and codefendant Johnson were among a group “partying” outside, when Kirby heard someone say that he had been stabbed. When Christopher Johnson and Kirby went outside to investigate, they encountered defendant, and Kirby inquired about what was occurring. According to Christopher Johnson, defendant responded by asking if the victims “got a beef” and signaling to codefendant Johnson, who then approached the men, brandished a handgun, and shot toward the victims as they fled. Codefendant Johnson, testifying on defendant's behalf,1 admitted that he had quickly approached the victims after they said something to defendant, pulled his handgun, and fired three or four shots, killing Kirby. Codefendant Johnson denied that defendant had motioned or signaled to him and described defendant as being in shock when Johnson fired his gun. The jury convicted defendant of felon-in-possession, as there was evidence that he was observed holding a gun after the shooting by codefendant Johnson had concluded, but acquitted him of the additional charges.
II. TRIAL COURT'S CONDUCT
Defendant argues that he is entitled to a new trial because the trial judge's comments to defense counsel during his cross-examination of the officer in charge deprived him of a fair trial. We disagree.
“The question whether judicial misconduct denied defendant a fair trial is a question of constitutional law that this Court reviews de novo.” People v. Stevens, 498 Mich. 162, 168; 869 NW2d 233 (2015). A defendant must overcome a heavy presumption of judicial impartiality when claiming judicial bias. People v. Jackson, 292 Mich.App 583, 598; 808 NW2d 541 (2011). In determining whether the trial judge's conduct deprived defendant of a fair trial, we consider whether the trial judge's “conduct pierce[d] the veil of judicial impartiality.” Stevens, 498 Mich. at 164, 170. “A judge's conduct pierces this veil and violates the constitutional guarantee of a fair trial when, considering the totality of the circumstances, it is reasonably likely that the judge's conduct improperly influenced the jury by creating the appearance of advocacy or partiality against a party.” Id. at 171. This is a fact-specific inquiry, and we must consider the “cumulative effect” of any errors. Id. at 171–172. A single instance of misconduct generally does not create an appearance that the trial judge is biased, unless the instance is “so egregious that it pierces the veil of impartiality.” Id. at 171. In evaluating the totality of the circumstances, we consider a variety of factors, including
the nature of the judicial conduct, the tone and demeanor of the trial judge, the scope of the judicial conduct in the context of the length and complexity of the trial and issues therein, the extent to which the judge's conduct was directed at one side more than the other, and the presence of any curative instructions. [Id. at 172.]
Initially, defendant points to the trial judge's remark that defense counsel might “get a spanking.” After the trial judge had sustained one of the prosecutor's objections to defense counsel's questions, defense counsel asked, “May we approach on something before I get to this area just in case you—.” At that point, the trial judge interjected, “Just before you get a spanking.” Although this comment would have been better left unsaid, the judge seemed to be acknowledging defense counsel's reason for approaching the bench. During the preceding line of questioning, the trial judge sustained the prosecutor's objections and had intervened on at least nine occasions, attempting to explain to defense counsel why his questions were improper and needed to be rephrased. Although the judge made the challenged statement in a jesting manner, the clear intent of the comment was that defense counsel could approach the bench in an attempt to avoid being interrupted and corrected yet again. Considering the trial judge's comment in context, we cannot conclude that the isolated and flippant statement influenced the jury.
Defendant next directs our attention to additional exchanges between defense counsel and the trial judge that he alleges demonstrated bias. For instance, defendant claims that the judge thwarted counsel's attempts to ask the officer if he had made “a deal” with a witness, if defendant was charged in this case because he was untruthful, and when the arrest warrant was issued. It is well established that the trial court has a duty to control trial proceedings in the courtroom, and has wide discretion and power in fulfilling that duty. People v. Conley, 270 Mich.App 301, 307; 715 NW2d 377 (2006). Although a defendant has the right to cross-examine his accusers as secured by the Confrontation Clause, U.S. Const, Am VI, a court has wide latitude to impose reasonable limits on cross-examination based on relevancy or concerns regarding such matters as harassment, prejudice, confusion of issues, and repetitiveness. People v. Adamski, 198 Mich.App 133, 138; 497 NW2d 546 (1993). A court must “exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment.” MRE 611(a).
The trial judge's remarks were not of such a nature as to unduly influence the jury. The record shows that the trial judge appropriately exercised her duty to control the trial and prevent excessive and improper questioning of the officer. The judge aptly noted that a witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. See MRE 602. In addition, the trial judge interrupted various questions by defense counsel that called for speculation and were repetitive and argumentative. Defendant has provided no explanation, argument, or authority indicating how any of the evidentiary objections were improper and not in accordance with MRE 611(a). Rather, defendant focuses on the trial judge's interruptions and apparent growing frustration with defense counsel, but fails to also observe defense counsel's behavior of talking back to the judge and ignoring the judge's directives to move on and rephrase questions, which necessitated many of the judge's repeated interruptions.
Next, defendant complains about the trial judge's comments in the following passage, as defense counsel questioned the officer:
Q. Did you testify in this case?
Q. And you sat there in the witness chair?
Q. As a witness.
The court. [Counsel], why do you drag things out?
Defense counsel. It's my approach. Can I just be me?
The court. No, because it is getting to be argumentative and you know that the rules of evidence don't allow arguments.
Defense counsel. I'm not being argumentative. [Emphasis added.]
Defendant fails to acknowledge defense counsel's unnecessary and inane questions of the officer and counsel's improper and disrespectful response to the judge's ruling and statements in the above colloquy. In sum, considering the totality of the circumstances, the trial judge's “interruptions” and remarks were reasonably measured given defense counsel's questions and were focused on enforcing the rules of evidence. They were not calculated to pierce the veil of judicial impartiality and were unlikely to unduly influence the jury to defendant's detriment. In addition, it does not appear from the record that the trial judge interjected more frequently during the defense's improper questioning of the witnesses than during the prosecution's examinations. Finally, the trial judge explained to the jury that she had a responsibility to ensure that the trial was run efficiently and fairly. At the beginning of trial and at the close of the proofs, the judge instructed the jury that the case must be decided solely on the basis of the evidence, that the judge's comments and rulings were not evidence, that the judge was not trying to influence the vote or express a personal opinion about the case when making a comment or ruling, and that if the jury believed that the judge had an opinion, that opinion had to be disregarded. These instructions weigh against a conclusion that the trial judge pierced the veil of judicial impartiality and deprived defendant of a fair trial. Stevens, 498 Mich. at 190. We also cannot help but note that defendant was acquitted by the jury of murder, assault, and felony-firearm charges, seriously calling into question defendant's claim that judicial bias improperly influenced the jurors to his detriment. Defendant has not demonstrated that the trial judge's conduct deprived him of a fair trial.
Defendant poses, broadly speaking, a two-prong attack against the sentence imposed by the trial court. First, defendant presents a challenge regarding the adequacy of the evidence supporting the court's scoring of the offense variables (OVs) relative to OV 1, MCL 777.31, OV 3, MCL 777.33, OV 4, MCL 777.34, and OV 9, MCL 777.39. We shall refer to this argument as defendant's “evidentiary challenge.” Second, defendant presents a constitutional argument under People v. Lockridge, 498 Mich. 358; 870 NW2d 502 (2015), challenging the scoring of the four OVs, contending that the trial court engaged in impermissible judicial fact-finding in regard to the OVs. We shall refer to this argument as defendant's “constitutional challenge.”
Each of defendant's challenges has its own distinct remedy. With respect to the evidentiary challenge, if the trial court clearly erred in finding that a preponderance of the evidence supported one or more of the OVs or otherwise erred in applying the facts to the OVs, People v. Hardy, 494 Mich. 430, 438; 835 NW2d 340 (2013), and if the scoring error resulted in an alteration of the minimum sentence range, he would be entitled to resentencing, People v. Francisco, 474 Mich. 82, 89; 711 NW2d 44 (2006). On the other hand, a Crosby remand2 under Lockridge is not the same remedy as remanding a case for resentencing. In Lockridge, 498 Mich. at 398, our Supreme Court set forth the parameters of a Crosby remand, stating:
[O]n a Crosby remand, a trial court should first allow a defendant an opportunity to inform the court that he or she will not seek resentencing. If notification is not received in a timely manner, the court (1) should obtain the views of counsel in some form, (2) may but is not required to hold a hearing on the matter, and (3) need not have the defendant present when it decides whether to resentence the defendant, but (4) must have the defendant present, as required by law, if it decides to resentence the defendant. Further, in determining whether the court would have imposed a materially different sentence but for the unconstitutional constraint, the court should consider only the “circumstances existing at the time of the original sentence.” [Citations omitted .]
Accordingly, a Crosby remand results in the possibility of resentencing, whereas, in the context of a successful evidentiary challenge, resentencing is actually ordered by the appellate court. Of course, post-Lockridge, any resentencing will have to be conducted pursuant to the principles enunciated in Lockridge, primarily the directive that the guidelines are now advisory only. Lockridge, 498 Mich. at 365. When this Court is presented with an evidentiary and a constitutional challenge regarding the scoring of the guidelines, the evidentiary challenge must initially be entertained, because if it has merit and requires resentencing, the constitutional or Lockridge challenge becomes moot, as a defendant will receive the protections of Lockridge on resentencing. And if an evidentiary challenge does not succeed, then and only then should we entertain the constitutional challenge. Therefore, we disagree with any assertion that defendant's evidentiary challenge need not be reached because his constitutional challenge under Lockridge is worthy of a Crosby remand.3
The fact that a trial court engaged in judicial fact-finding is not relevant to the inquiry with respect to an evidentiary challenge .4 The constitutional evil addressed by the Lockridge Court was not judicial fact-finding in and of itself, it was judicial fact-finding in conjunction with required application of those found facts for purposes of increasing a mandatory minimum sentence range, which constitutional violation was remedied in Lockridge by making the guidelines advisory, not by eliminating judicial fact-finding. As explained by the Court in Lockridge, 498 Mich. at 364–365:
Th[e] deficiency is the extent to which the guidelines require judicial fact-finding beyond facts admitted by the defendant or found by the jury to score offense variables ․ that mandatorily increase the floor of the guidelines minimum sentence range, i.e., the “mandatory minimum” sentence․
To remedy the constitutional violation, we sever MCL 769.34(2) to the extent that it makes the sentencing guidelines range as scored on the basis of facts beyond those admitted by the defendant or found by the jury beyond a reasonable doubt mandatory. We also strike down the requirement in MCL 769.34(3) that a sentencing court that departs from the applicable guidelines range must articulate a substantial and compelling reason for that departure.
Consistently with the remedy imposed by the United States Supreme Court ․, we hold that a guidelines minimum sentence range ․ is advisory only and that sentences that depart from that threshold are to be reviewed by appellate courts for reasonableness. To preserve as much as possible the legislative intent in enacting the guidelines, however, we hold that a sentencing court must determine the applicable guidelines range and take it into account when imposing a sentence. [Citations omitted.]
That judicial fact-finding remains part of the process in calculating the guidelines is evidenced by the Lockridge Court's observation that its “holding today does nothing to undercut the requirement that the highest number of points possible must be assessed for all OVs, whether using judge-found facts or not.” Id. at 392 n 28 (latter emphasis added). This quote from Lockridge is consistent and reconcilable with the full Lockridge opinion; judicial fact-finding is proper, as long as the guidelines are advisory only.5 Our point is further buttressed by the Supreme Court's following discussion:
First, the defendant asks us to require juries to find the facts used to score all the OVs that are not admitted or stipulated by the defendant or necessarily found by the jury's verdict. We reject this option. The constitutional violation can be effectively remedied without burdening our judicial system in this manner, which could essentially turn sentencing proceedings into mini-trials. And the United States Supreme Court ․ expressly rejected this remedy because of the profound disruptive effect it would have in every case[;] ․ “[i]t would alter the judge's role in sentencing.” We agree. [Lockridge, 498 Mich. at 389 (citation and parentheses omitted; emphasis added).]
Absent the use of an admission or stipulation or a jury's factual findings to assess the OVs, the only remaining avenue available to score the OVs would entail judicial fact-finding, which is of no constitutional consequence if the guidelines are merely advisory. Accordingly, we disagree with any contention that a trial court can only use facts determined by a jury beyond a reasonable doubt when calculating a defendant's OV score under the guidelines. This is in direct contradiction of the Lockridge Court's rejection of the defendant's argument that juries should be required to find the facts used to score the OVs. Lockridge, 498 Mich. at 389.
At this juncture, we find it necessary to address the comments in the concurring/dissenting opinion, wherein our colleague indicates that she does not understand our analytical framework for evaluating “evidentiary” versus “constitutional” challenges and that it does not make sense to her. It appears that the concurrence/dissent is of the view that the only relevant inquiry relates to Lockridge and whether a Crosby remand is necessary. The concurrence/dissent fails to appreciate that, as mentioned earlier, aside from the constitutional challenge under Lockridge, defendant separately argues that there was inadequate evidence to support the scoring of the pertinent OVs. The concurrence/dissent conflates the evidentiary and constitutional challenges. The evidentiary challenge cannot simply be ignored, and in People v. Sours, ––– Mich.App ––––, ––––; ––– NW2d –––– (2016), this Court proceeded exactly as we are doing here, resolving the evidentiary challenge first and then moving on to the constitutional challenge, which was rendered moot in Sours because resentencing was dictated in light of the successful evidentiary challenge. The issuance of Lockridge did not result in depriving a defendant from presenting a traditional evidentiary challenge to a trial court's scoring of the guidelines, even if the scoring was also constitutionally problematic under Lockridge; a defendant would be free to forgo the constitutional challenge or embrace it in conjunction with the evidentiary challenge. Stated otherwise, evidentiary challenges of OV scores relative to sentences imposed pre-Lockridge are not irrelevant or moot simply because the scoring may have violated constitutional protections recognized in Lockridge. And again, the remedies for successful evidentiary and constitutional challenges are distinct.6
Next, with respect to defendant's evidentiary challenge, the only OV that is initially pertinent is OV 3, which was assessed at 100 points. Defendant's total OV score was 155 points, placing him at OV level VI, which is the highest OV level in the class E grid applicable to the firearm offense for which he was convicted. MCL 777.16m; MCL 777.66. Indeed, a total OV score of 75 or more points is all that is needed to be placed at OV level VI. MCL 777.66. And OVs 1, 4, and 9, as assessed relative to defendant, add up to 45 points, which if subtracted from defendant's total OV score of 155 points, leaves a total of 110 points, keeping defendant at OV level VI. Thus, even if all three of these OVs were improperly assessed and should have been scored at zero points, it would not alter the guidelines range, making resentencing unnecessary. Francisco, 474 Mich. at 89 n 8 (“Where a scoring error does not alter the appropriate guidelines range, resentencing is not required.”). However, OV 3 was assessed at 100 points; therefore, it is necessary to examine the scoring of OV 3.
OV 3 addresses physical injury to a victim, and a score of 100 points is mandated where “[a] victim was killed,” MCL 777.33(1)(a), so long as the “death results from the commission of a crime and homicide is not the sentencing offense,” MCL 777.33(2)(b). Defendant contends that his conduct relative to the felon-in-possession conviction did not cause or result in anyone's death. See People v. Laidler, 491 Mich. 339, 345; 817 NW2d 517 (2012) (“Because the Legislature in MCL 777.33(2)(b) used the phrase ‘results from the commission of a crime,’ it is clear that the defendant's criminal actions must constitute a factual cause of a death for purposes of OV 3.”). OV 3 also provides that “[i]n multiple offender cases, if 1 offender is assessed points for death or physical injury, all offenders shall be assessed the same number of points.” MCL 777.33(2)(a). Codefendant Johnson, who, as noted earlier, pleaded guilty during the trial to the charges against him and then testified on defendant's behalf, was assessed 100 points for OV 3 in an earlier sentencing.7 The sentencing record in defendant's case is simply unclear regarding whether the trial court assessed 100 points for OV 3 on the basis of the multiple-offender provision, § 33(2)(a), or on the basis of a straightforward application of the facts pertaining to defendant's conduct, § 33(2)(b), or on both bases. Regardless, neither provision supports the assessment of 100 points for OV 3.
First, with respect to the multiple-offender provision, because defendant was acquitted of second-degree murder, assault with intent to commit murder, and felony-firearm, with the felon-in-possession conviction being based on evidence apart from the shooting, and because codefendant Johnson was convicted by plea on the crimes for which defendant was acquitted, this was not a multiple-offender case. See People v. Johnston, 478 Mich. 903, 904; 732 NW2d 531 (2007); People v. Morson, 471 Mich. 248, 260 n 13; 685 NW2d 203 (2004) (rejecting argument that “the multiple offender provision does not require a comparison of the OV scores for identical crimes,” and noting that comparison is to be made to “OV scores received for a specific offense”). Had defendant been convicted of assault with intent to commit murder as was Johnson, then an assessment of 100 points for OV 3 would have been proper.8 The multiple-offender provision in OV 3 was not implicated in this case.
Next, with respect to whether, looking solely at defendant's conduct, “[a] victim was killed,” MCL 777.33(1)(a), and whether the “death result[ed] from the commission of a crime,” MCL 777.33(2)(b), we cannot conclude that the death in this case resulted from or was factually caused by defendant's commission of the offense of felon-in-possession, Laidler, 491 Mich. at 345.9 “[T]he offense variables are scored by reference only to the sentencing offense, except where specifically provided otherwise .” People v. McGraw, 484 Mich. 120, 129; 771 NW2d 655 (2009). OV 3 does not specifically provide otherwise; therefore, we can only take into consideration defendant's sentencing offense for purposes of scoring OV 3. See People v. Mushatt, 486 Mich. 934; 782 NW2d 202 (2010). The record reflects that defendant's conviction of felon-in-possession was based on the testimony of a witness who observed, after the shooting, a man wearing a white shirt holding a gun, along with the codefendant Johnson's testimony that defendant was wearing a white shirt at the time of the incident. There was no evidence, let alone a preponderance, establishing a causal connection between defendant's crime of felon-in-possession and Kirby's death. To the extent that the trial court relied on § 33(2)(b) in assessing 100 points for OV 3, it clearly erred. Hardy, 494 Mich. at 438. On examination of the remaining provisions in OV 3 regarding life threatening, permanently incapacitating, bodily, or physical injuries, none would apply, considering the lack of a causal link tied to the felon-in-possession offense. MCL 777.33(1)(c)-(e). And the error results in an alteration of the minimum sentence range, thereby entitling defendant to resentencing, Francisco, 474 Mich. at 89, at which time he will receive the constitutional protection of advisory guidelines as dictated by Lockridge. As in Sours, ––– Mich.App at ––––; slip op at 3, because defendant is entitled to be resentenced, his constitutional challenge under Lockridge is now moot and need not be addressed.
The scoring of the remaining OVs now becomes relevant under our analysis for purposes of resentencing and the correct placement of defendant in the class E grid. With respect to OV 1, defendant's challenge of the 25–point assessment was waived at sentencing, People v. Carter, 462 Mich. 206, 215; 612 NW2d 144 (2000); however, defendant also presents an ineffective assistance claim on the matter, and we agree that counsel's performance was deficient in waiving a challenge to OV 1 and that defendant was prejudiced by counsel's error, People v. Carbin, 463 Mich. 590, 600; 623 NW2d 884 (2001); Francisco, 474 Mich. at 90 n 8. Twenty-five points is properly assessed for OV 1 when “[a] firearm was discharged at or toward a human being[.]” MCL 777.31(1)(a). OV 1's multiple-offender provision is not implicated for the same reasons set forth above in addressing the multiple-offender provision in OV 3. Further, “OV 1 is an ‘offense-specific’ variable; therefore, in scoring OV 1, [a] trial court [is] limited to ‘considering the sentencing offense alone.’ “ People v. Chelmicki, 305 Mich.App 58, 72; 850 NW2d 612 (2014), quoting McGraw, 484 Mich. at 127. Here, there was no evidence that defendant's possession of the gun, which was used to support the felon-in-possession conviction, entailed defendant discharging the weapon, let alone discharging it at or toward a human being. The trial court thus clearly erred in assessing 25 points for OV 1, defense counsel's performance in waiving an argument relative to OV 1 was deficient, and defendant was prejudiced because the waived error alters the minimum guidelines range, MCL 777.66. We do note that a five-point score for OV 1 is proper when “[a] weapon was displayed․” MCL 777 .31(1)(e). Given that resentencing is already necessary in this case, we direct the trial court on resentencing to entertain the question whether five points should be assessed for OV 1.10
With respect to OV 4, defendant was assessed 10 points, which is the proper score when “[s]erious psychological injury requiring professional treatment occurred to a victim.” MCL 777.34(1)(a). Because OV 4 does not specifically provide otherwise, we are limited to solely considering the sentencing offense of felon-in-possession in scoring OV 4. McGraw, 484 Mich. at 129. The record contains no evidence that serious psychological injury occurred to a victim as a result of defendant being a felon and being seen carrying a gun after the shooting; OV 4 should have been scored at zero points. The trial court clearly erred in assessing 10 points for OV 4.
Finally, defendant was assessed 10 points for OV 9, which is the proper score for OV 9 when “[t]here were 2 to 9 victims who were placed in danger of physical injury or death[.]” MCL 777.39(1)(c). The McGraw Court specifically held that OV 9 can only be scored in reference to the sentencing offense. McGraw, 484 Mich. at 133–134. In the instant case, defendant's commission of the offense of felon-in-possession, in and of itself, simply did not place anyone in danger of physical injury or death. Accordingly, the trial court clearly erred in assessing 10 points for OV 9, which should have been scored at zero points.
We affirm defendant's conviction, vacate his sentence, and remand for resentencing consistent with this opinion. We do not retain jurisdiction.
I write separately because I respectfully do not understand the majority's resolution of defendant's sentencing issue. In particular, in the specific context of an alleged violation of People v. Lockridge, 498 Mich. 358; 870 NW2d 502 (2015), I do not understand the majority's construction of a framework for evaluating “evidentiary” as opposed to “constitutional” challenges. I fully agree with the majority's resolution of defendant's challenge to the trial court's conduct. I likewise concur with the majority's recitation of the basic facts of the case.
Defendant contends that the trial court improperly scored offense variables (OVs) 1, 3, 4, and 9 of his sentencing guidelines; respectively pursuant to MCL 777.31, MCL 777.33, MCL 777.34, and MCL 777.39. He further asserts that trial counsel was ineffective for failing to object to the scoring of OV 1. Defendant argues that his scores lack the requisite evidentiary support, and he presents that challenge as a Lockridge violation. We review issues of constitutional law, such as whether the trial court engaged in judicial fact-finding, de novo. People v. Stokes, 312 Mich.App 181, 192; ––– NW2d –––– (2015).
In Lockridge, our Supreme Court held that Michigan's mandatory sentencing guidelines violate a defendant's Sixth Amendment right to a jury trial to the extent that they require judicial fact-finding beyond facts admitted by defendant or found by the jury beyond a reasonable doubt and this judicial fact-finding increases the floor of defendant's minimum sentence range. Lockridge, 498 Mich. at 364–65; Stokes, 312 Mich.App at 193–194. Our Supreme Court has seemingly held that judicial fact-finding is not impermissible per se, but rather impermissible in the context of a mandatory minimum sentence range. This Court has reconciled certain statements in Lockridge by determining that judges may score guidelines on the basis of facts they found independent of the jury or defendant's admissions on the theory that doing so constitutes a departure, which now need only be justified as reasonable. Id. Our Supreme Court did not, however, abrogate the requirement that a trial court departing from the guidelines range articulate its reasons for departure. See Lockridge, 498 Mich. at 392. If the trial court's improper scoring of offense variables increased the floor of the guidelines minimum sentence range, the guidelines range was unconstitutionally constrained by a violation of the Sixth Amendment. Lockridge, 498 Mich. at 399.
The net effect as I understand it is that if (1) the trial court imposed a sentence on the basis of sentencing guidelines scored on the basis of facts the trial court found independent of necessary jury findings or the defendant's admissions, and (2) it did so under the belief that the sentence range was mandatory, and (3) the guidelines minimum sentence range cannot be sustained on the basis of facts admitted by defendant or necessarily found by the jury, then the defendant has “establish[ed] a threshold showing of the potential for plain error sufficient to warrant a remand to the trial court for further inquiry.” Lockridge, 498 Mich. at 395. Conversely, the trial court may depart from the properly-scored guidelines range on the basis of judicially-found facts, and any such departure will be reviewed for reasonableness. Lockridge, 498 Mich. at 392.
In People v. Sours, ––– Mich.App ––––; ––– NW2d –––– (2016), the majority seemingly implies that this Court distinguished between an evidentiary and a constitutional challenge under Lockridge in addressing the defendant's challenge to the trial court's scoring of OV 19 pursuant to MCL 777.49. I do not read Sours in the same way. In Sours, this Court noted that OV 19 requires either that the crime itself constitute some manner of interference with the administration of justice or that the defendant engage in conduct that in some way seeks to evade responsibility for illegal conduct. Sours, ––– Mich.App at ––––. The Court observed that the defendant's parole violation, for which he was not even apparently convicted in the proceeding that culminated in the Sours appeal, was neither of those things; and he was arrested for the actual sentencing offense, possession of methamphetamine, promptly upon its discovery, so he had no opportunity to make any attempt to evade justice. Id. at ––––. In other words, it was quite simply impossible for there to have been any facts that could conceivably have supported scoring OV 19.
Here, there clearly are facts in the record that could support the OV scores given by the trial court. For example, OV 3 should be scored at 100 points if “a person was killed,” MCL 777.33(1)(a), and indeed, a person was killed. At issue is whether, in context, those facts were properly found. I conclude that the OV scores calculated by the trial court could not have been based only on facts necessarily found by the jury or admitted by defendant, as I understand Lockridge requires when the trial court imposes a mandatory sentence range based on those scores. Defendant was convicted only of being a felon in possession of a firearm, so the jury was only required to find beyond a reasonable doubt that defendant was armed with a weapon and was ineligible to possess it. See MCL 750.224f; People v. Perkins, 473 Mich. 626, 629–631; 703 NW2d 448 (2005). Defendant stipulated only to the fact that he was ineligible to possess a firearm at the time of the shooting. Each of the challenged OV scores requires a finding of at least one fact that is neither directly nor indirectly mandated by the jury's verdict or defendant's admission.
The trial court scored OV 1 at 25 points, indicating that a “firearm was discharged at or toward a human being or a victim was cut or stabbed with a knife or other cutting or stabbing weapon.” See MCL 777.31(1)(a). However, the jury's verdict requires a finding that defendant possessed a firearm, but not that defendant used that firearm. Accordingly, OV 1 should not have been scored at 25 points. As noted, the trial court scored OV 3 at 100 points, indicating that “a victim was killed,” MCL 777.33(1)(a). Although the trial court may consider other facts and injuries for the purpose of a sentence departure, OV scores must be based on “ ‘the sentencing offense alone.’ “ People v. Mushatt, 486 Mich. 934, 934; 782 NW2d 202 (2010), quoting People v. McGraw, 484 Mich. 120, 133; 771 NW2d 655 (2009). Again, nothing in the jury's verdict or defendant's admissions causally links possession of a firearm to any death, so OV 3 should not have been scored at 100 points.
Likewise, OV 4 was scored at 10 points, indicating “[s]erious psychological injury requiring professional treatment occurred to a victim,” MCL 777.34(1)(a), and OV 9 was scored at 10 points indicating, “2 to 9 victims who were placed in danger of physical injury or death, or 4 to 19 victims who were placed in danger of property loss,” MCL 777.39(1)(c). Again, the jury did not necessarily find that any victim existed or that a victim suffered or was placed in danger of injury. Accordingly, these OVs should also not have been scored at 10 points each.
The trial court scored the guidelines for defendant's conviction of felon in possession of a firearm, which is a class E offense. MCL 777.16m. Defendant received a total OV score of 155 points, which combined with his 70 prior record variable points, placed him in the E–VI cell of the applicable sentencing grid, for which the minimum sentence range is 22 to 76 months for a fourth-offense habitual offender. MCL 777.66. The scores for OVs 1, 3, 4, and 9 increased defendant's total OV score from 10 points to 155 points, which in turn changed his placement from OV Level II (10–24 points) to OV Level VI (75+ points), resulting in a higher guidelines range. Because defendant was sentenced before our Supreme Court's decision in Lockridge and his placement in OV Level VI cannot be sustained on the basis of facts admitted by defendant or necessarily found by the jury, defendant has “establish[ed] a threshold showing of the potential for plain error sufficient to warrant a remand to the trial court for further inquiry.” Lockridge, 498 Mich. at 395. Because I understand that all OV scores might be considered for some purpose by the Department of Corrections, I disagree with the majority's conclusion that it is unnecessary to consider defendant's challenges to all of them.
My understanding of Lockridge is that because the trial court's scoring of the offense variables was based on judicially-found facts that increased the floor of the guidelines minimum sentence range, defendant is entitled to the Crosby remand procedure outlined in Lockridge. Stokes, 312 Mich.App at 197–203; see Lockridge, 498 Mich. at 395–399. On remand, the trial court should allow the defendant an opportunity “ ‘to avoid resentencing by promptly notifying the [trial] judge that resentencing will not be sought.’ “ Lockridge, 498 Mich. at 398, quoting Crosby, 397 F3d 103, 118 (2d Cir.2005). If the defendant does not wish to avoid resentencing, the court must determine if it “would have imposed a materially different sentence but for the unconstitutional constraint [considering] only the ‘circumstances existing at the time of the original sentence.’ “ Id., quoting Crosby, 397 F3d at 117. The trial court may properly consider the judicially-found facts underlying its original scoring when determining if departure from the properly scored guidelines range is appropriate. See id. at 391–392 (“[T]he sentencing court may exercise its discretion to depart from that guidelines range without articulating substantial and compelling reasons for doing so. A sentence that departs from the applicable guidelines range will be reviewed by an appellate court for reasonableness.”). If the sentencing court decides to depart from the properly scored guidelines range, it must state on the record its reasons for departure. MCL 769.34(3).
To be clear, I do not in any way wish to suggest that I believe the majority's reasoning is irrational, fallacious, or wrong. I do not agree with it only because it does not make sense to me. The majority's assertion that I somehow claim that “defendant's evidentiary challenge need not be reached” appears equally to fail to understand my own reading of Lockridge and Sours. It is my hope that further developments in the law will provide further guidance.
1. Defendant and codefendant Johnson were tried together. Midway through trial, Johnson pleaded guilty to all of the charges brought against him and then testified for defendant.
2. This is a reference to United States v. Crosby, 397 F3d 103 (CA 2, 2005).
3. In People v. Sours, ––– Mich.App ––––; ––– NW2d –––– (2016), this Court recently addressed an evidentiary challenge regarding OV 19, MCL 777.49 (administration of justice), as well as a constitutional challenge under Lockridge concerning OV 19. The Sours panel first analyzed the evidentiary challenge, concluding that the assessment of ten points for OV 19 was improper, that it should have been assessed zero points, that the scoring error altered the minimum sentence range, and that, accordingly, the defendant was entitled to resentencing. Sours, ––– Mich.App at ––––; slip op at 2–3. Moving on to the defendant's constitutional challenge, this Court held that “[b]ecause we conclude that OV 19 should have been scored at zero points and defendant is entitled to be resentenced, defendant's Lockridge issue is now moot, and we need not address it.” Id. at ––––; slip op at 3. This approach is entirely consistent with our analysis.
4. We note that the panel in Sours did not find it problematic, when addressing the evidentiary challenge, that the lower court had engaged in judicial fact-finding in scoring OV 19. See Sours, ––– Mich.App at ––––; slip op at 1–2.
5. In Blevins, this Court, finding parts of Lockridge irreconcilable, indicated that judicial fact-finding “constitutes a departure.” People v. Blevins, ––– Mich.App ––––, ––––; ––– NW2d –––– (2016); slip op at 10 n 7. The Blevins panel relied on People v. Stokes, 312 Mich.App 181, 196; 877 NW2d 752 (2015), in reaching this conclusion, claiming that Stokes set forth this judicial fact-finding / departure distinction in reconciling Lockridge. Blevins, ––– Mich.App at ––––; slip op at 10 n 7. We do not read Stokes as even acknowledging a possible irreconcilable feature of Lockridge, let alone attempting to reconcile parts of Lockridge. The Blevins panel's conclusion that Lockridge contained language that was difficult to reconcile was predicated on footnote 28 in Lockridge, wherein the Court stated that all OVs must be assessed the highest number of points “whether using judge-found facts or not,” and the Lockridge Court's comments on page 399 that, to show plain error, “a defendant must demonstrate that his or her OV level was calculated using facts beyond those found by the jury or admitted by the defendant.” Blevins, –––Mich.App at ––––; slip op at 9–10 and 10 n 7, citing Lockridge, 498 Mich. at 392 n 28 and 399. We do not find any conflict in the language. As we discussed earlier in this opinion, footnote 28 of Lockridge indicated that judicial fact-finding continues to play a role in scoring the guidelines, and the language on page 399 of Lockridge merely provided the analytical framework for determining whether a defendant is entitled to a Crosby remand, given that the guidelines had been mandatory at the time of sentencing. We do not find that Blevins is controlling here, given that Blevins was strictly a case involving a constitutional challenge under Lockridge, and because the commentary in footnote 7 of the Blevins opinion was dicta.
6. Perhaps the concurrence/dissent believes that, for example, because an OV was scored on the basis of improper judicial fact-finding under Lockridge in the context of mandatory sentencing, any challenge to that particular OV score on the basis that there was generally insufficient evidence in the record to support the judge's OV assessment need not be addressed or is not viable, forcing sole consideration of the applicability of Lockridge. However, that view fails to recognize that the inadequacy of the evidence can serve as a separate appellate argument, with resentencing as the available remedy, or that argument can be made together with a Lockridge constitutional argument, as here, or a defendant could simply and solely present a constitutional challenge. It is a strategic decision to be made by the defendant. Our analytical framework is intended to give direction when both an evidentiary and a constitutional argument are made on appeal.
7. Johnson's plea encompassed the crime of second-degree murder, which constitutes homicide, and thus he was not assessed 100 points for OV 3 relative to that crime, see MCL 777.33(2)(b), but guidelines for codefendant Johnson were also scored in regard to the offense of assault with intent to commit murder, and he was assessed 100 points for OV 3 on that crime.
8. We note that the guidelines were not scored for codefendant Johnson regarding his conviction of felon-in-possession, considering Johnson's convictions on higher offenses. See People v. Lopez, 305 Mich.App 686, 690–692; 854 NW2d 205 (2014). Interestingly, had 100 points been the proper score for OV 3 on the basis of the multiple-offender provision, there additionally would not have been a constitutional or Lockridge problem, because the death or killing would have been established through Johnson's plea to second-degree murder. Also, defendant's gun possession was separate and apart from codefendant Johnson's possession and discharge of his firearm.
9. Defendant did stipulate that he was a convicted felon when the shootings occurred.
10. Even if five points is a proper score for OV 1, the resulting 20–point error in assessing OV 1, as opposed to a 25–point error, would still lower the minimum guidelines range, MCL 777.66.
Response sent, thank you
Docket No: Docket No. 326140.
Decided: June 30, 2016
Court: Court of Appeals of Michigan.
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