People of Michigan v. Jaqavice Deonnell Grace ( 2016 )

Court of Appeals, State of Michigan
ORDER
Patrick M. Meter
People of Ml v Jaqavice Deonnell Grace Presiding Judge
Docket No. 322653 Stephen L. Borrello
LC No. 14-039775-FC Jane M. Beckering
Judges
The Court orders that the motion for reconsideration is GRANTED, and this Court's
opinion issued November 17, 2015 is hereby VACATED. A new opinion is attached to this order.
METER, P.J., would deny the motion for reconsideration.
A true copy entered and certified by Jerome W. Zimmer Jr.. Chief Clerk, on
JAN 14 2016
Date
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
January 14, 2016
Plaintiff-Appellee,
v No. 322653
Saginaw Circuit Court
JAQAVICE DEONNELL GRACE, LC No. 14-039775-FC
Defendant-Appellant.
ON RECONSIDERATION
Before: METER, P.J., and BORRELLO and BECKERING, JJ.
PER CURIAM.
A jury convicted defendant of unlawful imprisonment, MCL 750.349b, felonious assault,
MCL 750.82, and interference with electronic communications, MCL 750.540. He was
acquitted of kidnapping, MCL 750.349, first-degree criminal sexual conduct (CSC-I), MCL
750.520b(1)(e) (aggravating circumstance of armed with a weapon), and an additional charge of
felonious assault, MCL 750.82. Defendant was sentenced to 86 months to 15 years’ for unlawful
imprisonment, 2 to 4 years’ for felonious assault, and 1 to 2 years’ for interference with
electronic communications. Defendant appeals as of right. For the reasons set forth in this
opinion, we affirm in part, vacate in part and remand for further proceedings consistent with this
opinion.
I. BACKGROUND
The charges against defendant arose from an incident occurring in February 2014
involving two female high school students. Defendant was also a high school student at the time.
Defendant and one of the alleged victims met on a social website. She, along with a friend,
picked defendant up in Saginaw, Michigan and attended a house party. After leaving the party,
the two victims, one driving and the other riding in the front passenger seat, began driving
defendant to an address that he provided. On the way, defendant allegedly started fondling the
victim in the passenger seat. The victims testified at trial that defendant brandished a gun, took
the driver’s cellphone, and forced the driver to pull over and the passenger to enter the backseat,
where he sexually assaulted her. As previously stated, defendant was acquitted of the crimes
allegedly committed against the passenger, but was convicted of the crimes committed against
the driver.
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At sentencing, defense counsel argued that because defendant possessed a starter pistol
when convicted under MCL 750.82(1) and MCL 750.349(1)(a), a directed verdict should have
been entered with respect to the felonious assault and unlawful imprisonment charges. The trial
court stated that this issue should have been brought before the jury’s deliberations, and
nevertheless, a starter pistol can be used to strike someone, cause hearing damage, or physical
harm due to the pistol spark. The trial court reasoned that the pistol, not having bullets, will not
kill someone, but there are many different ways that it could be used as a weapon, and after
hearing the proper instructions, the jury decided that the pistol was used in that manner.
Defendant was sentenced as stated above. This appeal ensued.
II. SUFFICIENCY OF THE EVIDENCE
A. FELONIOUS ASSAULT
Defendant argues that the evidence was insufficient to convict him of felonious assault
because the indictment was based on his use of a starter pistol. “[T]he Due Process Clause of the
Fourteenth Amendment protects a defendant in a criminal case against conviction except upon
proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is
charged.” People v Patterson, 428 Mich. 502, 525; 410 NW2d 733(1987) (internal quotation
marks and citation omitted). In viewing “the evidence in a light most favorable to the
prosecutor,” People v Robinson, 475 Mich. 1, 5; 715 NW2d 44 (2006), this Court “‘must consider
not whether there was any evidence to support the conviction but whether there was sufficient
evidence to justify a rational trier of fact in finding guilt beyond a reasonable doubt.’” People v
Wolfe, 440 Mich. 508, 513-514; 489 NW2d 748 (1992), amended on other grounds 441 Mich.
1201 (1992), quoting People v Hampton, 407 Mich. 354, 366; 285 NW2d 284 (1979).
On appeal, defendant first argues that his conviction for felonious assault should be
vacated based on our Supreme Court’s decision in People v Stevens, 409 Mich. 564; 297 NW2d
120 (1980). Defendant was convicted of violating MCL 750.82(1) which states, as it did at the
time of our Supreme Court’s decision in Stevens:
(1) Except as provided in subsection (2), a person who assaults another
person with a gun, revolver, pistol, knife, iron bar, club, brass knuckles, or other
dangerous weapon without intending to commit murder or to inflict great bodily
harm less than murder is guilty of a felony punishable by imprisonment for not
more than 4 years or a fine of not more than $ 2,000.00, or both.
Under the felonious assault statute, MCL 750.82(1), there are weapons that “carry their
dangerous character because so designed and are, when employed, per se, deadly, while other
instrumentalities are not dangerous weapons unless turned to such purpose.” People v Goolsby,
284 Mich. 375, 378; 279 N.W. 867 (1938). See People v Vaines, 310 Mich. 500, 505-506; 17
NW2d 729 (1945). “The test as to the latter is whether the instrumentality was used as a weapon
and, when so employed in an assault, dangerous.” Goolsby, 284 Mich. at 378; see also People v
Hale, 96 Mich. App. 343; 292 NW2d 204 (1980), vacated on other grounds, 409 Mich. 937 (1980)
(holding that a shoe could supply the dangerous weapon element of felonious assault). Whether
such instrumentality was employed in an assault as a “dangerous weapon” is generally a question
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of fact for the jury. See People v McCadney, 111 Mich. App. 545, 550; 315 NW2d 175 (1981).
Weapons that are “per se, deadly” include “a gun, revolver, pistol, knife, iron bar, club, brass
knuckles.” MCL 750.82(1).
In this case, a starter pistol is at issue, and several statutes define “pistol” by referencing
“firearm.” See Stevens, 409 Mich. at 567 n 3. The term “firearm” includes “‘any weapon from
which a dangerous projectile may be propelled by using explosives, gas or air as a means of
propulsion . . . .’” Id. at 567, quoting MCL 8.3t. See also MCL 750.222(d). Stevens addressed
whether a starter pistol that had a “barrel bored out, containing eight live .22 caliber shells, but
with the firing pin filed down to the point that it would not be possible to fire the pistol” fell
within the scope of the felonious assault statute. Stevens, 409 Mich. at 566.
In Stevens, our Supreme Court held, in relevant part:
In this case, there is nothing to suggest a basis for concluding that the
starter pistol was a “dangerous weapon” other than the theory that it was a “gun,
revolver, [or] pistol.” While the statutes do not define the terms “gun” or
“revolver”, we can see no other plausible interpretation of that series of words
than that it applies to assaults with firearms. The term “firearm” is defined by
law:
“The word ‘firearm’, except as otherwise specifically defined in the
statutes, shall be construed to include any weapon from which a dangerous
projectile may be propelled by using explosives, gas or air as a means of
propulsion.” MCL 8.3t [].
The starter pistol in this case was not capable of propelling a dangerous
projectile, and thus its use in an assault did not violate MCL 750.82 []. [Stevens,
409 Mich. at 567 (footnotes omitted).]
Contrary to defendant’s arguments on appeal, we do not read Stevens to stand for the
proposition that there exists a bright-line rule that a starter pistol can never constitute a
“dangerous weapon” pursuant to MCL 750.82(1). Nor do we concur with the state’s argument
that Stevens is limited only to cases where the parties stipulate in advance of trial that the weapon
is incapable of propelling a projectile. As evidenced by the afore-mentioned passage in Stevens,
when rendering its analysis as to whether the starter pistol constituted a dangerous weapon
within the meaning of MCL 750.82(1), our Supreme Court gave no consideration to the
stipulation of fact relied on by the state to distinguish Stevens from this case. In contrast to the
arguments set forth by the parties on this issue, we hold that Stevens stands for the proposition
that the inquiry into whether the weapon that forms the basis for a conviction under the MCL
750.82(1) is simple: in the absence of proof that the weapon was used in any manner other than
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to point at the intended victim, Stevens requires proof beyond a reasonable doubt that the weapon
at issue is “capable of propelling a dangerous projectile.”1
We begin our examination of the record to determine if defendant used the starter pistol
in a manner which, even if it were incapable of projecting a dangerous projectile, could
transform it into a dangerous weapon. The state argues that the trial court was correct in its
assertions at sentencing that the starter pistol could be construed as an “other dangerous weapon”
for purposes of the felonious assault statute because it could be used to strike a person, cause
hearing damage, or physical harm from a pistol spark. However, the state has failed to produce
any evidence from the record to support its assertion that defendant used the starter pistol in the
manner put forth by the trial court. Additionally, our review of the record reveals no evidence
that defendant used the starter pistol to strike someone or to cause hearing damage or physical
damage from a pistol spark. Rather, the record reveals that defendant’s alleged use of the starter
pistol indicates intent to use it as a firearm, not as a blunt metal object. Our Supreme Court in
Stevens similarly noted that there was “no claim that the defendant attempted or appeared to use
the starter pistol as a striking weapon.” Id. at 567 n 2.2 Consequently, there was insufficient
evidence presented at trial to conclude that defendant used a dangerous weapon as an
instrumentality adapted to inflict serious injury to effectuate an assault against the driver of the
vehicle.
Having found no evidence to substantiate the trial court’s findings that defendant used the
starter pistol in any manner such that it would constitute an “other dangerous weapon,” we next
turn to the issue of whether there was legally sufficient evidence introduced at trial to show that
1
Relative to the inquiry of whether the weapon is capable of propelling a projectile, the parties
have erroneously conflated this inquiry with an inquiry into the operability of the weapon as well
as inquiries into whether the weapon was loaded or unloaded. To make clear, Stevens confined
the inquiry under MCL 750.82(1) to whether the weapon is capable of firing a projectile.
Stevens makes no mention of whether the weapon must be operable, nor does it mention any
inquiry into whether the weapon was loaded. Thus, this attempt, particularly by the state, to
expand the inquiry set forth in Stevens inevitably leads to erroneous conclusions of law as to the
inquiry to be conducted when ascertaining what constitutes a dangerous weapon under MCL
750.82(1). Consequently, we need not address the erroneous arguments advanced by the state’s
reliance on this Court’s opinion in People v Prather, 121 Mich. App. 324; 328 NW2d 556 (1982).
2
Furthermore, the trial court erred when, in response to a question from the jury as to what
constituted “assaulted” it responded, “And once again, it’s a dangerous weapon or an article
fashioned or used in a manner to lead somebody to reasonably believe it to be a dangerous
weapon.” Stevens expressly refutes such a definition in its holding that: “[t]he victim’s
reasonable apprehension can establish the element of an assault in a felonious assault prosecution
under MCL 750.82 . . . However, those cases provide no authority for the conclusion that the
victim’s apprehension of an object can transform it into a ‘dangerous weapon.’” Stevens, 409
Mich. at 567. Hence, there is no legal authority for the trial court’s instruction that the victim’s
apprehension of an object can transform it into a dangerous weapon.
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the starter pistol was capable of propelling a dangerous projectile, thereby rendering it a
“dangerous weapon” for purposes of MCL 750.82(1).
The warrant and felony information in this case provided that the charge of felonious
assault was predicated on defendant’s use of a starter pistol against the victim. The starter pistol
was admitted into evidence as Exhibit 3, and one of the victims confirmed that Exhibit 3 was the
instrument that defendant used on the night of the alleged assault. At trial, defendant’s
grandmother testified that the pistol was her father’s, which she kept in a lockbox under her bed.
When defendant’s grandmother was asked whether she thought that it was a “real gun with
bullets,” she answered, “no.” Michigan State Police Officer Clint Korpalski testified that while
.22 caliber ammunition was found in the grandmother’s home, in response to a question from
defense counsel, Officer Korpalski seemingly agreed with counsel’s assertion that there was
something about the construction of the starter pistol which would prevent it from firing a
projectile. Though Officer Korpalski later testified that he could not say whether .22 caliber
ammunition could fit inside of the weapon, he never stated that the weapon was capable of
propelling a dangerous projectile. Additionally, Officer Donald Pisha testified that the weapon
was a “starter pistol,” and he did not believe the starter pistol was capable of shooting
ammunition.
Thus, our review of the evidence, viewed in the light most favorable to the state, leads us
to conclude that the state failed to meet its burden of proof that the starter pistol was used as a
dangerous weapon for purposes of MCL 750.82(1). Because the state failed to meet its burden
of proof that the weapon used constituted a dangerous weapon as stated in MCL 750.82(1), and
pursuant to our Supreme Court’s decision in Stevens, 409 Mich. at 567, we vacate defendant’s
conviction of felonious assault.3
B. UNLAWFUL IMPRISONMENT
Defendant next argues that there was insufficient evidence to sustain his conviction for
unlawful imprisonment. The unlawful imprisonment statute, MCL 750.349b, states in relevant
part as follows:
(1) A person commits the crime of unlawful imprisonment if he or she
knowingly restrains another person under any of the following circumstances:
(a) The person is restrained by means of a weapon or dangerous
instrument.
(b) The restrained person was secretly confined.
3
Though not binding, we note this Court reached a similar result in People v Geibig,
unpublished opinion of the Court of Appeals, issued June 14, 1996 (Docket No. 184993).
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(c) The person was restrained to facilitate the commission of another
felony or to facilitate flight after commission of another felony. [Emphasis
added.]
The jury was instructed as to MCL 750.349b(1) subsections (a) and (c). Because defendant was
acquitted of the prerequisite—i.e. CSC-I— necessary to sustain a conviction under subsection
(c), we direct our analysis solely to subsection (a).
On this issue, defendant’s arguments on appeal are limited to asking this Court to
conclude that the starter pistol was “not a weapon or dangerous weapon.” Defendant makes no
citations to this argument, rather leaving it to this Court to develop the argument for him.
Typically, the failure of counsel to provide authority for their position renders the argument
abandoned. See People v Schumacher, 276 Mich. App. 165, 178; 740 NW2d 534 (2008) (stating
that “[a]n appellant may not merely announce his position and leave it to this Court to discover
and rationalize the basis for his claims, nor may he give only cursory treatment [of an issue] with
little or no citation of supporting authority”) (citation and quotation marks omitted).
However, in order to fully adjudicate the issues before this Court, we will address
whether the starter pistol constitutes a “weapon or dangerous instrument” within the confines of
MCL 750.349b(1)(a).
MCL 750.349b(1)(a) does not define what comprises a “weapon or dangerous
instrument.” Hence, by the Legislature not expressly defining the language “weapon or
dangerous instrument,” those words are open to more than one reasonable meaning. People v
Gardner, 482 Mich. 41, 50 n 12; 753 NW2d 78 (2008). Therefore, we construe the statute to give
effect to the Legislature’s intent. People v Cole, 491 Mich. 325, 330; 817 NW2d 497 (2012).
“Unless they are otherwise defined in the statute or are terms of art or technical words, we assign
the words of a statute their plain and ordinary meanings.” People v Haynes, 281 Mich. App. 27,
29; 760 NW2d 283 (2008).
Recently, in People v Ackah-Essien, ___ Mich App ___; ___NW2d ___ (2015), this
Court defined the term “weapon” for purposes of MCL 750.226 as “something (as a club, knife
or gun) used to injure, defeat or destroy.” Slip op. at 6 (quotation marks omitted). It is therefore
important to note that contrary to the implications set forth in defendant’s brief on appeal, the
analysis employed pursuant to Stevens, 409 Mich. at 564 is inapplicable to MCL 750.349b.
Unlike MCL 750.82, MCL 750.349b does not require proof that defendant used a “dangerous
weapon.” Rather, conviction under MCL 750.349b(1)(a) merely requires proof beyond a
reasonable doubt that the defendant used “a weapon” to restrain another person.
The distinction between a “dangerous weapon” and “a weapon” is significant because
“[i]t is well known that a term can be defined in a number of different ways; therefore, when
interpreting a statute, this Court is to determine the most pertinent definition of a word in light of
its context.” People v Hershey (On Remand), 303 Mich. App. 330, 339; 844 NW2d 127 (2013)
(citation and internal quotation marks omitted). Additionally, the Legislature is “presumed to
know of and legislate in harmony with existing laws.” People v Cash, 419 Mich. 230, 241; 351
NW2d 822 (1984) (citation omitted). Therefore, to resolve whether the starter pistol constituted
a weapon, we turn to the evidence produced at trial to determine if the starter pistol was
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something defendant used to “injure, defeat or destroy” the victim. Achah-Essien, ___ Mich
App at ___; slip op at 6.
Testimony of the driver reveals that defendant pulled out the starter pistol, pointed it at
her and ordered her to “pull the car over.” Next, defendant pointed the starter pistol at her,
ordered her to turn around so that she was facing the front while he ordered the other victim into
the back seat. Testimony of the driver also revealed that defendant pointed the starter pistol at
her when he took her cell phone.4 The driver further testified that defendant was pulling the
hammer back on the starter pistol, which she presumed was intended to frighten her. From this
record evidence, we conclude that the starter pistol constituted a weapon within the meaning of
MCL 750.349b(1)(a). Defendant used the starter pistol as a means to prevent the driver from
leaving the car and in doing so he defeated any intention the driver had of assisting her friend
during the alleged sexual assault. Achah-Essien, ___Mich App at ___; slip op at 6.
Additionally, defendant used the starter pistol as a means to acquire the driver’s cell phone.
Viewed in a light most favorable to the prosecution, we find that the evidence at trial would have
allowed a jury to find beyond a reasonable doubt that defendant used the starter pistol as a
weapon in order to restrain the driver. Therefore, contrary to defendant’s argument on appeal,
there was sufficient evidence to sustain his conviction of unlawful imprisonment. Accordingly,
defendant is not entitled to relief on this issue.
III. INCONSISTENT VERDICTS
Next, defendant argues that due process requires dismissal of the charges due to an
inconsistent verdict. While defendant acknowledges “ . . . the Michigan rule in criminal cases,
inconsistent verdicts are permitted on the rationale that juries possess inherent power of leniency
that trial judges do not . . . ,” defendant requests that this Court adopt the approaches taken in
Maryland and Iowa. We decline defendant’s invitation to do so because we find the arguments
unpersuasive and also because we are bound by our Supreme Court’s decision in People v
Vaughn, 409 Mich. 463, 465-466; 295 NW2d 354 (1980). Accordingly, defendant is not entitled
to relief on this issue.
IV. SENTENCING
Defense counsel raised several objections to the scoring of offense and prior record
variables at the sentencing hearing and also raises a Sixth Amendment issue relative to People v
Lockridge, ___ Mich ___; ___ NW2d ___ (2015). We proceed by first addressing the scoring
challenges before addressing the Sixth Amendment issue.
i. Scoring of the Variables
With respect to scoring of the variables, a circuit court’s factual determinations are
reviewed for clear error and must be supported by a preponderance of the evidence. People v
4
On appeal, defendant does not contest his conviction for interference with electronic
communications, MCL 750.540.
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Hardy, 494 Mich. 430, 438; 835 NW2d 340 (2013). Whether the facts, as found, are adequate to
satisfy the scoring conditions prescribed by statute, i.e., the application of the facts to the law, is
a question of statutory interpretation, which an appellate court reviews de novo. Id. We review
de novo the proper interpretation of the sentencing guidelines. People v Gullett, 277 Mich. App.
214, 217; 744 NW2d 200 (2007).
The sentencing offense in this case was unlawful imprisonment, MCL 750.349b, a class-
C offense. MCL 777.16q. Defendant’s total OV score was 90 points and his total PRV score
was 20 for an OV level VI and a PRV level C, for a recommended minimum sentencing range of
43 to 86 months. MCL 777.64. The trial court sentenced defendant at the top of the guidelines
to 86 months to 15 years. Defendant challenges the scoring of PRV 7, OV 1, OV 3, OV 4, OV 7,
and OV 8.
With respect to PRV 7, for the reasons previously stated, we vacate defendant’s felonious
assault conviction This necessitates a reduction in defendant’s scoring under PRV 7 from 20
points to 10 points. Such reduction does not, however, change defendant’s minimum sentencing
guidelines.See MCL 777.57(1).
Defendant challenges the scoring of OV 1 at five points. MCL 777.31(1)(e) governs the
scoring of OV 1 and directs a trial court to assess five points where a “weapon was displayed or
implied.” Here, the trial court did not clearly err in finding that defendant displayed or implied
that he had a weapon. As discussed above, there was evidence that defendant used a weapon for
purposes of his unlawful imprisonment conviction. Defendant’s use of the starter pistol implied
that he had a weapon. See People v Lange, 251 Mich. App. 247, 256-58; 650 NW2d 691 (2002)
(stating that 5 points is proper under OV 1 where a defendant “merely us[es] an object to imply
the presence of a weapon”). The court did not err in scoring OV 1 at five points.
Next, defendant argues that the trial court erred in scoring OV 3 (physical injury to a
victim) at 10 points. MCL 777.33(1)(e) governs the scoring of OV 3 and directs the trial court to
assess 10 points where “[b]odily injury requiring medical treatment occurred to a victim.” Here,
the sentencing offense was unlawful imprisonment. OV 3 is offense-specific. People v Mushatt,
486 Mich. 934; 782 NW2d 202 (2010). Here, a preponderance of the evidence supported the trial
court’s finding that a victim suffered a bodily injury that required medical treatment. The
unlawful imprisonment continued through the sexual conduct and there was evidence that the
passenger sought medical treatment after the incident. Thus, the scoring of OV 3 was supported
by a preponderance of the evidence and the trial court did not clearly err in assessing 10 points.
Moreover, even if we were to agree with defendant, reducing his total OV score by 10 points
would not remove him from OV level VI or result in a different recommended minimum
sentencing range. See MCL 777.64.
Next, defendant argues that the trial court erred in scoring OV 4 at 10 points (serious
psychological injury requiring professional treatment). MCL 777.34(1)(a) governs the scoring of
OV 4 and directs a trial court to assess 10 points where “[s]erious psychological injury requiring
professional treatment occurred to a victim.”
In this case, in addition to Officer Koralski’s testimony that the victims were “very
shaken up,” “very scared,” had “watery eyes,” and their “hands were shaky” at the hospital, one
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of the victims testified that both victims were “crying and freaking out” during the incident.
Further, defendant is incorrect that the passenger testified that she only required one counseling
session. The passenger testified that she attended counseling at the women’s shelter, and went
back on another occasion. See People v Williams, 298 Mich. App. 121, 124; 825 NW2d 671
(2012) (holding that a victim’s statement that he or she was fearful or angry during the incident
supports a trial court’s assessment of 10 points for OV 4). On this record, the trial court did not
clearly err in finding that a preponderance of the evidence supported scoring OV 4 at 10 points.
Given our conclusion with respect to this variable, we reject defendant’s argument that counsel
was ineffective for failing to object to the scoring of OV 4. See People v Thomas, 260 Mich. App.
450, 457; 678 NW2d 631 (2004) (counsel is not ineffective for failing to raise a futile objection).
Next, defendant argues that OV 7 was improperly scored at 50 points. MCL 777.37
requires that 50 points be assessed against an offender when “[a] victim was treated with sadism,
torture, or excessive brutality or conduct designed to substantially increase the fear and anxiety a
victim suffered during the offense.” MCL 777.37(1)(a). In Hardy, 494 Mich. at 441, 443, our
Supreme Court interpreted the phrase “conduct designed to substantially increase the fear and
anxiety of a victim” to mean “conduct that was intended to make a victim’s fear or anxiety
greater by a considerable amount” and was “beyond the minimum necessary to commit the
crime.” In applying that standard to the facts surrounding the prosecution in Hardy, our
Supreme Court concluded that “racking a shotgun” supported scoring OV 7. Id. at 445. The
Court explained that the victim was threatened with violence, “even though merely displaying
the weapon or pointing it at the victim would have been enough to issue a threat,” and that
conduct was designed to substantially increase the fear of the defendant’s victim beyond the
“usual level that accompanies” the crime of carjacking because the “victim feared imminent
death.” Id. (emphasis added).
In this case, a preponderance of the evidence supported that the trial court did not clearly
err in scoring OV 7 at 50 points. Evidence showed that defendant was “playing with the trigger”
of the starter pistol in a manner that was intended to frighten the victim. One of the victims
testified that defendant was “playing with the trigger” of the pistol and mentioned that defendant
was pulling back the “hammer” a bit with the probable intent to scare her. That conduct is
analogous to racking a shotgun because in both instances the offender had the intent to place the
victim in imminent fear of death. Hardy, 494 Mich. at 445. Accordingly, the trial court did not
clearly err in scoring OV 7.
Defendant argues that the trial court erred in scoring OV 8 at 15 points for victim
asportation to “another place of greater danger or to a situation of greater danger or was held
captive beyond the time necessary to commit the offense.” MCL 777.38(1)(a). The evidence
showed that defendant directed the driver of the vehicle to pull over into a dimly lit parking lot of
closed businesses behind snowbanks before he proceeded to commit unlawful imprisonment. By
moving the victims into this location, defendant was more able to commit the offense.
Accordingly, the trial court did not clearly err in scoring OV 8 at 15 points.
ii. Sixth Amendment
In Lockridge, our Supreme Court held that “the rule from Apprendi v New Jersey, 530 U.S.
466; 120 S. Ct. 2348 147 L. Ed. 2d 435 (2000), as extended by Alleyne v United States, 570 US___;
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133 S. Ct. 2151; 186 L. Ed. 2d 314 (2013), applies to Michigan’s sentencing guidelines and renders
them constitutionally deficient,” Lockridge, ___ Mich at ___; slip op at 3. The Court explained
that, therefore, “to the extent that the OVs scored on the basis of facts not admitted by the
defendant or necessarily found by the jury verdict increase the floor of the guidelines range, i.e.
the defendant’s ‘mandatory minimum’ sentence, that procedure violates the Sixth Amendment.”
Id. at 11.
As a remedy, the Lockridge Court made the sentencing guidelines advisory only as
opposed to mandatory and struck 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.” Id. at 2. Henceforth, “a sentencing court must determine
the applicable guidelines range and take it into account when imposing a sentence . . . [however]
a guidelines minimum sentence range . . . is advisory only and . . . sentences that depart from that
threshold are to be reviewed by appellate courts for reasonableness.” Id. Stated differently, a
sentencing court may engage in judicial fact finding to score the OVs—indeed it must continue
to score the OVs—but the recommended minimum sentencing range that such fact-finding
produces is no longer mandatory, but rather is advisory only.
In sum, pursuant to Lockridge, a sentencing court has discretion to consider the
recommended minimum sentencing range and fashion a sentence that is reasonable and it need
not articulate substantial and compelling reasons for departing from the guidelines’
recommended sentencing range. See slip op at 29 (explaining “[b]ecause sentencing courts will
hereafter not be bound by the applicable sentencing guidelines range, this remedy cures the Sixth
Amendment flaw in our guidelines scheme by removing the unconstitutional constraint on the
court’s discretion.”) See also People v Steanhouse, ___ Mich App ___; ___ NW2d ___ (2015)
(Docket No. 318329) (discussing what should be considered when imposing a sentence that
departs from the guidelines).
In this case, the jury did not find the facts to support the scoring of the OVs beyond a
reasonable doubt as they were not part of the elements of unlawful imprisonment and defendant
did not admit to these facts. Accordingly, because those facts established the guidelines’
minimum sentence, “an unconstitutional constraint [on the judge’s discretion] actually impaired
the defendant’s Sixth Amendment right.” Lockridge, ––– Mich at ––––; slip op at 32. The
Lockridge Court explained the remedy for this type of situation as follows:
[I]n accordance with [United States v Crosby, 397 F 3d 103, 117-118 (CA
2, 2005)] . . . in cases in which a defendant’s minimum sentence was established
by application of the sentencing guidelines in a manner that violated the Sixth
Amendment, the case should be remanded to the trial court to determine whether
that court would have imposed a materially different sentence but for the
constitutional error. If the trial court determines that the answer to that question
is yes, the court shall order resentencing. [Id. at 34 (emphasis added).]
In this case, defendant’s minimum sentence was established by application of the
sentencing guidelines in a manner that violated the Sixth Amendment. Accordingly, we remand
the matter to the trial court to follow the Crosby procedure outlined in Lockridge. Because
defendant may be sentenced to a more severe sentence, defendant may provide prompt notice of
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his intent to forgo resentencing. People v Stokes, ___Mich App___; ___NW2d___(2015); slip
op at 15. If notification is not received in a timely manner, the trial court shall continue with the
Crosby remand as explained in Lockridge. See generally, Stokes, ___ Mich App at ___; slip op
at 12; Steanhouse, ___ Mich App at ___.
We vacate defendant’s conviction for felonious assault, and affirm his other convictions.
Pursuant to Lockridge and Stokes, we remand this matter to the trial court for further proceedings
consistent with this opinion. We do not retain jurisdiction.
/s/ Stephen L. Borrello
/s/ Jane M. Beckering
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