                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    February 23, 2017
               Plaintiff-Appellee,

v                                                                   No. 329317
                                                                    Genesee Circuit Court
JOHNNY MILLER,                                                      LC No. 14-035100-FC

               Defendant-Appellant.


Before: GLEICHER, P.J., and MURRAY and FORT HOOD, JJ.

PER CURIAM.

       A jury acquitted defendant of one count of open murder, MCL 750.316, and two counts
of assault with intent to commit murder (AWIM), MCL 750.83, but convicted him of one count
of felon in possession of a firearm, MCL 750.224f (felon-in-possession), and possession of a
firearm during the commission of a felony, MCL 750.227b (felony-firearm).1 The trial court
sentenced defendant, as a fourth-offense habitual offender, MCL 769.12, to 10 to 25 years’
imprisonment for the felon-in-possession conviction, and a consecutive two-year term of
imprisonment for the felony-firearm conviction. Defendant appeals as of right. We affirm.

        Defendant’s convictions arise from his possession of a firearm during the early evening
hours of March 27, 2014. The prosecution presented evidence that Irontae White was driving
down a street in Flint with his girlfriend, Laquita Smith, when they saw defendant. Their one-
year-old son, Jakari, was sitting in his car seat in the backseat. White stopped the car, got out,
and walked to the rear of his vehicle to approach defendant. As White and defendant were
talking, Smith watched them through the rearview mirror. According to Smith, defendant shot
White by firing a gun through his coat pocket. Defendant then pulled the gun out of his pocket
and pointed it at the rear window of the car. Smith quickly moved from the passenger’s seat to
the driver’s seat and was able to drive herself and Jakari away safely. As she drove off, Smith
saw defendant pull the trigger, but the gun did not fire. Smith believed that defendant was trying
to kill both her and Jakari. Defendant testified that, fearing for his life, he shot White in self-
defense. At sentencing, the trial court departed upward from the sentencing guidelines’


1
 The one count of open murder pertained to the shooting death of Irontae White, and the AWIM
convictions pertained to White’s girlfriend, Laquita Smith, and their toddler son, Jakari Smith.


                                                -1-
minimum sentence range of 24 to 76 months for the felon-in-possession conviction, and imposed
a sentence of 10 to 25 years’ imprisonment. On appeal, defendant raises issues related to his
felon-in-possession sentence and asserts that he was denied the effective assistance of counsel at
sentencing.

       We first address defendant’s challenge to the trial court’s scoring of offense variable
(OV) 19, which concerns a defendant’s interference with the administration of justice.
Defendant argues that the trial court erred in assessing a score of 10 points for OV 19. We
disagree.

        When reviewing a trial court’s scoring decision, the trial court’s “factual determinations
are reviewed for clear error and must be supported by a preponderance of the evidence.” People
v Hardy, 494 Mich 430, 438; 835 NW2d 340 (2013) (footnote and citations omitted). “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. (Footnote and citation omitted.)

       The trial court must score 10 points if “[t]he offender otherwise interfered with or
attempted to interfere with the administration of justice[.]” MCL 777.49(c). In scoring OV 19, a
court may consider the defendant’s conduct after the completion of the sentencing offense.
People v Smith, 488 Mich 193, 200; 793 NW2d 666 (2010). A defendant interferes with the
administration of justice by “oppos[ing] so as to hamper, hinder, or obstruct the act or process of
administering judgment of individuals or causes by judicial process.” People v Hershey, 303
Mich App 330, 343; 844 NW2d 127 (2013) (footnote and citation omitted). In People v
Ericksen, 288 Mich App 192, 204; 793 NW2d 120 (2010), this Court held that a 10-point score
for OV 19 was appropriate where “there was evidence that [the] defendant asked one of his
companions to dispose of the knife he used to stab the victim and asked others to lie about his
whereabouts during the night of the crime.”

        In this case, the trial court heard evidence that after shooting White, defendant fled the
crime scene, dissembled the weapon, and buried it where it remained until defendant decided to
reveal its location days before trial. Defendant argues that he did not interfere with the
administration of justice because he eventually revealed the location of the gun. However, given
that defendant fled the scene and hid evidence of the charged crimes, a preponderance of the
evidence supported the trial court’s conclusion that he interfered with the administration of
justice. Indeed, OV 19 “is generally scored for conduct that constitutes an attempt to avoid being
caught and held accountable for the sentencing offense.” People v Sours, 315 Mich App 346,
349; ___ NW2d ___ (2016) (footnote omitted). The fact that defendant later revealed the
location of the gun does not detract from the fact that he initially hid it in an effort to thwart law
enforcement’s investigation. Accordingly, the trial court did not err in concluding that
defendant’s conduct warranted the 10-point score for OV 19.




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        Defendant’s challenge involving OV 122 focuses on his contention that the trial court
ought not have assessed 25 points for OV 12 where the jury acquitted defendant of one count of
open murder and the two counts of AWIM. Accordingly, as best we can discern, defendant is
asserting that the trial court engaged in constitutionally impermissible judicial fact-finding to
score OV 12, contrary to the Michigan Supreme Court’s ruling in People v Lockridge, 498 Mich
358, 364; 870 NW2d 502 (2015). Because this issue involves defendant’s Sixth Amendment
rights, we review this constitutional issue de novo. Id. at 373.

       In Lockridge, id. at 364, our Supreme Court held that Michigan’s sentencing guidelines
are constitutionally deficient, in violation of the Sixth Amendment, to the extent that they
“require judicial fact-finding beyond facts admitted by the defendant or found by the jury to
score offense variables (OVs) that mandatorily increase the floor of the guidelines minimum
sentence range[ ]. . . [.]” To remedy this deficiency, the Court held that the sentencing guidelines
are advisory only. Id. at 391. This Court, post-Lockridge, has recognized that “judicial fact-
finding is proper, as long as the [sentencing] guidelines are advisory only.” People v Biddles,
___ Mich App ___, ___; ___ NW2d ___ (2016) (Docket No. 326140); slip op at 6 (footnote
omitted). In Biddles, this Court went on to state the following with respect to judicial fact-
finding:

       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. [Id.; slip
       op at 5.]

The Biddles Court’s reasoning echoed a previous panel’s articulation of the law post-Lockridge
in People v Stokes, 312 Mich App 181, 196; 877 NW2d 752 (2015). In Stokes, this Court clearly
recognized that the sentencing guidelines “must still be scored,” and that judicial fact-finding
will remain an instrumental part of this process:

              As explained by our Supreme Court, “[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.” [Id., quoting Lockridge,
       498 Mich at 392.]

       Notably, defendant was sentenced after Lockridge was decided and the trial court was
well aware of the Michigan Supreme Court’s decision in Lockridge, and that the sentencing


2
   MCL 777.42(a) allows the trial court to assess 25 points where “[t]hree or more
contemporaneous felonious criminal acts involving crimes against a person were committed.”
Defendant’s challenge to the trial court’s scoring of OV 12 focuses on a constitutional challenge
to the trial court’s judicial fact-finding, as opposed to the adequacy of the evidence supporting
the scoring of OV 12.


                                                -3-
guidelines were advisory. Put simply, where judicial fact-finding in and of itself is not
prohibited by the Sixth Amendment and does not run afoul of Lockridge, the trial court’s reliance
on judicially found facts, established by a preponderance of the evidence, to assess a 25 point
score for OV 12 was constitutionally permissible.

       Defendant also claims that the trial court erred in departing upward from the minimum
sentence guidelines range. We disagree.

        As noted, the trial court departed from the guidelines range, sentencing defendant to 10 to
25 years’ imprisonment for his conviction of felon-in-possession of a firearm.3 In Lockridge,
498 Mich at 392, the Michigan Supreme Court recognized that a court may exercise its discretion
to depart from the applicable guidelines range and further, that “[a] sentence that departs from
the applicable guidelines range will be reviewed by an appellate court for reasonableness.”
(Citation omitted.) In People v Steanhouse, 313 Mich App 1, 46-47; 880 NW2d 297 (2015), this
Court adopted the “principle of proportionality” standard from People v Milbourn, 435 Mich
630; 461 NW2d 1 (1990), as the appropriate standard for determining the reasonableness of a
sentence under Lockridge. Specifically, the Steanhouse Court held that a proportionate sentence
would meet the threshold of reasonableness as set forth in Lockridge. Steanhouse, 313 Mich
App at 47-48. Under this standard, the trial court is required to impose a sentence that is
“‘proportionate to the seriousness of the circumstances surrounding the offense and the
offender.’” Steanhouse, 313 Mich App at 45, quoting Milbourn, 435 Mich at 636. In
Steanhouse, this Court referred to Milbourn and People v Houston, 448 Mich 312, 321, 323; 532
NW2d 508 (1995), articulating a non-exclusive list of factors that Michigan courts had
previously weighed in meeting the proportionality standard, such as:

         (1) the seriousness of the offense, (2) factors that were inadequately considered by
         the guidelines, and (3) factors not considered by the guidelines, such as the
         relationship between the victim and the aggressor, the defendant’s misconduct
         while in custody, the defendant’s expressions of remorse, and the defendant’s
         potential for rehabilitation. [Steanhouse, 313 Mich App at 46 (citations omitted).]

         Both at the sentencing hearing and the hearing on defendant’s motion for resentencing,
the trial court provided a lengthy and detailed explanation setting forth the reasons for its upward
departure from the minimum sentence guidelines range, and why its ultimate sentence was
proportionate. When sentencing defendant, the trial court considered defendant’s extensive and
violent criminal background starting when he was a juvenile, stating, “you [defendant] have an
impulsiveness that is dangerous for the rest of society. And we have to restrain that.”4 The trial
court also cited defendant’s “disrespect for the gun laws[,]” and defendant’s multiple “acts of
violence” while incarcerated. The trial court also noted that defendant was housed in solitary
confinement for misconduct while incarcerated at the time of sentencing. The trial court also


3
    The trial court exceeded the recommended guidelines range by 44 months.
4
  The presentence investigation report (PSIR) confirms that defendant had a prior conviction for
involuntary manslaughter in the year 2000.


                                                 -4-
considered the presentence investigation report (PSIR), which stated that during the presentence
investigative interview, “defendant was uncooperative and demonstrated no remorse for human
life [sic].” At the subsequent hearing on defendant’s motion for resentencing, the trial court also
observed that defendant’s sentence was proportionate because of (1) his violent criminal history
and prison misconduct record, and (2) the violence that took place when White was shot and
killed and attempts were made to shoot Smith and Jakari.

        On appeal, defendant briefly contends that the trial court’s consideration of any facts
related to the scoring of OV 12 to justify its upward departure was inappropriate, given that OV
12 already took into account the existence of three contemporaneous felonies. As this Court has
recognized, a trial court may rely on factors given inadequate or disproportionate weight by the
sentencing guidelines in departing from the recommended guidelines range. People v Lowery,
258 Mich App 167, 170; 673 NW2d 107 (2003). While OV 12 does take into consideration the
existence of three other felonies that took place contemporaneously with the sentencing offense,
the trial court’s stated reasons for its departure were focused more on the violence of the
offenses, defendant’s impulsive and reckless behavior, his inability to conform his behavior to
comply with the law, and his callous indifference to the safety of other human lives. Such
factors are not embodied in OV 12. See, e.g., People v Horn, 279 Mich App 31, 44-45; 755
NW2d 212 (2008) (recognizing that a defendant’s recidivism and inability to rehabilitate may
justify an upward departure from the sentencing guidelines range). Additionally, the trial court
complied with Lockridge, in that it took great care to note the justifications supporting its
departure from the recommended sentencing guidelines range. Lockridge, 498 Mich at 392. In
sum, we are of the view that the trial court’s stated reasoning for imposing defendant’s upward
departure sentence met the threshold of proportionality pursuant to Milbourn, and was therefore
a reasonable sentence as contemplated by Lockridge.5 Steanhouse, 313 Mich App at 47-48.

        Defendant also argues that trial counsel’s assistance at sentencing was constitutionally
infirm. We disagree.

       In People v Solloway, ___ Mich App ___, ___; ___ NW2d ___ (2016) (Docket No.
324559); slip op at 7, this Court set forth the governing legal principles for reviewing a
defendant’s claim that he was denied the effective assistance of counsel where the defendant’s
request for a Ginther6 hearing was denied:7




5
  Given our conclusion that remand for resentencing is not warranted, we decline to address
further defendant’s allegation of judicial bias. However, we take this opportunity to note that our
close review of the record did not yield any indication of bias against defendant on the part of the
trial court.
6
    People v Ginther, 390 Mich 436, 442-443; 212 NW2d 922 (1973).
7
  The trial court denied defendant’s motion seeking an evidentiary hearing, and this Court denied
defendant’s motion for remand for an evidentiary hearing. People v Miller, unpublished order of
the Court of Appeals, entered May 25, 2016 (Docket No. 329317).


                                                -5-
               Whether a defendant has been denied the effective assistance of counsel is
       a mixed question of fact and constitutional law. Generally, a trial court’s findings
       of fact, if any, are reviewed for clear error, and questions of law are reviewed de
       novo. Id. However, because defendant’s motion for a new trial and request for a
       Ginther hearing were denied, no factual record was created with respect to
       defendant’s claim, and this Court’s review is limited to mistakes apparent on the
       lower court record. [Footnotes and citations omitted.]

       “To demonstrate ineffective assistance of counsel, a defendant must show that his or her
attorney’s performance fell below an objective standard of reasonableness under prevailing
professional norms and that this performance caused him or her prejudice.” People v Nix, 301
Mich App 195, 207; 836 NW2d 224 (2013) (citation omitted). “To demonstrate prejudice, a
defendant must show the probability that, but for counsel’s errors, the result of the proceedings
would have been different.” Id. (Citation omitted.)

        Our review of the record confirms that trial counsel reviewed the PSIR, objected to
erroneous information within the report, and aggressively argued against an upward departure
sentence. Defendant argues, however, that counsel was ineffective for failing to file a written
response to the prosecution’s sentencing memorandum. As the trial court observed, a defense
attorney is not obligated to file a written responsive sentencing memorandum. Moreover, MCR
6.425(E)(1)(c) expressly affords a defense attorney the opportunity at sentencing to advise the
trial court of any circumstances counsel believes should be considered at sentencing, and in this
case trial counsel addressed each of the prosecution’s arguments orally at sentencing. Put
another way, it was not objectively unreasonable for trial counsel to rely on his right of
allocution at sentencing to respond to the prosecutor’s sentencing memorandum. The record also
fails to support defendant’s claim that trial counsel was ineffective for failing to obtain
defendant’s prison records or that trial counsel misunderstood defendant’s criminal history.
Defendant points out that his prior prison sentence for involuntary manslaughter was imposed
when he was a 15-year-old juvenile, and that most of his misconduct citations were incurred
“during the first half of his incarceration and were fewer than 26.” However, trial counsel
clearly understood and emphasized to the trial court that defendant’s prior conviction for
manslaughter occurred when defendant was only 15 years old and involved defendant driving a
vehicle. After the prosecutor brought up an inconsistency in the PSIR regarding whether
defendant had 29 or 26 prison misconduct citations, the record reflects that trial counsel
personally consulted with defendant and verified that defendant had incurred 26 misconduct
citations. Further, the trial court stated that if it only considered 6 of the 26 misconduct citations,
those alone would have provided the trial court with enough support for its decision to depart
upward from the sentencing guidelines range. Therefore, defendant’s claim that trial counsel’s
performance was in any manner objectively unreasonable according to prevailing professional
norms is not supported by the record and is without merit. Nix, 301 Mich App at 207.




                                                 -6-
Affirmed.



                  /s/ Elizabeth L. Gleicher
                  /s/ Christopher M. Murray
                  /s/ Karen M. Fort Hood




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