                          STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     August 16, 2016
               Plaintiff-Appellee,

v                                                                    No. 327417
                                                                     Wayne Circuit Court
TOMMY LEE BENNETT,                                                   LC No. 14-004430-FC

               Defendant-Appellant.


Before: MURPHY, P.J., and STEPHENS and BOONSTRA, JJ.

PER CURIAM.

       Defendant appeals as of right his jury trial convictions of two counts of first-degree
criminal sexual conduct (CSC 1), MCL 750.520b(1)(b)(ii), and one count of second-degree
criminal sexual conduct (CSC 2), MCL 750.520c(1)(b)(ii). The trial court sentenced defendant,
as a second habitual offender, MCL 769.10, to 15 to 30 years’ imprisonment for the CSC 1
convictions, and 6 to 15 years’ imprisonment for the CSC 2 conviction. We affirm defendant’s
convictions, but vacate defendant’s sentences and remand for resentencing.

        This case arises from allegations of child sexual abuse brought voluntarily by defendant’s
daughter, TB. Although TB later recanted her story and explained at defendant’s trial that she
made up the sexual abuse in an effort to punish her overly strict father, the trial court allowed
testimony from defendant’s two stepdaughters—LH and KH—which indicated that defendant
perpetrated unreported and uncharged acts of child sexual abuse on each of them at earlier stages
of their lives. Defendant was ultimately convicted by a jury of abuse perpetrated on TB.

                     I. ADMISSIBILITY OF OTHER ACTS TESTIMONY

       On appeal, defendant argues that the trial court abused its discretion when it permitted the
introduction of his stepdaughters’ testimony because (1) the prosecutor did not have a proper
non-propensity purpose for admitting the other acts evidence, (2) the stepdaughters’ intended
testimony was not relevant to any issue before the jury, and (3) the trial court erred when it
neglected to balance the probative value of the evidence against its highly prejudicial effect. We
disagree.

       This Court reviews a trial court’s decision regarding the admissibility of other acts
evidence for an abuse of discretion. People v Dobek, 274 Mich App 58, 84–85; 732 NW2d 546
(2007). A trial court abuses its discretion when its decision falls “outside the range of reasonable


                                                -1-
and principled outcomes.” People v Schaw, 288 Mich App 231, 236; 791 NW2d 743 (2010).
“Because an abuse of discretion standard contemplates that there may be more than a single
correct outcome, there is no abuse of discretion where the evidentiary question is a close one.”
People v Smith, 282 Mich App 191, 194; 772 NW2d 428 (2009). To be admissible, evidence of
other crimes, wrongs, or acts: (1) must be offered for a proper purpose, and (2) must be relevant,
and (3) the probative value of the evidence may not be substantially outweighed by the danger of
unfair prejudice. People v VanderVliet, 444 Mich 52, 55; 508 NW2d 114 (1993), amended by
445 Mich 1205 (1994).

                                   A. UNDER MRE 404(B)

        Defendant first argues that the trial court erred when it allowed the admission of the
challenged other acts testimony under MRE 404(b) because the prosecutor used the testimony
for improper propensity purposes. We treat MRE 404(b) and MCL 768.27a as separate and
independent bases for the admission of other acts evidence because the prosecutor sought
admission of the stepdaughters’ testimony pursuant to both MRE 404(b) and MCL 768.27a. The
prosecution argued that the bad acts testimony, in addition to establishing criminal propensity,
was evidence of a common method of “grooming” victims employed by defendant. The trial
court initially only considered admission under MRE 404(b), and admitted the testimony as
relevant and not overly prejudicial. Later, and only after the prosecutor’s specific request, the
trial court also, allowed the admission of the stepdaughters’ testimony under MCL 768.27a. We
find that either the court rule or the statute provides an appropriate basis for admission of the
stepdaughters’ testimony.

        Although the prosecutor did not specifically raise the argument at the admissibility
hearing, it is evident from his argument at the hearing that he thought that the stepdaughters’
testimony presented evidence of the defendant’s behavioral patterns that were part of a “common
scheme, plan, or system” for grooming and sexually assaulting minor females. On appeal, the
prosecution explicitly offers that purpose for admission under MRE 404(b), and further argues
that the testimony was admissible under the court rule to support the credibility of TB’s initial
allegations. MRE 404(b)(1) provides:

       Evidence of other crimes, wrongs, or acts is not admissible to prove the character
       of a person in order to show action in conformity therewith. It may, however, be
       admissible for other purposes, such as proof of motive, opportunity, intent,
       preparation, scheme, plan, or system in doing an act, knowledge, identity, or
       absence of mistake or accident when the same is material, whether such other
       crimes, wrongs, or acts are contemporaneous with, or prior or subsequent to the
       conduct at issue in the case. [Emphasis added.]

        The prosecutor’s attempt to support the other acts testimony as relevant to bolster the
credibility of TB’s initial allegations fails. The Michigan Supreme Court has explicitly held that
“evidence of sexual acts between the defendant and persons other than the complainant is not
relevant to bolster the complainant’s credibility because the acts are not part of the principal
transaction.” People v Sabin, 463 Mich 43, 69-70; 614 NW2d 888 (2000). However, the
stepdaughters’ testimony was admissible, as the prosecutor argues, as evidence of a common
plan. The Supreme Court held in Sabin, 463 Mich at 63-64, that “evidence of similar


                                               -2-
misconduct is logically relevant to show that the charged act occurred where the uncharged
misconduct and the charged offense are sufficiently similar to support an inference that they are
manifestations of a common plan, scheme, or system.” Id. In Sabin, the Court considered a
situation much like that presented here, and concluded that the trial court did not abuse its
discretion when it allowed the admission of evidence regarding alleged abuse of the defendant’s
stepdaughter that “shared sufficient common features to infer a plan, scheme or system” of
sexual abuse extending to the defendant’s daughter, the complainant in that case. The Court
explained:

       The charged and uncharged acts contained common features beyond mere
       commission of acts of sexual abuse. Defendant and the alleged victims had a
       father-daughter relationship. The victims were of similar age at the time of the
       abuse. Defendant allegedly played on his daughters’ fear of breaking up the
       family to silence them. One could infer from these common features that
       defendant had a system that involved taking advantage of the parent-child
       relationship, particularly his control over his daughters, to perpetrate abuse. [Id.
       at 67.]

         Here, as in Sabin, the charged acts involving TB and the uncharged acts involving KH
and LH contain common features beyond the act of sexual abuse itself. Defendant and the three
alleged victims had a father-daughter relationship. KH and LH testified that their abuse, like the
abuse initially complained of by TB, occurred when they reached the age of about 12 or 13 years
old. The progression of the assaults against KH and LH began with inappropriate touching at a
younger age and then moved on to oral sex and ultimately vaginal penetration as was reported by
TB before her recantation. In all three cases, the abuse occurred in the family home while others
were at home, and the abuse stopped when each girl was about 15 years old. KH and LH both
testified that defendant had threatened harm to them, their sisters, and their mother if they told
anyone about the abuse. Before TB recanted her initial allegations, she too claimed that she was
afraid to tell anyone about defendant’s abuse because defendant had threatened her. These
similarities support the inference that defendant acted with a plan to abuse his status as a father-
figure, to groom his victims at an early age in order to move on to increasingly intimate acts of
sexual abuse, and to exploit their fear of harm to themselves and their family to cover up his
abusive acts.

        It is true that the stepdaughters’ testimony also supports an inference of criminal
propensity. However, “[e]vidence relevant to a noncharacter purpose is admissible under
MRE 404(b) even if it also reflects on a defendant’s character.” People v Mardlin, 487 Mich
609, 615; 790 NW2d 607 (2010). In this case, the stepdaughters’ testimony was relevant to
show that defendant acted pursuant to a common plan, scheme, or system, and was therefore
admissible under MRE 404(b) despite its tendency to illustrate a propensity to commit acts of
child sexual abuse.

                                   B. UNDER MCL 768.27A

       Defendant also argues that the evidence was not properly admitted under MCL 768.27a
because, under that statute, the evidence must be relevant to an issue that the jury must decide.
We find that the stepdaughters’ testimony would also be admissible under the statute.


                                                -3-
        The language of MCL 768.27a(1) states that “in a criminal case in which the defendant is
accused of committing a listed offense against a minor, evidence that the defendant committed
another listed offense against a minor is admissible and may be considered for its bearing on any
matter to which it is relevant.” (Emphasis added.) Evidence is relevant when it has “any
tendency to make the existence of any fact that is of consequence to the determination of the
action more probable or less probable than it would be without the evidence.” MRE 401. The
facts supported by such evidence need not be the elements of the charged crimes. Sabin, 463
Mich at 57.

       The credibility of witnesses, and the complainant in particular, is a matter “of
consequence” to be assessed by the jury. See People v Mills, 450 Mich 61, 72; 537 NW2d 909,
modified by 450 Mich 1212 (1995). In this case, TB’s credibility was clearly at issue, and the
challenged evidence tended to support her initial allegations over her trial testimony. The
testimony, as noted before, also supports propensity to offend in a like manner, “a defendant’s
propensity to commit a crime makes it more probable that he committed the charged offense.”
Watkins, 491 Mich at 470. Although MRE 404(b) expressly precludes the admission of
propensity evidence, the Michigan Supreme Court has held that the specific language of
MCL 768.27a trumps the general language of MRE 404(b) to allow the admission of propensity
evidence in limited cases. Id. at 470-471. MCL 768.27a therefore creates an exception to
MRE 404(b) in cases presenting a charge of sexual misconduct against a minor. Id. at 471.

         The statute explicitly allows the presentation of evidence “that the defendant committed
another listed offense against a minor” in a criminal case where “the defendant is accused of
committing a listed offense against a minor.” MCL 768.27a(1). TB was a minor at the time of
trial, and both KH and LH were minors at the time of defendant’s alleged sexual misconduct
against them. MCL 768.27a(2)(b). CSC 1 and CSC 2, the crimes for which defendant stood trial
and the crimes supported by the testimony of LH and KH, are listed offenses.
MCL 768.27a(2)(a); MCL 28.722(j); MCL 28.722(w)(iv).              Therefore, the testimony was
admissible under MCL 768.27a.

                                      C. UNDER MRE 403

        Finally, defendant argues that the trial court erred when it failed to consider whether the
other acts testimony was admissible under the balancing test of MRE 403, which permits the
exclusion of otherwise admissible evidence if “its probative value is substantially outweighed by
the danger of unfair prejudice, confusion of the issues, or misleading the jury . . . .” The
balancing requirement applies to both MRE 404(b) and MCL 768.27a. Watkins, 491 Mich at
481; VanderVliet, 444 Mich at 74-75. As defendant has alleged, the record fails to indicate that
the trial court conducted an MRE 403 analysis in connection with the admission of evidence
under either MRE 404(b) or MCL 768.27a. The trial court merely offered the conclusory
statement that the challenged evidence “falls very clearly in favor of admission under 403.” The
Supreme Court instructed trial courts to engage in the MRE 403 balancing analysis with respect
to each separate piece of evidence offered under MCL 768.27a. Watkins, 491 Mich at 489.
However, the trial court’s failure to conduct such an analysis is harmless error if, in fact,
MRE 403 did not require the exclusion of the other acts evidence. See id. at 491. We find that it
did not.



                                                -4-
        Evidence offered against a party is “by its very nature . . . prejudicial, otherwise there
would be no point in presenting it.” People v Fisher, 449 Mich 441, 451; 537 NW2d 577 (1995).
“[U]nfair prejudice refers to the tendency of the proposed evidence to adversely affect the
objecting party’s position by injecting considerations extraneous to the merits of the lawsuit, e.g.,
the jury’s bias, sympathy, anger, or shock.” People v Goree, 132 Mich App 693, 702-703; 349
NW2d 220 (1984). “Evidence is unfairly prejudicial when ‘there exists a danger that marginally
probative evidence will be given undue or preemptive weight by the jury.’ ” People v Kowalski,
492 Mich 106, 137; 821 NW2d 14 (2012), citing People v Crawford, 458 Mich 376, 398; 582
NW2d 785 (1998). Our Supreme Court has identified a list of factors “that may lead a court to
exclude” evidence “under MRE 403 as overly prejudicial,” including “(1) the dissimilarity
between the other acts and the charged crime, (2) the temporal proximity of the other acts to the
charged crime, (3) the infrequency of the other acts, (4) the presence of intervening acts, (5) the
lack of reliability of the evidence supporting the occurrence of the other acts, and (6) the lack of
need for evidence beyond the complainant’s and the defendant’s testimony.” Watkins, 491 Mich
at 487-488 (footnote omitted). When the other acts evidence is admitted pursuant to
MCL 768.27a, courts must weigh the propensity inference in favor of the probative side of the
equation. Id. at 487.

         As discussed previously, the challenged evidence was probative of defendant’s
propensity to commit similar crimes; a permissible purpose pursuant to MCL 768.27a. It was
also highly probative of which version of the facts given by TB was credible. The probative
value is not substantially diminished by the passage of between five and ten years between
offenses due to the similarity of the defendant’s relationships with each victim, and the pattern of
behavior in each case. We cannot say that the probative value was substantially outweighed by
the prejudicial value in this case. As to the inconsistencies within and between the testimony of
LH and KH, they related not to the offense characteristics but to details of the offense, and the
reliability and credibility of witnesses is a matter properly left for the jury. People v Hill, 257
Mich App 126, 141; 667 NW2d 78 (2003). Finally, in light of TB’s conflicting testimony, the
evidence was necessary to help the jury determine which of TB’s versions of events was more
accurate and credible.

        It is also worth noting that the trial court instructed the jury on how to approach evidence
of alleged prior bad acts immediately before LH and KH testified, explaining:

               If you believe this evidence, you must be very careful only to consider it
       for the purpose -- for certain purposes.

              You may only think about whether this evidence tends to show that the
       defendant had a reason to commit the crime, that the defendant specifically meant
       to commit criminal sexual conduct, that the defendant acted purposely; that is, not
       by accident. That the defendant used a plan, system, or characteristic scheme he
       has used before or since.

              You must not consider this evidence for any other purpose other than to
       show a propensity to commit the crime.




                                                -5-
This instruction, as well as the standard instructions regarding evidence, witness credibility,
inconsistent statements, and prior bad acts, weighs against a finding of unfair prejudice. See
People v Magyar, 250 Mich App 408, 416; 648 NW2d 215 (2002) (observing that “a limiting
instruction such as this one that cautions the jury not to infer that a defendant had a bad character
and acted in accordance with that character can protect the defendant’s right to a fair trial”).
Although the stepdaughters’ testimony was undoubtedly prejudicial, the trial court in this case
was careful to ensure that the jurors understood its limited purpose. Jurors are presumed to
follow their instructions. People v Mahone, 294 Mich App 208, 212; 816 NW2d 436 (2011).
There is no reason to believe they did not do so here. Because the probative value of the
stepdaughters’ testimony was not substantially outweighed by the danger of unfair prejudice, the
trial court did not abuse its discretion when it permitted its presentation at defendant’s trial.

                         II. EFFECTIVE ASSISTANCE OF COUNSEL

         Next, defendant argues that he was deprived of the effective assistance of counsel when
his trial counsel failed to object to the trial court’s improper assessment of OV 11 at sentencing.
Here, we agree.

        Defendant failed to preserve his ineffective assistance of counsel claim by raising it in a
motion for a new trial or a Ginther 1 hearing in the lower court. This Court’s review of
unpreserved ineffective assistance of counsel claims is limited to mistakes apparent on the
record. People v Davis, 250 Mich App 357, 368; 649 NW2d 94 (2002). Whether a person has
been denied effective assistance of counsel is a mixed question of law and fact. People v
Matuszak, 263 Mich App 42, 48; 687 NW2d 342 (2004). “A trial court’s findings of fact, if any,
are reviewed for clear error, and this Court reviews the ultimate constitutional issue arising from
an ineffective assistance of counsel claim de novo.” People v Petri, 279 Mich App 407, 410;
760 NW2d 882 (2008).

        To establish ineffective assistance, the defendant must show that “(1) defense counsel’s
performance was so deficient that it fell below an objective standard of reasonableness and (2)
there is a reasonable probability that defense counsel’s deficient performance prejudiced the
defendant.” People v Heft, 299 Mich App 69, 80-81; 829 NW2d 266 (2012). In order to show
deficient performance, a defendant must show that counsel’s performance was “outside the wide
range of professionally competent assistance.” Strickland v Washington, 466 US 668, 690; 104
S Ct 2052; 80 L Ed 2d 674 (1984). Defense counsel is afforded wide latitude on matters of trial
strategy. People v Unger, 278 Mich App 210, 242-243; 749 NW2d 272 (2008). A defendant is
prejudiced if there is a reasonable probability that, “but for defense counsel’s errors, the result of
the proceeding would have been different.” Heft, 299 Mich App at 81.

        In this case, defendant claims that defense counsel’s failure to object to the trial court’s
assessment of OV 11 constituted ineffective assistance of counsel. However, “[f]ailing to
advance a meritless argument or raise a futile objection does not constitute ineffective assistance
of counsel.” People v Ericksen, 288 Mich App 192, 201; 793 NW2d 120 (2010). Therefore, in
this case, the effectiveness of defense counsel’s assistance depends on whether the trial court’s

1
    People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).



                                                 -6-
assessment of OV 11 was proper. “Under the sentencing guidelines, the circuit 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). Whether the factual
determinations were sufficient to score OV 11 is a question this Court reviews de novo. Id. See
People v Steanhouse, 313 Mich App 1, 18; ___ NW2d ___ (2015) (holding that because scoring
the offense variables remains relevant after People v Lockridge, 498 Mich 358; 870 NW2d 502
(2015), the standards of review traditionally applied to the trial court’s scoring of the offense
variables are still appropriate).

        OV 11 is “criminal sexual penetration,” and should be assessed at 50 points only when
“[t]wo or more sexual penetrations occurred.” MCL 777.41(1)(a). OV 11 must be assessed at
25 points if only [o]ne criminal sexual penetration occurred,” and zero points “if [n]o criminal
sexual penetration occurred.” MCL 777.41(1)(b)-(c). Importantly, the sentencing guidelines
statute clearly states that a trial court must “not score points for the 1 penetration that forms the
basis of a first- or third-degree criminal sexual conduct offense.” MCL 777.41(2)(c).
Additionally, MCL 777.41(2)(b) directs a trial court to score only those sexual penetrations “of
the victim by the offender arising out of the sentencing offense.”

        The trial court clearly erred when it assessed OV 11 at 50 points. Defendant was
convicted of two counts of CSC 1 involving sexual penetration and one count of CSC 2 for
sexual conduct not involving penetration. Because the sentencing guidelines statute clearly
states that the penetration forming the basis of at least one of defendant’s CSC 1 convictions
must not be scored, neither sexual penetration could be scored for OV 11 because both of them
form the basis of a sentencing offense. As our Supreme Court explained in People v Johnson,
474 Mich 96, 103 n 2; 712 NW2d 703 (2006):

       The penetration that formed the basis of [the] defendant’s first offense “aris[es]
       out of the [first] sentencing offense.” The penetration that formed the basis of
       [the] defendant’s second offense “aris[es] out of the [second] sentencing offense.”
       However, the penetration that formed the basis of the first offense cannot be used
       for scoring the first offense, and the penetration that formed the basis of the
       second offense cannot be used for scoring the second offense. This is because
       MCL 777.41(2)(c) prevents the court from scoring points “for the 1 penetration
       that forms the basis of a first- or third-degree criminal sexual conduct offense.”
       While the precise meaning of the language in MCL 777.41(2)(c) is not at issue in
       this case, it is clear that each criminal sexual penetration that forms the basis of its
       own sentencing offense cannot be scored for purposes of that particular
       sentencing offense.

       Further, in Johnson, the Court construed the phrase “arising out of,” contained in
MCL 777.41(2)(b) to mean “[s]omething that . . . springs from or results from something else,
[and] has a connective relationship, a cause and effect relationship, of more than an incidental
sort with the event out of which it has arisen.” Id. at 101. According to the Johnson Court,
“there [must] be such a relationship between the penetrations at issue and the sentencing
offenses.” Id. The standard requires more than the mere fact that the penetrations involved the
same defendant and the same victim. See id. at 101-102. Penetrations are properly scored when
they “occur[ ] at the same place, under the same set of circumstances, and during the same


                                                 -7-
course of conduct.” Id. at 100, citing People v Mutchie, 251 Mich App 273, 276; 650 NW2d 733
(2002).

        In this case, defendant was convicted of two counts of CSC 1—one count for each
alleged sexual penetration. There is no evidence of any other incidences of sexual penetration,
or that one or more sexual penetrations occurred concurrently with either of the charged
offenses. Although the two incidences for which defendant was convicted involved the same
victim and the same defendant, they did not occur during the same course of conduct. It cannot
be said that either penetration had more than an incidental relationship with the other, or that one
penetration was the result of the other. Here, as in Johnson, because the two sexual penetrations
did not “arise out of” each other, the trial court erred when it scored OV 11 at any more than
zero.2

        The trial court’s erroneous assessment of OV 11 had a substantial effect on defendant’s
sentencing guidelines range. The trial court assessed the guidelines only for defendant’s CSC 1
conviction. CSC 1 is a Class A offense. MCL 777.16y. Defendant’s total OV score of 70
included the trial court’s assessment of 50 points for OV 11, and placed defendant within the cell
of the sentencing grid for OV Level IV. After a reduction of 50 points for the trial court’s
improper assessment of OV 11, defendant’s total OV score is properly adjusted to 20 points.
Defendant’s uncontested PRV score of 22 and a total OV score of 20 points places defendant
within the cell of the sentencing grid for OV Level II, and brings his sentence range from 108 to
225 months down to 51 to 106 months. MCL 777.62.3

       Defense counsel failed to object to the trial court’s erroneous assessment of OV 11.
Indeed, at sentencing, defense counsel acquiesced to the trial court’s assessment of OV 11, a
decision that clearly fell below an objective standard of reasonableness. A reasonably competent
attorney would have, at the very least, read the sentencing guidelines statute and discovered that
the one penetration forming the basis for a sentencing offense could not be scored for purposes
of OV 11. Defendant’s sentencing guidelines range should have been 51 to 106 months, rather
than 108 to 225 months. Defense counsel’s failure to argue the proper assessment of sentencing
guidelines also satisfies the prejudice prong of the ineffective assistance of counsel test. Glover
v United States, 531 US 198, 199-200; 121 S Ct 696; 148 L Ed 2d 604 (2001).


2
 Defendant has posited that a score of 25 points was appropriate for OV 11. We find no support
for such a score in the record, as there is no evidence that multiple penetrations arose out of the
sentencing offense. See Johnson, 474 Mich at 100-101. Further, multiple penetrations that do
not arise out of the sentencing offense may be scored under OV 12 or OV 13. See id. at 102 n 3.
The trial court should thus consider whether, if OV 11 is appropriately scored at zero, the
evidence presented at resentencing supports scoring points under either OV 12 or OV 13.
3
  Even if the score for OV 11 were reduced to 25 points, it would place defendant within the cell
of the sentencing grid for OV Level III, and would reduce his sentence range from 108 to 225
months down to 81 to 168 months. MCL 777.62. For the reasons stated in this opinion,
resentencing would therefore still be required. See People v Francisco, 474 Mich 82, 89; 711
NW2d 44 (2006).



                                                -8-
        The prosecutor argues that defendant could not have suffered prejudice in light of the
Supreme Court’s decision in Lockridge, 498 Mich 358, to render the sentencing guidelines
advisory only. According to the prosecutor, the sentencing guidelines are now irrelevant and the
trial court’s sentence should stand merely because it was “reasonable in light of the facts.” This
argument rests on an erroneous interpretation of the Lockridge opinion, in which the Court
clearly explained:

       [A] guidelines minimum sentence range calculated [under the previously
       mandatory guidelines] is advisory only and . . . 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. [Id. at 365 (citation omitted).]

The Lockridge Court also clearly indicated that its’ holding “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. Thus, not only did the Lockridge Court direct
sentencing courts to continue calculating sentencing guidelines ranges for use as an advisory
tool, it mandated accurate calculation of the guidelines. See also Steanhouse, 313 Mich App at
18 (holding that “given the continued relevance to the Michigan sentencing scheme of scoring
variables, the standards of review traditionally applied to the trial court’s scoring of the variables
remain viable after Lockridge.”) It is only when the trial judge chooses to depart from an
accurately scored sentencing guidelines range that the question of “reasonableness” becomes
relevant. Lockridge, 498 Mich at 365. Here, the trial judge did not indicate that it was making
an upward departure from the sentencing guidelines. It simply sentenced defendant within the
range calculated upon an erroneous assessment of defendant’s total OV score. Whether or not
the prosecutor thinks defendant’s sentence was “reasonable” does not lessen the prejudice
suffered by defendant at having a sentence range calculated at more than twice what is
appropriate under the Legislature’s prescribed sentencing guidelines.

        When an ineffective assistance of counsel claim is based on errors made at sentencing,
the appropriate remedy is a remand for resentencing on the basis of the proper sentencing
guidelines range. See People v Whitfield, 214 Mich App 348, 354; 543 NW2d 347 (1995)
(explaining that if ineffective assistance of counsel is established, the remedy must be tailored to
the injury suffered). We therefore vacate defendant’s sentence and remand to the trial court for
resentencing. We do not retain jurisdiction.

                                                              /s/ William B. Murphy
                                                              /s/ Cynthia Diane Stephens
                                                              /s/ Mark T. Boonstra




                                                 -9-
