                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   December 21, 2017
              Plaintiff-Appellee,

v                                                                  No. 334381
                                                                   Wayne Circuit Court
DARRELL ANTOIN WINTERS,                                            LC No. 13-009956-01-FC

              Defendant-Appellant.


Before: TALBOT, C.J., and BORRELLO and RIORDAN, JJ.

PER CURIAM.

       Following a remand for resentencing ordered by this Court, defendant appeals as of right
from the new judgment of sentence entered by the trial court. For the reasons set forth in this
opinion, we affirm.

                                      I. BACKGROUND

        In 2013, defendant was charged with armed robbery, MCL 750.529, felony-firearm,
MCL 750.227b, and felon-in-possession of a firearm, MCL 750.224f, stemming from the alleged
robbery of his former coworker at gunpoint. During the trial, the complainant testified that
defendant pulled out a gun, put it in his side, and robbed his person and then took him to the
office of the business where he took money that belonged to the business. Defendant defended
on the theory that the robbery never occurred and that the complainant fabricated the robbery. A
jury found defendant guilty of armed robbery but acquitted him of felon-in-possession and
felony-firearm. The trial court sentenced defendant, as a third habitual offender, MCL 769.11, to
a term of 14 to 21 years’ imprisonment for his armed robbery conviction.

       Defendant appealed and, in 2015, a panel of this Court affirmed his conviction, but
remanded for resentencing due to a scoring error in offense variable (“OV”) 1, MCL 777.31.1
This Court rejected defendant’s claim that the evidence was insufficient to support the “armed”
element because the jury acquitted him of the firearm offenses. This Court also rejected


1
 People v Winters, unpublished opinion per curiam of the Court of Appeals, issued August 11,
2015 (Docket No. 320739).

                                               -1-
defendant’s claim that the court’s instructions to the jury on the elements of armed robbery
impermissibly broadened the scope of the charge, constructively amending the felony
information in violation of his due process right to notice of the charges against him. This Court
found that his claim of instructional error was “without merit” and did not warrant a new trial.

        Before his resentencing, defendant filed pro se motions for a new trial and a directed
verdict of acquittal before the trial court, raising the same underlying arguments that he
previously raised and that this Court adversely decided in his prior appeal. The trial court
entertained these motions before resentencing defendant and denied both, concluding that this
Court had decided these issues in defendant’s prior appeal. Nevertheless, the trial court agreed
with the findings and conclusions of law of this Court’s prior decision and adopted this Court’s
reasoning as its own.

        The trial court then proceeded to resentence defendant as directed by this Court, scoring
15 points for OV 1 for the aggravated use of a weapon where “[a] firearm was pointed at or
toward a victim,” MCL 777.31(1)(c), and 5 points for OV 2 for possessing or using a pistol,
MCL 777.32(1)(d), finding that the complainant’s testimony established these scores by a
preponderance of the evidence. These additional OV points increased defendant’s total OV
score from 35 to 45 points, which, in turn, raised his OV Level from Level II to Level III and
increased his minimum sentencing guidelines range from 81 to 202 months to 108 to 270 months
for a third habitual offender, MCL 777.62. Despite the increase in the minimum sentencing
guidelines range, the trial court sentenced defendant to 14 to 21 years’ imprisonment, the same
sentence it originally imposed. This appeal then ensued.

                                         II. ANALYSIS

        On appeal, defendant raises a myriad of issues, beginning with his claim that he is
entitled to resentencing under People v Lockridge, 498 Mich 358; 870 NW2d 502 (2015),
because the trial court scored OV 1 (aggravated use of a weapon) and OV 2 (lethal potential of
weapon possessed or used) by relying on impermissible judicial fact-finding, resulting in an
increase in the minimum sentencing guidelines range for his armed robbery conviction, in
violation of his Sixth Amendment right to a jury trial. We review this constitutional question de
novo. Lockridge, 498 Mich at 373; People v Stokes, 312 Mich App 181, 192; 877 NW2d 752
(2015).

        “In People v Lockridge, our Supreme Court held that Michigan’s sentencing scheme
violated the Sixth Amendment right to a jury trial because it required ‘judicial fact-finding
beyond facts admitted by the defendant or found by the jury to score offense variables (OVs) that
mandatorily increase[d] the floor of the guidelines minimum sentence range, i.e., the “mandatory
minimum” sentence under Alleyne.2‘ ” Stokes, 312 Mich App at 193-194, citing Lockridge, 498
Mich at 364 (emphasis in original). “To remedy the constitutional flaw in the guidelines,” the
Supreme Court held in Lockridge that the guidelines were merely advisory. Lockridge, 498


2
    Alleyne v United States, 570 US 99; 133 S Ct 2151; 186 L Ed 2d 314 (2013).

                                               -2-
Mich at 399; see also Stokes, 312 Mich App at 195-196. Because sentencing courts are no
longer “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.” Lockridge, 498 Mich at 392 (emphasis in original). “Sentencing courts
must, however, continue to consult the applicable guidelines range and take it into account when
imposing a sentence.” Id. Thus, “the sentencing guidelines must still be scored, and . . . trial
courts must assess the ‘highest number of points possible’ to each variable, ‘whether using
judge-found facts or not.’ ” Stokes, 312 Mich App at 196. “[U]nder Lockridge, while the
sentencing guidelines must still be scored by the trial court, the resulting range is merely an
advisory range that must be taken into account by the trial court when imposing a sentence.” Id.

       In the instant case, the jury acquitted defendant of felon-in-possession and felony-firearm
charges, and there is no dispute that the trial court’s reliance on judicially found facts, i.e., that
defendant possessed or used a pistol and pointed it at or toward a victim (supporting a score of 5
points under OV 2 and 15 points under OV 1, respectively), increased defendant’s OV Level
from Level II to Level III, which, in turn, elevated his minimum sentencing guidelines range
from 81 to 108 months to 108 to 270 months.

        Defendant was resentenced on July 19, 2016, almost one year after Lockridge was
decided on July 29, 2015. Accordingly, at the time of his sentence, the statutory minimum
sentencing guidelines were not mandatory, but were merely advisory. Lockridge, 498 Mich at
399. The record reflects that defendant was sentenced in accord with the constitutional
protection afforded by Lockridge because the trial court explicitly recognized that the minimum
sentencing guidelines are advisory and not mandatory, took the guidelines range into account
when sentencing defendant, and found that the sentence, which fell within those guidelines, was
reasonable, “recognizing that the guidelines are now advisory.” The record clearly reflects the
trial court understanding that the guidelines are advisory only. Because the court’s reliance on
judicially found facts to score OVs 1 and 2 did not therefore mandatorily increase defendant’s
minimum sentence, the trial court was not unconstitutionally constrained by the calculated
guidelines, and the resulting increase in the minimum guidelines range did not violate
defendant’s Sixth Amendment right to a jury trial under Lockridge. Judicial fact-finding is
proper and “of no constitutional consequence if [, as in this case,] the guidelines are merely
advisory.” People v Biddles, 316 Mich App 148, 159-161; 896 NW2d 461 (2016). Therefore,
we reject defendant’s assertion that the court could only use facts found by a jury beyond a
reasonable doubt when calculating his OV score under the sentencing guidelines, which “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.” Id. at 160-161, citing Lockridge, 498
Mich at 389.

        In light of these principles, we also disagree with defendant’s assertion that it was not
constitutionally permissible for the trial court to rely on the conduct underlying the acquitted
firearm charges to calculate his minimum sentencing guidelines range. “[W]hen scoring the
variables, trial courts are permitted to make factual findings which need only be supported by a
preponderance of the evidence.” Stokes, 312 Mich App at 193. “A trial court may consider facts
concerning uncharged offenses, pending charges, and even acquittals, provided that the
defendant is afforded the opportunity to challenge the information and, if challenged, it is

                                                 -3-
substantiated by a preponderance of the evidence.” People v Golba, 273 Mich App 603, 614;
729 NW2d 916 (2007) (emphasis added); see also People v Compagnari, 233 Mich App 233,
236; 590 NW2d 302 (1998). “[S]uch conduct could be taken into account at sentencing because
an acquittal does not necessarily mean that the defendant did not engage in criminal conduct, but
only demonstrates a lack of proof beyond a reasonable doubt.” People v Harris, 190 Mich App
652, 663; 476 NW2d 767 (1991).

        “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.” Biddles, 316 Mich App
at 158. “Lockridge remedied this constitutional violation by making the guidelines advisory, not
by eliminating judicial fact-finding.” Id. In this case, defendant “received the constitutional
protection of advisory guidelines as dictated by Lockridge,” Id. at 165, and there was no
violation of defendant’s Sixth Amendment right to a jury by the trial court’s reliance on
judicially found. Therefore, defendant is not entitled to resentencing.

        In a supplemental brief filed in propria persona pursuant to Supreme Court
Administrative Order No. 2004–6, Standard 4, defendant claims that the trial court abused its
discretion in denying his post-appeal motions for a new trial brought under MCL 770.1 and for a
directed verdict of acquittal brought under MCR 6.419(C), based on his underlying claims of
error concerning the jury instructions and the sufficiency of the evidence, respectively, which he
previously raised and this Court decided in his prior appeal. He further claims that he is entitled
to a Ginther3 hearing, claiming that his trial counsel rendered ineffective assistance by failing to
object to the instructions.

        First, these claims are beyond the scope of this appeal, which is limited to resentencing.
“[W]here an appellate court remands for some limited purpose following an appeal as of right in
a criminal case, a second appeal as of right, limited to the scope of the remand, lies from the
decision on remand.” People v Kincade, 206 Mich App 477, 481; 522 NW2d 880 (1994)
(emphasis added); People v Gauntlett, 152 Mich App 397, 400; 394 NW2d 437 (1986) (“An
appeal from resentencing is limited to the resentencing proceeding.”). In this case, other than
remanding to the trial court to make findings necessary to properly score OV 1 and for
resentencing defendant, this Court in the prior appeal did not “leave open any issue raised for
further resolution on remand.” Kincade, 206 Mich App at 481-482. Accordingly, defendant’s
second appeal as of right is limited to the resentencing proceeding. Id..; Gauntlett, 152 Mich
App at 400

       Although defendant has an appeal of right from the judgment of sentence entered after
resentencing, MCR 7.203(A)(1); MCR 7.202(6)(b)(iv); People v Martinez, 193 Mich App 377,
380-381; 485 NW2d 124 (1992), he does not have an appeal as of right from the trial court’s
denials of his post-appeal motions. Defendant’s conviction was previously appealed to and



3
    People v Ginther, 390 Mich 436, 443-444; 212 NW2d 922 (1973).

                                                -4-
affirmed by this Court.4 Where, as here, a defendant has exhausted the normal appeals process
governing a motion for a new trial and a directed verdict of acquittal, MCR 6.419(C); MCR
6.431(A)(4), the defendant must seek post-appeal relief under the procedure set forth in MCR
6.500 et seq. This Court has recognized that MCR 6.508 provides “the exclusive means to
challenge a conviction in Michigan once a defendant has exhausted the normal appellate
process.” People v McSwain, 259 Mich App 654, 678; 676 NW2d 236 (2003), quoting People v
Watroba, 193 Mich App 124, 126; 483 NW2d 441 (1992). Consequently, although defendant
presented his motions as a motion for a new trial and a directed verdict, defendant’s post-appeal
motions are reviewable as a motion for relief from judgment governed by MCR 6.500 et seq.
See Kincade, 206 Mich App at 482. An appeal from a decision under subchapter MCR 6.500 is
by leave to appeal under MCR 7.205. MCR 6.509(A); Kincade, 206 Mich App at 482.
Accordingly, defendant was required to seek leave to appeal from the trial court’s denials of his
post-appeal motions and these claims are not properly before this Court.5

        Likewise, because this Court has determined in defendant’s prior appeal that the
instructional issue forming the basis of his claim of ineffective assistance of counsel lacks
substantive merit, his trial counsel’s performance in failing to object to the instructions could not
have been deficient. It is well-established that trial counsel is not ineffective for failing to raise a
futile objection. People v Ackerman, 257 Mich App 434, 455; 669 NW2d 818 (2003). Under
the law of the case doctrine, this Court, as well as the trial court, is bound by this Court’s prior
decision that there was no instructional error, and thus, defendant cannot demonstrate that trial
counsel’s performance was deficient for failing to object to those instructions. Defendant is not
entitled to a Ginther hearing because he has not demonstrated that additional factual
development would further his claim of ineffective assistance. Ginther, 290 Mich at 443; see
People v Chapo, 283 Mich App 360, 368-369; 770 NW2d 68 (2009).

        Lastly, we disagree with defendant’s assertion that he is entitled to resentencing because
his scores for OV 8, MCL 777.38(1)(a), and OV 9, MCL 777.39(1)(c), were impermissibly based



4
 The Michigan Supreme Court denied defendant’s application for leave to appeal. People v
Winters, 499 Mich 882 (2016).
5
  Even if these claims were properly before this Court, further consideration of the underlying
issues is also foreclosed under the law of the case doctrine, which provides that “an appellate
court’s decision regarding a particular issue is binding on courts of equal or subordinate
jurisdiction during subsequent proceedings in the same case.” People v Herrera (On Remand),
204 Mich App 333, 340; 514 NW2d 543 (1994) (citations omitted); see also Grievance
Administrator v Lopatin, 462 Mich 235, 259-260; 612 NW2d 120 (2000); Grace v Grace, 253
Mich App 357, 362-363; 655 NW2d 595 (2002). A panel of this Court in defendant’s prior
appeal has squarely addressed and decided his claim of instructional error and his challenge to
the sufficiency of the evidence against him. Therefore, under the law of the case doctrine, we are
bound by the panel’s prior decision and precluded from further considering these issues a second
time.


                                                  -5-
on facts not determined by the jury. As discussed, judicial fact-finding is proper so long as the
guidelines, as here, are advisory. Biddles, 316 Mich App at 159-161; Stokes, 312 Mich App at
196. Thus, contrary to defendant’s assertion, the trial court did not err in scoring the offense
variables based on judicially found facts that were not determined by the jury.6

       Affirmed.



                                                           /s/ Michael J. Talbot
                                                           /s/ Stephen L. Borrello
                                                           /s/ Michael J. Riordan




6
  Defendant also asserts that the trial court improperly assessed points for OV 12 and OV 19.
Although the sentencing information report initially assessed defendant points for these OVs, it
is clear from the record that the sentencing court corrected it and scored zero points for OVs 12
and 19. Thus, there is no error with respect to these variables.

                                               -6-
