                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                        UNPUBLISHED
                                                                        March 19, 2015
               Plaintiff-Appellee,

v                                                                       No. 319079
                                                                        Kent Circuit Court
DOMINICK JOHANN TRICE,                                                  LC No. 10-009849-FC

               Defendant-Appellant.


Before: M. J. KELLY, P.J., and MURPHY and HOEKSTRA, JJ.

PER CURIAM.

        Defendant was convicted of two counts of armed robbery, MCL 750.529, one count of
conspiracy to commit armed robbery, MCL 750.157a, and one count of possession of a firearm
during the commission of a felony (felony-firearm), MCL 750.227b. He was sentenced to
concurrent terms of 7 to 40 years’ imprisonment for the armed robbery and conspiracy
convictions and to a consecutive term of 2 years’ imprisonment for the felony-firearm
conviction. In People v Trice, unpublished opinion per curiam of the Court of Appeals, issued
April 25, 2013 (Docket No. 309314), this Court affirmed defendant’s convictions, except with
respect to the felony-firearm conviction, which the Court found was not sufficiently supported by
the evidence. This Court vacated the felony-firearm conviction and sentence, but did not remand
the case for resentencing. However, defendant filed a motion for resentencing, arguing that the
vacation of the felony-firearm conviction had a bearing on some of the offense variables relative
to the scored offense of armed robbery. The trial court granted the motion. After a hearing, the
trial court sentenced defendant to the same prison terms that had been previously imposed for the
armed robbery and conspiracy convictions, 7 to 40 years’ imprisonment. We affirm those
sentences.

       In the first appeal, this Court recited the facts of the case:

              Defendant was charged and convicted of offenses arising from two armed
       robberies that occurred on the evening of August 22, 2010. On that night,
       defendant, Jamal Lee, and a man named “B” were expecting Amber Lucas,
       Whitney Kranz, and Candice McGraw to walk down an unlit sidewalk. The men
       concealed themselves and then simultaneously emerged from behind bushes when
       Lucas, Kranz, and McGraw approached. Defendant, Lee, and B confronted the
       women and demanded that they “give them everything.” B displayed a long

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       shotgun while defendant searched the victims and robbed them of their property.
       B also removed property from Kranz. After the robbery, the men left the scene
       together in a burgundy vehicle. Defendant was found in a nearby residence later
       that night and was arrested after Lucas identified him. McGraw, . . . who knew
       defendant, Lee, and B, later disclosed their identity to the police. The jury
       convicted defendant of all the charged crimes. [Trice, slip op at 1.]

       This Court ruled, in part, that “there was insufficient evidence for the jury to find that the
defendant possessed a firearm during the course of the robberies.” Id. at 2. The Court also
observed, “In reaching our conclusion, we will not consider whether defendant’s felony-firearm
conviction could be supported on an aiding and abetting theory because the prosecution did not
request, and the court did not give an instruction on, that theory.” Id. at 3.

        In this second appeal, defendant challenges the trial court’s scoring of offense variable
(OV) 1, MCL 777.31 (aggravated use of a weapon), OV 2, MCL 777.32 (lethal potential of the
weapon used), and OV 9, MCL 777.39 (number of victims). We note that the trial court scored
these offense variables with the same number of points as were scored for them at the original
sentencing, and defendant agreed with those scores at that time, knowing full well that the trial
testimony did not put a firearm in defendant’s hands. While arguing in the first appeal that there
was insufficient evidence establishing felony-firearm given the lack of evidence on possession,
defendant did not appeal any of the scores on the offense variables. And again, this Court did
not remand for resentencing, and we question the trial court’s authority to entertain the motion
for resentencing in the procedural posture of this case. See MCR 6.429(B) (indicating that a
motion under MCR 6.500 et seq. would have been the only available procedural vehicle to
mount a challenge on a claim of an alleged “invalid sentence”). Setting aside that concern and
the possibility that defendant’s arguments were waived under the circumstances, we shall
proceed and address defendant’s claims of error.

       In People v Hardy, 494 Mich 430, 438; 835 NW2d 340 (2013), our Supreme Court
provided clarification with respect to the appropriate evidentiary burden and standards of review
associated with the scoring of the sentencing guidelines:

              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. 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.

         The trial court scored OV 1 at 15 points, which is the proper score if “[a] firearm was
pointed at or toward a victim.” MCL 777.31(1)(c). In this case, there was abundant evidence
that a firearm was pointed at or toward the victims; the statutory language does not express that it
need be the offender being scored who pointed the firearm at or toward a victim during the
scored criminal offense in which the offender participated.

       With respect to OV 1, MCL 777.31(2)(b) provides that “[i]n multiple offender cases, if 1
offender is assessed points for the presence or use of a weapon, all offenders shall be assessed
the same number of points.” Defendant argues that his accomplices have not been caught,

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prosecuted, and scored for purposes of sentencing, but this did not preclude the trial court from
scoring 15 points for defendant under the plain and unambiguous language of MCL 777.31(1)(c).
The trial court, acknowledging that defendant did not possess the firearm, stated that the
multiple-offender language in MCL 777.31(2)(b) reflects “a recognition of aiding and abetting.”
We agree, given that had defendant’s gun-toting accomplice been convicted of armed robbery
and scored 15 points for OV 1 for pointing the firearm at the victims, followed by defendant’s
convictions and sentencing, the trial court would have been mandated to score 15 points for
defendant under MCL 777.31(2)(b), despite the fact that defendant did not actually possess the
firearm. But again, the trial court was not barred from scoring 15 points for OV 1 simply
because defendant’s accomplices had not yet been prosecuted, considering that the criminal
transaction involved a firearm being pointed at or toward a victim, MCL 777.31(1)(c).
Subsection 2(b) of MCL 777.31 merely reinforces this conclusion because it does suggest that a
score of 15 points is proper even when a defendant did not possess the firearm being pointed at a
victim. To rule otherwise would make the sequence or timing of prosecutions and sentencings in
multiple-offender situations a defining characteristic in regard to what score a defendant receives
on OV 1, which clearly was not the intent of the Legislature.

       The law of the case doctrine and our Supreme Court’s order in People v Johnston, 478
Mich 903; 732 NW2d 531 (2007), do not dictate a different holding. With respect to the law of
the case doctrine, the Michigan Supreme Court in Grievance Administrator v Lopatin, 462 Mich
235, 259-260; 612 NW2d 120 (2000), observed:

                Under the law of the case doctrine, “if an appellate court has passed on a
         legal question and remanded the case for further proceedings, the legal questions
         thus determined by the appellate court will not be differently determined on a
         subsequent appeal in the same case where the facts remain materially the same.”
         The appellate court's decision likewise binds lower tribunals because the tribunal
         may not take action on remand that is inconsistent with the judgment of the
         appellate court. Thus, as a general rule, an appellate court's determination of an
         issue in a case binds lower tribunals on remand and the appellate court in
         subsequent appeals. [Citations omitted.]

        The legal question passed on in the first appeal concerned whether there was sufficient
evidence to prove beyond a reasonable doubt that defendant possessed a firearm for purposes of
the felony-firearm charge and conviction. Whether there was a preponderance of evidence
showing that “[a] firearm was pointed at or toward a victim,” MCL 777.31(1)(c), for purposes of
scoring the sentencing guidelines is an entirely different legal question. Furthermore, OV 1
simply does not require possession and the pointing of a firearm by the defendant who is being
scored under OV 1, where there were other persons engaged in the offense for which the
defendant was being scored, one or more of whom possessed and pointed a firearm at a victim.
Additionally, the fact that the prosecution did not proceed under an aiding and abetting theory at
trial does not mean that aiding and abetting concepts cannot be employed in scoring OV 1 during
sentencing; again, these are entirely distinct legal issues.

         In Johnston, 478 Mich at 903-904, the Michigan Supreme Court ruled as follows in its
order:


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               We reverse that part of the Court of Appeals decision analyzing
       defendant's sentence and we remand this case to the Wayne Circuit Court for
       resentencing. The sentencing court in this case scored defendant's offense
       variables 1, 2, and 3 identically to the scores given to his co-defendants because
       each of these variables directs that for “multiple offender cases,” if one offender is
       assessed points under the variable, “all offenders shall be assessed the same
       number of points.” MCL 777.31(2)(b); MCL 777.32(2); MCL 777.33(2)(a).
       However, defendant was the only offender convicted of larceny from the person
       and conspiracy to commit larceny from the person [co-defendants had robbery
       convictions]. Thus, his was not a “multiple offender case” for either of these
       crimes. Accordingly, the multiple offender provision does not apply to the scoring
       of defendant's guidelines in this case. See People v Morson, 471 Mich 248, 260 n
       13; 685 NW2d 203 (2004).

        Johnston merely stands for the proposition that if a trial court relies on the multiple-
offender rule to score an offense variable for a defendant in a multiple-offender situation, making
the score consistent with the score given an earlier-sentenced co-defendant, the underlying
convictions for both defendants must be for the same offense. Here, no other individuals had
been prosecuted or sentenced, so Johnston is irrelevant. The trial court did not score 15 points
for defendant on the basis that the multiple-offender rule of MCL 777.31(2)(b) dictated that
score, absent any other basis existing for the score; rather, the court recognized that the multiple-
offender rule merely suggested that the scoring of OV 1 could entail an aiding and abetting
rationale. And we reiterate that a score of 15 points for OV 1 is proper if “[a] firearm was
pointed at or toward a victim,” MCL 777.31(1)(c), and indeed a firearm was pointed at the
victims during the criminal transaction as reflected in the trial testimony.

         Our holding finds support in People v Libbett, 251 Mich App 353; 650 NW2d 407
(2002). In Libbett, the defendant pointed a gun at the victim’s head during a carjacking, while
the defendant’s accomplice hit the victim. The defendant’s accomplice pled guilty and was
scored only 5 points for OV 1 at his sentencing, and the defendant was subsequently convicted
and sentenced. The defendant in Libbett, like our defendant here, was given 15 points for OV 1,
and he argued on appeal that he should have been given the same 5-point score as his accomplice
in light of MCL 777.31(2)(b). This Court rejected the defendant’s argument, ruling:

              When reading MCL 777.31 in its entirety, it is clear that the Legislature
       intended for the sentencing courts to first accurately determine the highest number
       of points that are to be scored under MCL 777.31(1)(a)-(e) and then to assess the
       same number of accurately scored points to multiple offenders in the same case
       under MCL 777.31(2)(b). If we were to read subsection 2(b) in isolation, as
       defendant suggests, then we would not be giving effect to subsection 1, which
       requires that the court first accurately score the offense variable by assigning the
       defendant the highest number of attributable points that apply. In this case,
       however, it is undisputed that the five points initially assessed to [the defendant’s
       accomplice] were scored incorrectly because both parties and the trial court
       recognized that the proper score under MCL 777.31(1) and the facts of this case
       would be fifteen points. Accordingly, we hold that [the accomplice’s] erroneous
       score for OV 1 did not statutorily bind the trial court under MCL 777.31(2)(b) to

                                                -4-
       assess the same erroneous score for defendant in this case. [Libbett, 251 Mich
       App at 367 (emphasis added).]

        The accomplice in Libbett, who was not the person pointing the gun at the victim during
the carjacking, stood in the very same position as defendant does here, and the Libbett panel
made absolutely clear that the accomplice, despite not possessing the gun and pointing it at the
victim, should still have been scored the full 15 points for OV 1. Accordingly, defendant was
properly scored 15 points in this case, where “[a] firearm was pointed at or toward a victim,”
MCL 777.31(1)(c).

       The trial court scored OV 2 at 10 points, which is the proper score if “[t]he offender
possessed or used a short-barreled rifle or a short-barreled shotgun.” MCL 777.32(1)(c). This
language specifically speaks of the “offender” possessing the weapon, and MCL 777.32(2)
contains a multiple-offender rule comparable to that in OV 1. For the reasons explained below,
we find it unnecessary to address OV 2 in this appeal.

        Next, the trial court scored OV 9 at 10 points, which is the proper score when “[t]here
were 2 to 9 victims who were placed in danger of physical injury or death[.]” MCL
777.39(1)(c). A trial court is directed to “[c]ount each person who was placed in danger
of physical injury or loss of life[.]” MCL 777.39(2)(a). Here, there was overwhelming evidence
that three victims were placed in danger of physical injury or death during the robbery. And
while the victims were placed in danger of injury or death most directly from the use of the
firearm wielded by one of defendant’s accomplices instead of defendant himself, the plain and
unambiguous language of OV 9 does not make that distinction meaningful. The trial court
properly scored 10 points for OV 9.

       Assuming without concluding that OV 2 should have been scored at zero points as
claimed by defendant instead of the 10 points that was actually scored, this would reduce
defendant’s total OV points from 35 to 25, keeping him at the same OV level that he was already
at with the 10-point score for OV 2, which is level II (20 to 39 point range). MCL 777.62.
Because scoring zero points for OV 2 would not alter the minimum sentencing range,
resentencing is not necessary. People v Francisco, 474 Mich 82, 89 n 8; 711 NW2d 44 (2006)
(“Where a scoring error does not alter the appropriate guidelines range, resentencing is not
required.”).

       Affirmed.



                                                           /s/ Michael J. Kelly
                                                           /s/ William B. Murphy
                                                           /s/ Joel P. Hoekstra




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