                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    July 26, 2016
               Plaintiff-Appellee,

v                                                                   Nos. 325861; 331911
                                                                    Genesee Circuit Court
RICHARD ALLEN SMITH,                                                LC No. 13-034288-FC

               Defendant-Appellant.


Before: WILDER, P.J., and MURPHY and O’CONNELL, JJ.

PER CURIAM.

        In Docket No. 325861, defendant appeals as of right his jury trial conviction of voluntary
manslaughter, MCL 750.321. The trial court originally sentenced defendant in January 2015 to a
prison term of 10 to 15 years, which was a departure from the sentencing guidelines range of 36
to 71 months. While the appeal in Docket No. 325861 was pending, this Court granted
defendant’s motion to remand in order to allow him to move for a new trial and resentencing.
On remand, the trial court denied defendant’s motion for new trial but granted his request for
resentencing; however, the court again departed from the corrected guidelines range of 29 to 57
months, imposing the same sentence of 10 to 15 years’ imprisonment. In Docket No. 331911,
defendant appeals as of right the judgment of sentence imposed upon resentencing. We affirm.

                    I. FACTUAL AND PROCEDURAL BACKGROUND

        Defendant’s conviction arises from the fatal beating of 17-year-old Benjamin Tatro at a
party in Burton, Michigan. Defendant was tried jointly with codefendant Richard Zinn, before
separate juries. There was evidence presented showing that Zinn engaged in a fight with Tatro in
the road next to the house where the party was being held. Zinn punched Tatro in the face, and
then Zinn forced Tatro across the street, where Tatro tripped over the curb and fell to the ground.
Zinn got on top of Tatro and struck him, inflicting, as reflected in various accounts, anywhere
from one to six blows. Tatro did not fight back. During the incident, defendant stood to the side
and watched. The fight was broken up, and Tatro, Zinn, and defendant went inside the “party”
house. There was mixed testimony concerning Tatro’s condition at this point. One witness
observed that Tatro looked normal except for a bloody nose; one witness did not believe that
Tatro had any injuries or blood on his face; these same two witnesses also indicated that Tatro
walked into the house under his own power; another witness stated that Tatro had to be carried
into the house; and a final witness testified that Tatro walked into the house, but with physical

                                                -1-
support from others. The evidence indicated that both Zinn and defendant were much larger than
the diminutive Tatro.

         Five to ten minutes later, a witness observed Tatro, Zinn, and defendant in a back
bedroom of the house, with Tatro seated in a recliner and defendant punching him in the face.
The witness testified that Tatro was unconscious, that “there was blood all over his face, pouring
out of his nose and out of his mouth,” and that Tatro “was pretty beat up.” The witness then
yelled at defendant, and defendant responded that he had only hit Tatro “a few times.” Other
witnesses testified to the presence of holes in the wall of the bedroom and blood splatter on the
carpet and wall, which had not been there previously. Witnesses who later saw defendant
testified that his hands, shirt, and pants were covered in blood. A witness who queried defendant
about what had happened testified that defendant responded that “he had beat up a kid, and he . .
. thought that he may had killed him.” Defendant indicated to the witness that he was “pretty
sure” that he had seriously injured Tatro. Defendant told another witness that he had hit Tatro
twice earlier, but that it was “other people” who beat Tatro in the back bedroom of the house.

        There was medical testimony that Tatro’s pancreas had been torn in two, that his spleen
had to be removed, that he suffered damage to his liver, that he had abrasions, contusions, and
bruises about his head and face, including two black eyes, that there were hemorrhages under the
surface of his scalp, that his right earlobe was split, and that Tatro’s brain was swollen. Tatro
died nine days after the assault. The cause of death was determined to be blunt force trauma.

        Both defendant and Zinn were charged with open murder. Defendant’s jury was
instructed on first-degree premeditated murder, MCL 750.316(1)(a), second-degree murder,
MCL 750.317, and voluntary manslaughter. The jury convicted defendant of voluntary
manslaughter. Zinn requested and received an instruction on simple assault and battery, MCL
750.81, which was not requested by defendant’s counsel, and Zinn was convicted of assault and
battery and sentenced to 93 days in jail, which he had already served. The trial court, departing
from the minimum guidelines range of 36 to 71 months, sentenced defendant to 10 to 15 years’
imprisonment. On appeal in Docket No. 325861, defendant argued that defense counsel was
ineffective for failing to request a jury instruction on assault and battery and that there were a
variety of sentencing errors, including the assessment of two points for prior record variable
(PRV) 5, MCL 777.55. While the appeal was pending, this Court granted defendant’s motion to
remand, allowing defendant to “file a motion for a new trial and for resentencing” and directing
the trial court to “conduct an evidentiary hearing and resentence defendant . . ., if deemed
appropriate.” People v Smith, unpublished order of the Court of Appeals, entered September 17,
2015 (Docket No. 325861).

        On remand, defendant filed a motion for new trial and resentencing, raising the
ineffective assistance claim and the alleged sentencing errors and requesting an evidentiary or
Ginther1 hearing. The trial court construed this Court’s remand order as giving it the discretion to
determine whether to conduct an evidentiary hearing, as well as resentencing, on the basis of


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


                                                -2-
whether it was “deemed appropriate.” We are uncertain whether this interpretation of this
Court’s less-than-clear remand order comported with the panel’s intent, but the trial court’s
construction cannot be viewed as being unreasonable. The trial court ruled that it was
unnecessary, or not appropriate, to conduct a Ginther hearing, as the trial court was adamant that
it would not have instructed the jury on assault and battery even had it been requested by defense
counsel, given that a rational view of the evidence did not support a simple assault and battery
instruction. Accordingly, the trial court denied defendant’s request for a new trial. But the trial
court did grant defendant’s motion for resentencing, finding that PRV 5 should have been
assessed at zero points, which decreased the minimum sentence range to 29 to 57 months.
Nevertheless, on resentencing, now under advisory guidelines, People v Lockridge, 498 Mich
358; 870 NW2d 502 (2015), the trial court again departed from the guidelines and sentenced
defendant to 10 to 15 years’ imprisonment. Defendant challenges the resentencing in Docket
No. 331911.

          II. DOCKET NO. 325861 – INEFFECTIVE ASSISTANCE OF COUNSEL

        Defendant maintains that defense counsel was ineffective for failing to request an
instruction on assault and battery. Whether counsel was ineffective presents a mixed question of
fact and constitutional law, which we review, respectively, for clear error and de novo. People v
LeBlanc, 465 Mich 575, 579; 640 NW2d 246 (2002). In People v Carbin, 463 Mich 590, 599-
600; 623 NW2d 884 (2001), our Supreme Court, addressing the well-established principles
governing a claim of ineffective assistance of counsel, observed:

               To justify reversal under either the federal or state constitutions, a
       convicted defendant must satisfy the two-part test articulated by the United States
       Supreme Court in Strickland v Washington, 466 US 668; 104 S Ct 2052; 80 L Ed
       2d 674 (1984). See People v Pickens, 446 Mich 298, 302-303; 521 NW2d 797
       (1994). “First, the defendant must show that counsel’s performance was deficient.
       This requires showing that counsel made errors so serious that counsel was not
       performing as the ‘counsel’ guaranteed by the Sixth Amendment.” Strickland,
       supra at 687. In so doing, the defendant must overcome a strong presumption that
       counsel’s performance constituted sound trial strategy. Id. at 690. “Second, the
       defendant must show that the deficient performance prejudiced the defense.” Id.
       at 687. To demonstrate prejudice, the defendant must show the existence of a
       reasonable probability that, but for counsel’s error, the result of the proceeding
       would have been different. Id. at 694. “A reasonable probability is a probability
       sufficient to undermine confidence in the outcome.” Id. Because the defendant
       bears the burden of demonstrating both deficient performance and prejudice, the
       defendant necessarily bears the burden of establishing the factual predicate for his
       claim. See People v Hoag, 460 Mich 1, 6; 594 NW2d 57 (1999).

An attorney’s performance is deficient if the representation falls below an objective standard of
reasonableness. People v Toma, 462 Mich 281, 302; 613 NW2d 694 (2000).

       In People v Cornell, 466 Mich 335, 357; 646 NW2d 127 (2002), the Michigan Supreme
Court held “that a requested instruction on a necessarily included lesser offense is proper if the
charged greater offense requires the jury to find a disputed factual element that is not part of the

                                                -3-
lesser included offense and a rational view of the evidence would support it.” The Court ruled
that “MCL 768.32(1) does not permit cognate lesser instructions.” Id. at 359. Here, both
defendant and the prosecution agree that assault and battery is a necessarily included lesser
offense of murder. We decline to address and resolve that particular question. Rather, we shall
proceed with our analysis on the assumption that assault and battery is a necessarily included
lesser offense of murder.2 A “battery is an intentional, unconsented and harmful or offensive
touching of the person of another,” and an “assault” is either an attempt to commit a battery or an
unlawful act that places another person in reasonable apprehension of an immediate battery.
People v Nickens, 470 Mich 622, 628; 685 NW2d 657 (2004) (citation and quotation marks
omitted).

        For purposes of our analysis, we shall also accept the contention by defendant’s appellate
counsel that trial counsel’s failure to request an assault and battery instruction was not part of a
strategic all-or-nothing defense. In an affidavit executed by appellate counsel and attached to
defendant’s motion to remand, counsel averred that she spoke to trial counsel and that trial
counsel “stated that he never considered requesting an assault and battery instruction” and
“remarked that it was simply something that did not occur to him at the time.” We surmise that
defendant had desired to elicit testimony from trial counsel to that effect at a Ginther hearing,
which never came to fruition. We shall assume the accuracy of appellate counsel’s affidavit
regarding trial counsel’s communications to appellate counsel, thereby negating defendant’s
insistence that the case be remanded once again so that a Ginther hearing can finally be
conducted. Ultimately, even with our assumptions concerning trial counsel’s mindset and that
assault and battery is a necessarily included lesser offense of murder, defendant fails to establish
deficient performance and the requisite prejudice. We agree with the trial court’s assessment
that a rational view of the evidence did not support an instruction on simple assault and battery.
Generally speaking, this Court reviews for an abuse of discretion a trial court’s determination
that a rational view of the evidence did not support a requested jury instruction. People v Gillis,
474 Mich 105, 113; 712 NW2d 419 (2006).

        As noted by JUSTICE WILLIAMS in People v Johnson, 407 Mich 196, 218; 284 NW2d 718
(1979), Chapter XI of the Penal Code, which covers assaults, MCL 750.81 et seq., “lists a series
of assaults punishable as either misdemeanors or felonies depending on the severity of the
offense.” And the least severe offense is simple assault and battery under MCL 750.81(1), which
is a 93-day misdemeanor and does not require any injury to have been inflicted. In light of the
evidence showing that defendant was beating an unconscious Tatro, whom defendant knew had
already been thrashed by Zinn, that blood splatter covered defendant and parts of the bedroom,
that Tatro’s injuries were extensive and horrific, as recited above, and that Tatro died from his
injuries, a rational view of the evidence plainly did not support a simple assault and battery
instruction. There was evidence that defendant himself feared that Tatro might die from the
beating.



2
 We do note that the prosecution’s theory of the case had always been murder by battery, which
was known by defendant.


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        It is important to recognize that the jury’s verdict finding defendant guilty of voluntary
manslaughter reflected a determination that defendant, through the assault, and albeit with
adequate provocation or in the heat of passion, caused Tatro’s death and that defendant had
either the intent to kill, the intent to commit great bodily harm, or the intent to create a very high
risk of death or great bodily harm. See People v Mendoza, 468 Mich 527, 540; 664 NW2d 685
(2003) (reciting elements of voluntary manslaughter). In general, a rational view of the evidence
will support an instruction on a necessarily included lesser offense when the evidence reflects an
actual and sufficient dispute regarding a factual element that differentiates the greater offense
from the lesser offense. Cornell, 466 Mich at 352, 361. The primary factual element
differentiating assault and battery from murder is the death of a victim resulting from the assault
and battery, but there was no dispute here that Tatro died as a result of the beating. And, given
the record, there was not a sufficient dispute concerning whether it was defendant’s actions alone
or in conjunction with Zinn’s assault that caused the death (aiding and abetting), as opposed to
Zinn’s unassisted conduct alone causing Tatro’s death. Moreover, even if there was a sufficient
dispute on that matter, the jury’s verdict would undermine any claim of prejudice, where the
jurors agreed that defendant’s conduct, for purposes of voluntary manslaughter, caused Tatro’s
death.

        This case was not a simple assault and battery case relative to defendant.3 Accordingly, a
request for an assault and battery instruction would have been futile, which the trial court itself
confirmed on remand, and the court’s position that a rational view of the evidence would not
have supported an assault and battery instruction did not constitute abuse of discretion. Counsel
is not ineffective for failing to raise a futile or meritless claim. People v Snider, 239 Mich App
393, 425; 608 NW2d 502 (2000). And given the jury’s conclusion that defendant caused Tatro’s
death and that the trial court was adamant that it would not have given an assault and battery
instruction even if requested, defendant cannot establish the requisite prejudice. Reversal is
unwarranted.

                         III. DOCKET NO. 331911 – RESENTENCING

        Defendant argues, with respect to resentencing, that OV 5, MCL 777.35 (psychological
injury to member of victim’s family), was improperly assessed at 15 points, that OV 6, MCL
777.36 (intent to kill or injure), was improperly assessed at 25 points,4 that OV 7, MCL 777.37


3
  We acknowledge defendant’s argument that the trial court instructed Zinn’s jury on assault and
battery, suggesting that defendant was equally entitled to such an instruction had it been
requested; however, as somewhat alluded to by the trial court, the argument fails to appreciate
the distinctions between the evidence inculpating defendant and that incriminating Zinn. The
trial court voiced on multiple occasions its belief that Zinn was likely the more culpable party,
but the court also recognized that the nature of the evidence actually presented was more
damaging to defendant.
4
 At resentencing, the trial court, on agreement by the parties, reassessed OV 6 at ten points,
which is the number of points that defendant claims on appeal is the appropriate total.
Accordingly, defendant’s argument concerning the scoring of OV 6 is moot.


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(aggravated physical abuse), was improperly assessed at 50 points, that OV 8, MCL 777.38
(victim asportation), was improperly assessed at 15 points, that OV 10, MCL 777.40
(exploitation of vulnerable victim), was improperly assessed at 5 points, and that OV 19, MCL
777.49 (interference with administration of justice), was improperly assessed at 10 points.
Defendant argues that the scores were improper because (1) they entailed unconstitutional
judicial fact-finding under Lockridge, 498 Mich 358, and (2) they were not supported by the
evidence, even allowing for judicial fact-finding. Defendant also argues that counsel was
ineffective for failing to object to the scores for OVs 5 through 8 and 10.

        On resentencing, the trial court, as noted earlier, reduced PRV 5 from two to zero points,
decreased OV 6 from 25 to ten points, and increased OV 19 from zero to ten points, leaving all
other scores intact from the original sentencing and giving defendant a total PRV score of zero
points and a total OV score of 130 points. This placed defendant at PRV level A and OV level
VI in the applicable class C grid, MCL 777.64, thereby providing a guidelines range of 29 to 57
months. OV level VI is the highest OV level available and is implicated with a total OV score of
75 or more points. MCL 777.64.

        With respect to defendant’s constitutional argument under Lockridge, judicial fact-
finding in the context of the now advisory guidelines is constitutionally permissible. People v
Biddles, __ Mich App __, __; __ NW2d __ (2016); slip op at 5-7, citing and quoting Lockridge,
498 Mich at 364-365, 389, 392 n 28. At the time of resentencing, the sentencing guidelines were
advisory pursuant to Lockridge, 498 Mich at 364-365, 399, and the trial court was fully aware of
Lockridge at resentencing, noting that it no longer needed to supply substantial and compelling
reasons for a departure, see id. Accordingly, while most if not all of the OVs at issue required
judicial fact-finding for purposes of scoring, which scores were not supported by admissions or
the jury’s verdict, the advisory nature of the guidelines renders defendant’s constitutional
challenge obsolete.

        With respect to defendant’s traditional evidentiary challenge of the OVs, “if the trial
court clearly erred in finding that a preponderance of the evidence supported one or more of the
OVs or otherwise erred in applying the facts to the OVs, People v Hardy, 494 Mich 430, 438;
835 NW2d 340 (2013), and if the scoring error resulted in an alteration of the minimum sentence
range, he would be entitled to resentencing, People v Francisco, 474 Mich 82, 89; 711 NW2d 44
(2006).” Biddles, __ Mich App at __; slip op at 4. We first turn our attention to OV 7, which, at
the time of the offense and sentencing, directed a score of 50 points 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).5 In light of the severe
nature of Tatro’s injuries, the evidence that he was being beaten while unconscious, and the
savagery exhibited by the blood splatter, the trial court did not clearly err in finding that a


5
  Pursuant to 2015 PA 137, made effective January 5, 2016, the day after defendant’s
resentencing, MCL 777.37(1)(a) now provides that a score of 50 points is proper when “[a]
victim was treated with sadism, torture, excessive brutality, or similarly egregious conduct
designed to substantially increase the fear and anxiety a victim suffered during the offense.”



                                                -6-
preponderance of the evidence supported the assessment of 50 points for OV 7. Tatro was
treated with, and defendant’s conduct exhibited, at a minimum, excessive brutality.

         Taking into consideration the assessment of 25 points for OV 3, MCL 777.33(1)(c)
(physical injury to victim), which score is not challenged on appeal, the assessment of ten points
for OV 6, as reduced by the court upon stipulation of the parties (see footnote 4 above), and our
affirmance of the 50-point assessment for OV 7, defendant’s total OV score would be 85 points,
leaving him at OV level VI (75+ points), which is where he is currently placed. Thus, even if the
remaining challenges regarding OVs 5, 8, 10, and 19 were successful, it would not alter the
minimum guidelines range, making resentencing unnecessary. Regardless, there was adequate
record evidence showing serious psychological injury to a member of Tatro’s family, OV 5,
MCL 777.35(1)(a) (mother’s letter to court reflecting family’s agony), showing asportation of
Tatro to another place of greater danger, OV 8, MCL 777.38(1)(a) (movement of Tatro to a back
bedroom to renew assault), showing exploitation of Tatro due to size and strength differences,
intoxication, and unconsciousness, OV 10, MCL 777.40(1)(c), and showing interference or
attempted interference with the administration of justice, OV 19, MCL 777.49(c) (defendant’s
failed efforts to thwart stranger’s attempt to involve police and obtain help for Tatro). Reversal
is unwarranted. And given our analysis, defendant’s associated ineffective assistance claim also
fails, as neither deficient performance nor prejudice has been established. Carbin, 463 Mich at
600.

       Defendant finally argues that the trial court violated the United States and Michigan
Constitutions by sentencing him to 10 to 15 years’ imprisonment. The gist of defendant’s
appellate argument is that the trial court failed to consider a litany of alleged mitigating
circumstances that reflected defendant’s rehabilitative capacity.

        In Lockridge, 498 Mich at 392, our Supreme Court held that “[a] sentence that departs
from the applicable guidelines range will be reviewed by an appellate court for reasonableness.”
The Supreme Court provided virtually no elaboration, and this Court in People v Steanhouse,
313 Mich App 1; __ NW2d __ (2015), undertook the task of construing the new
“reasonableness” standard. The Steanhouse panel decided that the “principle of proportionality”
test recognized in People v Milbourn, 435 Mich 630, 634-636; 461 NW2d 1 (1990), should
govern the “reasonableness” analysis relative to departures, subject to an abuse of discretion
standard of review. Steanhouse, 313 Mich App at 44-48. The principle of proportionality
requires sentences to be proportionate to the seriousness of the circumstances surrounding the
offense and to the nature of an offender’s background. Id. at 45. In terms of a departure and
proportionality, factors to consider include the seriousness of an offense, whether facts were
adequately addressed in the guidelines, custodial misconduct by the offender, expressions of
remorse, and the offender’s potential for rehabilitation. Id. at 46. The Court in Milbourn
indicated that mitigating and aggravating variables should be considered in examining
proportionality. Milbourn, 435 Mich at 660-661.

        Defendant briefly mentions Lockridge, makes no reference to Steanhouse, which had
been released six months prior to the filing of defendant’s appellate brief, and presents no
meaningful discussion of the principle of proportionality, as he fails to acknowledge any aspects
regarding the character and nature of the offense. Contrary to defendant’s argument, the
transcript of the resentencing hearing clearly showed that the trial court considered many

                                               -7-
mitigating factors associated with defendant’s personal background. Indeed, the trial court was
fairly sympathetic to defendant’s situation, it certainly was aware of defendant’s nearly spotless
criminal background, it agreed with defense counsel that defendant had the capacity to do good,
and the court expressed its belief that defendant, in general, “was a very respectful young man.”6
The trial court, however, concluded that the brutal and incomprehensible nature of the offense, as
reflected in part by the types of injuries incurred by Tatro and the young man’s death, dictated
the sentence imposed. Again, defendant steers clear of that prong of the proportionality test that
requires contemplation of the seriousness of the offense. The trial judge noted that it would
remember the case “until I take my last breath.” Considering the record and the evidence of a
truly horrific assault, we cannot find any abuse of discretion by the trial court in departing from
the guidelines and imposing the ten-year minimum prison term. With respect to the departure
and the extent of the departure, the sentence was reasonable, given that it was proportionate to
the offense and the offender. Defendant’s attendant claims of ineffective assistance of counsel
likewise fail.

       Affirmed.



                                                            /s/ Kurtis T. Wilder
                                                            /s/ William B. Murphy
                                                            /s/ Peter D. O'Connell




6
  Further, some of defendant’s mitigation claims are not even supported by the record, such as
the contention that the presentence investigation report (PSIR) suggested that defendant “has a
serious mental disease or defect.” Defendant devotes several pages to arguing that mental illness
is a mitigating factor that must be considered. There is, however, nothing in the PSIR that can be
construed as indicating or inferring that defendant has a mental disease or defect, let alone a
serious one, nor does the record otherwise suggest that defendant suffers from a mental illness.
Furthermore, defendant’s reliance on his substance abuse history, which is discussed in the PSIR,
is misplaced, as it hardly qualifies as a mitigating factor. Additionally, the trial court placed
some reliance for the departure on its determination that the sentencing guidelines, and in
particular the OVs, were woefully inadequate in addressing the offense, where defendant’s total
OV score was nearly double the amount needed to place him at the top OV level in the grid.
Defendant is silent on this determination, and we see no basis to disturb it.


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