            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                         STATE OF MICHIGAN

                          COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                  UNPUBLISHED
                                                                  April 4, 2019
              Plaintiff-Appellee,

v                                                                 No. 341319
                                                                  Wayne Circuit Court
SHERMAN LAMONT WAGNER,                                            LC No. 13-000131-01-FC

              Defendant-Appellant.


Before: TUKEL, P.J., and SHAPIRO and GADOLA, JJ.

PER CURIAM.

       Following remand to the trial court as ordered by this Court in People v Wagner,
unpublished per curiam opinion of the Court of Appeals, issued December 15, 2015 (Docket No.
322058) (Wagner I), this matter now returns to this Court a second time. On remand, the trial
court denied defendant’s motion for resentencing and entered a judgment of sentence reflecting
defendant’s original sentence of 15 to 30 years’ imprisonment for assault with intent to murder
(AWIM), MCL 750.83, and a consecutive two years’ imprisonment for possession of a firearm
during the commission of a felony, MCL 750.227b. We affirm.

       The facts underlying defendant’s convictions are aptly set forth in Wagner I, unpub op at
1-2, and we need not repeat them here. But of note, the trial court sentenced defendant to a
minimum sentence that corresponded to the top end of defendant’s minimum sentencing
guidelines range of 108 to 180 months. After our remand, the trial court imposed the same
sentence. Defendant on appeal now contends that his minimum sentencing guidelines range has
been decreased and that as a result, he is entitled to resentencing because his 15-year (180-
month) minimum sentence for AWIM is a disproportionate sentence outside the advisory
guidelines range. We disagree.

        We review the proportionality of a defendant’s sentence for an abuse of discretion.
People v Foster, 319 Mich App 365, 375; 901 NW2d 127 (2017). “A trial court abuses its
discretion when its decision falls outside the range of reasonable and principled outcomes.” Id.

        Defendant’s argument is predicated on his view that his 180-month minimum sentence
greatly exceeds his purported “correct” guidelines range of 51 to 85 months. But defendant’s


                                              -1-
position is not supported by the record. Nowhere did this Court in Wagner I or the trial court
after our remand invalidate or revise the trial court’s initial scoring of OV 6. 1 At defendant’s
original sentencing, his total offense variable (OV) score was calculated to be 105 points, with
OV 6 accounting for 50 of those points. This Court in Wagner I noted that the trial court, in
scoring OV 6, necessarily engaged in judicial fact-finding because defendant’s conviction for
AWIM did not compel the scoring of 50 points for that OV, which would be applicable only if
defendant had a premeditated intent to kill, see MCL 777.36(1)(a). Wagner I, unpub op at 8, 9.
Consequently, this Court, id. at 9-10, remanded for a Crosby2 hearing, consistent with our
Supreme Court’s opinion in People v Lockridge, 498 Mich 358, 395-398; 870 NW2d 502 (2015).
On remand, the trial court ruled that it would not have sentenced defendant to a lesser sentence
had it known that the sentencing guidelines were advisory instead of mandatory. Therefore, the
trial court ultimately denied defendant’s request for resentencing.

        We are cognizant that no court has definitively ruled on the issue defendant raised in
Wagner I regarding whether defense counsel was ineffective by failing to object to the scoring of
OV 6. In the interests of justice, we will do so now. See MCR 7.216(A)(7). Because no
evidentiary hearing was held, our review is limited to errors apparent from the record. People v
Horn, 279 Mich App 31, 38; 755 NW2d 212 (2008). In order to establish that counsel was
ineffective, defendant must show “that counsel’s performance was deficient and that there is a
reasonable probability that, but for the deficiency,” the outcome would have been different.
People v Wilson, 252 Mich App 390, 393; 652 NW2d 488 (2002).

        OV 6 addresses the offender’s intent to kill or injure another individual. MCL 777.36(1);
see also People v Bowling, 299 Mich App 552, 561; 830 NW2d 800 (2013). OV 6 is properly
scored at 50 points if, among other things, “the offender had a premeditated intent to kill.” MCL
777.36(1)(a). “Premeditation . . . requires sufficient time to permit the defendant to take a
second look [and] may be inferred from the circumstances surrounding the [crime].” People v
Coy, 243 Mich App 283, 315; 620 NW2d 888 (2000). Other factors to consider include “(1) the
previous relationship between the defendant and the victim; (2) the defendant’s actions before
and after the crime; and (3) the circumstances of the [crime] itself, including the weapon used
and the location of the wounds inflicted.” People v Plummer, 229 Mich App 293, 300; 581
NW2d 753 (1998).

        At trial, the victim testified that he owed a debt to defendant or defendant’s friend and
after trying to avoid defendant and that friend, the victim later encountered them at a bar.
Defendant then motioned for the victim to go outside, and once they were outside, defendant
started shooting a gun at the victim. The victim testified that after defendant had already shot
him several times, defendant closed to within a couple feet and attempted to shoot him in the
head and would have done so had the gun not jammed. All told, defendant shot the victim four
times. These facts are more than sufficient to prove by a preponderance of the evidence that


1
 Nor did the Supreme Court in its denial of defendant’s application for leave to appeal Wagner I.
People v Wagner, 500 Mich 865 (2016).
2
    United States v Crosby, 397 F3d 103, 117-118 (CA 2, 2005).


                                               -2-
defendant had a premeditated intent to kill. A fact-finder easily could infer that defendant
planned to kill the victim by leading the victim outside to where there would be fewer witnesses
and where it would be easier to effectuate a getaway. Therefore, because an objection to the
scoring of OV 6 would have been futile, we hold that defense counsel was not ineffective for
failing to object. See People v Ericksen, 288 Mich App 188, 201; 793 NW2d 120 (2010)
(“Failing to advance a meritless argument or raise a futile objection does not constitute
ineffective assistance of counsel.”).3

        Therefore, the trial court’s scoring of OV 6, through its judicial fact-finding, stands at 50
points, which results in defendant’s total OV score remaining at 105 points and his minimum
sentencing guidelines range remaining at 108 to 180 months. Importantly, Lockridge did not
invalidate such judicial fact-finding. Indeed, the Lockridge Court made it clear that a trial court
is permitted to engage in judicial fact-finding, Lockridge, 498 Mich at 392 n 28, but the trial
court could not be constrained by “mandatory” minimum sentencing guidelines based on such
fact-finding, id. at 391. Instead, in order to avoid a Sixth Amendment violation based on the
combination of judicial fact-finding and mandatory guidelines, the Court struck down the
mandatory nature of the guidelines, rendering them advisory in all applications. Id. at 391, 399;
see also People v Steanhouse, 500 Mich 453, 470; 902 NW2d 327 (2017).

        “[T]his Court is required to review for reasonableness only those sentences that depart
from the range recommended by the statutory guidelines.” People v Anderson, 322 Mich App
622, 636; 912 NW2d 607 (2018). Conversely, a proportionality challenge to a sentence that falls
within the properly scored guidelines range “is presumptively proportionate and must be
affirmed.”4 People v Jackson, 320 Mich App 514, 527; 907 NW2d 865 (2017), lv pending.
Furthermore, MCL 769.34(10) codifies the instances in which a defendant can challenge his or
her sentence:

       If a minimum sentence is within the appropriate guidelines sentence range, the
       court of appeals shall affirm that sentence and shall not remand for resentencing
       absent an error in scoring the sentencing guidelines or inaccurate information
       relied upon in determining the defendant’s sentence. A party shall not raise on
       appeal an issue challenging the scoring of the sentencing guidelines or
       challenging the accuracy of information relied upon in determining a sentence
       that is within the appropriate guidelines sentence range unless the party has raised



3
  To avoid any confusion about the scope of our decision, we not only hold that defense counsel
was not ineffective for failing to object to the scoring of OV 6, we also affirmatively hold that
the trial court did not clearly err in scoring OV 6 at 50 points. See People v Hardy, 494 Mich
430, 438; 835 NW2d 340 (2013) (stating that a trial court’s findings related to sentencing are
reviewed for clear error and must be supported by a preponderance of the evidence).
4
  We are aware, however, that the issue of whether a defendant can challenge for reasonableness
a sentence that falls within the advisory guidelines range is currently pending on application for
leave to appeal before the Supreme Court. People v Ames, 501 Mich 1026 (2018).


                                                -3-
       the issue at sentencing, in a proper motion for resentencing, or in a proper motion
       to remand filed in the court of appeals.

This Court has construed this statute to mean that “[w]hen a trial court does not depart from the
recommended minimum sentencing range, the minimum sentence must be affirmed unless there
was an error in scoring or the trial court relied on inaccurate information.” People v Schrauben,
314 Mich App 181, 196; 886 NW2d 173 (2016). Therefore, we hold that because defendant’s
sentence falls within the properly calculated guidelines range, defendant cannot challenge the
proportionality of his sentence.5

       Affirmed.

                                                           /s/ Jonathan Tukel
                                                           /s/ Douglas B. Shapiro
                                                           /s/ Michael F. Gadola




5
 Consequently, because we are not remanding, we need not address defendant’s argument that
we should remand to a different judge for resentencing.


                                               -4-
