                         STATE OF MICHIGAN

                           COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   March 22, 2018
              Plaintiff-Appellee,

v                                                                  No. 336639
                                                                   Macomb Circuit Court
DAMIEN BANKS,                                                      LC No. 2013-000805-FC

              Defendant-Appellant.




Before: GLEICHER, P.J., and BOONSTRA and TUKEL, JJ

PER CURIAM.

       Defendant appeals by right the trial court’s opinion and order denying his request for
resentencing following this Court’s Crosby1 remand. We affirm.

                  I. PERTINENT FACTS AND PROCEDURAL HISTORY

       This Court set forth the facts underlying defendant’s convictions in his previous appeal:

       Brad Bohen lived down the street from Tiffany Greathouse. After meeting in the
       neighborhood, Bohen became friends with Greathouse’s brother, Maliki
       Greathouse, and her boyfriend, defendant []. On the day in question, Bohen
       testified that [defendant] and Maliki were visiting his home when he took a phone
       call from his attorney. Bohen told his attorney that he had gathered sufficient
       money to pay a $650 retainer plus additional fees and that he wished to procure
       his services. When [defendant] and Maliki heard this conversation, they allegedly
       looked at each other and left.

              Later that day, Bohen left his home with approximately $2,500 in cash in
       his pocket. He travelled with his friend Renee Nomer and her two children to
       Costco and then to T.G.I. Friday’s for dinner. While inside the restaurant, Bohen


1
 United States v Crosby, 397 F3d 103 (CA 2, 2005), abrogated in part on other grounds by
United States v Fagans, 406 F3d 138 (CA 2, 2005).


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       fielded two phone calls from [defendant]. Bohen alleged that [defendant] wanted
       him to purchase some Xanax and Adderall from him. Bohen told Banks that he
       could meet him at the restaurant. [Defendant] called once and claimed to be
       outside the restaurant. Bohen could not find him in the parking lot and returned to
       his table. Bohen testified that [defendant] called again and claimed to be waiting
       outside. When Bohen exited the restaurant, he saw Greathouse sitting inside a
       vehicle in the parking lot. Bohen asserted that Greathouse pointed toward the
       back of the restaurant.

               Bohen walked toward the back parking lot and saw [defendant] and Lyons
       standing near the dumpster. Lyons is the boyfriend of Greathouse’s mother and
       Bohen had not met him before the attack. As Bohen approached the men,
       someone struck him from behind in the head and he fell to the ground.
       [Defendant] and Lyons ran toward him, and Bohen initially believed they were
       coming to assist him. However, [defendant] and Lyons joined the fray, keeping
       him on the ground, and hitting and kicking him. A young female employee of the
       restaurant came out at the end of her shift and saw two tall, thin black men
       wearing hooded jackets beating a white man who was curled on the ground in
       fetal position. One man was using a “small, blunt object” that “looked like a
       hammer” to beat the victim in the head. She saw a third man standing watch. She
       yelled and the men ran away, with one man dropping something out of his pocket
       along the way. At the end of this encounter, Bohen had only $661 remaining in
       his pockets.

              Bohen was hospitalized for five days and required surgery to remove a
       shard of his skull from his brain. Investigating officers brought photographic
       lineups to the hospital for Bohen’s review. The first included black and white
       photographs and Bohen was unable to identify his attackers. In the second lineup,
       Bohen identified [defendant]. In a third, Bohen selected Lyons from the array.

               Following a joint trial before a single jury and several days of jury
       deliberations, the jury . . . convicted [defendant and Lyons] of assault with intent
       to commit great bodily harm, armed robbery, and conspiracy to commit those
       offenses.[2]

       Defendant was convicted by a jury of assault with intent to do great bodily harm less than
murder, MCL 750.84, conspiracy to commit assault with intent to do great bodily harm less than
murder, MCL 750.157a; MCL 750.84, armed robbery, MCL 750.529, and conspiracy to commit
armed robbery, MCL 750.157a; MCL 750.84, and subsequently sentenced to 6 to 20 years’




2
  People v Lyons, unpublished per curiam opinion of the Court of Appeals, issued October 22,
2015 (Docket Nos. 319252 and 319889). Defendant’s previous appeal was consolidated with
that of his codefendant, David Lyons.


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imprisonment for the two assault related charges, and 15 to 40 years’ imprisonment for the two
armed robbery related charges.

        This Court affirmed defendant’s convictions, but vacated his sentences, holding that
defendant was entitled to a remand in order for the trial court to determine whether it would have
imposed a materially different sentence in light of our Supreme Court’s determination in People
v Lockridge, 498 Mich 358; 870 NW2d 502 (2015), that the sentencing guidelines were advisory
only. 3 On remand, the trial court declined to resentence defendant, holding that the sentence
imposed remained appropriate. Defendant now appeals a second time.

                                    II. SCOPE OF REMAND

       Defendant argues that he is entitled to resentencing because the trial court improperly
assessed defendant points for Offense Variables (OVs) 3 and 10, which he contends both should
have been scored at zero. We conclude that defendant’s argument is outside the scope of this
Court’s remand order.

        “[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),
citing People v Jones, 394 Mich 434; 231 NW2d 649 (1975). In this case, defendant’s sentences
were vacated and the case remanded by this Court for proceedings “consistent with Lockridge,
498 Mich at 434-438,” and United States v Crosby, 397 F3d 103, 117-118 (CA 2, 2005). A
Crosby remand under Lockridge is “[a] remand for a determination of whether to resentence” a
defendant. Crosby, 397 F3d at 117 (emphasis in original); see also Lockridge, 498 Mich at 398,
quoting Crosby, 397 F3d at 120 (“[T]he trial court shall ‘either place on the record a decision not
to resentence, with an appropriate explanation, or vacate the sentence and, with the Defendant
present, resentence in conformity with’ this opinion.).

        Defendant did not raise in his initial appeal the issue of his entitlement to resentencing
based on allegedly improperly scored OVs, but only argued that the trial court had engaged in
judicial fact-finding with regard to those variables and that remand was required under
Lockridge. This Court held that the trial court had engaged in judicial fact-finding in relation to
the scoring of OV 3 and OV 10, and that defendant was therefore entitled to a Crosby remand in
order for the trial court to determine whether it would have imposed a materially different
sentence, under the circumstances existing at the time of the original sentence, if the court had
known that the guidelines were advisory rather than mandatory. See Lockridge, 498 Mich at
398. This Court did not “leave open any [other] issue [] for further resolution on remand,”
Kincade, 206 Mich App at 481-482, and in keeping with the instructions of the remand order, the
trial court determined that it would not have imposed a different sentence in light of Lockridge.
Accordingly, defendant’s new arguments regarding the scoring of OV 3 and OV 10 are outside
the scope of the initial remand and we decline to address them. Id.



3
    Lyons, unpub op at 15.


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                                III. JUDICIAL FACT-FINDING

        Defendant also argues in the alternative that, regardless of any scoring errors, defendant
is entitled to a remand for resentencing because the trial court unconstitutionally engaged in
judicial fact-finding. We disagree. As this Court stated in the prior appeal, a trial court’s use of
judge-found facts is permissible in assessing a defendant points for offense variables. The
Lockridge Court specifically stated that its holding did not “undercut the requirement that the
highest number of points possible must be assessed for all OVs, whether using judge-found facts
or not.” Lockridge, 498 Mich at 392 n 28 (emphasis added). See also People v Steanhouse, 500
Mich 453, 465-470; 902 NW2d 327 (2017); Biddles, 316 Mich App at 158. Defendant’s
argument is without merit.

       Affirmed.



                                                             /s/ Elizabeth L. Gleicher
                                                             /s/ Mark T. Boonstra
                                                             /s/ Jonathan Tukel




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