            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PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     December 12, 2019
               Plaintiff-Appellee,

v                                                                    No. 346785
                                                                     Lenawee Circuit Court
MICHAEL EUGENE LEAHY,                                                LC No. 17-018460-FC

               Defendant-Appellant.


Before: BECKERING, P.J., and BORRELLO and M. J. KELLY, JJ.

PER CURIAM.

       Defendant, Michael Leahy, appeals by leave granted1 his plea-based conviction of armed
robbery, MCL 750.529. The trial court sentenced Leahy to 200 to 600 months imprisonment for
his conviction. We affirm.

                                        I. BASIC FACTS

         On February 5, 2017, Leahy robbed the Jasper Food and Fuel convenience store. As a
result of the robbery, Leahy was charged with armed robbery, carrying a dangerous weapon with
unlawful intent (Count 2), MCL 750.226, and possession of a firearm during the commission of a
felony (felony-firearm) (Count 3), MCL 750.227b, as a fourth-offense habitual offender, MCL
769.12. Leahy pleaded guilty to armed robbery in exchange for the dismissal of counts 2 and 3,
and the fourth-offense habitual offender notice. As part of the factual basis for his plea, Leahy
testified that he possessed a flashlight during the robbery, and stated that he implied that it was a
gun.




1
 People v Leahy, unpublished order of the Court of Appeals, entered January 24, 2019 (Docket
No. 346785).



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                                        II. SENTENCING

                                  A. STANDARD OF REVIEW

        Leahy argues that the trial court erred by scoring offense variables (OV) 1, 2, 4, and 13.
“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.” People v Hardy, 494
Mich 430, 438; 835 NW2d 340 (2013). “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.” Id.

                                          B. ANALYSIS

                                         1. OVS 1 AND 2

       Leahy argues that the trial court erred by scoring OVs 1 and 2 because, as part of his plea
agreement, the prosecution agreed to not use counts 2 and 3 to score the sentencing guidelines.
In support, he references the following statements made during the plea hearing:

              [Leahy’s lawyer]: It would be Count 1, armed robbery. Sentencing would
       be within the guideline range as determined by the Court. Counts 2 and 3 would
       be dismissed along with any habitual or supplemental [sic] to this matter at
       sentencing and would not be used in computation of those guidelines.

              The Court: Count [sic] 2 and 3 would not be used in computation of the
       guidelines?

              [Leahy’s lawyer]: No. Count [sic] 2 and 3 would be dismissed upon
       sentencing.

              The Court: Okay. But he’s to admit all for sentencing and restitution
       purposes.

                [Leahy’s lawyer]: Your Honor, I believe that that would not be necessary
       in light of our plea.

              [Prosecution]: The plea that he is going to enter today, I believe, will
       make it so Count 3 will not be a convictable charge.

              The Court: Okay. All right. So Count 3 was added for purposes of—
       okay. So Count 3 will not be considered.

               [Prosecution]: That’s correct.

       Leahy subsequently informed the trial court that it was his intention to accept the plea
agreement, and the court responded: “And then Count 2 would be dismissed, Count 3 would not
be considered for purposes of scoring the guidelines, and your habitual offender fourth offense
notice would also be dismissed. Is that correct?” Leahy agreed. Accordingly, although Leahy’s

                                                 -2-
lawyer initially stated that neither count 2 nor count 3 would be used to score the sentencing
guidelines, when asked to clarify, he told the court that the charges would only be dismissed.
Subsequently, all references to the agreement only indicated that count 3 would not be
considered when scoring the sentencing guidelines. As a result, it is not evident from this record
that the prosecution waived, i.e., intentionally relinquished, any scoring of the guidelines based
on counts 2 and 3 or if it only waived the use of count 3 for scoring purposes.

        Nevertheless, even if the prosecution had waived the use of both counts 2 and 3 for
purposes of scoring the sentencing guidelines, that did not also waive the use of any facts that
would have been necessary to sustain convictions for those counts. In other words, nothing in
the plea transcript suggests that the prosecution was waiving the right to argue that during the
armed robbery Leahy possessed a gun. In fact, the court was required to evaluate the armed
robbery when scoring the guidelines. “Offense variables must be scored giving consideration to
the sentencing offense alone, unless otherwise provided in the particular variable.” People v
McGraw, 484 Mich 120, 133; 771 NW2d 655 (2009). In connection, with his plea, Leahy stated
that he had a flashlight that he implied was a gun. The prosecution, however, was free to present
evidence to establish that he actually possessed a gun, and it did so in the form of photographs
from the scene and testimony. Based on the evidence presented at the sentencing hearing, the
court assessed 15 points for OV 1 and 5 points for OV 2.

         OV 1 is assessed 15 points if “[a] firearm was pointed at or toward a victim . . . .” MCL
777.31(1)(c). OV 2 must be assessed five points if “[t]he offender possessed or used a pistol,
rifle, shotgun . . . .” MCL 777.32(1)(d). At sentencing, a police detective testified that he
reviewed photographs from the robbery and based on his experience and knowledge, he opined
that Leahy was holding a gun. The photographs were admitted into evidence. Based on the
testimony and photographs, the court found:

       In this case we’ve had testimony by the detective and also had an opportunity to
       review photos from the scene, which do very closely show the weapon that was
       held in his hand. And based upon the testimony and the fact that the way that he
       held the gun and the fact that the butt of the gun was visible and the way he held
       it, I do believe . . . a firearm was pointed at the victim in this matter.

Considering the evidence admitted, we conclude that OV 1 was properly assessed 15 points and
OV 2 was properly scored at 5 points.

                                            2. OV 4

        Leahy argues that the trial court erred in assessing 10 points for OV 4 where there was no
evidence of psychological injury requiring professional help. OV 4 is assessed 10 points if
“[s]erious psychological injury requiring professional treatment occurred to a victim.” MCL
777.34(1)(a). A trial court must assess “10 points if the serious psychological injury may require
professional treatment. In making this determination, the fact that treatment has not been sought
is not conclusive.” MCL 777.34(2). “The trial court may assess 10 points for OV 4 if the victim
suffers, among other possible psychological effects, personality changes, anger, fright, or
feelings of being hurt, unsafe, or violated.” People v Armstrong, 305 Mich App 230, 247; 851
NW2d 856 (2014). However, “a victim’s fear during a crime by itself and without any other

                                               -3-
showing of psychological harm” is insufficient to assess 10 points for OV 4. People v White,
501 Mich 160, 164; 905 NW2d 228 (2017). In this case, at sentencing, the store clerk testified as
follows:

               But that, you know, he just made me more aware, made me have to look at
       every customer, are you going to try to rob me with a gun? And I shouldn’t have
       to do that. And because like I said, we are one family there. And now when I get
       a strange customer, it’s like, “Okay, who are you and why are you in here?”
       because they’re not a regular. So he really made it harder to be more open and
       friendly with the customers because I don’t know what they’re going to do. And
       that’s not right. And that he can threaten somebody and then get away and then,
       you know, it just -- no, I didn’t -- very uncomfortable in my job.

Based on this testimony, it is clear that the store clerk suffered personality changes because she
views the customers differently and struggles with being friendly with them. She also suffered
feelings of being unsafe because now when she gets a customer who is not a regular customer,
she questions what they are going to do. Therefore, the store clerk’s statements about the way
the robbery affected her work life demonstrate that she suffered a psychological injury requiring
the assessment of 25 points for OV 4.2

                                            3. OV 13

        Leahy argues that the trial court erred by assessing 25 points for OV 13 and believes that
the court should have only scored 10 points. OV 13 is assessed 25 points if “[t]he offense was
part of a pattern of felonious criminal activity involving 3 or more crimes against a person.”
MCL 777.43(1)(c). Ten points are assessed if “[t]he offense was part of a pattern of felonious
criminal activity involving a combination of 3 or more crimes against a person or property . . . .”
MCL 777.43(1)(d). “For determining the appropriate points under this variable, all crimes
within a 5-year period, including the sentencing offense, shall be counted regardless of whether
the offense resulted in a conviction.” MCL 777.43(2)(a).

       The trial court assessed 25 points for OV 13 because it was part of a pattern of felonious
criminal activity involving three or more crimes against a person. In doing so, the court counted
the sentencing offense as well as two armed robberies that it found were committed in Ohio.
Leahy’s presentence investigative report (PSIR) contains the following statement regarding the
Ohio robberies:




2
  On appeal, the prosecution cites the victim impact statement of the store owner. However,
although the prosecution has included a copy of the victim impact statement in connection with
this appeal, the document does not appear to have been submitted to the trial court nor is a copy
of it included in the lower court record. Because a party may not expand the record on appeal,
we have not considered the victim impact statement submitted by the prosecution. See People v
Powell, 235 Mich App 557, 561 n 4; 599 NW2d 499 (1999).



                                                -4-
       defendant stole purse from 42-year-old female, Donna Bailey’s shopping cart in
       parking lot, in doing so dragged her, as her arm was caught in his vehicle window.
       Another customer/witness busted his rear vehicle’s window -- found in the
       defendant’s SUV was: brown leather purse, with $150 case/SS card; Bailey’s
       Ohio Driver’s License; Rite Aid card, Insurance card & children’s pictures, a 2nd
       wallet with a credit card in the name of Amanda Recollet, along with a title to a
       1999 Jeep Cherokee was found in defendant’s SUV.

On appeal, the prosecution contends that because Leahy did not challenge the factual accuracy of
that statement in the PSIR, the court could rely on it as being factually accurate when sentencing
Leahy.

        However, the PSIR provides evidence only that Leahy stole a purse from a shopping cart
and the purse was found in his car, which was identified as a felony in the PSIR. But there is
nothing to support a finding by a preponderance of the evidence that Leahy stole the second
wallet or the Jeep title found in his car. Therefore, in the absence of additional evidence the trial
court could not have found by a preponderance of the evidence that the latter offenses were
committed. See People v Butler, ___ Mich ___; 865 NW2d 29 (Mich, 2015) (vacating the
defendant’s sentence where OV 13 was assessed at 25 points “based on out-of-state charges or
accusations” because the prosecution had not proved by a preponderance of the evidence that the
crimes actually took place). Consequently, we agree with Leahy that OV 13 should not have
been assessed at 25 points and should have only been assessed at 10 points. SeeMCL
777.43(1)(d).

                                        C. CONCLUSION

        Although OV 13 was improperly scored, Leahy is not entitled to resentencing because the
error did not change the appropriate guidelines range. See People v Francisco, 474 Mich 82, 89
n 8; 711 NW2d 44 (2006). The correction of OV 13 reduces Leahy’s total OV score from 56 to
41 points keeping him in an OV level of III. See MCL 777.62. Leahy’s sentence must therefore
be affirmed. Francisco, 474 Mich at 89 n 8.

       Affirmed.

                                                              /s/ Jane M. Beckering
                                                              /s/ Stephen L. Borrello
                                                              /s/ Michael J. Kelly




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