                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    May 12, 2015
               Plaintiff-Appellee,

v                                                                   No. 319262
                                                                    Ingham Circuit Court
ANDREW MICHAEL-BRIAN ELLIOTT,                                       LC No. 13-000411-FC

               Defendant-Appellant.


Before: BOONSTRA, P.J., and SAAD and MURRAY, JJ.

PER CURIAM.

        Defendant appeals by right his convictions, following a jury trial, of carrying a concealed
weapon (CCW), MCL 750.227, felon in possession of a firearm (felon-in-possession),
MCL 750.224f, and possession of a firearm during the commission of a felony (felony-firearm),
MCL 750.227b. Defendant was acquitted of assault with intent to murder, MCL 750.83. The
trial court sentenced defendant to concurrent prison terms of 42 to 90 months for the CCW and
felon-in-possession convictions, each to be served consecutively to a prison term of 24 months
for the felony-firearm conviction. Defendant was also ordered to pay $69,863.17 in restitution,
which represented the amount of medical bills the complainant incurred from his injuries. We
affirm.

                   I. PERTINENT FACTS AND PROCEDURAL HISTORY

        This case arises from a dispute between the complainant and defendant that culminated in
a shooting. Defendant fired a handgun at least three times at the complainant; one of the bullets
struck the complainant in the stomach. The complainant testified that he was unarmed when
defendant shot him. According to defendant, he fired at the complainant in self-defense.

        At sentencing, defense counsel expressly agreed to scoring offense variable (OV) 1 at 25
points, OV 3 at 25 points, OV 4 at ten points, and OV 12 at five points. Defense counsel’s
objection to scoring OV 9 and OV 19 at ten points each was denied. In addition to the prison
terms imposed, the trial court ordered defendant to pay $69,863.17 in restitution, in response to
which defense counsel stated, “I did have an opportunity to review the statements that were
provided and it does look as though all of those fit within the time frame of this incident so I’ll
leave it to the Court’s discretion.”


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        Following his convictions and sentencing, defendant filed a motion in this Court to
remand. This Court granted that motion, People v Elliott, unpublished order of the Court of
Appeals, issued September 18, 2014 (Docket No. 319262), allowing defendant to file a motion
for resentencing with the trial court. On remand, the trial court denied defendant’s motion for
resentencing. This appeal followed.

                                        II. OV SCORING

        Defendant first argues that the court erred in scoring offense variables (OVs) 1, 3, 4, 9,
12, and 19. We disagree. “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.

       “A defendant is entitled to be sentenced according to accurately scored guidelines and on
the basis of accurate information.” People v McGraw, 484 Mich 120, 131; 771 NW2d 655
(2009). “A sentencing court may consider the facts underlying uncharged offenses, pending
charges, and acquittals.” People v Parr, 197 Mich App 41, 46; 494 NW2d 768 (1992).

        Defendant argues that the trial court erred in scoring OV 1 at 25 points, OV 3 at 25
points, and OV 4 at ten points. “Offense variable 1 is aggravated use of a weapon” and is to be
scored at 25 points when “[a] firearm was discharged at or toward a human being or a victim was
cut or stabbed with a knife or other cutting or stabbing weapon.” MCL 777.31(1)(a). “Offense
variable 3 is physical injury to a victim” and is to be scored at 25 points when “[l]ife threatening
or permanent incapacitating injury occurred to a victim.” MCL 777.33(1)(c). “Offense variable
4 is psychological injury to a victim” and is to be scored at ten points when “[s]erious
psychological injury requiring professional treatment occurred to a victim.” MCL 777.34(1)(a).

          Relying on McGraw, 484 Mich 120, defendant argues that because the crimes of CCW
and felon-in-possession were complete at the moment he possessed the firearm, the trial court
was prohibited from considering what happened after that point in time, in scoring OVs 1, 3, and
4, i.e., that he shot the complainant.

        The Michigan Supreme Court in McGraw, 484 Mich at 133-134, citing People v Sargent,
481 Mich 346; 750 NW2d 161 (2008), recognized that offense variables are generally offense-
specific:

       Offense variables must be scored giving consideration to the sentencing offense
       alone, unless otherwise provided in the particular variable. OV 9 does not
       provide for consideration of conduct after completion of the sentencing offense.
       Therefore, it must be scored in this case solely on the basis of defendant’s conduct
       during the breaking and entering. If the prosecution had wanted defendant to be
       punished for fleeing and eluding, it should not have dismissed the fleeing and
       eluding charge. It would be fundamentally unfair to allow the prosecution to drop


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       the fleeing and eluding charge while brokering a plea bargain, then resurrect it at
       sentencing in another form.

        However, “a trial court may properly consider all of defendant’s conduct during that
[sentencing] offense.” People v Chelmicki, 305 Mich App 58, 71-72; 850 NW2d 612 (2014),
citing McGraw, 484 Mich at 124, 129, 134 (internal quotation marks and citation omitted,
emphasis added). Therefore, in Chelmicki, this Court concluded that the trial court did not err in
considering “defendant’s act of holding a BB gun to the victim’s head [because it] was conduct
that occurred ‘during’ the ongoing offense of unlawful imprisonment.” Id. at 72.

        In the instant case, although the elements to the sentencing offense may have been
complete at the particular moment defendant first possessed the firearm that was used to shoot
the complainant, the sentencing offense was “ongoing” when defendant used that illegally
possessed firearm to shoot the complainant. Id. This conclusion is consistent with the purposes
of MCL 750.227(2) and MCL 750.224f. “[T]he general purpose behind the concealed weapon
statute is ‘to prevent the possibility that quarrelling persons would suddenly draw a hidden
weapon without notice to other persons.’ ” People v Nimeth, 236 Mich App 616, 621; 601
NW2d 393 (1999), quoting People v DeLeon, 177 Mich App 306, 308; 441 NW2d 85 (1989).
“[T]he felon-in-possession statute is aimed at protecting the public from guns in the hands of
convicted felons, whether those weapons are concealed or not.” People v Mayfield, 221 Mich
App 656, 662; 562 NW2d 272 (1997) (citation omitted).

        Therefore, the trial court properly considered defendant’s conduct during his commission
of the offenses of CCW and felon-in-possession, and OVs 1, 3, and 4 were properly scored. OV
1 was properly scored at 25 points because “[a] firearm was discharged at or toward a human
being” when defendant shot the complainant with a firearm in the stomach. MCL 777.31(1)(a).
OV 3 was properly scored at 25 points because “[l]ife threatening or permanent incapacitating
injury occurred” MCL 777.33(1)(a). And OV 4 was properly scored at ten points because,
looking to the complainant’s impact statement, “[s]erious psychological injury requiring
professional treatment occurred” from this incident. MCL 777.34(1)(a).1



1
  Defendant also argues that the trial court erred in scoring OVs 1, 3, and 4 because “the jury
found that [the complainant] was the aggressor and not the victim.” The Michigan Supreme
Court has held that an individual charged with being a felon in possession of a firearm may
assert self-defense as a defense. People v Dupree, 486 Mich 693, 712; 788 NW2d 399 (2010).
       However, in addressing defendant’s motion for resentencing, the trial court found, by a
preponderance of the evidence, that defendant did not act in self-defense when he shot the
complainant. People v Osantowski, 481 Mich 103, 111; 748 NW2d 799 (2008) (“A trial court
determines the sentencing variables by reference to the record, using the standard of
preponderance of the evidence.”). Consequently, and notwithstanding that the jury acquitted
defendant of assault with intent to murder, because defendant shot the complainant “during” the
commission of the offense of felon in possession of a firearm, the trial court was permitted to
consider defendant’s act of shooting the complainant in scoring the offense variables as
described above. Chelmicki, 305 Mich App at 72.


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       Defendant also argues that the trial court erred in scoring OV 12 at five points because he
was acquitted of assault with intent to murder. “Offense variable 12 is contemporaneous
felonious criminal acts” and is to be scored at five points when either “[o]ne contemporaneous
felonious criminal act involving a crime against a person was committed” or “[t]wo
contemporaneous felonious criminal acts involving other crimes were committed.”
MCL 777.42(1)(d)-(e). “A felonious criminal act is contemporaneous if” (1) “[t]he act occurred
within 24 hours of the sentencing offense” and (2) “[t]he act has not and will not result in a
separate conviction.” MCL 777.42(2)(i)-(ii).

        A trial court is expressly permitted to consider the facts underlying an acquittal in
sentencing, Parr, 197 Mich App at 46, and need only find facts to support its scoring decisions
by a preponderance of the evidence, Osantowski, 481 Mich at 111. As the trial court found, by a
preponderance of the evidence, that defendant was not acting in self-defense when he shot the
complainant, there was a sufficient factual basis for the trial court to conclude that defendant
committed a contemporaneous felonious criminal act (even if not assault with intent to murder)
that would not result in a separate conviction. Therefore, the trial court did not err in scoring OV
12 at five points.

        Defendant next argues that the trial court erred in scoring OV 9 and OV 19 at ten points
each. “Offense variable 9 is number of victims” and is to be scored at ten points when “[t]here
were 2 to 9 victims who were placed in danger of physical injury or death, or 4 to 19 victims
who were placed in danger of property loss.” MCL 777.39(1)(c). Each person placed in danger
of injury, death, or loss of property should be counted as a victim. People v Gullett, 277 Mich
App 214, 217; 744 NW2d 200 (2007), citing MCL 777.39(2)(a). In this case, plaintiff presented
evidence that defendant shot a firearm at least three times in the parking lot of an apartment
complex. Plaintiff presented evidence that the victim was shot and that three separate vehicles
sustained bullet holes. This provides a sufficient factual basis to find that “4 to 19 victims were
placed in danger of property loss” to score OV 9 at ten points.2 See MCL 777.39(1)(c).

       “Offense variable 19 is threat to the security of a penal institution or court or interference
with the administration of justice or the rendering of emergency services” and is to be scored at
ten points when “[t]he offender . . . interfered with or attempted to interfere with the
administration of justice.” MCL 777.49(c). A defendant’s attempt to hide or dispose of a
weapon constitutes an attempt to interfere with the administration of justice. People v Ericksen,
288 Mich App 192, 201; 793 NW2d 120 (2010). The trial court heard evidence that defendant
ran from the scene, hid in an apartment, and disposed of a firearm he used by discarding it in a
dumpster. There was therefore sufficient evidence to support the trial court’s decision to score
OV 19 at ten points.

        Additionally, we reject defendant’s contention that defense counsel was ineffective for
failing to raise any of these scoring issues because any attempt to do so would have been futile.


2
  At a minimum, and in addition to the three vehicles that sustained bullet holes, the
complainant’s personal items and clothing were at least at risk of being damaged and in need of
repair or replacement.


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“Failing to advance a meritless argument or raise a futile objection does not constitute ineffective
assistance of counsel.” Ericksen, 288 Mich App at 204.

                                  III. RESTITUTION AWARD

       Next, defendant argues that the trial court erred in ordering restitution. We disagree. We
review this unpreserved argument reviewed for plain error affecting substantial rights. People v
Newton, 257 Mich App 61, 68; 665 NW2d 504 (2003).

       “As a threshold matter, for the purposes of restitution, the [Crime Victim’s Rights Act
(CVRA)] defines ‘victim’ as ‘an individual who suffers direct or threatened physical, financial,
or emotional harm as a result of the commission of a crime.’ ” Fawaz, 299 Mich App at 64,
quoting MCL 780.766(1). Pursuant to MCL 780.766(2),

       when sentencing a defendant convicted of a crime, the court shall order, in
       addition to or in lieu of any other penalty authorized by law or in addition to any
       other penalty required by law, that the defendant make full restitution to any
       victim of the defendant’s course of conduct that gives rise to the conviction or to
       the victim’s estate.

“In determining the amount of restitution to order under section 16, the court shall consider the
amount of the loss sustained by any victim as a result of the offense.” MCL 780.767(1).

        As used in MCL 780.766(2), “the term ‘course of conduct’ . . . should be given a broad
construction in light of its historical background and prior decisions from the Court of
Appeals[.]” People v McKinley, 496 Mich 410, 418; 852 NW2d 770 (2014). “The plain
language of the statute authorizes the assessment of full restitution only for ‘any victim of the
defendant’s course of conduct that gives rise to the conviction . . . .” Id. at 419 (emphasis in
original). Here, as stated above, the trial court properly considered defendant’s course of
conduct in committing the offenses of CCW and felon-in-possession to include the shooting of
the complainant.

         Further, as to the amount of restitution, “[a]ny dispute as to the proper amount or type of
restitution shall be resolved by the court by a preponderance of the evidence. The burden of
demonstrating the amount of the loss sustained by a victim as a result of the offense shall be on
the prosecuting attorney.” MCL 780.767(4). The amount ordered must be based on the victim’s
actual loss. Id.

        In this case, plaintiff offered the following medical bills that the complainant incurred to
support its restitution request: “Lansing Radiology, $30, Physician Anesthesia Services, P.C.,
$3,250, Emergency Medical Associates, $627, MSU Health Team, $3,595, City of Lansing for
the ambulance, $914.75, and Sparrow Hospital, $61,446.42, giving a total restitution amount of
$69,863.17,” which is what the trial court ordered. It was defendant’s possession of, and later
use of, a firearm that was both the criminal act and the cause of the complainant’s injuries, i.e.,
the losses sustained as a result of defendant’s “course of conduct.” Therefore, we reject
defendant’s argument.



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         Defendant also contends, relying on Apprendi v New Jersey, 530 US 466; 120 S Ct 2348;
147 L Ed 2d 435 (2000), and its progeny, that he should not be required to pay restitution
because the restitution amount was not based on factual findings made by a jury beyond a
reasonable doubt. However, Apprendi and its progeny do not address statutorily-mandated
restitution awards; rather they hold that due process requires that a factual finding used to elevate
a sentence above a statutory maximum be proven beyond a reasonable doubt. Id. at 490;
Southern Union Co v United States; ___ US ___; 132 S Ct 2344, 2350-2351; 183 L Ed 2d 318
(2012). We see no applicability of Apprendi’s rationale to Michigan’s statutory restitution
scheme.

        Additionally, defendant’s argument that defense counsel was ineffective for failing to
object to the restitution order should also fail because, given the conclusion above, such an
objection would have been meritless. Ericksen, 288 Mich App at 204.

                                             IV. PSIR

        Lastly, defendant takes issue with three portions of the PSIR. A trial court’s response to
a claim of inaccuracy in the PSIR is reviewed for an abuse of discretion. People v Lucey, 287
Mich App 267, 275; 787 NW2d 133 (2010). “A court abuses its discretion when it selects an
outcome outside the range of reasonable and principled outcomes.” Waclawski, 286 Mich App
at 689. This Court reviews constitutional questions de novo. Sadows, 283 Mich App at 67.

         “The Department of Corrections relies on the information contained in the PSIR to make
critical decisions regarding a defendant’s status.” People v Lloyd, 284 Mich App 703, 705-706;
774 NW2d 347 (2009). “At a sentencing hearing, either party may challenge the accuracy or
relevancy of information contained in the PSIR.” Id. at 705, citing MCL 771.14(6). “There is a
presumption that the information contained in the PSIR is accurate unless the defendant raises an
effective challenge.” Id. “When a defendant challenges the accuracy of the information, the
defendant bears the burden of going forward with an effective challenge.” Id.

        Essentially, defendant challenges the inclusion of three portions of the PSIR: (1) the
statement that the instant convictions constitute his “fifth, sixth, and seventh felony convictions,”
arguing that a reader could be misled into concluding that all of his previous felony convictions
were as an adult; (2) the statement that he has “an extensive juvenile criminal history,” because,
“although not the best,” his criminal history “is not ‘extensive’ ”; and (3) “the ‘victim impact
statement’ section,” because “[t]hese statements are inflammatory and should be stricken as [the
complainant] was not found to be a credible witness at trial and his lament is dubious at best.”
Defendant challenged the accuracy of these portions of the PSIR in his motion for resentencing,
but the trial court did not specifically address this issue on remand. Although we could remand
for the trial court to consider this issue, we see no need in light of the lack of merit in the
objections and the trial court’s implicit rejection of these challenges.

        First, with respect to defendant’s argument that the description of his criminal history is
misleading, only inaccurate or irrelevant information must be corrected or stricken from a PSIR.
Waclawski, 286 Mich App at 690. Here, the PSIR states that “[t]his constitutes the defendant’s
fifth, sixth, and seventh felony convictions, having two misdemeanor convictions and an
extensive juvenile criminal history.” Later in the PSIR, defendant’s criminal history is set forth

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in detail. The PSIR is clear and accurate in setting forth that defendant has seven total felonies:
three in this case, one as an adult prior to this case, and three as a juvenile.

       Second, with respect to defendant’s argument that the adjective “extensive” is an
inaccurate description of his criminal history as a juvenile, as stated above, the PSIR sets forth
exactly what defendant’s criminal history is. The term “extensive” can be defined as “great in
amount, number, or degree.” Random House Webster’s College Dictionary (1997). Although
defendant may believe that three felonies and a misdemeanor in a two-year time period as a
juvenile is not “great in amount,” that does not render the description inaccurate or irrelevant.
Id.

       Third, with respect to defendant’s argument that the victim impact statement should be
excluded, victims are afforded the right to submit a victim impact statement to be included in the
PSIR. MCL 780.764; MCL 780.765; People v Anterio Williams, 244 Mich App 249, 253-254;
625 NW2d 132 (2001). Indeed, pursuant to MCL 780.764, “[a] victim’s written statement shall,
upon the victim’s request, be included in the presentence investigation report.”

       Here, the victim impact statement includes three paragraphs that quote the complainant’s
description of his feelings regarding emotional and physical injury, medical insurance, and
sentencing. Defendant describes the complainant’s statement as “very inflammatory.” The
complainant describes the pain he goes through from being shot by defendant, describes the fear
he has after being shot, and states that he wants defendant “to get the Longest Prison term
Possable [sic], Because he doesn’t have any regard for human life.” These are properly
understood as the observations and opinions of the victim of a violent crime, and any tone
stemming from them is appropriate to that status. Indeed, other than claiming that these
statements should not be included because “[the complainant] was not found to be a credible
witness at trial,” defendant provides no indication that these statements are inaccurate and
provides no authority indicating that, assuming the jury did actually find the complainant
incredible, an incredible witness’s victim impact statement is not permitted to be included in the
PSIR. Watson, 245 Mich App at 587.

       Affirmed.

                                                            /s/ Mark T. Boonstra
                                                            /s/ Henry William Saad
                                                            /s/ Christopher M. Murray




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