                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   April 16, 2015
               Plaintiff-Appellee,

v                                                                  No. 319268
                                                                   Wayne Circuit Court
MICHAEL THOMAS LAUBE,                                              LC No. 13-006250-FC

               Defendant-Appellant.


Before: HOEKSTRA, P.J., and MARKEY and DONOFRIO, JJ.

PER CURIAM.

       Following a bench trial, defendant appeals as of right his convictions for two counts of
armed robbery, MCL 750.529. He was sentenced to 11 to 20 years’ imprisonment for both
armed robbery convictions. Because defendant was not denied the effective assistance of
counsel and he is not entitled to resentencing, we affirm.

        Defendant’s convictions relate to his armed robbery of a Honey Baked Ham on July 1,
2013. At the time of the robbery, two employees, Timothy Kelsey and Jane Williams, were
working in the store. Kelsey heard a buzz at the back door and when he opened it slightly, it was
yanked out of his hand. Defendant then entered the store, placed Kelsey in a headlock, held a
knife to his throat, and threatened to slice Kelsey’s throat if he did not “get money.” Defendant
continued to hold Kelsey in a headlock with a knife near his throat as they moved to the store’s
office where Williams and a safe were located. In the office, Kelsey told Williams to give
defendant money and defendant held up the knife for Williams to see. Williams unsuccessfully
attempted to open the safe. She then tried to retrieve her keys from a doorknob, but defendant
slapped her hand. Kelsey then struggled with defendant over the knife, sustaining a cut to his
hand that required numerous stitches. While Kelsey and defendant fought, Williams grabbed her
keys, shut the office door, hit the panic button, and called 911. Before rushing from the scene,
defendant broke Kelsey’s nose and knocked him to the floor when Kelsey tried to grab him.
Defendant was observed exiting the building and entering a van by a neighbor who recognized
defendant’s van. In a videotaped confession, defendant admitted committing the robbery.

        Initially, the prosecutor charged defendant with one count of armed robbery as well as
assault with intent to murder, assault with intent to do great bodily harm, and felonious assault.
There were negotiations before trial regarding the possibility of a plea agreement. Although it is
somewhat unclear from the record whether the prosecution offered more than one plea

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agreement,1 it is evident that the prosecution offered defendant a plea agreement requiring him to
plead guilty to armed robbery and assault with intent to do great bodily harm less than murder in
exchange for dismissal of the remaining charges and a sentence with the guidelines range, i.e., to
108 to 180 months’ imprisonment. Defendant rejected the offer and proceeded to trial.

       On the second day of trial, the trial court granted a motion from the prosecution to add a
second count of armed robbery. The trial court then found defendant guilty of two counts of
armed robbery and not guilty of the remaining counts. Defendant now appeals as of right.

                         I. INEFFECTIVE ASSISTANCE OF COUNSEL
        On appeal, defendant argues that his trial attorney provided ineffective assistance during
the plea bargaining process by (1) incorrectly advising defendant regarding the sentencing
guidelines and by specifically telling defendant that if he went to trial he “would do no more than
five years” and (2) by failing to inform defendant of the prosecution’s intention to amend the
felony information to add a second count of armed robbery. Defendant maintains that had he
been properly advised by his attorney, he would have accepted the prosecution’s plea offer. For
this reason, he requests that this Court remand for reinstatement of the prosecution’s plea offer.

        Whether a person has been denied the effective assistance of counsel presents a mixed
question of fact and constitutional law. People v Russell, 297 Mich App 707, 715; 825 NW2d
623 (2012). “A judge first must find the facts, and then must decide whether those facts
constitute a violation of the defendant's constitutional right to effective assistance of counsel.”
People v LeBlanc, 465 Mich 575, 579; 640 NW2d 246 (2002). On appeal, we review the trial
court’s factual findings for clear error, and we review constitutional questions de novo. Russell,
297 Mich App at 715. “A finding is clearly erroneous when, although there is evidence to
support it, the reviewing court, on the whole record, is left with the definite and firm conviction
that a mistake has been made.” People v Dendel, 481 Mich 114, 130; 748 NW2d 859 (2008),
modified 481 Mich 1201 (2008) (quotation marks and citation omitted).

       The right to effective assistance of counsel during a criminal trial is guaranteed by the
United States and Michigan constitutions. US Const, Am VI; Const 1963, art 1, § 20; People v
Heft, 299 Mich App 69, 80; 829 NW2d 266 (2012). The right to effective assistance of counsel
extends to the plea bargaining process. Lafler v Cooper, ___ US ___; 132 S Ct 1376, 1384; 182
L Ed 2d 398 (2012). “Effective assistance of counsel is presumed, and the defendant bears a
heavy burden of proving otherwise.” People v Rodgers, 248 Mich App 702, 714; 645 NW2d
294 (2001). To establish the ineffective assistance of counsel, a defendant must satisfy a two-
pronged standard by demonstrating “(1) that counsel’s representation fell below an objective
standard of reasonableness, and (2) that there is a reasonable probably that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” People v
Douglas, 496 Mich 557, 592; 852 NW2d 587 (2014) (quotation marks and citations omitted).


1
  Defendant testified at a Ginther hearing that there were two plea offers, one involving an offer
of a seven year minimum sentence, but there was only one offer discussed on the record before
trial, and defense counsel’s testimony at the Ginther hearing suggests that there was only one
potential plea agreement involving a nine year minimum sentence.


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        Under the first prong, the measure of counsel’s performance is “simply reasonableness
under prevailing professional norms.” Padilla v Kentucky, 559 US 356, 366; 130 S Ct 1473,
1482; 176 L Ed 2d 284 (2010) (citation omitted). During plea bargaining, professional norms
dictate that counsel communicate favorable offers to the defendant, apprise the defendant of the
nature of the charges, and advise the defendant of the direct consequences of accepting a plea.
Missouri v Frye, __ U S__; 132 S Ct 1399, 1408; 182 L Ed 2d 379 (2012); People v Corteway,
212 Mich App 442, 446; 538 NW2d 60 (1995). In other words, defense counsel has an
obligation to provide the information necessary to enable the defendant “to make an informed
and voluntary choice between trial and a guilty plea.” Corteway, 212 Mich App at 446.

       Under the second prong, to demonstrate prejudice during the plea process, “the defendant
must show the outcome of the plea process would have been different with competent advice.”
Douglas, 496 Mich at 592, quoting Lafler, 1332 S Ct at 1384. To make this showing, the
defendant must demonstrate that, but for the ineffective advice of counsel:

       there is a reasonable probability that the plea offer would have been presented to
       the court (i.e., that the defendant would have accepted the plea and the
       prosecution would not have withdrawn it in light of intervening circumstances),
       that the court would have accepted its terms, and that the conviction or sentence,
       or both, under the offer's terms would have been less severe than under the
       judgment and sentence that in fact were imposed. [Lafler, 132 S Ct at 1385.]

         In this case, following a Ginther hearing at which both defendant and his trial counsel
testified, the trial court rejected defendant’s claim of ineffective assistance. First, as a factual
matter, the trial court determined that, contrary to defendant’s representations, defendant’s
attorney had not informed defendant that he would receive no more than a five year minimum
sentence if he went to trial. This finding was supported by defendant’s attorney, who testified at
the hearing that he had made no such assurances to defendant. According to defendant’s
attorney, far from assuring defendant of no more than a five year minimum, he calculated the
sentencing guidelines “several different ways” in consideration of certain guideline factors that
were in dispute between the defense and the prosecution, and he conveyed this sentencing
guideline scoring information to defendant. Moreover, in defendant’s presence, before trial, the
prosecutor stated on the record that the guideline range had been calculated at 108 to 180
months’ imprisonment and defense counsel confirmed that this was an accurate representation of
the parties’ discussions. In contrast, defendant testified that he had been told that he would
receive no more than a five year minimum sentence if he went to trial, and he denied receiving
any information regarding the scoring of the guidelines The credibility of defendant’s testimony
compared to that of his attorney was a question for the trial court. See Dendel, 481 Mich at 130;
MCR 2.613(C). Given counsel’s testimony, the trial court did not clearly err in concluding that
defendant’s attorney advised him of the possible sentencing consequences, and thus defendant
was not denied the effective assistance of counsel on this basis.

        Second, again, as a factual matter it appears that the trial court did not credit defendant’s
assertion that he had not been informed by his attorney of the prosecution’s intent to amend the
felony information to add a second count of armed robbery. At the hearing, defendant’s trial
attorney testified that he was “fairly certain”—and “sure”—that he mentioned the possibility of
the additional count of armed robbery to defendant and that he informed defendant of the effect

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that this count would have on the scoring of prior record variable (PRV) 7. He further stated at
the Ginther hearing that the amendment to add a second count of armed robbery did not come as
a surprise, either to himself or to defendant. In contrast, despite the fact that the additional count
of armed robbery was added on the second day of trial, defendant asserted repeatedly in his
testimony at the Ginther hearing that he was unaware of this addition until sentencing. Although
the trial court did not expressly find that counsel informed defendant of the possibility of an
additional charge before trial, the trial court appeared to credit defense counsel’s testimony,
finding that counsel had provided “excellent counsel” and specifically noting that the amendment
of the information had been granted at trial because the defense had ample notice of the matter.
In other words, it appears to us that the trial court implicitly determined, contrary to defendant’s
representations, that the addition of the second armed robbery charge was not a surprise to
defendant. We see nothing clearly erroneous in this finding and no reason to disturb the trial
court’s implicit credibility determination on this point. Cf. Dendel, 481 Mich at 131 (declining
to disturb implicit findings of credibility by the trial court).

        Overall, we see no basis in the lower court record for concluding that the trial court
clearly erred when it determined that defense counsel provided effective assistance to defendant
during the plea bargaining process. It appears that defense counsel adequately advised defendant
regarding his charges—including the possibility of an additional count of armed robbery—and
the sentence-related consequences of accepting or rejecting the plea agreement, thereby enabling
defendant to make an informed and voluntary choice between proceeding to trial and accepting
the plea agreement. See Corteway, 212 Mich App at 446. Consequently, defendant has not
shown counsel’s performance fell below an objective standard of reasonableness, and he has not
demonstrated he was denied the effective assistance of counsel. See Douglas, 496 Mich at 592.

         In addition, we note that, even if counsel performed as alleged by defendant and even if
such performance could be considered objectively unreasonable, defendant would still not be
entitled to relief because he has not shown he was prejudiced by counsel’s performance. That is,
defendant has not shown counsel’s representation affected the outcome of the plea proceedings
because he has not shown a reasonable probability that he would have accepted the prosecution’s
offer. See Lafler, 132 S Ct at 1384-1385; Douglas, 496 Mich at 598. Specifically, as noted, the
prosecution offered defendant a deal which would require defendant to plead guilty to one count
of armed robbery and one count of assault with intent to do great bodily harm. Considering the
prosecution’s offer and the testimony presented at the Ginther hearing, the trial court determined
at as a factual matter that defendant declined this offer, not because of any purported error by his
attorney, but because the prosecution remained unwilling to dismiss the assault charges and
neither defendant nor his attorney believed defendant guilty of assault. The trial court explained
that “the prosecutor’s office, in essence, forced a trial in this particular case by virtue of the fact
that they insisted that there be a plea to assault . . . along with a plea to armed robbery.” Because
defendant and his attorney disagreed with the assault charges, the trial court reasoned that the
case went to trial because defendant “was unwilling to adhere to the prosecutor’s plea offer.”

        Relevant to this conclusion, at the Ginther hearing, defendant testified repeatedly that he
would have pled guilty to armed robbery, but he denied his guilt regarding any assault charges
and he acknowledged that it was his unwillingness to plead to assault charges which motivated
his refusal of the prosecution’s plea offer. For example, when questioned by the trial court,
defendant testified as follows:

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               THE COURT: [Defendant], when you first appeared in this [c]ourt before
       me, the prosecutor at the time stated what the plea offer was going to be, and the
       plea offer involved your having to plead to one [c]ount of armed robbery, but also
       requiring that you plead to assault with intent to do great bodily harm; is that
       correct?

              [Defendant]: Yes, sir. Actually, that was the second one. The first one
       was plead to armed robbery and assault with intent to do murder.

               THE COURT: And you believed as did your attorney that while you were
       guilty of armed robbery, you were not guilty of any assault with intent to murder
       or assault with intent to do great bodily harm; is that true?

              [Defendant]: Yes, sir.

              THE COURT: Okay. And you weren’t going to plead to that offer
       because it was going to require you to plead guilty to either assault with intent to
       murder or assault with intent to do great bodily harm; is that right?

              [Defendant]: Yes, sir.

Defense counsel similarly testified that neither he nor defendant believed the assault charges
were warranted on the facts of this case. Further, according to defense counsel’s recollection,
defendant accepted responsibility for the acts giving rise to his armed robbery convictions, he
was remorseful for this conduct and willing to plead to armed robbery, but he was unwilling to
plead to the other charges. We emphasize, as did the trial court in its analysis, that the
prosecutor never extended defendant an offer to plead guilty to only armed robbery; the
prosecution’s offer was always contingent on defendant pleading guilty to a charge of assault in
addition to a charge of armed robbery. Consequently, given the terms of the prosecution’s offer
and defendant’s refusal to plead to an assault charge, we see no clear error in the trial court’s
determination that defendant proceeded to trial because he was unwilling to accept a plea
involving an admission of guilt to assault.

        Although in contrast defendant repeatedly asserted at the Ginther hearing that he would
have accepted the prosecution’s offer if properly advised by his attorney regarding the
sentencing guidelines and potential second armed robbery charge, this assertion was undermined
by his repeated indication that it was his innocence in respect to the assault charges which
motivated his refusal of the prosecution’s offer. Cf. Douglas, 496 Mich at 596-598. Indeed,
given the terms of the prosecution’s offer and defendant’s unwillingness to plead guilty to
assault, defendant has not explained how any purported mistake by defense counsel impacted his
refusal of the prosecution’s plea agreement. Accordingly, he has not shown that counsel’s
performance affected the outcome of the plea proceedings because he has not shown a
reasonable probability that he would have accepted the agreement as offered. See Lafler, 132 S
Ct at 1384-1385; Douglas, 496 Mich at 598. Because defendant has not shown counsel’s
performance fell below an objective standard of reasonableness or that, but for counsel’s
performance, there was a reasonable probability of a different outcome, defendant has not shown



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he was denied the effective assistance of counsel and he is not entitled to reinstatement of the
prosecution’s offer.

                              II. OFFENSE VARIABLE SCORING

       On appeal, defendant also argues that the trial court erroneously scored offense variables
(OV) 1, OV 4, and OV 9. Taken together, the rescoring of these variables would affect
defendant’s recommended minimum sentencing range under the legislative guidelines, and
consequently defendant argues he is entitled to resentencing.

        Generally, a trial court is required to impose a sentence within the range calculated under
the legislative sentencing guidelines. MCL 769.34(2). To determine the appropriate range, the
trial court first scores a defendant’s PRVs and OVs, and then uses those totals to determine the
appropriate sentencing range “from the intersection of the offender’s offense variable level and
prior record variable level” on the sentencing grid for the offense involved. See People v Bemer,
286 Mich App 26, 32; 777 NW2d 464 (2009). On appeal, our review of the trial court’s scoring
decisions involves a two-step process. People v Marshall, 495 Mich 983; 843 NW2d 925
(2014). First, we review the trial court’s factual determinations for clear error, mindful that those
factual determinations must be supported by a preponderance of the evidence. People v Hardy,
494 Mich 430, 438; 835 NW2d 340 (2013). Second, we then consider whether the facts, as
found, are adequate to satisfy the scoring conditions described in the statute. Id. Whether the
facts as found support the score in question presents a question of statutory interpretation, which
we review de novo. Id. When interpreting statutes, our purpose is to give effect to the
Legislature’s intent by enforcing the plain and ordinary meaning of the statute’s language as
written. People v Armstrong, 305 Mich App 230, 243; 851 NW2d 856 (2014).

       In this case, defendant first argues that the trial court erroneously assessed 25 points for
OV 1 because defendant did not cut Kelsey with a knife during the offense. Rather, as
recognized by the trial court in its findings following trial, Kelsey sustained his injuries when he
grabbed the knife himself. Accordingly, defendant asserts that the trial court should have
assessed 15 points for OV 1.

        The statutory basis of OV 1 is MCL 777.31, which provides for an assessment of points
with regard to offenses that involved the “aggravated use of a weapon.” MCL 777.31(1).
Twenty-five points shall be assessed if “[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) (emphasis added). In comparison, fifteen points shall be assessed if “[a] firearm
was pointed at or toward a victim or the victim had a reasonable apprehension of an immediate
battery when threatened with a knife or other cutting or stabbing weapon.” MCL 777.31(1)(c).

        It is uncontested in the present case that during the robbery Kelsey suffered a cut to his
hand when he grabbed for defendant’s knife during a struggle with defendant. Despite these
facts, defendant argues that OV 1 may not be scored because defendant did not attack Kelsey
during the robbery to cause the cut; rather, defendant argues that by reaching for the knife,
Kelsey essentially caused his own injury. Contrary to defendant’s arguments, nothing in the
plain language of the statute requires that defendant affirmatively attack the victim with the knife
or purposefully cut the victim to merit a score of 25 points under OV 1. Rather, relevant to the

                                                -6-
present facts, all that is required is by the statute’s plain language to establish the aggravated use
of a weapon is that “a victim was cut . . . with a knife” during the offense. MCL 777.31(1)(a).
See also People v Chelmicki, 305 Mich App 58, 72; 850 NW2d 612 (2014). Clearly, defendant
brought the knife to the robbery and he used the knife in a manner which prompted the struggle
in which Kelsey sustained his injury. We see nothing in the statute’s plain language to suggest
that OV 1 should not be scored because Kelsey cut his hand while trying to wrestle the knife
from defendant during the robbery as opposed to defendant proactively stabbing Kelsey. Kelsey
was plainly a “victim” and, because he was “cut with a knife” during the robbery, the trial court
did not err in scoring defendant 25 points under OV 1. See MCL 777.31(1)(a).

       Next, defendant argues that the trial court erroneously assessed 10 points for OV 4
because, according to defendant, Williams did not suffer “serious psychological injury.”

       MCL 777.34 provides that a trial court should assess points if a victim sustained
psychological injury. MCL 777.34(1). In particular, ten points shall be assessed if “[s]erious
psychological injury requiring professional treatment occurred to a victim.” MCL 777.34(1)(a).
In determining whether a victim suffered serious psychological injury, “the fact that treatment
has not been sought is not conclusive.” MCL 777.34(2). Instead, OV 4 should be scored “if the
serious psychological injury may require professional treatment.” MCL 777.34(2) (emphasis
added). Depression or personality changes, sleeplessness, reports of “reliving” the events, as
well as evidence that a victim feels angry, hurt, violated, or fearful are sufficient to support a
scoring under OV 4. People v Gibbs, 299 Mich App 473, 493; 830 NW2d 821 (2013); People v
Earl, 297 Mich App 104, 110; 822 NW2d 271 (2012).

       In this case, the trial court did not clearly err in finding that Williams suffered serious
psychological injury because it is evident from the victim impact statement in the PSIR that,
although Williams did not seek therapy, she continued to experience fear and trauma after the
incident occurred. The PSIR reveals that following the robbery Williams has trouble sleeping,
she thinks about the robbery on a daily basis, and she is “still shaken up” by the robbery.
Additionally, Williams testified at trial that she was “terrified” during the armed robbery.
Williams’s terror during the event as well as her difficulty sleeping and the lingering emotional
impact of the robbery supported the trial court’s finding that Williams suffered serious
psychological injury requiring professional treatment. Accordingly, the trial court properly
assessed 10 points for OV 4. See MCL 777.34(1)(a).

        Finally, defendant argues that the trial court erroneously assessed 10 points for OV 9. In
particular, defendant maintains that because he received two armed robbery convictions, there
was only one victim for each offense and thus the trial court clearly erred in finding that there
were two or more victims placed in danger of physical injury or death during the scoring offense.

        Relevant to defendant’s claim, MCL 777.39 provides for an assessment of points based
on the number of victims involved. MCL 777.39(1). Ten points shall be assessed if, among
other scenarios, “[t]here were 2 to 9 victims who were placed in danger of physical injury or
death . . . .” MCL 777.39(1)(c). Under this provision, the trial court should “[c]ount each person
who was placed in danger of physical injury or loss of life . . . as a victim.” MCL 777.39(2)(a).
To qualify as a victim, the individual must be a direct victim of the crime. People v Carrigan,
297 Mich App 513, 515-516; 824 NW2d 283 (2012). Further, for purposes of OV 9, a trial court

                                                 -7-
may only consider “conduct that relates to the offense being scored.” People v Sargent, 481
Mich 346, 350; 750 NW2d 161 (2008). Consequently, “when scoring OV 9, only people placed
in danger of injury or loss of life when the sentencing offense was committed (or, at the most,
during the same criminal transaction) should be considered.” Id.

        In this case, both Kelsey and Williams were with defendant while he demanded money,
held a knife in clear sight, held Kelsey in a headlock, wrestled with Kelsey over the knife, and
slapped or pushed Williams’s hand. Given these facts, the trial court did not clearly err in
finding that both Kelsey and Williams were placed at risk of physical injury or death. See MCL
777.39(1)(c), (2)(a). Although defendant emphasizes that each armed robbery resulted in a
separate conviction and thus the scoring of PRV 7, there is nothing in the statutory language that
prevents a trial court from assessing 10 points for OV 9 merely because a defendant’s conduct
toward a second victim led to a separate conviction which was scored under PRV 7. See
generally Bemer, 286 Mich App at 34-35 (“Typically, there is nothing to preclude a particular
factor . . . from serving as the basis underlying the scoring of multiple variables.”). Moreover,
while defendant attempts to cast these offenses as two unrelated crimes, armed robbery is a
transactional offense and, because defendant’s conduct toward both victims occurred during the
same criminal transaction, both individuals may be considered victims for purposes of OV 9.
See Sargent, 481 Mich at 350; People v Mann, 287 Mich App 283, 287; 786 NW2d 876 (2010).
That is, on the facts of this case, defendant’s robbery of Kelsey did not end when defendant also
began to threaten Williams with a knife, and we see no reason why Williams should not be
considered “a victim” during Kelsey’s robbery and vice versa. See Sargent, 481 Mich at 350 n
2; People v Morson, 471 Mich 248, 262; 685 NW2d 203 (2004). In sum, the trial court did not
clearly err in concluding both Kelsey and Williams were victims, and consequently the trial court
properly scored OV 9 at 10 points.2 See MCL 777.39(1)(c).

       Because defendant’s sentence of 11 to 20 years’ imprisonment is within the appropriate
guideline sentence range of the properly scored guidelines, defendant is not entitled to
resentencing. MCL 769.34(10); Mann, 287 Mich App at 288.

       Affirmed.



                                                            /s/ Joel P. Hoekstra
                                                            /s/ Jane E. Markey
                                                            /s/ Pat M. Donofrio


2
   On appeal, defendant offers the cursory assertion that defense “[c]ounsel performed
ineffectively by failing to object,” presumably in reference to the trial court’s scoring of the
offense variables. The record shows, however, that defense counsel did object to the scoring of
OV 1 and OV 4. In any event, because the trial court properly scored OV 1, OV 4, and OV 9,
any objection by counsel to the scoring of these variables would have been futile and “[f]ailing to
advance a meritless argument or raise a futile objection does not constitute ineffective assistance
of counsel.” People v Ericksen, 288 Mich App 192, 201; 793 NW2d 120 (2010).


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