                         STATE OF MICHIGAN

                          COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                  UNPUBLISHED
                                                                  October 15, 2015
              Plaintiff-Appellee,

v                                                                 No. 320895
                                                                  Wayne Circuit Court
FRANK TURNER, also known as FRANK                                 LC No. 13-008535-FC
NICOLAS TURNER,

              Defendant-Appellant.


PEOPLE OF THE STATE OF MICHIGAN,

              Plaintiff-Appellee,

v                                                                 No. 323966
                                                                  Wayne Circuit Court
TION TURNER,                                                      LC No. 13-008535-FC

              Defendant-Appellant.


Before: BORRELLO, P.J., and JANSEN and OWENS, JJ.

PER CURIAM.

        These consolidated appeals arise from the convictions of defendants Frank Turner and
Tion Turner following a joint bench trial on February 13, 2014. In Docket No. 320895, Frank
appeals as of right his convictions of torture, MCL 750.85, unlawful imprisonment, MCL
750.349b, felonious assault, MCL 750.82, and possession of a firearm during the commission of
a felony (felony-firearm), MCL 750.227b. The trial court acquitted Frank of armed robbery,
MCL 750.529, and assault with intent to maim, MCL 750.86. Frank was sentenced to 18 to 30
years’ imprisonment for torture, 4 to 15 years’ imprisonment for unlawful imprisonment, 1 to 4
years’ imprisonment for felonious assault, and 2 years’ imprisonment for felony-firearm.
Frank’s felony-firearm sentence runs consecutive to his other sentences, which run concurrent to
each other.




                                              -1-
        In Docket No. 323966, Tion appeals by delayed leave granted1 his bench trial convictions
of unlawful imprisonment, MCL 750.349b, felonious assault, MCL 750.82, and felony-firearm,
MCL 750.227b. The trial court acquitted Tion of armed robbery, MCL 750.529, torture, MCL
750.85, and assault with intent to maim, MCL 750.86. The court sentenced Tion to 5 to 15
years’ imprisonment for unlawful imprisonment, 1 to 4 years’ imprisonment for felonious
assault, and 2 years’ imprisonment for felony-firearm. The felony-firearm sentence runs
consecutive to the other sentences, which run concurrent to each other.

        For the reasons set forth in this opinion, in Docket No. 320895, we affirm Frank’s
convictions, vacate his sentence for torture and remand for resentencing on that offense and also
remand for correction of the presentence investigation report (PSIR) and for adjustment of credit
for time served. In Docket No. 323966, we affirm Tion’s convictions and sentences in their
entirety.

                                          A. FACTS

       This case arises from a series of crimes committed against the victim, Dontez Boykins, at
20015 Riopelle Street, Detroit, Michigan, in the early morning hours of August 19, 2013.
Boykins testified that on August 18, 2013, he was at the house with some people including Frank
and Tion, who are brothers. The victim’s friend, Richard Allen, lived at the house. Two other
persons involved in the events are known only by their street names of “Tae-Tae” and “Fat Boy.”

        Boykins testified that at some point on August 18, 2013, he and Tion were sitting on the
living room couch at the home when Tion asked him if he had some money and how much
money he had. The victim asked, “[W]hy, what’s up[?]” or “[W]hy, what’s going on, what you
needs [sic]?” Tion responded, “[Y]ou ain’t getting no money.” The victim testified that Frank
got a gun from Allen and fired a shot at him but missed. Frank then began to beat the victim by
hitting him in the head with the gun multiple times; Tion also hit the victim and stood in the
room pointing a handgun at the victim. At some point, Frank asked the victim what he said
earlier to Tion that was “smart.” After about 30 minutes of the beating, Tae-Tae and Fat Boy
came to the house. Frank told Tae-Tae, “[G]et this n-----, his mouth smart, and get this n----.”
Tae-Tae and Fat Boy then hit the victim with their hands for approximately 20 minutes, as Tion
pointed a gun at him.

        At some point after Tae-Tae and Fat Boy arrived, Frank forced the victim to remove his
clothes while Tion held the victim at gunpoint and Tae-Tae beat the victim for an additional 20
minutes. At this point, the victim was badly beaten, on his knees, naked, and losing blood. The
victim saw through a crack in the door that Allen passed a clothes iron to Frank. Frank then
passed the iron to Tae-Tae, who plugged the iron in; Frank and Tae-Tae said they would let the
iron heat up. Frank, Tion, Tae-Tae, and Fat Boy then continued to beat the victim while the iron
warmed up. After the iron heated up for about 10 minutes, Tae-Tae said, “[L]et’s burn his d---
off[.]” Frank told the victim to stand up, and the victim complied. Tae-Tae then tried to use the


1
  People v Tion Turner, unpublished order of the Court of Appeals, entered March 11, 2015
(Docket No. 323966).


                                               -2-
iron to burn the victim’s penis, but he jumped out of the way as they tried to burn him. The iron
burned the victim’s genitals, face, arm, chest, buttocks, and legs. Frank pointed Allen’s gun at
the victim, Tion was holding his gun, and Fat Boy and Tae-Tae were tussling with the victim to
hold him down so they could burn him with the iron. Fat Boy held the victim down as Tae-Tae
burned him with the iron.

       Eventually, Fat Boy and Tae-Tae left and Frank went to get gasoline to burn down the
home of the victim’s mother. While Frank was gone, Boykins managed to escape from the
house and run to a Rite Aid store where he went in and spoke with employees. Video and still
images of the victim inside the Rite Aid talking to the employees were admitted as exhibits. The
Rite Aid employees called 911 and put the victim in a back room of the store for safety. Police
and an ambulance arrived at the Rite Aid and he was taken by ambulance to the hospital.
Boykins testified that he was in the hospital for three weeks where he was treated for burns and
underwent skins grafts. Photographs of burns to his buttocks and legs were admitted into
evidence. The victim also had burns to his arm, underarm, and genitals. He has permanent scars
and pain and testified that he has “no clue” why this incident happened. Defendants were
convicted and sentenced as set forth above. These appeals ensued.

                                        B. ANALYSIS

                                   I. DOCKET NO. 320895

                              i. Ineffective Assistance of Counsel

       Frank first argues that he was denied the effective assistance of counsel with respect to
his counsel’s closing argument.

        Because the issue is unpreserved, our review is for mistakes apparent on the record.
People v Petri, 279 Mich App 407, 410; 760 NW2d 882 (2008). “To prevail on a claim of
ineffective assistance, a defendant must, at a minimum, show that (1) counsel’s performance was
below an objective standard of reasonableness and (2) a reasonable probability [exists] that the
outcome of the proceeding would have been different but for trial counsel’s errors.” People v
Ackerman, 257 Mich App 434, 455; 669 NW2d 818 (2003). “Defendant must overcome a strong
presumption that counsel’s performance constituted sound trial strategy.” Petri, 279 Mich App
at 411.

       Frank challenges the following portions of his counsel’s closing argument:

       Frank Turner from the testimony of Mr. Boykin[s], is the one that saved his life, if
       you draw some assumptions in here, because Frank Turner is the one that put out
       Tae-[T]ae and Fat Boy, is the one that told Tae-[T]ae and Fat Boy you guys gotta’
       go, you’re either too loud or whatever. And in essence saved the life of Mr.
       Boykins, if you believe that that’s what happened.

                                             * * *

       We do know that Frank, according to Mr. Boykins, that Frank is the one who
       decided, that stopped them from doing more.

                                               -3-
                                              * * *

       We do know that he was, he was tortured, I have no problem with that, you can’t
       get around that. And we do know that Tae-[T]ae and, and Fat Boy were the ones
       that were involved in that. We do know that Frank is the one that decided that he
       is not going, that he’s not going to let it go any further than that.

                                              * * *

       [W]e do know that young Frank Turner, he’s the one that stopped it. In a lot of
       ways he’s a hero in this thing . . . he did save what looked like something more
       serious was going to be done to Mr. Boykins.

        According to Frank, trial counsel improperly conceded that the victim was tortured and
that Frank was involved in the torture. Frank asserts that his counsel presented an improper
nullification argument by contending that Frank did not allow two other participants in the
crimes, known only by the names of Tae-Tae and Fat Boy, to go any further.

         Decisions regarding what arguments to make in closing are presumed to be matters of
trial strategy. People v Russell, 297 Mich App 707, 716; 825 NW2d 623 (2012). This Court
does not substitute its judgment for that of counsel regarding matters of trial strategy, nor does it
assess counsel’s performance with the benefit of hindsight. Petri, 279 Mich App at 411.
Moreover, the fact that a defense strategy ultimately fails does not establish ineffective assistance
of counsel. People v Kevorkian, 248 Mich App 373, 414-415; 639 NW2d 291 (2001).

        Frank’s contention that his counsel improperly conceded that Frank was guilty of torture,
the most serious offense that he faced, is not supported by the record. As the above excerpt
reflects, Frank’s counsel merely acknowledged that a torture occurred but did not concede that
Frank committed the offense. Overwhelming evidence of torture included the medical records,
photographs, and testimony of independent witnesses. It was therefore a reasonable trial tactic
for Frank’s counsel to concede the obvious, i.e., that a torture occurred. See People v Wise, 134
Mich App 82, 98-99; 351 NW2d 255 (1984), quoting United States v Trapnell, 638 F2d 1016
(CA 7, 1980) (“This tactic of admitting what the evidence strongly demonstrates at the same time
as denying other elements or other crimes before the jury is also familiar to this court and we
find no error in counsel’s use of the tactic.”) Counsel’s mere acknowledgement that the victim
was tortured does not comprise an admission that Frank committed the torture. Rather, counsel
merely recognized that the victim had been tortured but did not state or imply that Frank was the
person who committed the torture.

        Nor was this an improper nullification argument. Counsel argued in essence that even if
the court believed the victim’s testimony, that testimony should be viewed favorably with respect
to Frank because the victim testified that Frank prevented Tae-Tae and Fat Boy from committing
further acts. This argument was consistent with a view that Frank was merely present while Tae-
Tae and Fat Boy committed the torture, and that Frank’s only role with respect to the torture was
to prevent Tae-Tae and Fat Boy from taking further actions. Frank has not overcome the
presumption that his counsel’s choices regarding what arguments to present in closing comprised
sound trial strategy. Petri, 279 Mich App at 411.

                                                -4-
                                          ii. Sentencing

       Next, Frank argues that the trial court erred in scoring prior record variable (PRV) 2 at
five points, and that resentencing is required. The prosecution concedes that PRV 2 was
incorrectly scored at five points. Eliminating the assessment of five points for PRV 2 reduces
Frank’s total PRV score from 25 points to 20 points. As the prosecutor concedes, this correction
changes Frank’s sentencing cell for the sentencing offense (torture), from D-VI to C-VI on the
class A grid, thereby changing the guidelines’ recommended minimum sentencing range from
171 to 285 months to 135 to 225 months.2 See MCL 777.62. Because correction of this scoring
error changes the recommended minimum sentencing range, resentencing on the sentencing
offense, torture, is required. People v Francisco, 474 Mich 82, 89-90; 711 NW2d 44 (2006).3

        Frank also argues that the trial court erred in failing to make corrections to the PSIR. The
prosecution concedes that, at sentencing, the parties and the court agreed to make certain
corrections to the PSIR to remove inaccurate factual assertions and that the court then failed to
make the agreed-upon corrections. Accordingly, on remand, the trial court should make the
agreed-upon corrections to the PSIR.4

                                    II. DOCKET NO. 323966

                                i. Ineffective assistance of counsel

       Tion first argues that the trial court abused its discretion in denying his post-sentencing
motion for a new trial because he was denied the effective assistance of counsel.

        “A claim of ineffective assistance of counsel is a mixed question of law and fact.” Petri,
279 Mich App at 410. Findings of fact are reviewed for clear error, but the ultimate
constitutional issue is reviewed de novo. Id. A trial court’s decision on a motion for a new trial
is reviewed for an abuse of discretion. People v Cress, 468 Mich 678, 691; 664 NW2d 174




2
 We note that the sentencing guidelines recommended minimum sentencing range is advisory
only as opposed to mandatory and the trial court may impose a sentence that it deems reasonable.
See People v Lockridge, ___Mich___; ___NW2d___(2015) (Docket No. 149073) (Slip op. at 2).
3
  Frank also argues that he should have been given jail credit for 175 days served instead of 165
days. The prosecution agrees with defendant. On remand, the trial court should amend the
judgment of sentence to credit Frank with 175 days served.
4
  With respect to the method of correcting the PSIR, Frank argues that the trial court should do
more than make hand-written notations to the PSIR. The parties agree that on remand they
should have an “opportunity to agree upon an acceptable version of the [challenged] offense in
line with the testimony of the case.” On remand, the trial court should exercise its discretion to
make appropriate corrections after affording the parties an opportunity to come to agreement.
See e.g. People v Lucey, 287 Mich App 267, 275; 787 NW2d 133 (2010).


                                                -5-
(2003). Because the trial court did not hold a Ginther5 hearing, our review is limited to mistakes
apparent on the record. Petri, 279 Mich App at 410.

        Tion argues that counsel was ineffective for advising him not to testify in his own
defense. At trial, Tion expressed agreement with his attorney’s statement that they had discussed
Tion’s right to testify and Tion stated that he did not wish to testify. The trial court then
explicitly informed Tion that it was ultimately his decision alone whether he would testify, and
Tion again stated that he chose not to testify. It is therefore clear that Tion made the ultimate
decision not to testify after being informed of his rights. Moreover, Tion has failed to establish
that his counsel’s advice fell below an objective standard of reasonableness. In this case, given
the overwhelming evidence that corroborated the victim’s testimony, Tion cannot show how
counsel’s advice was objectively unreasonable. Rather, counsel’s advice was a strategic decision
that we will not second-guess with the benefit of hindsight. People v Tommolino, 187 Mich App
14, 17; 466 NW2d 315 (1991); Petri, 279 Mich App at 411.

        Furthermore, Tion cannot show there is a reasonable probability that but for counsel’s
advising him not to testify, there is a reasonable likelihood that the outcome of the proceeding
would have been different. Ackerman, 257 Mich App at 455. Although Tion’s unsworn
affidavit asserts that he wanted to testify and that his testimony would have countered that of the
victim, Tion offers no basis to conclude that the trial court would have believed Tion’s testimony
rather than the victim’s on the disputed facts where there was other evidence that corroborated
the victim’s testimony. In short, Tion was not denied the effective assistance of counsel as
guaranteed by the Sixth Amendment. Id.

       Tion requests a remand for a Ginther hearing. In an unsworn affidavit filed in the lower
court, Tion asserted that he would have testified at trial and that his testimony would have
countered the victim’s testimony. However, remand for further factual development is not
warranted because, as discussed above, even if the factual assertions in the affidavit are
considered, Tion cannot show that, but for counsel’s advice not to testify, there is a reasonable
probability that the result of the proceeding would have been different. Ackerman, 257 Mich
App at 455. Therefore, his ineffective assistance of counsel claim fails. Id.

                                          ii. Sentencing

       Next, Tion challenges the trial court’s factual findings underlying the scoring of offense
variable (OV) 7 (aggravated physical abuse) and OV 8 (victim asportation or captivity).6



5
    People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
6
  In his brief on appeal, defendant states that the guidelines’ factors “must be proved beyond a
reasonable doubt,” without providing supporting authority or developing a coherent argument.
Such treatment of the issue constitutes abandonment. People v Matuszak, 263 Mich App 42, 59;
687 NW2d 342 (2004). Even if we were to consider defendant’s argument, we note that our
Supreme Court has relied on McMillan v Pennsylvania, 477 U.S. 79; 106 S Ct 2411; 91 L Ed 2d
67 (1986) stated: where “‘effectively challenged,’ a sentencing factor need be proved only by a

                                                -6-
        In addressing a challenge to the factual basis underlying the trial court’s scoring of the
OVs, “[u]nder 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.

        The trial court assessed 50 points for OV 7; OV 7 addresses aggravated physical abuse.
MCL 777.37(1); Hardy, 494 Mich at 439. MCL 777.37 governs the scoring of OV 7 and it
directs the sentencing court to assess 50 points if “[a] victim was treated with sadism, torture, or
excessive brutality or conduct designed to substantially increase the fear and anxiety a victim
suffered during the offense[.]” MCL 777.37(1)(a).

        In assessing 50 points for OV 7, the trial court found facts to support that Tion engaged in
conduct “designed to substantially increase the fear and anxiety a victim suffered during the
offense.” In Hardy, 494 Mich at 440, our Supreme Court “conclude[d] that it is proper to assess
points under OV 7 for conduct that was intended to make a victim’s fear or anxiety greater by a
considerable amount.” Id. at 441. The defendant’s conduct need not be similarly egregious to
sadism, torture, or excessive brutality, and courts may consider circumstances that inhere in the
crime when scoring OV 7. Id. at 443. “The relevant inquiries are (1) whether the defendant
engaged in conduct beyond the minimum required to commit the offense; and, if so, (2) whether
the conduct was intended to make a victim’s fear or anxiety greater by a considerable amount.”
Id. at 443-444.

        In this case, the record shows that Tion was present when the victim was forced to strip
naked and was repeatedly tortured and beaten for a prolonged period of time and Tion
participated in the offenses by pointing a gun at the victim to prevent him from leaving and by
hitting the victim. The offense of unlawful imprisonment was complete at that point, but Tion
continued to point a gun at the victim when the codefendants moved the victim to a secluded
area of the house and while they heated a clothes iron to further torture and burn the victim.
After the iron was hot, Tion continued to point a gun at the victim while the others burned the
victim with the iron. To hold a victim at gunpoint while he is forced to strip naked, while he is
beaten and while others are preparing and using an iron to burn the victim constitutes conduct
that is designed to substantially increase the fear and anxiety of the victim. Hardy, 494 Mich at
443-444. The trial court did not clearly err in scoring OV 7 at 50 points. Id. at 438.

        The trial court scored OV 8 at 15 points. MCL 777.38 governs the scoring of OV 8 and it
directs a trial court to assess 15 points where “[a] victim was asported to another place of greater
danger or to a situation of greater danger or was held captive beyond the time necessary to
commit the offense.” MCL 777.38(1)(a).


preponderance of the evidence. Thus, facts regarding criminal acts, like a host of other express
or implied findings judges typically make in determining a sentence, need not be decided by a
jury, or even proven beyond a reasonable doubt or by clear and convincing evidence.” People v
Ewing, 435 Mich 443, 472-473; 458 NW2d 880 (1990).


                                                 -7-
        In this case, there was a preponderance of the evidence to support that Tion asported the
victim to a place of greater danger or a situation of greater danger and was held captive beyond
the time necessary to commit the offenses. Here, the victim testified at trial that he was moved
to an upstairs bedroom and later to a basement during the criminal incident; those locations were
places of greater danger because they were isolated parts of the house where detection of crimes
might be avoided. See e.g. People v Chelmicki, 305 Mich App 58, 71; 850 NW2d 612 (2014)
(upholding the scoring of OV 8 where the victim was moved from an apartment balcony to the
interior of the apartment). Moreover, evidence supported that the unlawful imprisonment
occurred over a period of time in which the victim was assaulted. Unlawful imprisonment “can
occur when the victim is held for even a moment.” Id. Therefore, by continuing to hold the
victim against his will, Tion effectively held the victim “longer than the time necessary to
commit the offense of unlawful imprisonment.” Id. In short, the trial court did not clearly err in
assessing 15 points for OV 8 where the scoring was supported by a preponderance of the
evidence. Hardy, 494 Mich at 443-444.

                                      C. CONCLUSIONS

        In Docket No. 320895, we affirm Frank’s convictions, vacate his sentence for torture and
remand for resentencing on that offense, and remand for correction of the PSIR and for
amendment of the judgment of sentence to award Frank credit for 175 days served consistent
with this opinion. In Docket No. 323966, we affirm Tion’s convictions and sentences in their
entirety. We do not retain jurisdiction in either case.



                                                            /s/ Stephen L. Borrello
                                                            /s/ Kathleen Jansen
                                                            /s/ Donald S. Owens




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