                         STATE OF MICHIGAN

                          COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                  UNPUBLISHED
                                                                  December 7, 2017
              Plaintiff-Appellee,

v                                                                 No. 334498
                                                                  Wayne Circuit Court
JOHN BROWN,                                                       LC No. 13-004789-01-FC

              Defendant-Appellant.


Before: JANSEN, P.J., and CAVANAGH and CAMERON, JJ.

PER CURIAM.

        Defendant was convicted of armed robbery, MCL 750.529, and assault with intent to do
great bodily harm less than murder (AWIGBH), MCL 750.84.1 He was originally sentenced as a
third habitual offender, MCL 769.11, to 30 to 45 years imprisonment for his armed robbery
conviction and 5 to 10 years for his AWIGBH conviction. On remand from our Supreme Court,
the trial court resentenced defendant as a second habitual offender,2 MCL 769.10, to 20 to 40
years’ imprisonment. We affirm defendant’s convictions and remand for resentencing.

                         I. FACTS AND PROCEDURAL HISTORY

       The facts giving rise to defendant’s conviction were set out in our previous opinion in
People v Brown, unpublished opinion per curiam of the Court of Appeals, issued June 16, 2015
(Docket No. 318675), pp 1-2:

              Defendant brutally assaulted and attempted to rob a 72 year-old
       businessman. The victim owns and operates a Dairy Queen in Detroit, and as he


1
  Defendant was acquitted of felon in possession of a firearm, MCL 750.224f, possession of a
firearm during the commission of a felony, MCL 750.227b, and assault with a dangerous
weapon, MCL 750.82.
2
  At the resentencing hearing, defense counsel informed the trial court that defendant was
improperly sentenced as a third habitual offender, rather than a second habitual offender, which
was indicated on the amended felony information. The trial court agreed and sentenced
defendant as a second habitual offender.


                                              -1-
       closed the store late at night, defendant attacked and beat him. Defendant tackled
       the victim, began beating him with his fists and a metal object, and demanded
       money. However, the victim was armed, and shot defendant twice. Wounded,
       defendant stopped beating the victim and fled on foot.

               The victim called the police immediately after the incident.
       Approximately 10 minutes later, officers received information of a shooting
       approximately one block north of the victim’s Dairy Queen. When the police
       responded to this second call, they found defendant, who had bullet wounds in his
       leg and chest, lying on the front porch of a house. Defendant claimed he had been
       shot while taking out his garbage—despite the fact that it was very late at night
       and not the scheduled day for garbage collection. The police found no evidence
       of a shooting near the home, nor did they find any evidence that defendant was
       actually taking out his garbage.

               Accordingly, the police suspected defendant committed the assault and
       attempted robbery at the Dairy Queen. Officers took him into custody at the
       hospital, where he remained in critical condition. Because of defendant’s hospital
       stay, the police presented the victim with a photographic lineup, and the victim
       confidently identified defendant as his assailant.

On defendant’s first appeal, this Court affirmed his convictions and remanded “for resentencing
for the sole purpose of rescoring [offense variable (OV)] 13 [MCL 777.43], or a finding by the
trial court that defendant committed the two firearm related charges of which the jury acquitted
him at trial.” Brown, unpub op at 6. Defendant had challenged the scoring of multiple OVs, and
we determined that OV 13 had been improperly scored below:

       [T]he trial court erred when it scored 25 points under OV 13, because the court’s
       factual findings do not support the conclusion that defendant’s convictions are
       “part of felonious criminal activity involving 3 or more crimes against a person
       within 5 years of the charged offenses. While the trial court could have
       considered the related firearms charges of which defendant was acquitted in its
       assessment OV 13 [sic], it did not find that defendant used a gun when he
       committed the charged crimes. [Id. at 4.]

This Court instructed the trial court to “either (1) resentence defendant under OV 13, or (2) find
on the record that a preponderance of evidence shows defendant committed the assault and
robbery with a firearm.” Id. at 5.

       Defendant filed an application for leave to appeal this Court’s decision, and in lieu of
granting leave to appeal, the Michigan Supreme Court remanded the case to the trial court and
ordered as follows:

       If the trial court does not resentence the defendant, but instead finds facts that
       support the scoring of OV 13, it shall then determine whether it would have
       imposed a materially different sentence under the sentencing procedure described
       in People v Lockridge, 498 Mich 358; 870 [NW2d] 502 (2015). The trial court

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       shall follow the procedure described in Part VI of our opinion. If the trial court
       determines that it would have imposed the same sentence absent the
       unconstitutional constraint on its discretion, it may reaffirm the original sentence.
       If, however, the trial court determines that it would not have imposed the same
       sentence absent the unconstitutional constraint on its discretion, it shall resentence
       the defendant. [People v Brown, 499 Mich 867; 875 NW2d 220 (2016).]

On remand, the trial court first held a post-conviction hearing to determine whether OV 13 was
properly scored and if defendant should be resentenced. At the post-conviction hearing, defense
counsel waived defendant’s presence,3 and the trial court concluded that OV 13 should be scored
at zero points, and therefore, defendant would need to be resentenced. The trial court then held a
resentencing hearing, and defendant appeared via videoconference. The trial court scored zero
points for OV 13 and resentenced defendant to serve 20 to 40 years for both convictions. On
appeal, defendant argues that the trial court’s decision to resentence him via videoconference
violated his constitutional right to be present at his resentencing, the trial court relied on hearsay
evidence in order to score the offense variables and to sentence him, and prosecutorial
misconduct deprived him of due process.

                                   II. RIGHT TO BE PRESENT

       Defendant first argues that he was denied his constitutional right to be present at his
sentencing. Because the record is silent as to whether defendant waived his right to be present,
we remand for resentencing.

        Defendant did not object to appearing at the resentencing hearing by videoconference.
Thus, this issue is unpreserved for review. People v Buie (On Remand), 298 Mich App 50, 56;
825 NW2d 361 (2012). We review unpreserved claims of constitutional error for plain error.
People v McNally, 470 Mich 1, 5; 679 NW2d 301 (2004), citing People v Carines, 460 Mich
750, 764; 597 NW2d 130 (1999). To establish plain error, the following requirements must be
met: “1) error must have occurred, 2) the error was plain, i.e., clear or obvious, 3) and the plain
error affected substantial rights.” Carines, 460 Mich at 763. As to the third requirement, an
error affects substantial rights if there is “a showing of prejudice, i.e., that the error affected the
outcome of the lower court proceedings.” Id. Finally, “[r]eversal is warranted only when the
plain, forfeited error resulted in the conviction of an actually innocent defendant or when an error
seriously affected the fairness, integrity or public reputation of judicial proceedings independent
of the defendant’s innocence.” Id. (quotation marks and citation omitted).

       At the initial post-conviction hearing, the trial court determined that it would conduct the
resentencing by video conference “so that the defendant doesn’t have to be brought back from
the prison that he’s in.” The trial court reasoned that conducting the sentencing via
videoconference would be easier for the prison officials and for the court, and that it would be


3
  The purpose of the initial post-conviction hearing was for the trial court to decide whether it
would resentence defendant if OV 13 was wrongly scored. Defendant was not required to be
present at that post-conviction hearing. Lockridge, 498 Mich at 398.


                                                 -3-
less expensive than transporting defendant to the courthouse. In response, defense counsel stated
that she would “confer with [defendant] to make sure he doesn’t object to not being personally
present,” and the trial court agreed that if defendant did not agree to be sentenced via
videoconference that he would have to be transported to the courthouse to be physically present
for sentencing. However, the record is silent as to whether defense counsel discussed this issue
with defendant prior to the resentencing hearing.

       MCR 6.006 provides, in relevant part:

       (A) Defendant in the Courtroom or at a Separate Location. District and
       circuit courts may use two-way interactive video technology to conduct the
       following proceedings between a courtroom and a prison, jail, or other location:
       initial arraignments on the warrant or complaint, probable cause conferences,
       arraignments on the information, pretrial conferences, pleas, sentencings for
       misdemeanor offenses, show cause hearings, waivers and adjournments of
       extradition, referrals for forensic determination of competency, and waivers and
       adjournments of preliminary examinations.

        In People v Heller, 316 Mich App 314, 315-316; 891 NW2d 541 (2016) we reviewed
MCR 6.006(A) and explained that the court rule “identifie[d] the criminal proceedings in which
two-way interactive video technology may be used” and held that “[f]elony sentencing is not one
of them.” In Heller, we reasoned that our Supreme Court presumably omitted felony sentencings
from MCR 6.006(A) “because sentencing is a critical stage of a criminal proceeding at which a
defendant has a constitutional right to be present, People v Mallory, 421 Mich 229, 247; 365
NW2d 673 (1984), and virtual appearance is not a suitable substitute for physical presence.”
Heller, 316 Mich App at 318. We concluded that the defendant in Heller must have the option to
choose to be resentenced because his “absence from the sentencing nullified the dignity of the
proceeding and its participants, rendering it fundamentally unfair.” Id. at 321.

        In Heller, we did not determine whether a defendant waives his right to be physically
present at sentencing when he agrees to be sentenced via videoconference. However, we have
held that a defendant may waive his right to be present at sentencing if the record establishes a
valid waiver, which “arises when the defendant specifically knows of the right to be present and
intentionally abandons the protection of that right.” People v Palmerton, 200 Mich App 302,
303; 503 NW2d 663 (1993) (citations omitted). Moreover, “[a] valid waiver cannot be
established from a silent record.” Id.

        The prosecution agrees that resentencing is required pursuant to Heller if defendant did
not waive his constitutional right to be present. However, the prosecution claims there is some
circumstantial evidence on the record that indicates defendant may have waived his
constitutional right. At the first post-conviction hearing, defense counsel informed the trial court
that she would confer with defendant about appearing by videoconference. At the resentencing
hearing, neither defendant, nor defense counsel, objected to defendant’s appearance by
videoconference. The prosecution claims this is circumstantial evidence that defendant may
have been informed about his right to be present. Therefore, defendant voluntarily waived that
right, and the case should be remanded “for a brief evidentiary hearing for the trial court to
determine whether defendant waived his physical presence by either requesting or agreeing to be

                                                -4-
sentenced over videoconferencing.” We find this argument unavailing. First, the prosecution
provides no authority in support of the argument that remand for an evidentiary hearing is
required, and we need not address it. See Prince v MacDonald, 237 Mich App 186, 197; 602
NW2d 834 (1999); see also Cheesman v Williams, 311 Mich App 147, 161; 874 NW2d 385
(2015) (concluding that “[t]his Court will not search for authority to sustain or reject a party’s
position”) (quotation marks and citation omitted). Even if we did address this issue, the record in
the instant case is silent as to whether defendant actually waived his right to be present at his
resentencing. There is no indication on the record by defendant, defense counsel, or the trial
court that defendant specifically knew his right to be present and that he expressly waived this
right. When the record is silent as to whether defendant waived his constitutional right to be
present, we are required to remand for resentencing. Palmerton, 200 Mich App at 303.4 On
remand, if defendant chooses to be resentenced, he must be physically present in the courtroom
unless he expressly waives his presence. See Heller, 316 Mich at 317-318 (mandating that if a
defendant is improperly sentenced via videoconference, he must be present on remand for
resentencing).

                                    III. STANDARD 4 BRIEF

       In a supplemental brief filed in propria persona pursuant to Supreme Court
Administrative Order No. 2004–6, Standard 4, defendant raises additional issues concerning
hearsay and prosecutorial misconduct.

                                          A. HEARSAY

       Defendant argues that the trial court erred when it relied on hearsay evidence to score the
offense variables and to sentence him. We disagree.

         According to defendant, the trial court allowed the prosecutor to read a hearsay statement
into the record. The purported hearsay statement was actually a stipulation between the
prosecutor and defense counsel. The stipulation indicated that if the detective sergeant from the
Michigan State Police Forensic Science Division had been available at trial, he would have
testified that he received the metal pipe found at the scene to test for evidence, that it was tested


4
  We note that because this issue is unpreserved, defendant would ordinarily have to satisfy the
plain error test. See Carines, 460 Mich at 763. However, in Heller, this Court did not address
whether the defendant’s unpreserved claim would survive plain error review. Instead, this Court
held that the defendant’s “absence from the sentencing nullified the dignity of the proceeding
and its participants, rendering it fundamentally unfair.” Heller, 316 Mich App at 320. For that
reason, a remand for resentencing was required. Id. Following in line with Heller, we remand
for resentencing because defendant’s absence from the court room was “fundamentally unfair.”
Id. We do not address whether plain error review is applicable. We note, however, that our
Supreme Court, citing Heller and MCR 6.006, has ordered the parties in another case to address
“whether the practice of sentencing by videoconference amounts to plain error, and whether the
defendant is entitled to resentencing because of its use in this case.” People v Guzman, 896
NW2d 440 (2017).


                                                -5-
for latent prints, and that no prints were developed from it. The trial court accepted the
stipulation as “a stipulated fact that both parties agree on.” Clearly, this statement was not
hearsay, but rather a factual stipulation between counsel, which is binding upon a court. People
v Metamora Water Serv, 276 Mich App 376, 385; 741 NW2d 61 (2007). Thus, the trial court
properly admitted the stipulation and instructed the jury to consider it in its deliberations.

        There is also no support for defendant’s contention that the trial court relied on the
statement in scoring the OVs. The trial court scored 10 points for OV 1, MCL 777.31(1)(d),
based on its finding that the victim was touched by a weapon, and it scored one point for OV 2,
MCL 777.32(1)(e), based on its finding that defendant possessed or used a potentially lethal
weapon. There is no evidence that the court’s findings were based on the stipulation or on any
hearsay evidence, considering evidence was properly presented at trial and supported the finding
that a weapon was used in the commission of the offense. A police officer testified that he had
found a “six inch piece of metal” that appeared to be from “some kind of plumbing” from the
street where the Dairy Queen was located. Defendant does not argue that this testimony was
improperly admitted; thus, the court did not have to rely on hearsay in order to find that
defendant had used the pipe as a weapon. Rather, the trial court made a reasonable inference
based on circumstantial evidence. See People v Maben, 313 Mich App 545, 551; 884 NW2d 314
(2015) (holding that “[t]he trial court may rely on reasonable inferences arising from the record
evidence to support a particular score”). The victim also testified that defendant was holding an
object that appeared to be a gun during the attack. The police officer who found the pipe at the
scene testified that it “would look like a gun” if it was “sticking out” or held a certain way. The
trial court’s decision to score OV 1 and OV 2 based on its inference from this testimony that
defendant used the pipe as a weapon during the attack was not error, and defendant is not entitled
to rescoring or resentencing based on this issue.

                            B. PROSECUTORIAL MISCONDUCT

        In his previous appeal, defendant argued before this Court that “the prosecutor committed
misconduct when he presented a police officer as a witness and asked him about the victim’s
demeanor when the officer gave the victim the photographic lineup,” the prosecutor was
permitted to argue facts not in evidence, and the prosecutor had impermissibly described himself
as a “minister of justice” and improperly suggested that he would not present a “meritless” case
to the jury. Brown, unpub op at 5. This Court has already fully addressed (and rejected) each of
these arguments, and we conclude that additional review is barred by the law of the case
doctrine: “Where a prior ruling of this Court concerns the same question of law in the same case,
the doctrine of law of the case applies and the prior ruling is controlling. A legal issue raised in
one appeal may not be raised in a subsequent appeal after proceedings held on remand[.]”
People v Osantowski, 274 Mich App 593, 614-615; 736 NW2d 289 (2007), rev’d in part on other
grounds 481 Mich 103 (2008), quoting People v Stinson, 113 Mich App 719, 730; 318 NW2d
513 (1982).




                                                -6-
        We affirm defendant’s convictions and remand for resentencing.   We do not retain
jurisdiction.



                                                      /s/ Kathleen Jansen
                                                      /s/ Mark J. Cavanagh
                                                      /s/ Thomas C. Cameron




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