                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    March 21, 2017
               Plaintiff-Appellee,

v                                                                   No. 329692
                                                                    St. Clair Circuit Court
RICHARD DANIEL CLAY,                                                LC No. 13-000472-FC

               Defendant-Appellant.


Before: TALBOT, C.J., and MURRAY and BOONSTRA, JJ.

PER CURIAM.

       Defendant appeals by right his conviction, following a jury trial, of assault with intent to
murder (AWIM), MCL 750.83. The trial court sentenced defendant, as a fourth habitual
offender, MCL 769.12, to 30 to 75 years’ imprisonment for his conviction. We affirm
defendant’s conviction, but remand for further proceedings pursuant to People v Lockridge, 498
Mich 358; 870 NW2d 502 (2015).

                   I. PERTINENT FACTS AND PROCEDURAL HISTORY

         This case arises from defendant’s assault of his neighbor, Jeremy Finch, in the basement
of the Silver Pines Apartment Complex in Port Huron in 2012. Defendant asked Finch to assist
him with moving a box in his storage unit in the basement. As Finch picked up the box,
defendant stabbed him in the back and wrenched Finch’s neck. Defendant then grabbed the
utility knife Finch used for work and attempted to slit his throat. Defendant stomped on Finch’s
head and said, “Just die.” Finch pretended to be dead in order to get defendant to stop.

         Defendant was found by police in the apartment complex basement, bleeding from a self-
inflicted wound on his right arm. He fled from police and was ultimately apprehended down the
street from the apartment complex, armed with a knife.

        After defendant was treated for his injuries, Port Huron Police Officer Dennis Huisman
took him to the Port Huron Police Department for processing. While there, Huisman began
asking defendant questions to elicit personal information, i.e., his name, date of birth, address,
employment information. While being asked his employment information, defendant made the
statement, “I tried to kill the guy. I had some serious issues going on there. I mean, he’s my
friend. I mean, he’s never done a bad thing to me.”

                                                -1-
       Defendant was then given a form advising him of his Miranda1 rights, which he was
asked to read aloud. After doing so, defendant signed the form and acknowledged that he
understood his rights. Defendant then told Port Huron Police Detective Keith Merritt that he had
consumed alcohol, Vicodin, and crack cocaine before attacking Finch, and that he attacked Finch
because he felt Finch “had evil inside him.”

       At trial, defendant testified that he had not intended to kill Finch and denied stabbing him
with the knife; however, on cross-examination he admitted to telling Merritt that he had stabbed
Finch. The prosecution also played a clip from defendant’s interview, during which defendant
admitted to stabbing Finch.

         Defendant was convicted and sentenced as described above. Defendant filed a claim of
appeal nearly two years later; this Court eventually accepted defendant’s delayed application for
leave to appeal.2 Defendant also filed a motion to remand with this Court on January 4, 2016,
seeking a Ginther3 hearing in the trial court to further develop the factual record for his
ineffective assistance of counsel claim and for a Crosby4 hearing in light of Lockridge because
the trial court had engaged in impermissible judicial fact-finding. This Court denied defendant’s
motion, holding that the record did not require further factual development to review the issues
on appeal.5

                        II. INEFFECTIVE ASSISTANCE OF COUNSEL

      Defendant contends that he received the ineffective assistance of counsel on a number of
grounds. We disagree.

        A defendant may preserve a claim of ineffective assistance of counsel for appellate
review by moving for a new trial or for a Ginther hearing in the lower court. People v Lopez,
305 Mich App 686, 693; 854 NW2d 205 (2014). Because defendant did not move for a new trial
or a Ginther hearing in the trial court, and this Court denied his motion for remand, our review is
limited to errors apparent on the record. Lopez, 305 Mich App at 693.

        An ineffective assistance of counsel claim is a mixed question of fact and constitutional
law. People v Trakhtenberg, 493 Mich 38, 47; 826 NW2d 136 (2012). We review a trial court’s
findings of fact for clear error, and questions of constitutional law de novo. Id. “A finding is
clearly erroneous if the reviewing court is left with a definite and firm conviction that a mistake


1
    Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).
2
 People v Clay, unpublished order of the Court of Appeals, entered August 19, 2015 (Docket
No. 328719).
3
    People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
4
    United States v Crosby, 397 F3d 103, 117-118 (CA 2, 2005).
5
 People v Clay, unpublished order of the Court of Appeals, entered February 4, 2016 (Docket
No. 329692).


                                                -2-
has been made.” Lopez, 305 Mich App at 693 (citation and quotation marks omitted). “If the
record does not contain sufficient detail to support defendant’s ineffective assistance claim, then
he has effectively waived the issue.” People v Davis, 250 Mich App 357, 368; 649 NW2d 94
(2002).

        Criminal defendants have a right to effective assistance of counsel under both the United
States and Michigan Constitutions. US Const, Am VI; Const 1963, art 1, § 20. To prevail on an
ineffective assistance of counsel claim, a defendant must show: (1) that counsel’s performance
fell below an objective standard of reasonableness under prevailing professional norms, and (2)
that there is a reasonable probability that, but for counsel’s error, the result of the proceeding
would have been different. People v Vaughn, 491 Mich 642, 669; 821 NW2d 288 (2012)
(citation and quotation marks omitted). However, “[e]ffective assistance of counsel is presumed,
and the defendant bears a heavy burden of proving otherwise.” People v Eisen, 296 Mich App
326, 329; 820 NW2d 229 (2012) (quotation marks and citation omitted). The defendant bears
the burden of establishing a factual predicate for his claim. People v Putman, 309 Mich App
240, 248; 870 NW2d 593 (2015).

                             A. PRELIMINARY EXAMINATION

      First, defendant argues that defense counsel provided ineffective assistance of counsel
when he advised defendant to waive his right to a preliminary examination. We disagree.

         Considering the weight of the evidence against defendant, i.e., witness testimony,
physical evidence, and defendant’s admissions of guilt, it was reasonable trial strategy for
defense counsel to advise defendant to waive the preliminary examination. “[T]he primary
function of a preliminary examination is to determine if a crime has been committed and, if so, if
there is probable cause to believe that the defendant committed it.” People v McGee, 258 Mich
App 683, 696; 672 NW2d 191 (2003) (quotation marks omitted). The jury found defendant
guilty beyond a reasonable doubt of AWIM, which demonstrates that sufficient evidence existed
to bind defendant over on that charge because a lesser standard of probable cause is used at
preliminary examination. See id. Thus, defendant fails to show how defense counsel’s
performance fell below an objective standard of reasonableness and that, but for the alleged
error, the outcome would have been different. See Vaughn, 491 Mich at 669.

        Additionally, defendant’s argument that defense counsel should have used the
preliminary examination as a means for establishing the need for a competency examination is
untenable. As discussed earlier, the purpose of the preliminary examination is to determine
whether a crime has been committed and, if so, whether probable cause exists to believe
defendant committed the crime. Id. The purpose is not to determine defendant’s competency to
stand trial. A criminal defendant is presumed competent to stand trial, MCL 330.2020(1), and it
is up to the court, defense counsel, or the prosecution to raise the issue of incompetence,
MCL 330.2024. The issue of defendant’s competence to stand trial or participate in other
criminal proceedings may be raised at any time. MCR 6.125(B). Indeed, two forensic
psychologists evaluated defendant before his trial began to determine his competency to stand
trial and defendant was found competent. And defendant has not shown that an evaluation
conducted at the same time as the preliminary examination would have resulted in a different


                                                -3-
outcome. See Vaughn, 491 Mich at 669. Accordingly, defendant has failed to establish that
defense counsel was ineffective for advising him to waive the preliminary examination.

                                      B. TRIAL STRATEGY

        Next, defendant contends that defense counsel provided ineffective assistance of counsel
when he failed to “have an overall strategy as to how he might deal with the fact that this case
involved a Defendant suffering from profound mental illness exacerbated by drug use.” More
specifically, defendant argues that defense counsel failed to obtain an expert who could support
an insanity defense, failed to request a competency evaluation, and failed to introduce
defendant’s mental health records. We disagree.

        “Trial counsel is responsible for preparing, investigating, and presenting all substantial
defenses.” People v Chapo, 283 Mich App 360, 371; 770 NW2d 68 (2009). Additionally,
“[d]ecisions regarding what evidence to present and whether to call or question witnesses are
presumed to be matters of trial strategy.” People v Rockey, 237 Mich App 74, 76; 601 NW2d
887 (1999). Trial counsel is presumed to implement sound trial strategy, People v Gaines, 306
Mich App 289, 310; 856 NW2d 222 (2014), and this Court “will not substitute [its] judgment for
that of counsel on matters of trial strategy, nor will [this Court] use the benefit of hindsight when
assessing counsel’s competence,” People v Unger, 278 Mich App 210, 242-243; 749 NW2d 272
(2008). “A sound trial strategy is one that is developed in concert with an investigation that is
adequately supported by reasonable professional judgments.” People v Grant, 470 Mich 477,
486; 684 NW2d 686 (2004).

        Contrary to defendant’s assertion, defense counsel moved on April 4, 2013 for the
appointment of an independent expert to conduct a competency evaluation of defendant.
Ultimately, the trial court granted defendant’s motion to retain an independent expert. At trial,
defense counsel stated on the record that defendant had been independently evaluated by Dr.
Michael Abrambsky. Additionally, defense counsel noted that he had the opportunity to review
Dr. Abrambsky’s findings with defendant and that he was not pursuing the insanity defense in
light of those findings. Presumably, Dr. Abrambsky concluded that defendant was competent to
stand trial.

       Based on the record evidence, defense counsel reasonably determined, after adequate
preparation and investigation, that an insanity defense would not be viable. See Grant, 470 Mich
at 486. In order to establish an insanity defense, the defendant must show that, as the result of a
mental illness6 or mental retardation, he lacked the “substantial capacity either to appreciate the
nature and quality or the wrongfulness of his . . . conduct or to conform his . . . conduct to the
requirements of the law.” MCL 768.21a(1); People v Lacalamita, 286 Mich App 467, 470; 780
NW2d 311 (2009). However, a mental illness, alone, does not constitute the defense of legal



6
  Mental illness is defined as “a substantial disorder of thought or mood that significantly impairs
judgment, behavior, capacity to recognize reality, or ability to cope with the ordinary demands of
life.” MCL 330.1400(g).


                                                -4-
insanity. MCL 768.21a(1). Moreover, a defendant “who was under the influence of voluntarily
consumed or injected alcohol or controlled substances at the time of his . . . alleged offense is not
considered to have been legally insane solely because of being under the influence of the alcohol
or controlled substances.” MCL 768.21a(2).

        Thus, even if defense counsel had pursued the insanity defense or a defense based on
defendant’s mental health issues, defendant has not shown that such a defense would have been
viable. Defense counsel was not ineffective for failing to advance a meritless position, People v
Ericksen, 288 Mich App 192, 201; 793 NW2d 120 (2010), and defense counsel’s decision not to
introduce defendant’s mental health records is presumed to be a matter of trial strategy that this
Court will not second-guess, Unger, 278 Mich App at 242-243; see also Rockey, 237 Mich App
at 76.

        Even assuming that defense counsel’s performance was deficient, defendant nevertheless
has failed to establish a factual predicate for how these alleged errors prejudiced him. See
Putman, 309 Mich App at 248. Defendant fails to show that any other forensic psychologist
would have concluded differently from the first two evaluators. Additionally, defendant does not
reference the content of any of defendant’s mental health records and their possible effect on the
proceedings. Consequently, defendant has failed to establish a claim for ineffective assistance of
counsel on this ground. See Vaughn, 491 Mich at 669.

                                      C. WALKER HEARING

        Finally, defendant contends that defense counsel provided ineffective assistance of
counsel when he failed to move for a Walker7 hearing in order to challenge the admissibility of
defendant’s incriminating statements made to police, arguing that the statements were made in
violation of Miranda and made involuntarily. We disagree.

        As an initial matter, “[i]n order to establish ineffective assistance of counsel for failure to
move to suppress a custodial statement made before the Miranda warnings were given, the
defendant must show that he or she would have prevailed on the issue.” People v Comella, 296
Mich App 643, 652-653; 823 NW2d 138 (2012). We look at the totality of the circumstances
when determining whether a defendant was subjected to “custodial interrogation” within the
context of Miranda. People v Cortez, 299 Mich App 679, 691; 832 NW2d 1 (2013).
Interrogation, for purposes of Miranda, “refers to express questioning and to any words or
actions on the part of the police that the police should know are reasonably likely to elicit an
incriminating response from the suspect.” People v Anderson, 209 Mich App 527, 532-533; 531
NW2d 780 (1995). See also People v Henry (After Remand), 305 Mich App 127, 175; 854
NW2d 114 (2014) (BOONSTRA, J., concurring) (citing Rhode Island v Innis, 446 US 291, 300-
301; 100 S Ct 1682; 64 L Ed 2d 297 (1980)). “However, the simple asking of a defendant’s
name is not interrogation or an investigative question requiring the issuance of Miranda




7
    People v Walker (On Rehearing), 374 Mich 331; 132 NW2d 87 (1965).


                                                 -5-
warnings.” People v Armendarez, 188 Mich App 61, 73; 468 NW2d 893 (1991) (citation
omitted).

        Defendant first challenges the admission of his statement to Huisman that he “tried to kill
the guy” because defendant had not been given his Miranda warnings and was still under the
influence of controlled substances and alcohol at the time. However, contrary to defendant’s
assertion, a review of the record reveals that Huisman was simply asking defendant’s personal
information for processing purposes. Because Huisman was not engaged in investigative
questioning, but rather, was merely seeking defendant’s personal information, he was not
required to give defendant Miranda warnings. See Armendarez, 188 Mich App at 73.
Accordingly, defendant’s spontaneous statement was admissible and not barred by the Fifth
Amendment, Anderson, 209 Mich App at 532. Defense counsel was not required to make what
would have been a futile motion. People v Fonville, 291 Mich App 363, 384; 804 NW2d 878
(2011).

        Next, defendant challenges as involuntary the statements he made to Merritt after he
received Miranda warnings. Specifically, defendant argues that his statements were involuntary
because of “drugs, mental illness, fatigue, etc.,” and that defendant’s request to speak with
someone from Community Mental Health should be construed as a request for an attorney that
should have suspended the interrogation. “Whether a defendant’s statement was knowing,
intelligent, and voluntary is a question of law, which the court must determine under the totality
of the circumstances.” People v Tierney, 266 Mich App 687, 707; 703 NW2d 204 (2005)
(citation omitted). “[T]he voluntariness prong cannot be resolved in [a] defendant’s favor absent
evidence of police coercion or misconduct.” People v Howard, 226 Mich App 528, 543; 575
NW2d 16 (1997). “Intoxication from alcohol or other substances can affect the validity of a
waiver of Fifth Amendment rights, but is not dispositive.” Id.

        Our review of defendant’s interview with Merritt reveals that defendant was coherent and
alert and clearly and unambiguously expressed that he understood his rights. While defendant
did express some hesitancy before signing the form, Merritt clearly expressed that it was
defendant’s decision. Thus, there is no evidence of police misconduct or coercion. Accordingly,
we hold that defendant knowing, intelligently, and voluntarily waived his Miranda rights. See
Tierney, 266 Mich App at 707.

        With regard to defendant’s argument regarding his request for a mental health worker,
“after a knowing and voluntary waiver of the Miranda rights, law enforcement officers may
continue questioning until and unless the suspect clearly requests an attorney.” Davis v United
States, 512 US 452, 461; 114 S Ct 2350; 129 L Ed 2d 362 (1994). “[I]nvocation of the Miranda
right to counsel requires a statement that can reasonably be construed to be an expression of a
desire for the assistance of counsel.” People v Adams, 245 Mich App 226, 237; 627 NW2d 623
(2001). “If the accused makes a reference to an attorney and the reference is ambiguous or
equivocal in that a reasonable police officer in light of the circumstances would have understood
only that the accused might be invoking the right to counsel, the cessation of questioning is not
required.” Id. at 237-238. See also Henry (After Remand), 305 Mich App at 168 (BOONSTRA, J.,
concurring). Defendant’s request for a mental health worker cannot be construed as the
unequivocal and unambiguous request for an attorney as contemplated in Davis. Accordingly,


                                                -6-
any effort by defense counsel to challenge defendant’s statements to police or to request a
Walker hearing would have been futile. See Fonville, 291 Mich App at 384.

        Additionally, defendant also fails to demonstrate how he was prejudiced by defense
counsel’s alleged error. Even without the admission of his incriminating statements, the weight
of the evidence was strong based on witness testimony and physical evidence, and defendant has
failed to show that the outcome would have been different. Vaughn, 491 Mich at 669.

                                III. WITNESS SEQUESTRATION

       Defendant contends that he is entitled to a new trial because Finch was not properly
sequestered during his trial. Specifically, defendant argues that by allowing the victim to hear
the other witnesses testify before he took the stand, Finch was able to “subtly prepare” for his
testimony. We disagree.

        On the first day of trial, defense counsel requested that the trial court sequester all the
witnesses before they testify. The prosecution asked the trial court to allow the officer-in-charge
and the victim to remain in the courtroom, noting that a victim had the right to be present at trial.
A bench conference was held, but the record for the first day is silent regarding the trial court’s
ruling. However, on the second day of trial, the trial court addressed the sequestration issue. In
particular, the trial court noted the existence of a constitutional provision granting a victim the
right to be present at trial, and ruled that Finch had the right to be present during all the
proceedings in defendant’s case.

        We review decisions regarding the sequestration of witnesses for an abuse of discretion.
People v Roberts, 292 Mich App 492, 502-503; 808 NW2d 290 (2011). “A trial court abuses its
discretion when it selects an outcome that does not fall within the range of reasonable and
principled outcomes.” People v Snyder, 301 Mich App 99, 104; 835 NW2d 608 (2013)
(quotation marks and citation omitted). Additionally, this Court reviews de novo questions of
constitutional law. People v Gaines, 306 Mich App 289, 304; 856 NW2d 222 (2014). However,
a preserved, nonconstitutional error does not require reversal unless it is more probable than not
that the error was outcome determinative. See People v Lukity, 460 Mich 484, 495-496; 596
NW2d 607 (1999).

       Under the Michigan Constitution, crime victims have the right to attend court
proceedings against the accused. In relevant part, Const 1963, art 1, § 24, provides:

       (1) Crime victims, as defined by law, shall have the following rights, as provided
       by law:

                                              * * *

       The right to attend trial and all other court proceedings the accused has the right
       to attend.

Additionally, under the Crime Victim’s Rights Act, MCL 780.761 provides:



                                                -7-
       The victim has the right to be present throughout the entire trial of the defendant,
       unless the victim is going to be called as a witness. If the victim is going to be
       called as a witness, the court may, for good cause shown, order the victim to be
       sequestered until the victim first testifies. The victim shall not be sequestered
       after he or she first testifies. [Emphasis added.]

The sequestration of witnesses is also set out by the Michigan Rules of Evidence. However,
addressing the issue of the sequestration of witnesses only generally, MRE 615 states:

       At the request of a party the court may order witnesses excluded so that they
       cannot hear the testimony of other witnesses, and it may make the order of its own
       motion. This rule does not authorize exclusion of (1) a party who is a natural
       person, or (2) an officer or employee of a party which is not a natural person
       designated as its representative by its attorney, or (3) a person whose presence is
       shown by a party to be essential to the presentation of the party’s cause.

“The purposes of sequestering a witness are to prevent him from coloring his testimony to
conform with the testimony of another, and to aid in detecting testimony that is less than candid.”
People v Meconi, 277 Mich App 651, 654; 746 NW2d 881 (2008) (quotation marks and citations
omitted).

        Defendant argues that to the extent MCL 780.761 allows a trial court to sequester a crime
victim during trial, it is inconsistent with Const 1963, art 1, § 24, and thus, unconstitutional.
However, as both parties recognize, we may decide the issue on nonconstitutional grounds. See
id. at 653 (stating that this Court may refrain from deciding a constitutional issue when the case
can be decided on other grounds).

        We are unable to determine from the record in this case whether defendant offered any
“good cause” (under MCL 780.761) to sequester Finch until he testified. Consequently, we are
unable to conclude that the trial court abused its discretion. Even assuming an abuse of
discretion, however, our review of the record confirms that any such error was harmless.

        The purpose of witness sequestration is to prevent an individual from coloring his
testimony to conform to the testimony of another and to aid in detecting testimony that is less
than candid. Meconi, 277 Mich App at 654. The record reflects, in comparing Finch’s testimony
to other witness testimony, that there were several similarities. However, these similarities were
supported by defendant’s own testimony. Specifically, defendant admitted that he and Finch
were friends, that he lied to lure Finch into the basement, that he took a knife from another
neighbor without his permission, and that he attacked Finch in the basement. Finch’s testimony
was also consistent with defendant’s admissions during his recorded interview with Merritt,
admitted at trial, in which defendant clearly confessed he had stabbed Finch and tried to kill him.
Finch’s testimony differed from his prior statements in some ways, and defense counsel cross-
examined Finch on these points in an attempt to draw out the inconsistencies of Finch’s in-court
testimony and his prior statements to police officers.

       In short, defendant has not demonstrated that Finch’s testimony was “colored” by other
witnesses’ testimony. Accordingly, even if the trial court abused its discretion in allowing Finch

                                                -8-
to remain in the courtroom (and assuming that Finch had no constitutional right to remain), the
error was harmless. See Lukity, 460 Mich at 495-496. Because we are able to decide this issue
on these nonconstitutional grounds, we decline to address the constitutionality of MCL 780.761.

                                   IV. SENTENCING ISSUES

       Defendant also challenges his sentence, alleging an evidentiary error and a constitutional
error. More specifically, defendant contends that, given the record evidence, the trial court erred
when it scored offense variable (OV) 7 (aggravated physical abuse), and that he is entitled to a
Crosby remand under Lockridge because the trial court impermissibly engaged in judicial fact-
finding when it scored the OVs. We disagree that the trial court erred in scoring OV 7, but
agree, as the prosecution concedes, that defendant is entitled to a Crosby remand under
Lockridge.

        Under a preserved evidentiary challenge, “the trial court’s findings of fact are reviewed
for clear error and must be supported by a preponderance of the evidence.” People v McChester,
310 Mich App 354, 358; 873 NW2d 646 (2015). “Clear error is present when the reviewing
court is left with a definite and firm conviction that an error occurred.” Id. (citation and
quotation marks omitted). However, “[w]hether the facts, as found, are adequate to satisfy the
scoring conditions, i.e., the application of the facts to the law, is a question of statutory
interpretation, which an appellate court reviews de novo.” People v Hardy, 494 Mich 430, 438;
835 NW2d 340 (2013). “When calculating the sentencing guidelines, a court may consider all
record evidence, including the contents of a PSIR, plea admissions, and testimony presented at a
preliminary examination.” McChester, 310 Mich App at 358. “[I]f the trial court clearly erred in
finding that a preponderance of the evidence supported one or more of the OVs or otherwise
erred in applying the facts to the OVs, [Hardy, 494 Mich at 438], and if the scoring error resulted
in the alteration of the minimum sentence range, [a defendant] would be entitled to resentencing,
People v Francisco, 474 Mich 82, 89; 711 NW2d 44 (2006).” People v Biddles, ___ Mich App
___, ___; ___ NW2d ___ (2016) (Docket No. 326140); slip op at 4.

       Additionally, we review preserved8 Lockridge issues for harmless error beyond a
reasonable doubt. People v Terrell, 312 Mich App 450, 464; 879 NW2d 294 (2015); see also
People v Stokes, 312 Mich App 181, 198; 877 NW2d 752 (2015). If a defendant can establish a
Lockridge error, he is entitled a Crosby hearing on remand for further inquiry regarding whether
the error was harmless. People v Stokes, 312 Mich App 181, 198; 877 NW2d 752 (2015).
Moreover, “[a] Sixth Amendment challenge presents a question of constitutional law that this
Court reviews de novo.” See Lockridge, 498 Mich at 373.




8
  Although defendant was sentenced prior to the issuance of Lockridge, a defendant may
preserve a sentencing issue for appellate review at sentencing, in a motion for resentencing, or in
a motion to remand. MCL 769.34(10); People v Terrell¸ 312 Mich App 450, 464 n 40; 879
NW2d 294 (2015). Defendant raised the issue of a Lockridge error in his motion to remand. We
therefore treat this issue as preserved.


                                                -9-
       The Biddles Court provides the analytical framework that applies when both an
evidentiary and a constitutional challenge are presented with regard to the scoring of the
guidelines:

       When this Court is presented with an evidentiary and a constitutional challenge
       regarding the scoring of the guidelines, the evidentiary challenge must initially be
       entertained, because if it has merit and requires resentencing, the constitutional or
       Lockridge challenge becomes moot, as a defendant will receive the protections of
       Lockridge on resentencing. And if an evidentiary challenge does not succeed,
       then and only then should we entertain the constitutional challenge. [Biddles, ___
       Mich App ___ at ____; slip op at 5.]

       Defendant challenges the trial court’s scoring of OV 7. In relevant part, MCL 777.37(1)
provided at the time of defendant’s sentencing:9

       (a) A victim was treated with sadism, torture, excessive brutality, or conduct
       designed to substantially increase the fear and anxiety a victim suffered during the
       offense…………………………………………………………………….50 points

       (b) No victim was treated with sadism, torture, excessive brutality, or conduct
       designed to substantially increase the fear and anxiety a victim suffered during the
       offense……………………………………………………………………...0 points

        Although, the prosecution provides two alternative grounds for why a 50-point score for
OV 7 was proper, the trial court relied on the “excessive brutality” element when it scored OV 7.
Thus, the issue is whether defendant treated Finch with “excessive brutality.” In making this
determination, the focus is on defendant’s conduct. People v Hunt, 290 Mich App 317, 326; 810
NW2d 588 (2010). MCL 777.37 does not define “excessive brutality.” Thus, “we presume that
the Legislature intended for the words to have their ordinary meaning.” MCL 8.3a; Hardy, 494
Mich at 440. This Court has previously defined the ordinary meaning of “excessive brutality”
stating: “Random House Webster’s College Dictionary (2d ed., 1997) defines ‘excessive’ as
going beyond the usual, necessary, or proper limit or degree. ‘Brutality’ is defined as the quality
of being brutal. Id. ‘Brutal,’ in turn, is defined as savage; cruel; inhuman or harsh; severe. Id.
Thus, excessive brutality means savagery or cruelty beyond even the ‘usual’ brutality of a
crime.” People v Glenn, 295 Mich App 529, 533; 814 NW2d 686 (2012), rev’d on other grounds
by Hardy, 494 Mich at 440.



9
  MCL 777.37(1)(a) and (b) have since been amended by 2015 PA 137, effective January 5,
2016, to read, respectively, that “a victim” or “no victim” “was treated with sadism, torture,
excessive brutality or similarly egregious conduct designed to substantially increase the fear and
anxiety a victim suffered during the offense.” (Emphasis added.) We review the trial court’s
decision in light of the version of the statute that existed at the time of defendant’s sentencing.
See People v Doxey, 263 Mich App 115, 122-123; 687 NW2d 360 (2004) (discussing
retroactivity in sentencing statutes).


                                               -10-
        Evidence at trial established that defendant stabbed Finch in the back with a knife,
grabbed Finch in a chokehold, attempted to slit his throat, and stomped on his head while saying,
“Just die.” This Court has held that a 50-point assessment of OV 7 was appropriate where the
defendant choked the victim a number of times, cut her, dragged her, and kicked her in the head.
People v Wilson, 265 Mich App 386, 396-398; 695 NW2d 351 (2005). By committing these
acts, defendant engaged in conduct beyond the minimum necessary to commit AWIM. Hardy,
494 Mich at 443. Accordingly, the trial court properly assessed 50 points for OV 7, and
defendant is not entitled to resentencing on this ground.

       Defendant also raises a Lockridge claim, arguing that the trial court impermissibly
engaged in judicial fact-finding when it scored OV 7, and thus, that he is entitled to a Crosby
remand. The prosecution concedes that defendant is entitled to a Crosby remand on this basis.
Our Supreme Court has held that Michigan’s prior mandatory sentencing guidelines scheme
under MCL 769.34(2) constituted a violation of a defendant’s Sixth Amendment right.
Lockridge, 498 Mich at 373. As a result, the guidelines are now advisory. Id. at 391, 399.

       It is undisputed that defendant was sentenced before July 29, 2015, and that he is entitled
to a Crosby remand. AWIM is a Class A offense under Michigan’s Sentencing Guidelines.
MCL 777.16d. Defendant’s total prior record variable (PRV) score was 85 placing him in PRV
Level F on the sentencing grid, and defendant’s total OV score was 145 points placing him in
OV Level VI. See MCL 777.62. Because of defendant’s fourth habitual sentencing
enhancement, the applicable minimum sentencing guidelines range was 270 months to 900
months. Id. If defendant’s OV 7 score were removed to account for the trial court’s
impermissible fact-finding, defendant’s OV level would be reduced to OV Level V, thereby
reducing his minimum sentencing guidelines range to 225 months to 750 months. Id. Thus,
defendant is entitled to a Crosby remand. See Lockridge, 498 Mich at 373-374. In sum, the trial
court properly assessed 50 points for OV 7, but it impermissibly engaged in judicial fact-finding
under Lockridge. Consequently, defendant is entitled to a Crosby remand.

       We affirm defendant’s conviction, but remand for further proceedings consistent with this
opinion. We do not retain jurisdiction.



                                                            /s/ Michael J. Talbot
                                                            /s/ Christopher M. Murray
                                                            /s/ Mark T. Boonstra




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