                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     March 24, 2015
               Plaintiff-Appellee,

v                                                                    No. 318697
                                                                     Livingston Circuit Court
KEVIN MICHAEL CLARK,                                                 LC No. 13-021225-FC

               Defendant-Appellant.


Before: WILDER, P.J., and SERVITTO and STEPHENS, JJ.

PER CURIAM.

        Defendant was charged with armed robbery, MCL 750.529, and possession of a firearm
during the commission of a felony (felony-firearm), MCL 750.227b. A jury found him guilty of
armed robbery, but acquitted him of felony-firearm. The trial court sentenced defendant to a
prison term of 11 to 50 years. Defendant appeals as of right. We affirm in part and remand.

         This case arises from a robbery that took place on December 20, 2010, at the ‘Lil Chef
Restaurant in Brighton. The owner of the restaurant, James “Scott” Steele, testified that
defendant pointed a gun at him on three occasions during the course of the robbery. This was
corroborated by waitress Stephanie Daniels, who testified that she saw defendant point a
handgun at Steele. Defendant did not dispute that he was at the restaurant on that date and that
he was involved in an altercation with Steele. He did, however, dispute that he possessed, used,
or pointed a gun at Steele. Both Steele and Daniels testified that they were familiar with guns
and that the gun appeared to be real, although they admitted that they could not be absolutely
certain.

       Defendant argues that the trial court erred in scoring offense variables (OV) 1, MCL
777.31 (Aggravated Use of Weapon), and 2, MCL 777.32 (Lethal Potential of Weapon
Possessed or Used), of the sentencing guidelines because no evidence was presented to support a
finding that he possessed a real gun. “Under the sentencing guidelines, the circuit court’s factual
determinations are reviewed for clear error and must be supported by a preponderance of the
evidence. 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.” People v Hardy, 494 Mich 430, 438; 835 NW2d 340
(2013) (citations omitted).




                                                -1-
        Concerning OV 1, MCL 777.31(1)(c) provides that 15 points should be assessed when
“[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.” The
guidelines do not define the term “firearm.” However, MCL 8.3 provides that “[i]n the
construction of the statutes of this state, the rules stated in sections 3a to 3w shall be observed,
unless such construction would be inconsistent with the manifest intent of the legislature.”
Section 3t provides as follows:

               The word “firearm”, except as otherwise specifically defined in the
       statutes, shall be construed to include any weapon from which a dangerous
       projectile may be propelled by using explosives, gas or air as a means of
       propulsion, except any smooth bore rifle or handgun designed and manufactured
       exclusively for propelling BB’s not exceeding .177 caliber by means of spring,
       gas or air.

MCL 777.31(1)(c) only applies to the pointing of an actual firearm, and a toy or fake gun does
not meet the statutory definition of a firearm. Cf. People v Schofield, 124 Mich App 134, 135;
333 NW2d 607, rev’d on other grounds 417 Mich 988 (1983) (noting that a toy gun cannot
discharge a projectile and is not a “firearm” for purposes of the offense of felony-firearm).

         Defendant did not present any evidence that he used a toy gun during the robbery; indeed,
defendant denied possessing or using any gun. Daniels testified that she is familiar with guns
and that defendant used what appeared to her to be a real gun during the robbery. Steele testified
that he was very close to the gun, that he is familiar with what guns look like from viewing his
son’s guns, and that he was absolutely certain that the gun was real. Although Daniels testified
on cross-examination that she could not be absolutely certain that the gun was real, and Steele
testified on cross-examination that he did not know whether the gun was capable of firing a
projectile, their testimony supports the trial court’s scoring of 15 points for OV 1.

        Concerning OV 2, MCL 777.32(1)(d) states that five points should be assessed when
“[t]he offender possesse[s] or use[s] a pistol, rifle, shotgun, or knife or other cutting or stabbing
weapon.” The terms “pistol,” “rifle,” and “shotgun” are defined to include “a revolver, semi-
automatic pistol, rifle, shotgun, combination rifle and shotgun, or other firearm manufactured in
or after 1898 that fires fixed ammunition.” MCL 777.32(3)(c). As with OV 1, the testimony of
Steele and Daniels serves as the requisite evidence for the trial court’s scoring of 5 points for OV
2.

       Defendant asserts that the trial court’s scoring decisions for OV 1 and OV 2 are
inconsistent with the jury’s finding that he was not guilty of felony-firearm. This argument
ignores that a trial court’s factual findings for purposes of sentencing are not subject to the same
beyond a reasonable doubt standard required for a conviction. Rather, factual support for a
guidelines scoring decision need only be established by a preponderance of the evidence. People
v Perez, 255 Mich App 703, 713; 662 NW2d 446, vacated in part on other grounds 469 Mich
415 (2003); see also People v Ratkov (After Remand), 201 Mich App 123, 126; 505 NW2d 886
(1993) (noting that because of the differing standard of proof, “situations may arise wherein
although the fact finder declined to find a fact proven beyond a reasonable doubt for purpose of



                                                -2-
convictions, the same fact may be found by a preponderance of the evidence for purposes of
sentencing”).1

        Defendant also argues that trial counsel provided ineffective assistance during sentencing
in waiving the issue of whether defendant was honorably discharged from the navy. At the
sentencing hearing, defense counsel referred to defendant being honorably discharged from the
navy, and the trial court interrupted with an indication that it “wondered about that” and that the
“report,” presumably meaning the presentence report, does not state that he was honorably
discharged. Thereafter, defense counsel stated, “leave that out,” presumably referring to the
assertion that defendant was honorably discharged.

        Defendant raised this issue in a motion to remand filed in this Court. Defendant argued
that there was no conceivable strategic benefit in failing to make a motion to adjourn to obtain
evidence that defendant was honorably discharged from the navy, which, he argued, would have
been used by the trial court to lower his minimum sentence. We granted in part defendant’s
motion to remand. People v Clark, unpublished order of the Court of Appeals, entered August
28, 2014 (Docket No. 318697).

        The transcript of the hearing on remand reveals that the court had previously held a
conference with the prosecution and defense counsel that resulted in a stipulation that was placed
on the record. The following discussion was then had:

               Prosecutor: We had that conference back on the 18th of September . . .
       regarding the Court of Appeals remand to determine whether it would have made
       a difference in the Court’s sentencing of defendant. If Kevin Clark’s honorable
       discharge from the Navy was a matter of record. And also whether defendant fled
       or relocated to Florida. And it was . . . the Court’s indication that the honorable
       discharge would have made a difference and that whether defendant fled or
       relocated would not have made a difference. We’re here today to make a record

1
  In further support of the argument that the guidelines were scored in contravention of the jury’s
determination, defendant cites People v Lockridge, 304 Mich App 278, 284; 849 NW2d 388
(2014), lv gtd 496 Mich 852 (2014), in which the Supreme Court granted leave to decide, in part,
       whether a judge’s determination of the appropriate sentencing guidelines range,
       MCL 777.1, et seq., establishes a “mandatory minimum sentence” such that the
       facts used to score the offense variables must be admitted by the defendant or
       established beyond a reasonable doubt to the trier of fact, Alleyne v United States,
       570 US ___; 133 S Ct 2151; 186 L Ed 2d 314 (2013).

This Court has determined that the decision in Alleyne does not implicate Michigan’s sentencing
scheme because “judicial fact-finding within the context of Michigan’s sentencing guidelines [is]
not used to establish the mandatory minimum floor of a sentencing range.” People v Herron,
303 Mich App 392, 403; 845 NW2d 533 (2013), appeal held in abeyance 846 NW2d 924 (2014).
The decision in Herron is currently binding on this Court and must be followed. MCR
7.215(J)(1).



                                                -3-
       of that. This may result in a re-sentencing for the defendant . . . when this is
       relayed to the Court of Appeals, but they do have other scoring issues on Offense
       Variable 1 and 2 that they are also considering. And eventually this may be
       remanded for a re-sentencing based on today’s hearing. But at this point the
       Court of Appeals still has jurisdiction regarding those other two issues. And so
       we would stipulate to the pre-sentence being changed to indicate that instead of
       fleeing to Florida the defendant relocated to Florida. I believe that constitutes—

              The court: And . . . you would also stipulate is my understanding that his
       discharge from the service was a honorable discharge?

               The prosecutor: That is correct, Your Honor.

                                             * * *

               The court: So the pre-sentence can be amended to reflect those two
       stipulations. I did indicate to counsel at the time of our chambers conference call
       that—and I believe [the prosecutor] stated it correctly, I had previously made
       scoring on OV-19 that I felt that he had not attempted to circumvent the ends of
       justice by being in Florida and that would not change my opinion regarding
       sentencing. However, I did indicate that there was a possibility that his having
       been honorably discharged from the service would affect my decision regarding
       the sentence in this case and I would so state on the record.

        The trial court thereafter ordered that “Kevin Clark’s honorable discharge from the U.S.
Navy will become part of the record and the presentence report will reflect that and change ‘fled’
to ‘relocated’ to Florida.”

        To establish ineffective assistance of counsel, defendant must “show both that counsel’s
performance fell below objective standards of reasonableness, and that it is reasonably probable
that the results of the proceeding would have been different had it not been for counsel’s error.”
People v Frazier, 478 Mich 231, 243; 733 NW2d 713 (2007). This Court’s remand for further
development of the record resulted in a stipulation regarding amendment of the presentence
information report (PSIR). The trial court stated that “there was a possibility that his having
been honorably discharged from the service would affect my decision regarding the sentence in
this case.”

        We conclude that defense counsel’s performance fell below objective standards of
reasonableness when counsel failed to seek an adjournment or to otherwise be allowed to
establish that defendant was honorably discharged from the navy after the trial court expressly
stated that it wondered about that point. Indeed, the trial court’s statement that it wondered
whether defendant was honorably discharged should have put counsel on notice that an
honorable discharge may well have been viewed by the trial court as a mitigating factor in
sentencing. Additionally, given the trial court’s statement on the record during the remand
hearing that “there was a possibility that his having been honorably discharged from the service
would affect my decision regarding the sentence in this case,” it is reasonably probable that the
results of the proceeding would have been different had it not been for counsel’s error.



                                               -4-
        Given these circumstances, and in light of this Court’s order of remand, we again
remand, this time to give the trial court the opportunity to consider what it articulated “was a
possibility that his having been honorably discharged from the service would affect [its] decision
regarding the sentence in this case.”

        Lastly, defendant argues that he is entitled to a remand for the ministerial task of
correcting the PSIR to reflect that defendant did not flee to Florida after the incident and that he
was honorably discharged from the navy. The trial court made the requested corrections to the
PSIR on remand. No further consideration is warranted.

        Affirmed in part and remanded for further proceedings consistent with this opinion.
Jurisdiction is not retained.

                                                             /s/ Kurtis T. Wilder
                                                             /s/ Deborah A. Servitto
                                                             /s/ Cynthia Diane Stephens




                                                -5-
