                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   June 28, 2016
               Plaintiff-Appellee,

v                                                                  No. 325712
                                                                   Macomb Circuit Court
MATTHEW ELIOT CRUMLEY,                                             LC No. 2013-001233-FC

               Defendant-Appellant.


Before: MURPHY, P.J., and SAAD and BORRELLO, JJ.

PER CURIAM.

        Defendant was convicted, after a jury trial, of armed robbery, MCL 750.529, and third-
degree fleeing and eluding a law enforcement officer, MCL 257.602a(3)(a). Defendant was
sentenced, as a second habitual offender, MCL 769.10, to 120 to 240 months for armed robbery
and 36 to 90 months for fleeing and eluding. Defendant now appeals as of right. For the reasons
set forth in this opinion, we affirm defendant’s convictions; however, we remand to the trial
court for a determination of whether resentencing is warranted under People v Lockridge, 498
Mich 358, 392; 870 NW2d 502 (2015), and United States v Crosby, 397 F3d 103, 117-118 (CA
2, 2005).

                                      I. BACKGROUND

        On March 21, 2013 at a CVS store in Warren, Michigan, defendant entered the store with
his face covered. The employees on duty that evening immediately noticed defendant’s presence
and because he was covering his face, went into the back room to alert their manager that a
suspicious person was in the store. The manager called 9-1-1 while another employee went to
the front of the store where he found defendant behind the cash register. When the employee
went up to defendant, defendant showed the employee what appeared to be a steak knife with a
black handle and a serrated blade. Defendant held the knife near the employee’s abdomen and
demanded that the employee open the cash register. The employee, fearing that he would be
attacked if he did not comply, opened the cash register. Defendant took the cash and some
cigarettes and left the store.

       Police, responding to the 9-1-1 call, arrived shortly after defendant had exited the store,
however they were able to catch-up to him and a chase ensued. The chase began in Warren and
continued on I-75 when defendant went the wrong way on I-75, causing a police cruiser
accident. The chase ended in Hamtramck when defendant abandoned his vehicle and tried to
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hide underneath a nearby deck. As police tried to pull defendant from underneath the deck, he
again resisted but was apprehended around 2:30 a.m.

        Defendant complained of heart problems and told police that he had taken drugs, so
police took defendant to the hospital. Following defendant’s release from the hospital, he was
advised of his rights under Miranda,1 and signed a Miranda waiver. Thereafter, defendant
confessed to the CVS robbery. He was also accused of committing at least two other armed
robberies in neighboring towns, including one in Hazel Park. As a result, the Warren Police
Department contacted the Hazel Park Police Department when defendant was in custody. After
being interviewed by the Warren detectives, Detective Boucher from the Hazel Park Police
Department also interviewed defendant. Before trial, defense counsel requested a Walker
hearing, arguing that defendant’s videotaped statement to Detective Boucher, which included
admissions regarding the Hazel Park armed robbery and the CVS robbery at issue, was not
voluntarily given as defendant was “still feeling the effects” of the drugs he had ingested before
his arrest, defendant had not slept, defendant had been “beat” by the Warren police, and had
briefly requested a lawyer before the interview continued. After viewing the videotaped
statement, the trial court allowed the statement admitted as evidence.
                                     II. CROSBY REMAND
        On appeal, defendant argues that he is entitled to resentencing under Lockridge because
the trial court relied on facts not admitted by defendant or found by the jury to score Offense
Variable (OV) 1 and OV 4 of the sentencing guidelines. Because this issue is preserved, it is
reviewed for harmless error beyond a reasonable doubt. People v Terrell, 312 Mich App 450,
464; ___NW2d___ (2015). Whether a Sixth Amendment violation occurred is a question of
constitutional law, which this Court reviews de novo. Lockridge, 498 Mich at 373.

        In Lockridge, our Supreme Court held that Michigan’s sentencing guidelines are
constitutionally deficient to the extent that “the guidelines require judicial fact-finding beyond
facts admitted by the defendant or found by the jury to score offense variables (OVs) that
mandatorily increase the floor of the guidelines minimum sentence range, i.e. the ‘mandatory
minimum’ sentence under Alleyne v United States, 570 US ___; 133 S Ct 2151; 186 L Ed 2d 314
(2013)].” Lockridge, 498 Mich at 364. To remedy this violation, the Court held that a guidelines
range calculated in violation of Alleyne is advisory only. Id. at 365.

         As explained in People v Stokes, 312Mich App 181, 198; 877 NW2d 752 (2015), the
Lockridge Court found that in cases “in which (1) facts admitted by the defendant and (2) facts
found by the jury were sufficient to assess the minimum number of OV points necessary for the
defendant’s score to fall in the cell of the sentencing grid under which he or she was sentenced[,]
. . . because the defendant suffered no prejudice from any error, there is no plain error and no
further inquiry is required.” The Lockridge Court further held that

         all defendants (1) who can demonstrate that their guidelines minimum sentence
         range was actually constrained by the violation of the Sixth Amendment and (2)


1
    Miranda v Arizona, 384 US 436, 444; 86 S Ct 1602; 16 L Ed 2d 694 (1966).


                                                -2-
       whose sentences were not subject to an upward departure can establish a threshold
       showing of the potential for plain error sufficient to warrant a remand to the trial
       court for further inquiry. [Lockridge, 498 Mich at 395.]

Although the Lockridge Court adopted this procedure in the context of addressing an
unpreserved claim of error, this Court held in Stokes, 312 Mich App at 200, that the Crosby
remand procedure also applies “to both preserved and unpreserved errors.”

        Defendant received a total of 30 OV points, placing him in OV Level II (20 to 39 points)
on the applicable sentencing grid and a total of 35 Prior Record Variable (PRV) points, placing
him in PRV level D, with a guidelines range of 81 to 168 months. MCL 777.62. This guidelines
range was based on the scoring of PRV 2, PRV 6, PRV 7, OV 1, OV 2, and OV 4. The trial
court assessed 15 points for OV 1 (aggravated use of a weapon), MCL 777.22, and 10 points for
OV 4 (psychological injury to a victim), MCL 777.34. Defendant argues that the points assessed
for OVs 1 and 4 were improperly assessed against defendant, as the factual basis necessary to
score each was not admitted by defendant or found beyond a reasonable doubt by the jury.

        The trial court assessed 15 points under OV 1. OV 1 involves the aggravated use of a
weapon and 15 points is appropriate if “a firearm was pointed at or toward a victim or the victim
had a reasonable apprehension of an immediate battery when threatened with a knife . . . .” MCL
777.31(1)(c). Defendant was convicted of armed robbery and third-degree fleeing and eluding.
In order to obtain a conviction for armed robbery, a prosecutor must prove that

       (1) the defendant, in the course of committing a larceny of any money or other
       property that may be the subject of a larceny, used force or violence against any
       person who was present or assaulted or put the person in fear, and (2) the
       defendant, in the course of committing the larceny, either possessed a dangerous
       weapon, possessed an article used or fashioned in a manner to lead any person
       present to reasonably believe that the article was a dangerous weapon, or
       represented orally or otherwise that he or she was in possession of a dangerous
       weapon. [People v Chambers, 277 Mich App 1, 7; 742 NW2d 610 (2007).]

Thus, to convict defendant of armed robbery, the jury was only required to find beyond a
reasonable doubt that defendant was armed with a weapon—not that he pointed it at the CVS
employee working during the robbery, or threatened him with it. People v Smith, 478 Mich 292,
319; 733 NW2d 351 (2007); MCL 750.529. Moreover, to convict defendant of armed robbery, it
was not necessary for the jury to find that the CVS employee had a reasonable apprehension of
immediate battery. Thus, the jury did not make any finding related to defendant’s armed robbery
conviction which would support a 15 point score under this OV. See Stokes, 312 Mich App at
194.

       The elements of third-degree fleeing and eluding are

       (1) the law enforcement officer must have been in uniform and performing his
       lawful duties and his vehicle must have been adequately identified as a law
       enforcement vehicle, (2) the defendant must have been driving a motor vehicle,
       (3) the officer, with his hand, voice, siren, or emergency lights must have ordered

                                               -3-
       the defendant to stop, (4) the defendant must have been aware that he had been
       ordered to stop, (5) the defendant must have refused to obey the order by trying to
       flee from the officer or avoid being caught, which conduct could be evidenced by
       speeding up his vehicle or turning off the vehicle’s lights among other things, and
       (6) some portion of the violation must have taken place in an area where the speed
       limit was thirty-five miles an hour or less, or the defendant’s conduct must have
       resulted in an accident or collision, or the defendant must have been previously
       convicted of certain prior violations of the law as listed in MCL 750.479a(3)(c) . .
       . . [People v Grayer, 235 Mich App 737, 741; 599 NW2d 527 (1999), citing
       MCL 750.479a(3).2]

Thus, to convict defendant of fleeing and eluding the jury did not make any finding related to a
weapon or apprehension of immediate battery. As a result, although the CVS employee testified
that defendant pointed the knife toward his abdomen, this fact was not necessary to support
defendant’s convictions, the jury did not render any finding and defendant made no admissions
regarding that matter. As a result, the 15 points assessed for OV 1 constitute judicial fact-finding
outside the scope of the jury verdict.

        The trial court assessed 10 points under OV 4. OV 4 covers psychological injury and 10
points is appropriate if “[s]erious psychological injury requiring professional treatment occurred
to a victim.” MCL 777.34(1)(a). “In making this determination, the fact that treatment has not
been sought is not conclusive.” MCL 777.34(2). Zero points are assessed when “[n]o serious
psychological injury requiring professional treatment occurred to a victim.” MCL 777.34(1)(b).

         The CVS employee testified that defendant threatened him with a knife and that he was
scared during the robbery. However, there was no testimony regarding whether the CVS
employee suffered psychological injury and, as shown above, psychological injury is not an
element of either crime the jury found defendant guilty of. Thus, the facts necessary to support a
score of 10 points under this OV were not necessarily found by the jury. Additionally, while in
defendant’s description of the offense in the Presentence Investigation Report (PSIR) defendant
admitted he “endangered, victimized, and terrorized” people during the robbery, defendant did
not admit facts to support a finding that The CVS employee suffered psychological injury. As a
result, the 10 points assessed for OV 4 constitute judicial fact-finding outside the scope of the
jury verdict.

        In sum, the 15 points assessed for OV 1 and 10 points assessed for OV 4 were improperly
assessed against defendant, as the factual basis necessary to score them were not found beyond a
reasonable doubt by the jury or admitted by defendant. Defendant received a total of 30 OV
points, placing him in OV Level II (20 to 39 points) on the applicable sentencing grid with a
guidelines range of 81 to 168 months. MCL 777.62. Deducting the 15 points assessed under OV
1 and the 10 points assessed under OV 4 would “change the applicable guidelines minimum
sentence range,” Lockridge, 498 Mich at 399, and put defendant in OV level I (0 to 19) with a


2
  When this Court decided Grayer, fleeing and eluding was proscribed by MCL 750.479a.
Essentially identical language now appears in MCL 257.602a.


                                                -4-
guidelines range of 51 to 106 months. Therefore, defendant is entitled to a Crosby remand under
Lockridge.

                                   III. STANDARD 4 BRIEF

       Next, in his Standard 4 Brief, defendant argues that the trial court abused its discretion in
denying his motion to suppress his police statement. Defendant argues that his Miranda waiver
was not voluntary. A trial court’s determination that a waiver was knowingly, intelligently, and
voluntarily made is reviewed de novo. People v Gipson, 287 Mich App 261, 264; 787 NW2d
126 (2010).

        The United States and Michigan Constitutions prohibit compelled self-incrimination. US
Const, Am V; Const 1963, art 1, § 17; People v Elliott, 494 Mich 292, 301 n 4; 833 NW2d 284
(2013). In order to use a defendant’s incriminating statements resulting from a custodial
interrogation, the prosecution must demonstrate that proper procedural safeguards were in place
to protect the right against self-incrimination. See Miranda v Arizona, 384 US 436, 444; 86 S Ct
1602; 16 L Ed 2d 694 (1966). “Prior to any questioning, the person must be warned that he has a
right to remain silent, that any statement he does make may be used as evidence against him, and
that he has a right to the presence of an attorney, either retained or appointed.” Id. A defendant
may waive his rights if the waiver is voluntary, knowing, and intelligent. Id. “[T]he analysis
must be bifurcated, i.e., considering (1) whether the waiver was voluntary, and (2) whether the
waiver was knowing and intelligent.” People v Tierney, 266 Mich App 687, 707; 703 NW2d
204 (2005).

        Defendant’s argument is focused on the voluntariness of the confession and Miranda
waiver, not on whether the Miranda waiver was knowing and intelligent. “[W]hether a waiver
of Miranda rights is voluntary depends on the absence of police coercion.” People v Daoud, 462
Mich 621, 635; 614 NW2d 152 (2000). The prosecution bears the burden of proving
voluntariness by a preponderance of the evidence. Id. at 634. “The test of voluntariness is
whether, considering the totality of all the surrounding circumstances, the confession is the
product of an essentially free and unconstrained choice by its maker, or whether the accused’s
will has been overborne and his capacity for self-determination critically impaired.” People v
Givans, 227 Mich App 113, 119, 121; 575 NW2d 84 (1997). Regardless of whether express or
implied, Miranda made clear that any waiver must be “made voluntarily, knowingly and
intelligently.” 384 US at 475.

         To determine whether a defendant’s statement was voluntary, the court considers the
totality of the circumstances, including:

       [1] the age of the accused; [2] his lack of education or his intelligence level; [3]
       the extent of his previous experience with the police; [4] the repeated and
       prolonged nature of the questioning; [5] the length of the detention of the accused
       before he gave the statement in question; [6] the lack of any advice to the accused
       of his constitutional rights; [7] whether there was an unnecessary delay in
       bringing him before a magistrate before he gave the confession; [8] whether the
       accused was injured, [9] intoxicated or drugged, or in ill health when he gave the
       statement; [10] whether the accused was deprived of food, sleep, or medical

                                                -5-
       attention; [11] whether the accused was physically abused; and [12] whether the
       suspect was threatened with abuse. [People v Cipriano, 431 Mich 315, 334; 429
       NW2d 781 (1988).]

        No single factor is conclusive, id.; People v Fike, 228 Mich App 178, 182; 577 NW2d
903 (1998), however, voluntariness “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). While whether the accused was physically assaulted is considered in the voluntariness
analysis, if the accused was physically abused by the police a Miranda waiver is still voluntary if
“there is no causal connection between the events at the time of arrest and the giving of a
subsequent statement . . . [and] the other circumstances show that the defendant gave his
confession freely and voluntarily.” People v Wells, 238 Mich App 383, 389; 605 NW2d 374
(1999) (internal citations omitted). “However, if an earlier beating is particularly severe, if the
abuse continues until the time a confession is given, if the same officers are involved in both the
beating and the procuring of the statement, or if there is no change in the setting, then courts may
find that a confession was involuntarily given.” Id.

        Defendant claims that he was beaten at the time of his arrest and that the beating induced
his later waiver of Miranda rights and statement to Sergeant David Kriss. However, the police
officers involved in defendant’s arrest testified that they struck defendant when he refused to
show them his hands or come out from beneath the deck, which they claim necessitated the
application of force to effectuate his arrest. Moreover, there is nothing in the record to suggest
defendant was seriously wounded and the three police officers who used force in order to
effectuate defendant’s arrest were not involved in defendant’s later police interview.
Additionally, the physical assault on defendant occurred on a side street in Hamtramck, but
defendant’s interview with Sergeant Kriss occurred hours later at the Warren Police Department.
Thus, because the police provided an explanation for defendant’s physical assault, which was
unrelated to procuring a statement from defendant, and the record establishes that there was no
causal link between the physical force used by the police and defendant’s statement and Miranda
waiver, the police’s physical assault against defendant did not amount to police coercion or make
his Miranda waiver involuntary. See Wells, 238 Mich App at 388 (finding where the “defendant
was injured during the course of his arrest when he attempted to retrieve an assault rifle and
resisted arrest, thus necessitating an application of force to subdue defendant and effectuate the
arrest . . . there was no causal link between defendant’s statement and the events surrounding
defendant’s arrest,” and thus, “the physical assault at the time of arrest did not render the
defendant’s subsequent statement involuntary.”)3 Thus, because defendant failed to demonstrate



3
 Additionally, to the extent defendant is arguing that his statements were not voluntary because
he was injured or in pain, we note that courts have upheld waivers under many circumstances in
which suspects were injured or in pain as long as they were alert and responsive during
questioning. See, e.g., Reinert v Larkins, 379 F3d 76 (3rd Cir 2004), upholding defendant’s
waiver of Miranda even though the interrogation took place in an ambulance as the defendant
was being taken to the hospital; United States v Cristobal, 293 F3d 134, 142 (4th Cir 2002)
upholding a waiver by a defendant suffering from postsurgical pain in spite of being on a

                                                -6-
what defendant characterizes as the police “beating” affected the voluntariness of his Miranda
waiver, the trial court did not err in denying defendant’s motion to suppress his statement.

        Last, in his Standard 4 Brief on Appeal, defendant contends that he was denied the
effective assistance of counsel. Defendant claims that defense counsel was ineffective when he
1) failed to seek a proper identification line-up after The CVS employee could not identify
defendant at the preliminary examination, 2) failed to obtain an expert in DNA and fingerprint
analysis and obtain an expert in involuntary confessions, and 3) “admitted that he never went to
look for physical evidence and even mentioned erroneously that defendant[] was caught with
stolen items to the jury during closing arguments.”

        To preserve a claim of ineffective assistance of counsel, a defendant must make a motion
for a new trial or an evidentiary hearing with the trial court. People v Heft, 299 Mich App 69,
80; 829 NW2d 266 (2012). Defendant never moved for a new trial or a requested Ginther4
hearing in the trial court. Thus, this issue is unpreserved. “Whether a person has been denied
effective assistance of counsel is a mixed question of fact and constitutional law.” People v
LeBlanc, 465 Mich 575, 579; 640 NW2d 246 (2002). Generally, the trial court’s findings of fact
are reviewed for clear error and the questions of constitutional law are reviewed de novo. Id.
Unpreserved claims of ineffective assistance of counsel can still be reviewed, but review is
limited to errors apparent in the record below. People v Matuszak, 263 Mich App 42, 48; 687
NW2d 342 (2004).

        The United States and Michigan Constitutions guarantee a defendant the right to effective
assistance of counsel. US Const, Am VI; Const 1963, art 1, § 20. To establish ineffective
assistance of counsel, a defendant must show: (1) that counsel’s performance was below an
objective standard of reasonableness under prevailing professional norms, and (2) that there is a
reasonable probability that, but for counsel’s deficient performance, the result of the proceedings
would have been different. Strickland v Washington, 466 US 668, 694; 104 S Ct 2052; 80 L Ed
2d 674 (1984); People v Trakhtenberg, 493 Mich 38, 51; 826 NW2d 136 (2012). A “reasonable
probability” is a probability sufficient to undermine confidence in the outcome. Strickland, 466
US at 694.

        Effective assistance of counsel is presumed, and the defendant bears a substantial burden
of proving otherwise. People v Vaughn, 491 Mich 642, 670; 821 NW2d 288 (2012). A
defendant can overcome the presumption by showing that counsel failed to perform an essential
duty and that failure was prejudicial to the defendant. People v Reinhardt, 167 Mich App 584,
591; 423 NW2d 275 (1988), remanded on other grounds 436 Mich 866 (1990). Counsel’s
strategic judgments are afforded deference, Wiggins v Smith, 539 US 510, 521-522, 528; 123 S
Ct 2527; 156 L Ed 2d 471 (2003), but strategic choices made after an incomplete investigation
are reasonable only to the extent that reasonable professional judgments support the limitation on
investigation, Wiggins, 539 US at 521-522; Trakhtenberg, 493 Mich at 52-55.


narcotic painkiller because the medication apparently did not affect the defendant’s thought
process.
4
    People v Ginther, 390 Mich 436, 443; 212 NW2d 922 (1973).


                                                -7-
        First, defendant argues that defense counsel was ineffective when he failed to seek a
“proper identification line-up” after “[The CVS employee] could not identify defendant[] at the
preliminary examination.” However, defendant’s claim is inconsistent with the record as the
bind over form in the lower court file indicates that defendant waived his preliminary
examination. Moreover, The CVS employee never identified defendant. At trial, The CVS
employee testified that, although he got a split second look at the assailant’s face, he could not
identify the man or give a physical description. Instead, three Warren police officers identified
defendant as the assailant. The CVS employee never identified defendant and, therefore, defense
counsel had no reason to challenge “the identification procedure” with regard to The CVS
employee. Because counsel is not required to argue meritless positions, People v Ericksen, 288
Mich App 192; 793 NW2d 120 (2010), counsel’s failure to seek a “proper identification line-up”
did not fall below an objective standard of reasonableness, Strickland, 466 US at 688.

        Second, defendant argues that defense counsel was ineffective when he failed to obtain
an expert to testify regarding involuntary confessions. However, defendant has neither overcome
the strong presumption that counsel’s performance was trial strategy nor made any showing that,
but for counsel’s failure to call an expert in involuntary confessions, the result of the proceeding
would have been different. Rather than calling an expert in involuntary confessions, defense
counsel raised the issue of the voluntariness of defendant’s statement through the cross-
examination of Sergeant Kriss, which was a reasonable trial strategy. Moreover, defendant has
merely speculated that an expert in involuntary confessions could have provided favorable
testimony. Thus, even if we were to presume that trial counsel was ineffective, defendant has
failed to show that the retention of an expert would have altered the outcome of the trial.
Accordingly, defendant is not entitled to relief on this issue.

        Third, defendant argues that defense counsel was ineffective when he failed to obtain “an
expert to test for DNA and fingerprints in the motor vehicle and contents to prove that
defendant[] was never inside of the [white van] used as a getaway vehicle.” However, contrary
to defendant’s argument, the record indicates that the police took fingerprints from the van and
that a “fingerprint report” was produced and provided to defense counsel. Not only was
fingerprinting completed, but the fingerprints recovered from a cellphone found during the
investigation belonged to defendant. Thus, defense counsel had no reason to retain an expert to
conduct fingerprinting when it had already occurred. Because counsel is not required to argue
meritless positions, Ericksen, 288 Mich App at 192, counsel’s failure to obtain an expert to
conduct fingerprinting did not fall below an objective standard of reasonableness, Strickland, 466
US at 688.

        Defendant asserts that defense counsel was ineffective when he “admitted that he never
went to look for physical evidence and even mentioned erroneously that defendant[] was caught
with stolen items to the jury during closing arguments.” However, again, defendant’s arguments
are inconsistent with the record. First, there is no indication in the record that defense counsel
stated that he failed to look for physical evidence. Second, the prosecutor made the statement in
closing argument, which defendant attributes to defense counsel, that defendant “was caught in
the act, he was caught with the goods, he was caught with the money, the cigarettes . . . .” Thus,
these allegations have no merit.



                                                -8-
         Last, although the parties do not raise the issue, this Court notes that the judgment of
sentence lists defendant’s sentence as 20 to 240 months for armed robbery. However, at
sentencing, the trial court sentenced defendant to 120 to 240 months for armed robbery. Thus, if
the trial court does not resentence defendant under Lockridge, it should correct the clerical error
in the judgment of sentence to reflect defendant’s correct sentence for armed robbery. MCR
6.435(A); MCR 7.216(A)(7).

        Affirmed in part and remanded for further proceedings consistent with this opinion. We
do not retain jurisdiction.



                                                            /s/ William B. Murphy
                                                            /s/ Henry William Saad
                                                            /s/ Stephen L. Borrello




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