                          STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     April 14, 2015
               Plaintiff-Appellee,

v                                                                    No. 320003
                                                                     Saginaw Circuit Court
BRADFORD SCOTT MITCHELL,                                             LC No. 11-035954-FC

               Defendant-Appellant.


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

PER CURIAM.

      Defendant appeals as of right his jury trial conviction of manslaughter, MCL 750.321.
He was sentenced as a second habitual offender, MCL 769.10, to serve 180 months to 706
months in prison.1

       In January 2011, defendant believed the victim owed him five dollars and set about trying
to recover it. Both the victim’s ex-wife and friend saw the victim on January 14, 2011, and
witnessed or heard about defendant’s attempts to recover the money he believed he was owed.
The victim’s ex-wife recalled at trial that defendant came to the victim’s apartment multiple
times and banged on the doors, yelling obscenities and threatening the victim. One of the
victim’s friends recounted that the victim was upset with defendant’s antics.

         On January 16, 2011, the victim was found dead in his apartment. The medical examiner
testified that he had suffered injuries to his head, neck, and back, including a skull fracture and
five stab wounds in the back of his head and neck. Defendant was interviewed and admitted
having been involved in a physical altercation with the victim. However, he claimed that he had
only struck the victim in self-defense.


1
  This is the second appeal in this case. In the first appeal, we reversed defendant’s conviction of
second-degree murder, MCL 750.317, and remanded for a new trial on grounds that the jury
should have been instructed on voluntary manslaughter. People v Mitchell, 301 Mich App 282,
289; 835 NW2d 615 (2013). We also concluded that there was insufficient evidence to prove
that defendant was guilty of carrying a weapon with unlawful intent in violation of MCL
750.226. Id. at 294.


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        Defendant raises two issues on appeal. First, he argues that he was denied his Sixth and
Fourteenth Amendment rights when the trial court engaged in judicial fact-finding that
impermissibly increased his minimum sentence in violation of Alleyne v United States, 570
US___; 133 S Ct 2151; 186 L Ed 2d 314 (2013) (holding that any fact that increases a mandatory
minimum sentence is an element of a crime “that must be submitted to the jury and found
beyond a reasonable doubt”). Defendant acknowledges that in People v Herron, 303 Mich App
392, 405; 845 NW2d 533 (2013), this Court held that Michigan’s sentencing guidelines are
consistent with Alleyne and do not violate the Sixth Amendment. He also acknowledges that
Herron is binding precedent, MCR 7.215(J)(1), but urges this Court to conclude that Herron was
wrongly decided and call for a conflict panel pursuant to MCR 7.215(J). Our Supreme Court has
held Herron’s application for leave to appeal in abeyance pending its decision in People v
Lockridge (Supreme Court Docket No. 149073). People v Herron, ___ Mich ___; 846 NW2d
924 (2014). We decline to call for a conflict panel because the issue is of significant import and
is already slated to be resolved by our Supreme Court. Until the Supreme Court rules, we are
bound by Herron.

         Defendant also argues that trial counsel was ineffective for failing to object to the trial
court’s judicial fact-finding at sentencing. However, in light of defense counsel’s subsequent
motion for resentencing based on Alleyne, we do not find that defense counsel’s performance
was deficient. See People v Frazier, 478 Mich 231, 243; 733 NW2d 713 (2007). Further, given
that Michigan’s sentencing guidelines do not run afoul of Alleyne, defendant cannot show that
the initial failure to object was outcome determinative. Id.

       Affirmed.


                                                             /s/ Donald S. Owens
                                                             /s/ Kathleen Jansen
                                                             /s/ Christopher M. Murray




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