                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED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

v                                                                   No. 333317
                                                                    Wayne Circuit Court
LAKEISHA NICOLE GUNN,                                               LC No. 13-004566-01-FH

               Defendant-Appellant.


Before: MURRAY, P.J., and FORT HOOD and GLEICHER, JJ.

PER CURIAM.

       Defendant appeals as of right, following resentencing, 1 her sentence of 15 to 30 years’
imprisonment for her jury-trial conviction of second-degree arson, MCL 750.73(1).2 We affirm.

        This case has a somewhat complicated and protracted procedural history. Following a
jury trial, defendant was convicted of second-degree arson, MCL 750.73(1) (“Count I”), and
placing an offensive or injurious substance in or near real property with intent to injure or
damage property, MCL 750.209(1)(b) (“Count II”). The trial court originally sentenced
defendant, as a third habitual offender, MCL 769.11, to 15 to 30 years’ imprisonment for each
conviction, to be served concurrently. On appeal, this Court affirmed defendant’s convictions,
but vacated her sentence on Count II, and remanded for resentencing on that count only. People
v Lakeisha Nicole Gunn, unpublished opinion per curiam of the Court of Appeals, issued
February 17, 2015 (Docket No. 318065), pp 1-2. In the context of considering defendant’s
sufficiency of the evidence challenge, this Court stated its reasoning for ordering resentencing of
Count II in pertinent part, as follows:



1
  For reasons set forth in more detail subsequently in this opinion, defendant was only
resentenced on a count of placing an offensive or injurious substance in or near real property
with intent to injure or damage property, MCL 750.209(1)(b).
2
  Defendant was sentenced as a third habitual offender, MCL 769.11. As will be detailed
subsequently in this opinion, the trial court also sentenced defendant to 10 to 30 years’
imprisonment for her jury-trial conviction of placing an offensive or injurious substance in or
near real property with intent to injure or damage property, MCL 750.209(1)(b).


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                [The judgment of sentence] . . . identifies the conviction offense on Count
         II as placing an explosive substance in or near real property, citing MCL
         750.207(2)(b). The record indicates, however, that defendant was charged with
         and convicted of placing an offensive or injurious substance in or near real
         property, contrary to MCL 750.209(1)(b).

                At sentencing however, defendant’s conviction for Count II was
         inaccurately listed on the sentencing information report as placing explosives on
         or near property, contrary to MCL 750.207(2)(b), and the parties and the trial
         court proceeded as if defendant had been convicted of that offense, which is the
         offense identified on defendant’s judgment of sentence. Because the trial court
         sentenced defendant under the mistaken belief that [she] had been convicted of
         placing explosives on or near property, pursuant to MCR 2.617(A)(7), we vacate
         defendant’s sentence for Count II and remand for resentencing on the correct
         conviction of placing an offensive or injurious substance in or near real property,
         contrary to MCL 750.209(1)(b). [Gunn, unpub op at 1-2 (emphasis added).]

        With respect to defendant’s challenge that the trial court engaged in impermissible
judicial fact-finding in scoring the sentencing guidelines variables, this Court stated, in pertinent
part, as follows:

                Defendant lastly argues that judicial fact-finding by the trial court when
         scoring the sentencing guidelines variables entitles [her] to resentencing under
         Alleyne v United States, 570 US ___; 133 S Ct 2151; 186 L Ed 2d 314 (2013). As
         defendant acknowledges, this Court rejected this same argument in People v
         Herron, 303 Mich App 392, 405; 845 NW2d 533 (2013) appeal held in abeyance
         ___ Mich ___; 846 NW2d 924 (2014). Because we are required to follow
         Herron, see MCR 7.215(J)(1), we reject this claim of error. [Gunn, unpub op at
         13.]

        Defendant subsequently applied for leave to appeal to the Michigan Supreme Court. In
lieu of granting leave to appeal, the Michigan Supreme Court remanded for a Crosby3 hearing
pursuant to People v Lockridge, 498 Mich 358; 870 NW2d 502 (2015) on Count I, but denied
leave on the remaining issues. People v Gunn, 498 Mich 903; 870 NW2d 894 (2015).
Specifically, the Michigan Supreme Court’s order provided, in pertinent part, as follows:

         [W]e REVERSE in part the judgment of the Court of Appeals, and we REMAND
         this case to the Wayne Circuit Court to determine whether the court would have
         imposed a materially different sentence under the sentencing procedure described
         in People v Lockridge, 498 Mich 358; 870 NW2d 502 (2015). On remand, the
         trial court 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.


3
    United States v Crosby, 397 F3d 103 (CA 2, 2005).


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       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. In all other respects, leave to appeal is DENIED, because we are
       not persuaded that the remaining questions presented should be reviewed by this
       Court. [Gunn, 498 Mich at 903 (emphasis added).]

The trial court held a Crosby hearing, and concluded, with respect to Count I, that it would have
imposed the same sentence on Count I had the sentencing guidelines been advisory. The trial
court also resentenced defendant in accordance with the proper offense on Count II to 10 to 30
years’ imprisonment. Defendant then filed a motion for resentencing with respect to Count I,
which the trial court denied, holding that it lacked authority to resentence defendant.

       Defendant now argues on appeal that this Court should remand to the trial court for
resentencing on Count I. We disagree.

        Where our resolution of the issue presented requires an interpretation of the applicable
court rule, our review is de novo. People v Comer, 500 Mich 278, 287; 901 NW2d 553 (2017).

        At issue in this case is the trial court’s authority to revisit the sentence it rendered with
respect to Count I. As an initial matter, MCR 6.429(A) states, “[A] court may correct an invalid
sentence, but the court may not modify a valid sentence after it has been imposed except as
provided by law.” In People v Miles, 454 Mich 90, 96; 559 NW2d 299 (1997), the Michigan
Supreme Court set forth the following legal principles with respect to what constitutes an invalid
sentence:

       A sentence is invalid when it is beyond statutory limits, when it is based upon
       constitutionally impermissible grounds, improper assumptions of guilt, a
       misconception of law, or when it conforms to local sentencing policy rather than
       individualized facts. This Court has also repeatedly held that a sentence is invalid
       if it is based on inaccurate information. [Citations omitted.]

        In the instant case, defendant contends that her sentence on Count I was invalid for
several reasons, and we will address each in turn. First, defendant contends that her sentence on
Count I was the product of impermissible judicial fact-finding in violation of the Sixth
Amendment. However, as noted above, the trial court, in accordance with the Michigan
Supreme Court’s order that a Crosby hearing be held, clearly noted, with regard to its sentence
on Count I, that it would not have “imposed a materially different sentence” for defendant but for
the unconstitutional restraint on its discretion. Lockridge, 498 Mich at 397.

       Defendant also argues that her sentence is unreasonable, disproportionate, disparate and
that unusual circumstances existed warranting a more lenient sentence where defendant’s actions
in committing second-degree arson were the result of her being in an abusive domestic




                                                -3-
relationship.4 As an initial matter, we note that a review of her brief on appeal in Docket No.
318065 confirms that defendant, aside from her Alleyne challenge, did not raise any other
arguments concerning the validity of her sentence in her initial appeal. Moreover, where
defendant’s minimum sentence falls within “the appropriate guidelines sentence range,” this
Court “shall affirm that sentence” absent an error in scoring or an indication that the sentence
was based on inaccurate information. MCL 769.34(10); People v Schrauben, 314 Mich App
181, 196; 886 NW2d 173 (2016).

        Defendant also argues that her sentence on Count I was based on inaccurate information
where the trial court initially rendered a sentence on Count II for the incorrect offense of placing
explosives on or near real property, contrary to MCL 750.207(2)(b). In support of her argument,
defendant points to the Michigan Supreme Court’s decision in Miles, 454 Mich at 90. At issue in
Miles was the authority of the trial court to modify a sentence. Id. at 96. The Michigan Supreme
Court held that the trial court erred in increasing the defendant’s sentence for felony-firearm and
reaffirming its sentence for armed robbery “without affording [the] defendant an opportunity to
challenge [subsequent] new information at a resentencing hearing.” Id. at 98.5 Where the
defendant conceded the accuracy of a prior felony-firearm conviction, the Michigan Supreme
Court concluded that the trial court’s failure to conduct a resentencing hearing before amending
the judgment of sentence as a result of that new information was harmless error. Id. at 100-101.
However, with respect to the defendant’s sentence of armed robbery, the Michigan Supreme
Court remanded for resentencing where that sentence was “based on . . . inaccurate information
in the presentence report[.]” Id. at 101.

        In our view, Miles is factually dissimilar, in that the defendant’s presentence investigation
report (PSIR) in that case omitted information that directly affected both his sentence for felony-
firearm and armed robbery. In the present case, the incorrect citation of the offense in the PSIR
and in the judgment of sentence did not directly impact defendant’s sentence for second-degree
arson. In fact, the trial court plainly stated that although the wrong citation had been included in
the PSIR and judgment of sentence, the trial court was cognizant that it was sentencing defendant
on the correct charge. Further, while there may have been an inadvertent procedural discrepancy
that occurred with regard to defendant’s sentence on Count II, we note that the sentencing
guidelines for both offenses relative to Count II were the same, given that placing explosives on
or near real property, MCL 750.207(2)(b), and placing an offensive or injurious substance in or
near real property with intent to injure or damage property, MCL 750.209(1)(b), are both Class B
offenses. MCL 777.16k.6 Therefore, because defendant’s sentence of 15 to 30 years’



4
  Aside from arguing for a lesser sentence where defendant had been involved in an abusive
relationship, defendant did not raise any of these claims with respect to Count I at the
resentencing for Count II.
5
   Specifically, the report did not correctly include information that the defendant had a previous
felony-firearm conviction. Id. at 92.
6
  Notably, at the resentencing hearing on May 3, 2016, defense counsel conceded that the
sentencing guidelines range remained the same.


                                                -4-
imprisonment for Count I is a valid sentence, the trial court correctly recognized that it did not
have the authority to modify it. See MCR 6.429(A).

       Affirmed.



                                                            /s/ Christopher M. Murray
                                                            /s/ Karen M. Fort Hood




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