                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   March 15, 2018
                Plaintiff-Appellee,

v                                                                  No. 332323
                                                                   Saginaw Circuit Court
TOD KEVIN HOUTHOOFD,                                               LC No. 05-025865-FH

                Defendant-Appellant.


                                       AFTER REMAND

Before: HOEKSTRA, P.J., and METER and K. F. KELLY, JJ.

PER CURIAM.

       In 2006, defendant was convicted of solicitation to commit murder, MCL 750.157b,
witness intimidation, MCL 750.122, and obtaining property valued over $100 by false pretenses,
MCL 750.218. This case has been before us on several previous occasions.1 Most recently, we
vacated defendant’s sentence for solicitation to commit murder and remanded for resentencing
because, when resentencing defendant in March 2016, the trial court failed to score any of the
offense variables (OVs) due to the mistaken belief that Lockridge2 precluded judicial fact-finding
in connection with the scoring of OVs. See Houthoofd V, unpub op at 6-7. On remand, in
December 2017, the trial court scored the OVs and departed upward from the advisory guideline
range to sentence defendant to 360 to 600 months’ imprisonment for his solicitation to commit


1
  People v Houthoofd, unpublished opinion per curiam of the Court of Appeals, issued February
3, 2009 (Docket No. 269505) (Houthoofd I), rev'd in part and remanded 487 Mich 568 (2010);
People v Houthoofd (On Remand), unpublished opinion per curiam of the Court of Appeals,
issued December 2, 2010 (Docket No. 269505) (Houthoofd II); People v Houthoofd, unpublished
opinion per curiam of the Court of Appeals, issued February 18, 2014 (Docket No. 312977)
(Houthoofd III); People v Houthoofd, unpublished opinion per curiam of the Court of Appeals,
issued May 14, 2015 (Docket No. 322592) (Houthoofd IV); People v Houthoofd, unpublished
opinion per curiam of the Court of Appeals, issued September 14, 2017 (Docket No. 332323)
(Houthoofd V).
2
    People v Lockridge, 498 Mich 358; 870 NW2d 502 (2015).


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murder conviction. We retained jurisdiction, and the case now returns to us following
resentencing. Because the trial court clearly erred by scoring OV 14, we again vacate
defendant’s sentence and remand for resentencing.

        On appeal, among other arguments,3 defendant asserts that the trial court clearly erred by
scoring OV 14 at 10 points and OV 19 at 10 points. With regard to OV 14, defendant maintains
that solicitation is essentially a one-man crime that is complete when the offer is made,
regardless of whether the person solicited agrees to commit murder or has any intention of
engaging in criminal activity. Defendant argues that, in this case, the individual solicited—
Michael Dotson—was not a participant in a criminal offense because Dotson’s testimony makes
clear that he never had any intention of committing an illegal act. In these circumstances,
defendant asserts that OV 14 cannot be scored at 10 points based on defendant’s solicitation of
Dotson.4 With regard to OV 19, defendant contends that his actions in soliciting Dotson to
commit murder may not be scored under OV 19 because OV 19 is offense specific and his
actions did not interfere with his prosecution for solicitation; rather, his actions were intended to
prevent his prosecution for obtaining property by false pretenses.

        “Under the sentencing guidelines, 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). “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).

       OV 14 addresses the “offender’s role,” MCL 777.44(1), and it is properly scored at 10
points when “[t]he offender was a leader in a multiple offender situation,” MCL 777.44(1)(a).


3
  Defendant raises several arguments on appeal. The majority of these arguments relate to issues
that we decided in Houthoofd V, including issues relating to the applicable burden of proof at
sentencing, the trial court’s consideration of information in the Presentence Investigation Report
(PSIR) and the necessity of an evidentiary hearing, as well as the applicability of Lockridge and
whether substantial and compelling reasons were required for a departure sentence. Following
remand, the material facts relating to these issues remain the same, and thus the law of the case
doctrine precludes a different ruling on these legal issues. People v Fisher, 449 Mich 441, 444;
537 NW2d 577 (1995). Indeed, defendant acknowledges in his appellate brief that he raises
these issues simply to preserve his claims of error for appeal to a higher court. Consequently, we
will not address these arguments.
4
  Relating to OV 14, defendant also asserts the trial court could not score OV 14 on remand in
December 2017 because, unlike other OVs, OV 14 was not scored in connection with
defendant’s original sentencing in 2006. However, in Houthoofd V, we vacated defendant’s
sentence and remanded for resentencing with specific instructions that the trial court should
score the OVs. On remand, the case was in a presentencing posture, People v Rosenberg, 477
Mich 1076; 729 NW2d 222 (2007); and the trial court was not precluded from scoring OV 14
simply because it had not been previously scored.


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When scoring of OV 14, “[t]he entire criminal transaction should be considered,” MCL
777.44(2)(a), and “[i]f 3 or more offenders were involved, more than 1 offender may be
determined to have been a leader,” MCL 777.44(2)(b). Notably, to be scored as a “leader,” the
defendant must be a “leader in a multiple offender situation.” MCL 777.44(1)(a) (emphasis
added). As this Court has previously recognized, “ ‘the plain meaning of ‘multiple offender
situation’ as used in OV 14 is a situation consisting of more than one person violating the law
while part of a group.’ ” People v Dickinson, 321 Mich App 1, 22; __ NW2d __ (2017), quoting
People v Jones, 299 Mich App 284, 287; 829 NW2d 350 (2013), vacated in part on other
grounds 494 Mich 880 (2013). See also People v Ackah-Essien, 311 Mich App 13, 38; 874
NW2d 172 (2015). More fully, this Court has explained:

       The word “multiple” is defined as “consisting of more than one.” New Illustrated
       Webster's Dictionary of the English Language (1992); see also Random House
       Webster's College Dictionary (2001) (defining “multiple” as “consisting of,
       having, or involving several or many individuals, parts, elements, relations, etc.”).
       An “offense” is defined as a “transgression of the law,” and an “offender”
       indicates a person who violated the law. See Random House Webster's College
       Dictionary (1997). Moreover, the statute's use of the word “leader” is significant
       when considering the context of the statute's use of the phrase “multiple offender
       situation.” The word “leader” is not defined in the statute; however, the
       dictionary defines a “leader” as one who is a “guiding or directing head” of a
       group. Id. Therefore, the plain meaning of “multiple offender situation” as used
       in OV 14 is a situation consisting of more than one person violating the law while
       part of a group. [Jones, 299 Mich App at 287.]

To merit a score under OV 14, another individual need not necessarily be charged in connection
with the crime; but, there must be more than one offender for there to be “a multiple offender
situation” within the meaning of MCL 777.44(1)(a). See Dickinson, 321 Mich App 22; Jones,
299 Mich App at 287.

       In this case, in scoring OV 14 at 10 points, the trial court made the following findings:

       [T]his is really clear to me that he is definitely the leader in this situation. We can
       argue semantics about it being a one-person crime once he solicits, but - - but for
       the solicitation, there would be no crime committed at all. And Mr. Dotson had
       nothing to do with the initial solicitation. So it’s quite clear to me he’s the leader
       in this situation . . . .

Considering the trial court’s factual findings, we do not see a basis for scoring OV 14 at 10
points. Quite simply, the trial court failed to make findings supporting a determination that this
case involved a multiple offender situation. It is clear that defendant solicited Dotson and thus it
is clear that defendant is an offender. But, the trial court made no finding that Dotson—or
anyone else acting with defendant—also violated the law as required to be considered an
“offender.” See Jones, 299 Mich App at 287. Absent a determination that there was another




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“offender” in addition to defendant, there is no basis for concluding that this is a “multiple
offender situation” and there is no basis for determining that defendant is a leader in a multiple
offender situation.5 Consequently, the trial court erred by scoring OV 14 at 10 points.

        When OV 14 is scored at zero points instead of 10 points, defendant’s total OV score
drops from 20 to 10 points, reducing his recommended sentencing range under the advisory
guidelines from 81-135 months to 51-85 months. See MCL 777.16h; MCL 777.62. Because this
error in the scoring of OV 14 alters defendant’s minimum sentencing range under the advisory
sentencing guidelines, and there is no indication that the trial court would have imposed the same
departure sentence absent this error, we find it necessary to again vacate defendant’s sentence
and remand for resentencing. 6 See People v Lathrop, 480 Mich 1036; 743 NW2d 565 (2008).

       Defendant also challenges the trial court’s scoring of OV 19, which relates to a “threat to
the security of a penal institution or court or interference with the administration of justice or the
rendering of emergency services.” MCL 777.49. The trial court scored defendant at 10 points,
which is appropriate when “[t]he offender otherwise interfered with or attempted to interfere


5
  In contrast to this conclusion, the prosecutor asserts on appeal that defendant was properly
scored 10 points under OV 14 because “the nature of solicitation itself” involves directing
another to commit a criminal offense and “by directing another to commit a criminal offense
defendant-appellant was a leader in a multiple-offender situation.” We find the prosecutor’s
argument unpersuasive. “Solicitation is complete when the solicitation is made,” and “[a]ctual
incitement is not necessary for conviction.” People v Crawford, 232 Mich App 608, 616; 591
NW2d 669 (1998). Indeed, a conviction for solicitation may be maintained, for example, even
when the individual solicited is an undercover police officer who could not actually be induced
to commit a crime. See, e.g., People v Salazar, 140 Mich App 137, 143; 362 NW2d 913 (1985).
In other words, while it is true that the solicitation involves a defendant soliciting someone to
commit a crime, the fact remains that the individual solicited may be entirely innocent of any
criminal wrongdoing. And, an individual who has not broken the law is not an “offender” within
the meaning of MCL 777.44. See Jones, 299 Mich App at 287. To be clear, we do not mean to
suggest that solicitation is inherently a one-man crime that can never involve a “multiple
offender situation” under OV 14. Obviously, more than one person could be involved with
soliciting a crime and, depending on the facts, it could also be concluded that the person solicited
is not an innocent individual but an “offender.” But, contrary to the prosecutor’s argument, it
cannot be assumed, simply because a defendant has solicited someone to commit a crime, that he
is a leader in a multiple offender situation. Rather, as with any offense, to score a defendant as a
leader in a multiple offender situation under OV 14, there must be a finding, based on
consideration of the entire criminal transaction, that there is more than one “offender.” Thus, if
the crime is solicitation and the record does not show at least one “offender” in addition to the
defendant, OV 14 may not be scored based on a defendant’s unilateral act of solicitation.
6
  Because we find it necessary to remand for resentencing, we do not address defendant’s
arguments that the sentence imposed was unreasonable or disproportionate. We offer no opinion
on the reasonableness of defendant’s sentence.


                                                 -4-
with the administration of justice.” MCL 777.49(c). “[T]he plain and ordinary meaning of
‘interfere with the administration of justice’ for purposes of OV 19 is to oppose so as to hamper,
hinder, or obstruct the act or process of administering judgment of individuals or causes by
judicial process.” People v Hershey, 303 Mich App 330, 343; 844 NW2d 127 (2013). “OV 19 is
generally scored for conduct that constitutes an attempt to avoid being caught and held
accountable for the sentencing offense.” People v Sours, 315 Mich App 346, 349; 890 NW2d
401 (2016). However, “OV 19 may also be properly scored when the sentencing offense itself
necessarily involves interfering with the administration of justice.” Id. at 349 n 1.

        In this case, the trial court scored OV 19 at 10 points because defendant solicited the
murder of a witness to prevent his prosecution for obtaining property under false pretenses. On
appeal, defendant asserts that this was improper because the sentencing offense is solicitation
and defendant did not interfere with the administration of justice with regard to proceedings
relating to his solicitation charge. This argument lacks merit because, as noted, the scoring of
OV 19 is not limited to instances in which a defendant attempts to avoid being held accountable
for the sentencing offense; rather, OV 19 may “be properly scored when the sentencing offense
itself necessarily involves interfering with the administration of justice.” Sours, 315 Mich App
349 n 1. Because the conduct making up the sentencing offense, i.e., the solicitation of a
witness’s murder, involved an attempt to interfere with the administration of justice, the trial
court properly considered this conduct under OV 19. Id. And, given defendant’s conduct, the
trial court did not err by scoring OV 19 at 10 points.

       Finally, we note that defendant again requests remand to a different judge. We have
repeatedly denied this request, see, e.g., Houthoofd V and Houthoofd IV, and nothing which
occurred during the most recent remand leads us to believe that Judge Darnell Jackson should be
disqualified under the court rules, MCR 2.003(C), or the due process concerns set forth in
Caperton v AT Massey Coal Co, Inc, 556 US 868; 129 S Ct 2252; 173 L Ed 2d 1208 (2009).
Accordingly, defendant’s request for remand to a different judge is again denied.

        Defendant’s sentence is vacated and the case is remanded for resentencing. We do not
retain jurisdiction.



                                                            /s/ Joel P. Hoekstra
                                                            /s/ Kirsten Frank Kelly




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