                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   December 11, 2014
              Plaintiff-Appellee,

v                                                                  No. 317412
                                                                   Cass Circuit Court
SHAWN ROBERT LOCKMONDY,                                            LC No. 12-010345-FC

              Defendant-Appellant.


Before: MARKEY, P.J., and SAWYER and OWENS, JJ.

PER CURIAM.

       Defendant was convicted by a jury of assault with intent to do great bodily harm less than
murder, MCL 750.84, and stalking, MCL 750.411h. The trial court sentenced him to 34 months
to 20 years’ imprisonment for the assault with intent to do great bodily harm less than murder
conviction and 329 days for the stalking conviction. He appeals by right. We affirm.

       Defendant argues that the trial court violated his rights under the Sixth and Fourteenth
Amendments by engaging in judicial fact-finding and considering conduct for which defendant
had been acquitted because the trial court scored 10 points for offense variable (OV) 9, MCL
777.39, because “2 to 9 victims were placed in danger of physical injury or death.” We review
questions of constitutional law de novo. People v Harper, 479 Mich 599, 610; 739 NW2d 523
(2007). The trial court’s factual determinations at sentencing are “reviewed for clear error and
must be supported by a preponderance of the evidence.” People v Hardy, 494 Mich 430, 438;
835 NW2d 340 (2013). Clear error is found when we are left with a “definite and firm
conviction that a mistake has been made.” People v Kurylczyk, 443 Mich 289, 303; 505 NW2d
528 (1993).

        According to Apprendi v New Jersey, 530 US 466, 490; 120 S Ct 2348; 147 L Ed 2d 435
(2000), and its progeny, United States v Booker, 543 US 220, 244; 125 S Ct 738; 160 L Ed 2d
621 (2005); Blakely v Washington, 542 US 296, 311-313; 124 S Ct 2531; 159 L Ed 2d 403
(2004), any fact that increases a defendant’s maximum penalty at sentencing must be admitted
by a defendant or proven to a jury beyond a reasonable doubt. The United States Supreme Court
recently extended this rule to mandatory minimum sentences in Alleyne v United States, ___ US
___, 133 S Ct 2151, 2155; 186 L Ed 2d 314 (2013). In Alleyne, the Court found that “any fact
that increases the mandatory minimum is an ‘element’ that must be submitted to the jury.” Id.



                                               -1-
But, the Court indicated that its Alleyne decision did not mean that every fact influencing judicial
discretion in sentencing must be proven to a jury beyond a reasonable doubt. Id. at 2163.

        We declined to apply Alleyne to Michigan’s indeterminate sentencing scheme in People v
Herron, 303 Mich App 392, 403-404; 845 NW2d 533 (2013). We determined in Herron that a
recommended guidelines range used to establish a minimum sentence in Michigan differs from a
mandatory minimum sentence as discussed in Alleyne. Id. Thus, Michigan’s scheme falls within
the broad discretion traditionally afforded to trial courts “to establish a minimum sentence within
a range authorized by law as determined by a jury verdict or a defendant’s plea” as opposed to
judicial fact-finding used to increase a mandatory minimum floor. Id. at 405.

        In People v Lockridge, 304 Mich App 278, 284; 849 NW2d 388 (2014), we concluded
that this Court is bound by Herron’s holding that Alleyne does not impact Michigan’s sentencing
scheme. Although our Supreme Court has granted leave in Lockridge, 496 Mich 852 (2014) and
held leave to appeal in Herron, 846 NW2d 92 (2014), in abeyance pending its decision in
Lockridge, Herron remains binding on this Court at this time. “A panel of the Court of Appeals
must follow the rule of law established by a prior published decision of the Court of Appeals . . .
that has not been reversed or modified by the Supreme Court.” MCR 7.215(J)(1).

        Defendant acknowledges that Herron is binding and raises this challenge for the purpose
of preservation. Defendant contends that the trial court improperly engaged in judicial fact-
finding and considered conduct not resulting in a conviction when it scored OV 9. Because we
are bound by Herron, we disagree. Moreover, the fact that criminal charges do not result in a
conviction does not necessarily mean that a defendant did not engage in certain conduct; rather,
an acquittal demonstrates only that the prosecution failed to prove the charged offense beyond a
reasonable doubt. People v Ewing (After Remand), 435 Mich 443, 451-452 (BRICKLEY, J.), 473-
474 (Boyle, J.); 458 NW2d 880 (1990). A trial court may consider facts underlying criminal
charges that result in an acquittal when determining a defendant’s sentence, provided those facts
are supported by a preponderance of evidence. Hardy, 494 Mich at 438; Ewing, 435 Mich at
451-454 (Brickley, J.), 474, 479 (Boyle, J.); see also People v Granderson, 212 Mich App 673,
679-680; 538 NW2d 471 (1995). Thus, we find no merit in defendant’s argument that the trial
court erred in scoring OV 9.

       We affirm.

                                                             /s/ Jane E. Markey
                                                             /s/ David H. Sawyer
                                                             /s/ Donald S. Owens




                                                -2-
