              If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                   revision until final publication in the Michigan Appeals Reports.




                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    April 25, 2019
                Plaintiff-Appellee,

v                                                                   No. 343533
                                                                    Wayne Circuit Court
KENYAN ALFONSO BOOKER,                                              LC No. 14-006851-01-FC

                Defendant-Appellant.


Before: MARKEY, P.J., and FORT HOOD and GADOLA, JJ.

PER CURIAM.

       Defendant appeals as of right the trial court’s denial of his request for resentencing
following this Court’s previous remand for further proceedings consistent with our Supreme
Court’s decision in People v Lockridge, 498 Mich 358; 870 NW2d 502 (2015). We affirm.

       Following a jury trial, defendant was convicted of five counts of armed robbery, MCL
750.529; possession of a firearm during the commission of a felony (felony-firearm), MCL
750.227b; and felon in possession of a firearm, MCL 750.224f. On January 16, 2015, defendant
was sentenced as a third-offense habitual offender, MCL 769.11, to concurrent terms of
imprisonment of 20 to 40 years for each armed robbery count and 3 to 10 years for the felon-in-
possession count, to be served consecutively to a two-year sentence for the felony-firearm count.
Defendant appealed these convictions and sentences on various grounds. This Court affirmed
defendant’s convictions but ordered a Crosby1 remand, consistent with our Supreme Court’s July
29, 2015 decision in Lockridge. People v Booker, unpublished per curiam opinion of the Court
of Appeals, issued June 30, 2016 (Docket No. 325977), p 6. On remand, the trial court
conducted a hearing during which it evaluated and reaffirmed defendant’s original sentence and
denied defendant’s request for resentencing. Defendant now appeals.




1
    United States v Crosby, 397 F3d 103 (CA 2, 2005).



                                                -1-
                                       I. RESENTENCING

       On appeal, defendant first contends that the trial court abused its discretion by denying
his request for resentencing, as the sentence was invalid by virtue of the improperly scored
offense variable (OV) 1. We find defendant’s argument devoid of merit.

        This Court reviews a trial court’s sentencing decision for an abuse of discretion. People v
Skinner, 502 Mich 89, 131; 917 NW2d 292 (2018). An abuse of discretion occurs when a trial
court chooses an outcome falling outside the range of reasonable and principled outcomes.
People v Babcock, 469 Mich 247, 269; 666 NW2d 231 (2003). Additionally, “[w]hether a trial
court followed an appellate court’s ruling on remand is a question of law that this Court reviews
de novo.” Schumacher v Dep’t of Natural Resources, 275 Mich App 121, 127; 737 NW2d 782
(2007).

         Under Lockridge, 498 Mich at 391, our Supreme Court struck down the statutory
provisions rendering the sentencing guidelines mandatory and requiring that a departure from the
guidelines be premised on a “substantial and compelling reason.” The Court reasoned that the
sentencing guidelines were 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 . . . .” Id. at 364 (emphasis in original). That is, the
coupling of judicial fact-finding with a sentencing guidelines scheme that increased minimum
sentence ranges based on those facts was found unconstitutional. People v Biddles, 316 Mich
App 148, 158; 896 NW2d 461 (2016). However, the Lockridge court expressly declined to
require that OVs be scored only in reliance on facts that are either admitted by a defendant or
found by a jury. Lockridge, 498 Mich at 389. Rather, it held that the guidelines, although “a
highly relevant consideration in a trial court’s exercise of sentencing discretion,” were advisory
and not mandatory. Id. at 391. Accordingly, “judicial fact-finding is proper, as long as the
guidelines are advisory only.” Biddles, 316 Mich App at 159.

        With respect to defendants sentenced pre-Lockridge who could demonstrate that their
guidelines minimum sentencing range was potentially affected by an unconstitutional application
of the sentencing guidelines, our Supreme Court adopted the remand procedure set forth in
United States v Crosby, 397 F3d 103 (CA 2, 2005). Lockridge, 498 Mich at 395. Such cases are
to be remanded to the trial court “ ‘not for the purpose of a required resentencing but only for the
more limited purpose of permitting the sentencing judge to determine whether to
resentence . . . .’ ” Id. at 396, quoting Crosby, 397 F3d at 117-118 (emphasis altered).
Specifically, the trial court must determine “whether that court would have imposed a materially
different sentence but for the constitutional error.” Id. at 397. If the answer is in the affirmative,
resentencing is warranted. Id.

       In his previous appeal, defendant argued that his sentence, which was imposed pre-
Lockridge, warranted remand, as his mandatory minimum sentencing range was increased by the
scoring of several OVs in reliance on judicially-found facts. This Court held that the trial court
made factual findings only with respect to OV 1, as the scoring of the other challenged OVs was
supported by facts necessarily determined by the jury. Booker, unpub op at 5-6. Consequently,
the case was remanded to the trial court “for determination whether the court would have

                                                 -2-
imposed a materially different sentence under the sentencing procedure described in Lockridge.
If the sentencing court determines that it would have imposed the same sentence, the court may
reaffirm the original sentence.” Id. at 6.

        On remand, the trial court stated on the record that defendant’s sentence would not have
been materially different had the court known that the guidelines were advisory at the time of
sentencing. The trial court expounded on its reasoning for selecting a minimum sentence of 20
years, which was within the original minimum guidelines range of 171 to 427 months (14 years,
three months to 35 years, seven months). In particular, the trial court considered the violent
nature of the offenses, the danger to others, and defendant’s criminal history. Accordingly, the
trial court denied defendant’s request to resentence, stating on the record:

                  I recognize that I had discretion in sentencing and I recognize that the
          guideline range was broad. The Court did not feel constrained by this at all and,
          in fact, chose a number – a sentence in the middle of the guidelines which the
          Court feels was a reasonable sentence to the crime and [defendant’s] criminal
          history and proportionate as well.

       Defendant contends on appeal that the trial court abused its discretion by denying his
request for resentencing because the trial court erroneously assessed 25 points for OV 1 on the
basis of factual findings made by the court. Because the allegedly erroneous scoring of OV 1
increased his minimum guidelines range, defendant claims that resentencing is required under
Michigan case law.

        Defendant’s position is flawed in two main respects. First, as discussed above, it is well-
established that a trial court is not precluded from scoring OVs on the basis of facts found by the
court rather than by a jury, as long as the court regards the resulting guidelines range as advisory
and not mandatory. See Lockridge, 498 Mich at 389; Biddles, 316 Mich App at 159. In the
present case, although the trial court’s scoring of OV 1 was premised on judicially-found facts,
the court nevertheless stated on remand that the sentence would not have differed had the
guidelines been advisory at the time of sentencing. Thus, we conclude that the trial court did not
improperly score OV 1 and that it complied with this Court’s order remanding the case in
accordance with the procedures set forth in Lockridge.2



2
    In its opinion remanding the present case to the trial court, this Court stated,
          But the sentencing court engaged in judicial fact-finding with regard to OV 1,
          thus, defendant’s OV score should be reduced by 25 points. The resulting OV
          score is 40 points, which corresponds with level III and changes the applicable
          guidelines minimum sentence range from 171-427 months to 135-337 months.
          Accordingly, defendant is entitled to a “Crosby remand.” [Booker, unpub op at 6
          (citation omitted).]

By engaging in this analysis, the Court did not conclude that the trial court erred by scoring OV
1 on the basis of judicial fact-finding. Nor did the Court alter defendant’s minimum sentencing


                                                    -3-
        Second, in arguing that resentencing is necessary, defendant relies on legal principles
relevant to evidentiary challenges to the scoring of OVs, i.e., claims that the scoring of the OVs
was unsupported by a preponderance of the evidence. See People v Francisco, 474 Mich 82, 88;
711 NW2d 44 (2006) (“[I]f a minimum sentence falls within the appropriate guidelines range, a
defendant is not entitled to be resentenced unless there has been a scoring error or inaccurate
information has been relied upon.”); Biddles, 316 Mich App at 156 (“With respect to the
evidentiary challenge, if the trial court clearly erred by finding that a preponderance of the
evidence supported one or more of the OV scores . . . , and if the scoring error resulted in an
alteration of the minimum sentence range, he would be entitled to resentencing.”). Both
defendant’s first appeal and the instant appeal present constitutional challenges under Lockridge
as opposed to evidentiary challenges, as they dispute the trial court’s scoring of OV 1 on the
basis of judicial fact-finding. See id. (clarifying that an evidentiary challenge addresses the
adequacy of the evidence supporting the trial court’s scoring of OVs, while a constitutional
challenge under Lockridge concerns the trial court’s use of judicial fact-finding to score OVs).
Thus, defendant has not demonstrated any evidentiary defect in the trial court’s scoring of OV 1
that would warrant resentencing.

                               II. INEFFECTIVE ASSISTANCE

        Defendant next contends on appeal that defense counsel provided ineffective assistance
on remand insofar as he failed to inform the trial court of binding case law that would have
entitled him to resentencing. We disagree.

        Whether a defendant has been deprived of the effective assistance of counsel presents a
mixed question of fact and constitutional law. People v Trakhtenberg, 493 Mich 38, 47; 826
NW2d 136 (2012). This Court reviews a trial court’s factual findings for clear error and its
constitutional determinations de novo. Id. However, defendant failed to preserve his claim of
ineffective assistance by moving for a new trial or an evidentiary hearing before the trial court.
See People v Payne, 285 Mich App 181, 188; 774 NW2d 714 (2009). Consequently, our review
of this unpreserved claim is limited to errors apparent on the record. See People v Matuszak, 263
Mich App 42, 48; 687 NW2d 342 (2004).

        To succeed on a claim of ineffective assistance of counsel, “a defendant must establish
that ‘counsel’s representation fell below an objective standard of reasonableness’ and that ‘there
is a reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.’ ” People v Vaughn, 491 Mich 642, 669; 821 NW2d 288
(2012), quoting Strickland v Washington, 466 US 668, 694; 104 S Ct 2052; 80 L Ed 2d 674


guidelines range. Rather, the Court simply determined that defendant made a “threshold
showing of the potential for plain error sufficient to warrant a remand” by demonstrating (1) that
his OV level was calculated by reference to factual findings made by the trial court and (2) “that
a corresponding reduction in [his] OV score to account for the error would change the applicable
guidelines minimum sentence range.” Lockridge, 498 Mich at 395, 399. Thus, this Court merely
reasoned that defendant was entitled to a Crosby remand and not that the trial court erred in
scoring OV 1.


                                               -4-
(1984). A reviewing court’s evaluation of counsel’s performance is highly deferential, and a
defendant must overcome a “strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance.” Strickland, 466 US at 689. “This Court does not
second-guess counsel on trial strategy, nor does it assess counsel’s competence with the benefit
of hindsight.” People v Foster, 319 Mich App 365, 391; 901 NW2d 127 (2017) (quotation
marks and citation omitted).

        Defendant contends that defense counsel was ineffective for failing to argue before the
trial court that the improper scoring of OV 1 resulted in the alternation of his minimum
guidelines range, thereby necessitating remand under Francisco and Biddles. However, as
discussed above, Francisco and Biddles only entitle a defendant to resentencing because of an
altered minimum guidelines range when the defendant makes a successful evidentiary challenge
to the scoring of an OV. Francisco, 474 Mich at 88; Biddles, 316 Mich App at 156-157.
Defendant has not made an evidentiary challenge to the scoring of OV 1, nor did the trial court
improperly score OV 1. Accordingly, defense counsel was not ineffective for failing to advance
this argument or case law before the trial court. People v Ericksen, 288 Mich App 192, 201; 793
NW2d 120 (2010) (“Failing to advance a meritless argument . . . does not constitute ineffective
assistance of counsel.”).

       Affirmed.



                                                           /s/ Jane E. Markey
                                                           /s/ Karen M. Fort Hood
                                                           /s/ Michael F. Gadola




                                              -5-
