                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     February 19, 2015
               Plaintiff-Appellee,

v                                                                    No. 318526
                                                                     Wayne Circuit Court
KENNETH ANTHONY TAYLOR,                                              LC No. 13-001078-FH

               Defendant-Appellant.


Before: BECKERING, P.J., and JANSEN and BOONSTRA, JJ.

BOONSTRA, J. (concurring).

       I concur in the result. In my view, the existing record of the trial court’s findings
concerning the scoring of Offense Variable (OV) 12 is not adequate to allow for meaningful
appellate review of that scoring decision. However, under the circumstances of this case, I find
the inadequacy of the record in that respect to be immaterial, and I thus concur in affirming
defendant’s sentence.

        The majority finds that sufficient evidence was presented to prove, by a preponderance of
the evidence, that defendant committed second-degree murder, and therefore that the trial court
correctly scored OV 12. Based on its evaluation of the evidence, the majority concludes that the
sentencing court “could reasonably conclude that defendant acted with malice.” Indeed, it may
be the case that the trial court so concluded, in which case I would agree that the scoring of
OV 12 was proper notwithstanding defendant’s acquittal on the second degree murder charge.

        Unfortunately, no transcription of the sentencing hearing exists. Nothing in the existing
record reflects that the trial court in fact concluded that defendant acted with malice, or that such
a conclusion was the reason the trial court scored OV 12 at five points. The majority assumes
that to be the case (and its assumption may be correct), and the parties point to no other possible
basis for the scoring. But the assumption otherwise is supported by nothing beyond our own
supposition. The Sentencing Information Report reflects only that the recommended scoring of
OV 12 at five points was left unchanged at sentencing (although certain other OVs were adjusted
upward at sentencing), but we have no record of the sentencing hearing, and therefore have no
record regarding the trial court’s actual basis for the scoring of OV 12.

        In People v Hardy, 494 Mich 430, 437-438; 835 NW2d 340 (2013), our Supreme Court
recently took the opportunity to clarify the applicable standards of review for a sentencing
guidelines scoring issue. Noting that the enactment of the sentencing guidelines “reduc[ed] the
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circumstances under which a judge could exercise discretion during sentencing,” the Court held
that “[u]nder the sentencing guidelines, the circuit court’s factual determinations are reviewed
for clear error and must be supported by a preponderance of the evidence.” Id. at 438 (emphasis
added). Further, “[w]hether 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.” Id. (emphasis added).

         Due to the absence of a sentencing transcript, we in my judgment are unable to evaluate
the trial court’s “factual determinations” or “the facts, as found” by the trial court, and thus we
lack a record adequate to enable us at this juncture to apply the applicable standards of review to
the trial court’s scoring of OV 12.

         In some circumstances, this might lead me to conclude that we should remand for a
development of a record regarding the scoring of OV 12. However, in the circumstances of this
case, I find any error in the scoring of OV 12 to be immaterial to the sentence imposed, and thus
harmless. It is true that if OV 12 were found to have been improperly scored, Defendant’s total
OV score would drop to 70 from 75, and would lower him to OV level V from OV level VI on
the sentencing grid for class C felonies. MCL 777.64. As a consequence, defendant’s minimum
sentencing guidelines range, as a fourth habitual offender, would be reduced to 58 to 228 months
from 62 to 228 months. Generally, resentencing is required where a sentencing error would alter
defendant’s recommended minimum guidelines range. People v Francisco, 474 Mich 82, 89 n 8;
711 NW2d 44 (2006); People v Phelps, 288 Mich App 123, 136; 791 NW2d 732 (2010).
However, in this case, the trial court sentenced defendant at the very top of the minimum
sentencing guidelines range, to a term of 228 months to 80 years. It is therefore demonstrably
apparent to me from the record that a minimal reduction (to 58 months from 62 months) in
defendant’s minimum minimum sentence (such as would result from a change in the scoring of
OV 12, if error were found) would not have caused the trial court to impose a different sentence
than the 228 months to 80 years term that it imposed. Where a trial court indicates that it would
have imposed the same sentence regardless of a scoring error, resentencing is not required.
Francisco, 474 Mich at 89 n 8. In this case, and while a transcript of the trial court’s statements
at sentencing would provide a clearer indication of the trial court’s view, I find that the sentence
itself, and its imposition of the maximum minimum sentence (228) months, in the context of a
wide (166-month) minimum sentence range (62 to 228 months), are a sufficiently clear
indication that the trial court would not have altered defendant’s sentence if the minimum
sentence range was expanded by an additional four months.

       Accordingly, I concur in the result, and fully concur in the majority opinion in all
respects not addressed in this opinion.

                                                             /s/ Mark T. Boonstra




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