            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PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    July 30, 2020
               Plaintiff-Appellee,

v                                                                   No. 347440
                                                                    Wayne Circuit Court
QUINTIN WASHINGTON,                                                 LC No. 18-006241-01-FC

               Defendant-Appellant.


Before: BORRELLO, P.J., and SAWYER and SERVITTO, JJ.

PER CURIAM.

        Defendant appeals as of right his jury convictions of assault with intent to commit murder,
MCL 750.83; felon in possession of a firearm, MCL 750.224f; felon in possession of ammunition,
MCL 750.224f(6); and possession of a firearm during the commission of a felony, second offense,
MCL 750.227b. The trial court sentenced defendant as a fourth-offense habitual offender, MCL
769.12, to concurrent prison terms of 20 years to 20 years and one day for the assault conviction,
and two to five years for each felon-in-possession conviction, to be served consecutive to a five-
year term of imprisonment for the felony-firearm conviction.1 We affirm defendant’s convictions,
but remand for resentencing.

         Defendant’s convictions arise from the non-fatal shooting of Tavion McKnight in a Detroit
neighborhood on the afternoon of March 21, 2018. The principal issue at trial was defendant’s
identity as the shooter. The prosecution presented evidence that, shortly before McKnight was
shot, he and defendant had both left a neighborhood convenience store. Defendant walked out of
the store with Marvin Esmond, who knew defendant from the neighborhood and happened to see
defendant in the store. Surveillance video from a nearby business, which was admitted and played
at trial, captured defendant and Esmond walking on Whittier Street, and captured McKnight
leaving the store, crossing Whittier, and cutting between two buildings. Esmond testified that as


1
 Although the jury convicted defendant of three counts of felony-firearm, the trial court stated at
sentencing that it was “collapsing those three into one” and the judgment of sentence states that
two of the felony-firearm counts “are vacated.”


                                                -1-
they were walking, defendant turned and ran across Whittier, and the video showed defendant
walking away from Esmond, running across the street and along the length of one of the buildings
that McKnight walked between, and then disappearing from view. Approximately one minute
after defendant left Esmond, Esmond heard 8 to 10 gunshots; the video captured Esmond looking
back, and Edmond testified that he looked back because he heard the gunshots. McKnight then
ran back toward the store and collapsed in the middle of Whittier, having been shot once in the
buttocks. McKnight testified that the shooter had pointed a gun at him and he ran; no one else was
in the area at the time. McKnight was unable to identify defendant as the shooter or provide a
description of the shooter, including whether the shooter was male or female, but he testified that
the shooter was wearing a black jacket and a black hood. In contrast, Esmond positively identified
defendant as the person who ran across the street, but testified that defendant was wearing a blue
and yellow Wolverines jacket. At trial, the defense argued that defendant, who was wearing a blue
and yellow jacket, was misidentified as the shooter, who McKnight described as wearing all black,
and that the surveillance video only showed defendant “running across the street and disappearing
behind the building.”

                            I. GREAT WEIGHT OF THE EVIDENCE

       Defendant first argues that he should receive a new trial because the great weight of the
evidence failed to show that he was the shooter, particularly because McKnight testified that the
shooter was wearing all black, but Esmond, who was with defendant, testified that defendant was
wearing a blue and yellow jacket. We disagree.

        Defendant did not preserve this issue by raising it in a motion for a new trial. Therefore,
our review of this issue is limited to plain error affecting defendant’s substantial rights. People v
Musser, 259 Mich App 215, 218; 673 NW2d 800 (2003).

       A new trial may be granted if a verdict is against the great weight of the evidence. MCR
2.611(A)(1)(e). In evaluating whether a verdict is against the great weight of the evidence, the
question is whether the evidence preponderates so heavily against the verdict that it would be a
miscarriage of justice to allow the verdict to stand. People v Lemmon, 456 Mich 625, 627; 576
NW2d 129 (1998); People v Unger, 278 Mich App 210, 232; 749 NW2d 272 (2008). A verdict
may be vacated only when it “does not find reasonable support in the evidence, but is more likely
to be attributed to causes outside the record such as passion, prejudice, sympathy, or some
extraneous influence.” People v DeLisle, 202 Mich App 658, 661; 509 NW2d 885 (1993) (citation
omitted). Absent compelling circumstances, the credibility of witnesses is for the jury to
determine. See Lemmon, 456 Mich at 642-643.

       In this case, sufficient circumstantial evidence supports defendant’s identity as the shooter.2
The testimony and surveillance video evidence demonstrated that as defendant was walking with


2
  Defendant does not challenge any of the specific elements of the offenses for which he was
convicted, but only challenges his identity as the shooter. Identity is an essential element in a
criminal prosecution, People v Oliphant, 399 Mich 472, 489; 250 NW2d 443 (1976), and the
prosecution must prove the identity of the defendant as the perpetrator of a charged offense beyond



                                                 -2-
Esmond, he abruptly left and ran across the street to a hidden area where McKnight had just
walked, along two buildings, and disappeared from view. Esmond testified that 30 to 60 seconds
after defendant left to run across the street, Esmond heard multiple gunshots. Esmond then saw
McKnight run from the area after having been shot and collapse in the street. McKnight testified
that the shooter was the only person in the area at the time he was shot. We cannot conclude that
the evidence preponderates so heavily against the jury’s verdict that it would be a miscarriage of
justice to allow the verdict to stand.

        Defendant’s great-weight argument focuses principally on the differences between the
descriptions of defendant’s clothing and the shooter’s clothing. McKnight described the shooter
as wearing all black, whereas Esmond testified that defendant was wearing a blue and yellow
Wolverines jacket. Conflicting testimony and questions regarding the credibility of witnesses are
not sufficient grounds for granting a new trial. Id. at 643. Moreover, a jury is free to believe all,
none, or part of a witness’s testimony. People v Perry, 460 Mich 55, 63; 594 NW2d 477 (1999).
The jury was aware of the conflict in the clothing descriptions of defendant and the shooter.
Defense counsel cross-examined both McKnight and Esmond, clearly emphasizing the conflict in
what Esmond stated that defendant was wearing and what McKnight claimed the shooter was
wearing, and presented credibility arguments to the jury, including that defendant could not be the
shooter.

        A reviewing court should ordinarily defer to the jury’s determination of credibility “unless
it can be said that directly contradictory testimony was so far impeached that it ‘was deprived of
all probative value or that the jury could not believe it,’ or contradicted indisputable physical facts
or defied physical realities[.]” Lemmon, 456 Mich at 644-646 (citation omitted). That is not the
case here.

        McKnight admitted that he did not get a good look at the shooter’s face, and he could not
even tell if the shooter was male or female. Considering McKnight’s inability to provide other
identifying information about the shooter, it was within the province of the jury to discount the
accuracy or reliability of his description of the shooter’s clothing, and find that defendant’s identity
as the shooter was established by the evidence that the gunshots were fired approximately a minute
after defendant abruptly altered his course to proceed between the same buildings where McKnight
had walked, and the testimony that no one else was in the area. Again, it was up to the jury to
assess the weight and reliability of the evidence in light of the factors explored by the defense. Id.
at 643-644. The conflict in the clothing description did not deprive the other circumstantial
evidence supporting defendant’s identity as the shooter of all probative value. Thus, the evidence
does not preponderate so heavily against the jury’s verdict that it would be a miscarriage of justice
to allow the verdict to stand. Accordingly, the jury’s verdict is not against the great weight of the
evidence.




a reasonable doubt. People v Kern, 6 Mich App 406, 409-410; 149 NW2d 216 (1967).
Circumstantial evidence and reasonable inferences arising from it may be sufficient to support a
conviction of a crime. People v Davis, 241 Mich App 697, 700; 617 NW2d 381 (2000); People v
Nowack, 462 Mich 392, 400; 614 NW2d 78 (2000). The credibility of identification testimony is
for the trier of fact to resolve and this Court will not resolve it anew. Id.


                                                  -3-
                                   II. TRIAL COURT ERRORS

       Defendant next argues that the trial court committed various errors that violated his right
to due process by infringing on his presumption of innocence and denied him a fair trial. Again,
we disagree.

           A. FAILURE TO ENSURE APPROPRIATE ATTIRE FOR DEFENDANT

        Defendant contends that the trial court erred by failing to ensure that he had appropriate
attire for trial, and refusing to allow him to wear a suit provided by defense counsel at trial.
Whether a defendant was denied his right to due process involves a constitutional issue that we
review de novo. People v Sadows, 283 Mich App 65, 67; 768 NW2d 93 (2009). A defendant is
entitled to be brought before the court in proper attire, and thus is entitled to wear civilian, rather
than prison, clothing. People v Lewis, 160 Mich App 20, 30; 408 NW2d 94 (1987). Therefore, a
trial court must grant a criminal defendant’s timely request to wear civilian clothing during trial.
People v Harris, 201 Mich App 147, 151; 505 NW2d 889 (1993). “If the trial court observes the
defendant’s clothing and finds that it is not ‘prison garb,’ this Court will review only for abuse of
discretion.” Id. This Court will defer to a trial court’s finding that a defendant’s clothing did not
prejudicially mark the defendant as a prisoner. Id. at 152.

         The record reflects that defendant’s clothing was not identifiable as “prison or jail garb.”
Defendant was wearing the same clothing on the first day of trial that he wore on the second day.
On the second day of trial, when defense counsel asked that defendant be allowed to change into
a suit that defense counsel had obtained that day, the trial court noted for the record that defendant
was “not dressed in jail greens,” and defense counsel agreed. The court then stated: “So he is
wearing civilian clothes. I doubt very much if the jury is going to pay a whole lot of attention as
to how he is dressed.”

         Ordering a defendant to proceed in front of a jury dressed in casual attire does not violate
a defendant’s right to due process. Lewis, 160 Mich App at 30-31. “Only if a defendant’s clothing
can be said to impair the presumption of innocence will there be a denial of due process.” Id. at
31. Because the record indicates that defendant was wearing civilian clothing, and defense counsel
agreed with the trial court’s observation that the clothing was not identifiable as “prison or jail
garb,” defendant has not established a due process violation or shown that the trial court abused
its discretion by denying defendant’s untimely request to change clothing.3




3
  Contrary to what defendant asserts, the trial court did not deny defendant’s request to change
from his casual attire into a suit because it was following some arbitrary policy. It denied defense
counsel’s untimely request to have other clothing brought to defendant at the court, as opposed to
it coming through the jail, contrary to the sheriff’s office’s security policy. The trial court
explained that if a defendant’s clothes “come from outside . . . [the deputies] want those clothes
taken over to the jail the night before, so that they can be scanned and examined before a defendant
is allowed to wear them in this courtroom[.]” Therefore, the record does not support defendant’s



                                                 -4-
           B. FAILURE TO STRIKE THE TESTIMONY OF OFFICER WILLIAMS

        Next, defendant argues that the trial court erred when it failed to strike the testimony from
the arresting police officer, Detroit Police Officer Jalen Williams, that defendant was arrested
because he was a “suspect” in the shooting. Because defendant did not object to the officer’s
testimony, this issue is unpreserved. We review this unpreserved claim for plain error affecting
defendant’s substantial rights. People v Carines, 460 Mich 750, 762-763; 597 NW2d 130 (1999).

        During the prosecutor’s direct examination, Officer Williams testified that when he arrived
at the crime scene, McKnight was “laying in the middle of the street” with a gunshot wound to the
buttocks. He called for medical assistance and stayed with McKnight until medical personnel
arrived. The following exchange then occurred:

             Q. Okay. Now I[’d] like to fast forward. After that date, did you ever have
       any more involvement with this particular case?

               A. Yes.

               Q. All right. And how so?

               A. I made the arrest for the supposed suspect for the case.

               Q. Who was the suspect?

               A. Quintin Washington.

               Q. Nothing further judge. [Emphasis added.]

        Contrary to what defendant argues, the record does not support defendant’s claim that the
prosecutor called Officer Williams for “sole or primary purpose” of “testifying that [defendant]
was suspected” to be the shooter. His testimony was relevant to the circumstances surrounding
the crime because he was the first officer to arrive at the scene, and he observed McKnight in the
middle of Whittier suffering from a gunshot wound. This was relevant to prove that McKnight
was actually assaulted with a firearm, which corroborated McKnight’s testimony. MRE 401. The
disputed testimony was made while the officer explained his only other involvement in the case,
and why he arrested defendant, i.e., because he was a “supposed suspect.” The officer’s testimony
did not infringe on defendant’s presumption of innocence because the officer did not testify that
defendant was guilty, and gave no opinion about the credibility of any witnesses or any other
evidence in the case. Moreover, defendant cannot establish that he was prejudiced by the
testimony that he was considered a “supposed suspect,” given that it was undisputed that he was
charged and was on trial. Furthermore, the trial court instructed the jury more than once that the
mere fact that defendant was charged with a crime was not evidence against him, that defendant is
presumed to be innocent, that the prosecutor had the burden to demonstrate that defendant was


claim that there was no justification for him not being allowed to change clothes, or that the trial
court’s decision was arbitrary.



                                                -5-
guilty beyond a reasonable doubt, and that it was to follow the court’s instructions. Juries are
presumed to follow their instructions. People v Breidenbach, 489 Mich 1, 13; 798 NW2d 738
(2011). Thus, even if the challenged testimony was improper, defendant cannot establish that it
affected his substantial rights. Carines, 460 Mich at 762-763.

                 C. FAILURE TO PROVIDE A CURATIVE INSTRUCTION

        Defendant also argues that the trial court committed plain error when it did not sua sponte
provide an appropriate instruction following, what he maintains was, an improper rebuttal
argument by the prosecutor. Because defendant did not object to the prosecutor’s remarks, or
request a curative instruction, this issue is unpreserved and our review is limited to plain error
affecting defendant’s substantial rights. Carines, 460 Mich at 762-763.

      Defendant relies on the following emphasized remarks from the prosecutor’s rebuttal
argument, in which he contends that the prosecutor improperly denigrated the defense:

               Now, there was, and I can’t remember, there was a squid or an octopus that
       they are highlighting [on the animal planet]. Now one thing that was interesting is
       that when the squid or octopus, felt that he was being targeted their defense
       mechanism to [] squirt off ink into the water. So that he could no longer be targeted.

               Well, you know what, well, Tavion must have been into something, that’s
       ink.

               Well Tavion was buying a cigarillo, that’s ink. Well it was a Michigan
       jacket, that may have to be maise [sic] and blue, that’s ink.

               Ladies and gentlemen, don’t be distracted, by no means.

               There is evidence in this case. Defense counsel wants you to overlook it.

               This is a circumstantial case at its finest, at its finest. And circumstantial
       evidence is evidence. Circumstantial evidence is so strong that the judge in this
       case, he’s going to read you an instruction. [Emphasis added.]

        A prosecutor may not personally attack the credibility of defense counsel, People v
McLaughlin, 258 Mich App 635, 646; 672 NW2d 860 (2003), or suggest that defense counsel is
intentionally attempting to mislead the jury. People v Watson, 245 Mich App 572, 592; 629 NW2d
411 (2001). However, a “prosecutor may fairly respond to an issue raised by the defendant[,]”
People v Brown, 279 Mich App 116, 135; 755 NW2d 664 (2008), and need not state her inferences
in the blandest possible language. People v Dobek, 274 Mich App 58, 66; 732 NW2d 546 (2007).

        Viewed in context, the prosecutor’s remarks did not involve a personal attack on defense
counsel’s credibility or suggest that counsel was intentionally attempting to mislead the jury, but
rather fairly responded to defense counsel’s arguments. The prosecutor’s use of the term “ink”
was part of a permissible argument that focused on the plausibility of defense counsel’s theory that
defendant was not the shooter. The prosecutor gave reasons, grounded in the evidence, for why
the jury should reject defense counsel’s theory that defendant was not the shooter because of the


                                                -6-
conflicting clothing descriptions and because of whatever McKnight may have been involved in.
The prosecutor’s use of the challenged term “ink” was merely intended to illustrate the
prosecutor’s point that the jury should not become distracted by defense counsel’s arguments and
lose focus of the evidence supporting defendant’s guilt. Viewed in context, the prosecutor’s
arguments were not improper.

        Moreover, this Court will not reverse if the alleged prejudicial effect of the prosecutor’s
conduct could have been cured by a timely instruction. Watson, 245 Mich App at 586. The trial
court instructed the jury that the lawyers’ statements and arguments are not evidence, that the jury
was to decide the case based only on the properly admitted evidence, and that the jury was to
follow the court’s instructions. These instructions were sufficient to dispel any possible prejudice
and to protect defendant’s substantial rights. People v Long, 246 Mich App 582, 588; 633 NW2d
843 (2001). Consequently, this unpreserved claim does not warrant appellate relief.

                       III. INEFFECTIVE ASSISTANCE OF COUNSEL

        Defendant argues that he is entitled to a new trial because defense counsel was ineffective
for various reasons. Again, we disagree.

         Because defendant failed to raise this ineffective-assistance claim in a motion for a new
trial or request for an evidentiary hearing in the trial court, our review of this issue is limited to
mistakes apparent from the record. People v Heft, 299 Mich App 69, 80; 829 NW2d 266 (2012).
“To demonstrate ineffective assistance of counsel, a defendant must show that his or her attorney’s
performance fell below an objective standard of reasonableness under prevailing professional
norms and that this performance caused him or her prejudice.” People v Nix, 301 Mich App 195,
207; 836 NW2d 224 (2013) (citation omitted). “To demonstrate prejudice, a defendant must show
the probability that, but for counsel’s errors, the result of the proceedings would have been
different.” Id. “A defendant must meet a heavy burden to overcome the presumption that counsel
employed effective trial strategy.” People v Payne, 285 Mich App 181, 190; 774 NW2d 714
(2009).

  A. FAILURE TO ENSURE THAT DEFENDANT HAD APPROPRIATE COURT ATTIRE

        Defendant faults defense counsel for failing to ensure that the jury did not see him in
inappropriate attire. Defendant observes that it was “commendable” that defense counsel brought
a suit for him to wear in court, but faults counsel for failing to earlier inquire if defendant had
appropriate clothing for trial, and for failing to request an adjournment to allow an opportunity for
the suit to be inspected. While defense counsel could have acted earlier or requested an
adjournment, there is no reasonable probability that defendant was prejudiced by these omissions.
The trial court noted, and defense counsel agreed, that defendant was dressed in civilian clothing
that was not identifiable as jail or prison garb. The court also found that defendant’s civilian
clothing would not be a distraction for the jury. Accordingly, there is no basis for concluding that
defendant’s clothing at trial impaired his presumption of innocence, Lewis, 160 Mich App at 31,
or that there is any reasonable probability that the outcome of defendant’s trial would have been
different if defendant had worn different clothing. Moreover, given the trial court’s indication that




                                                 -7-
defendant’s civilian clothing would not be a distraction for the jury, there is no reasonable
probability that the court would have granted an adjournment if counsel had requested one.4

            B. FAILURE TO OBJECT TO OFFICER WILLIAMS’S TESTIMONY

        Defendant also faults defense counsel for failing to object to Officer Williams’s testimony
that he “made the arrest for the supposed suspect.” Defendant does not identify any legal ground
on which defense counsel could have lodged a successful objection. Regardless, to the extent that
the challenged testimony could be considered improper, there is no reasonable probability that
counsel’s failure to object affected the outcome of defendant’s trial because, as explained earlier,
it would have been apparent to the jury that defendant was considered a suspect because he was
charged and on trial, and the trial court’s jury instructions protected his right to be presumed
innocent. Consequently, defendant cannot establish a claim of ineffective assistance of counsel
on this basis.

    C. FAILURE TO ESTABLISH THAT NO GUNS OR AMMUNITION WERE FOUND

         Next, defendant argues that defense counsel was ineffective for failing to question Officer
Williams in order to establish that no guns or ammunition were found in defendant’s possession
at the time of his arrest or at his home when it was searched. Decisions regarding what evidence
to present are presumed to be matters of trial strategy, and “this Court will not second-guess
defense counsel’s judgment on matters of trial strategy.” People v Benton, 294 Mich App 191,
203; 817 NW2d 599 (2011).

       Preliminarily, the record is silent as to whether guns or ammunition were found in
defendant’s possession at the time of his arrest or at his home when it was searched. Although
defense counsel did not introduce testimony on this subject, he did seize on the absence of such
evidence during his closing argument. Specifically, counsel argued:

               They didn’t recover a gun. All they have are [] shell casings. And the
       officer got on the stand and said yes, I arrested Quintin. But what he didn’t say is
       he had a gun on him at the time. What he didn’t say is I found some ammunition
       on Quintin. Nothing that ties Quintin to the actual shooting other than [the
       prosecutor’s] wish, hope, dream and a prayer that because he ran across the street
       and around the building he had to do it. But there is no evidence of what happened
       behind that building. Beyond a reasonable doubt.

Furthermore, on appeal, defendant has not made an offer of proof to support his claim that no
firearm or ammunition was recovered during his arrest or the search of his residence. For this
reason or other reasons, defense counsel may have made a strategic decision to avoid questioning



4
 To warrant an adjournment, a party must demonstrate both good cause and diligence. People v
Coy, 258 Mich App 1, 18; 669 NW2d 831 (2003). Factors to be considered include whether the
defendant asserted a constitutional right, had a legitimate reason for asserting the right, had been
negligent, and had requested previous adjournments. Id. (quotation marks and citation omitted).
A defendant must also demonstrate prejudice. Id. at 18-19.


                                                -8-
the officer about the circumstances of defendant’s arrest and the search of his residence, and to
instead highlight the absence of any inculpatory evidence related to these events during closing
argument. In any event, the jury heard the defense theory that defendant was innocent because
there was no evidence that any guns or ammunition were found at the time of his arrest or during
the search of his home. Consequently, defendant has not established that he was prejudiced by
defense counsel’s failure in this regard.

                 D. FAILURE TO ADEQUATELY QUESTION MCKNIGHT

         In his last ineffective-assistance claim, defendant argues that defense counsel failed to
sufficiently question McKnight about the shooter’s attire. He complains that counsel did not elicit
testimony that, during a police interview, McKnight stated: “All I remember is [the shooter] had a
black leather jacket with a black hoodie under it and the hoodie was [sic] his face.” Defendant
contends that McKnight’s trial testimony “made it sound as though he believed the shooter was
wearing only one hooded black jacket.” Decisions regarding what questions to ask are matters of
trial strategy. People v Rockey, 237 Mich App 74, 76; 601 NW2d 887 (1999).

         On direct examination, McKnight testified that he did not see the shooter’s face and did
not get a good look at the shooter because the person was wearing a black hood; he could not tell
if the shooter was male or female. He stated that the shooter was wearing a black jacket. On cross-
examination, defense counsel elicited from McKnight that he did not recognize defendant at all.
Counsel asked if the shooter “had on all black, not blue and yellow, is that correct[,]” and
McKnight answered in the affirmative. Counsel then elicited, again, from McKnight that the
shooter “was wearing all black.” Thus, defense counsel clearly elicited from McKnight that the
shooter was wearing all black, not blue and yellow. Further, in closing argument, counsel
highlighted the shooter’s black attire to argue that defendant was not the shooter:

       And the biggest thing that bothers me and that should raise that doubt in your mind
       as well. Mr. Esmond said that it was Quintin that was wearing a wolverine jacket;
       blue and yellow.

                                                 * * *

       And [the shooter] had on—he or she had on all black. Different from a distinctive
       blue and yellow wolverine jacket.

The record does not support defendant’s argument that defense counsel’s efforts in this regard
were objectively unreasonable or prejudicial.

                    IV. CUMULATIVE EFFECT OF SEVERAL ERRORS

        Next, defendant argues that the cumulative effect of the alleged errors discussed in this
opinion requires reversal. We disagree. We review a claim of cumulative error to determine
whether the combination of alleged errors denied the defendant a fair trial. Dobek, 274 Mich App
at 106. “The cumulative effect of several errors can constitute sufficient prejudice to warrant
reversal even when any one of the errors alone would not merit reversal,” but “[a]bsent the
establishment of errors, there can be no cumulative effect of errors meriting reversal.” Id.



                                                -9-
        We have rejected defendant’s claims of trial court error, prosecutorial misconduct, and
ineffective assistance of counsel. Because defendant has not identified any error, let alone several
errors, that undermined the reliability of the verdict, there can be no cumulative effect of errors
requiring reversal. Id.

                                           V. SENTENCE

       In his last claim, defendant argues that he is entitled to be resentenced because the trial
court used an incorrect sentencing guidelines range, and improperly considered his habitual-
offender status because he was not given adequate notice of the habitual-offender charge.

                              A. GUIDELINES SENTENCE RANGE

         Plaintiff concedes, and we agree, that defendant is entitled to be resentenced because the
trial court did not use the correct guidelines range. If a sentence is within the appropriate guidelines
sentence range, a defendant is still entitled to resentencing if there is a scoring error altering the
guidelines range or if the trial court relied on inaccurate information. People v Francisco, 474
Mich 82, 88-90, 92; 711 NW2d 44 (2006).

         The trial court scored the sentencing guidelines for defendant’s conviction of assault with
intent to commit murder, which is a class A offense, MCL 777.16d, governed by the sentencing
grid at MCL 777.62. According to defendant’s Sentencing Information Report, he originally
received a total offense variable (OV) score of 60 points, placing him in OV Level IV, which
combined with his 45 prior record variable points, placed him in the D-IV cell of the applicable
sentencing grid, which resulted in a sentencing guidelines range of 126 to 420 months for a fourth-
offense habitual offender. MCL 777.62; MCL 777.21(3)(c). At sentencing, the trial court
increased the assigned 10-point score for OV 6 (intent to kill or injure) to 25 points. The prosecutor
then indicated that the scoring adjustment placed defendant in OV Level V, for which the minimum
sentence range is 135 to 225 months, or 135 to 450 for a fourth-offense habitual offender, which
the trial court used to sentence defendant. However, the additional 15 points for OV 6 increased
defendant’s total OV score from 60 points to 75 points, which did not change his placement in OV
Level IV (60-79 points), and thus had no effect on his guidelines range. Thus, as plaintiff
concedes, because the trial court erroneously sentenced defendant using the incorrect guidelines
range of 135 to 450 months, defendant is entitled to be resentenced.5 See Francisco, 474 Mich at
92.




5
  Within this issue, defendant also argues that defense counsel was ineffective for not objecting to
the trial court’s use of an incorrect guidelines range. Because we have determined that defendant
is entitled to relief on his substantive claim of sentencing error, his ineffective-assistance claim is
now moot and we need not address it. See People v Jones, 317 Mich App 416, 431-432; 894
NW2d 723 (2016).


                                                 -10-
                             B. HABITUAL-OFFENDER NOTICE

        Because defendant did not challenge the trial court’s authority to sentence him as a fourth-
offense habitual offender in the trial court, this issue is unpreserved and we review the issue for
plain error affecting defendant’s substantial rights. Carines, 460 Mich at 763-764.

        MCL 769.12 provides that a person who has been previously convicted of three or more
felonies shall be subject to an enhanced sentence if convicted of a subsequent felony. To enhance
the sentence of a defendant, the prosecutor must file a written notice of intent within 21 days after
the defendant’s arraignment on the information charging the underlying offense. MCL 769.13(1).
The notice must be filed with the court and may “be personally served on the defendant or his []
attorney at the arraignment” or in any manner provided by law or court rule. MCL 769.13(2). The
purpose of MCL 769.13 is to ensure that a defendant has notice at an early stage in the proceedings
that he could be sentenced as an habitual offender. People v Morales, 240 Mich App 571, 582;
618 NW2d 10 (2000). The prosecutor’s failure to file a proof of service of the notice of intent to
seek an enhanced sentence can be deemed harmless where the “defendant had actual notice of the
prosecutor’s intent to seek an enhanced sentence and defendant was not prejudiced in his ability
to respond to the habitual offender notification.” People v Head, 323 Mich App 526, 544; 917
NW2d 752 (2018).

        In this case, seven days before defendant’s arraignment, a grand jury indictment was
issued, which indicated that defendant would be subjected to a mandatory 25-year minimum
sentence as a fourth-offense habitual offender under MCL 769.12. At the August 9, 2018
arraignment, the following occurred regarding the habitual-offender notice:

               The prosecutor: “I did not indict this case, but I did review the indictment
       as part of preparation for being down here today. I see that the felony firearm, the
       prior felony firearm from 1984 is being used both to habitualize as a violent hab
       25-year mandatory minimum as [we]ll as a felony firearm 2nd offense. I don’t
       believe you can do both of those. So, I’ll let the prosecutor that’s gonna handle this
       know and hopefully they can resolve that before our next date.”

               The court: Okay.

At the October 16, 2018, final conference, the prosecutor explained that, while defendant was a
habitual offender, he was not subject to the 25-year mandatory minimum. The following exchange
occurred:

               The prosecutor: Your Honor, on the original Grand Jury indictment, as the
       Court has so stated, it shows that habitual fourth offense notice, mandatory twenty-
       five year sentence.

               I am the, uh, newly appointed A.P.A. for this particular case. Uhm, and I
       reviewed this matter, and it appears that, uh, the original A.P.A. did not, uhm,
       correctly compute the, uh, mandatory twenty-five sentence.

               There must be three separate transactions.



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               And in this case, it was two transactions. As such, Your Honor, I have
       amended to, uh, Grand Jury indictment, with the change of the habitual offender
       notice.

               The court: So, he’s a Hab four, but he’s not subject to the mandatory twenty
       five year sentence?

               The prosecutor: Yes, Your Honor.

               The court: Correct?

               The prosecutor: Yes, that’s correct.

               The court: Okay.

               Duly noted.

              [Defense counsel], you’ve been advised of that splendid news, I guess,
       already?

               Defense counsel: Yes, Judge.

        Thus, the lower court record reflects that defendant received actual notice of the
prosecutor’s intent to seek habitual-offender enhancement, and that the notice was merely later
amended to correct an error. Defendant does not dispute the validity of the underlying offenses
supporting his status as a fourth-offense habitual offender. MCR 6.112(H) provides, in pertinent
part, that “[t]he court before, during, or after trial may permit the prosecutor to amend the
information or the notice of intent to seek enhanced sentence unless the proposed amendment
would unfairly surprise or prejudice the defendant.” Defendant could not have been surprised by
the amendment because it did not change his habitual-offender status. Further, defendant was not
prejudiced by the amendment because it reduced his possible penalty by clarifying that he was no
longer subject to a potential mandatory 25-year minimum sentence. Lastly, the amended
indictment was personally served on defense counsel. Consequently, the trial court did not plainly
err by sentencing defendant as a fourth-offense habitual offender.

       Affirmed in part and remanded for resentencing. We do not retain jurisdiction.



                                                            /s/ Stephen L. Borrello
                                                            /s/ David H. Sawyer
                                                            /s/ Deborah A. Servitto




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