            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PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   November 26, 2019
               Plaintiff-Appellee,

v                                                                  No. 343848
                                                                   Genesee Circuit Court
BRADFORD DUANE JOHNSON,                                            LC No. 16-040024-FC

               Defendant-Appellant.


Before: O’BRIEN, P.J., and GADOLA and REDFORD, JJ.

PER CURIAM.

        A jury convicted defendant, Bradford Duane Johnson, of felon in possession of a firearm
(felon-in-possession), MCL 750.224f, felon in possession of ammunition, MCL 750.224f(6),
carrying a concealed weapon (CCW), MCL 750.227, and possession of a firearm during the
commission of a felony (felony-firearm), MCL 750.227b, in connection with a shooting of a man
in the back. The jury acquitted defendant of assault with intent to murder (AWIM), MCL
750.83. The trial court sentenced defendant as a second-offense habitual offender, MCL 769.10,
and ordered him to serve 36 to 90 months in prison for his felon-in-possession, felon in
possession of ammunition, and CCW convictions, and to serve a consecutive term of two years
for his felony-firearm conviction. Defendant appeals as of right. We vacate defendant’s
sentence and remand for resentencing.

                                           I. FACTS

        On May 31, 2016, Genesee County Dispatch received calls reporting a shooting and that
the victim, Darryl Russell, lay on the ground in the Shiloh Baptist Church parking lot. A
responding police officer found Russell with a bleeding gunshot wound to his back and asked
who shot him. Russell stated “Wheezy,” one of the nicknames used by defendant. Russell told
the officer that defendant fled in a white Chrysler 300. The investigating officer found a spent
.223-caliber bullet casing at the scene. Another officer dispatched to the scene found eight .223-
caliber casings in the roadway.

       Police officers from the Michigan State Police and the Flint Police Department were
dispatched to 901 Damon Street following a report of a white Chrysler 300 parked outside the


                                               -1-
house. Defendant and four other people were found in the house. The police officers observed
brass shell casings in another vehicle parked outside the house and a rifle casing inside the white
Chrysler 300. Inside the house, police found shotgun shells, a pistol barrel, cell phones, and a
black digital scale with white residue.

        Police apprehended Howard Reed, Jr. on the night of the incident and later charged him
with AWIM, felon-in-possession, felon in possession of ammunition, CCW, felony-firearm, and
accessory after the fact. Reed pleaded guilty to the charges of CCW, accessory after the fact, and
felony-firearm. The trial court sentenced him to 36 months’ probation plus the mandatory two
years’ imprisonment for the felony-firearm conviction.

        Reed testified that he and defendant were close friends and that they spent time together
during that day. Reed drove to 901 Damon Street in his white Chrysler 300; and later that
evening, he and defendant went to a party store where he saw defendant and Russell talking to
each other. After both defendant and Russell left the store, Reed drove to McClellan Street with
defendant in the passenger seat. Defendant told Reed that Russell owed him $15, but Russell did
not have the money. As Reed drove on McClellan Street with defendant, he had his music
turned up loudly. He heard approximately three or four shots and thought someone shot at his
car, but he then heard three more shots fired, and noticed defendant shooting out of his car. Reed
grabbed defendant’s shoulder and pulled him back into the car, chastised him for shooting out of
his car, and drove to 901 Damon Street. Defendant went inside the house with a gun. When the
police arrived, Reed ran away because he feared what the police would do.

        Russell testified that he owed defendant $15 for a cocaine purchase and when asked by
defendant about payment he promised to get the money. When Russell left the party store, he
saw defendant and Reed in a white Chrysler 300. As Russell walked down McClellan Street, he
saw a car creeping with its headlights off but recognized the Chrysler from the party store earlier
that night. Russell took off running and he heard gunshots. One of the shots hit Russell in the
lower back. He heard three or four more shots and tires screeching as the car sped away.
Russell testified that he suffered broken ribs, lung and kidney damage.

                                          II. ANALYSIS

                                       A. OV 1 AND OV 3

       Defendant argues that the trial court erred by assessing 25 points each for Offense
Variables (OV) 1 and 3 which inflated his total OV score, resulting in a higher sentencing
guidelines minimum range and the imposition of an incorrect sentence. We agree.

        We review de novo a trial court’s interpretation and application of the sentencing
guidelines, MCL 777.1 et seq. People v McGraw, 484 Mich 120, 123; 771 NW2d 655 (2009)
“Under the sentencing guidelines, the circuit court’s factual determinations 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). “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.” Id. “Clear error exists


                                                 -2-
when the reviewing court is left with a definite and firm conviction that a mistake was made.”
People v McDade, 301 Mich App 343, 356; 836 NW2d 266 (2013).

       At sentencing, the trial court assessed 25 points each for OV 1 and for OV 3. Defendant
contested the scores, arguing that, under McGraw, OV 1 and OV 3 may be scored only on the
basis of the sentencing offense, and that the sentencing offense—felon-in-possession—did not
involve the discharge of a firearm. The prosecution argued that defendant had “ongoing
possession of the weapon” during the shooting and that the sentencing offense was not
completed until defendant arrived at the house on Damon Street after the shooting. The
prosecution additionally argued that 25 points should be assessed for OV 3 because 25 points
were assessed for OV 3 at Reed’s sentencing “for the same class of a felony.”

       OV 1 may be scored for aggravated use of a weapon. MCL 777.31(1). Under MCL
777.31(1)(a), a defendant may be assessed 25 points if during commission of a felony “[a]
firearm was discharged at or toward a human being or a victim was cut or stabbed with a knife or
other cutting or stabbing weapon”. MCL 777.31(2)(b) provides that in “multiple offender cases,
if 1 offender is assessed points for the presence or use of a weapon, all offenders shall be
assessed the same number of points.”

        OV 3 may be scored in cases involving physical injury to a victim. MCL 777.33(1).
Under MCL 777.33(1)(c), a defendant may be assessed 25 points when during commission of a
felony “[l]ife threatening or permanent incapacitating injury occurred to a victim”. Under MCL
777.33(2)(a), in “multiple offender cases, if 1 offender is assessed points for death or physical
injury, all offenders must be assessed the same number of points.”

        “Offense variables are properly scored by reference only to the sentencing offense except
when the language of a particular offense variable statute specifically provides otherwise.”
McGraw, 484 Mich at 135. Offense variables 1 and 3 are offense-specific “McGraw variables”
that must be scored only on the basis of conduct occurring during the commission of the
sentencing offense. People v Biddles, 316 Mich App 148, 164-165; 896 NW2d 461 (2016). See
also People v Chelmicki, 305 Mich App 58, 72; 850 NW2d 612 (2014). “However . . . a trial
court may properly consider all of [the] defendant’s conduct during that offense.” Id. at 71-72
(quotation marks and citation omitted). “The sentencing offense is the crime of which the
defendant has been convicted and for which he or she is being sentenced.” McGraw, 484 Mich
at 122 n 3.

        In Biddles, 316 Mich App at 164, the defendant was acquitted of second-degree murder,
assault with intent to commit murder, and felony-firearm, and the jury convicted him only of
felon-in-possession. One hundred points were assessed for OV 3 because the victim was killed.
Id. at 162. This Court held that 100 points were improperly assessed defendant for OV 3
because

       looking solely at defendant’s conduct, our analysis of whether “[a] victim was
       killed,” MCL 777.33(1)(a), and whether the “death result[ed] from the
       commission of a crime,” MCL 777.33(2)(b), does not support a conclusion that
       the death in this case resulted from or was factually caused by defendant’s


                                               -3-
       commission of the offense of felon-in-possession.        [Id. at 164-165 (citation
       omitted, alterations in original).]

This Court noted that the defendant’s conviction of felon-in-possession rested on testimony of
one witness who saw a man in a white shirt holding a gun and the codefendant’s testimony that
the defendant wore a white shirt at the time of the incident. Id. at 165. This Court stated, “There
was no evidence, let alone a preponderance of it, establishing a causal connection between
defendant’s crime of felon-in-possession and [the victim’s] death.” Id. This Court explained
that the trial court clearly erred to the extent that it relied on MCL 777.33(2)(b), the multiple
offender provision, in assessing the defendant 100 points for OV 3 because his codefendant who
pleaded guilty to the charges against him had been assigned 100 points for OV 3. Id. at 163.
This Court clarified that Biddle’s case

       was not a multiple-offender case because defendant was acquitted of second-
       degree murder, assault with intent to commit murder, and felony-firearm, because
       the felon-in-possession conviction was based on evidence apart from the shooting,
       and because codefendant Johnson was convicted by plea of the crimes for which
       defendant was acquitted. Had defendant been convicted of assault with intent to
       commit murder as was his codefendant, then an assessment of 100 points for OV
       3 would have been proper. However, the multiple-offender provision of OV 3
       was not implicated in this case. [Id. at 164 (citations omitted).]

       Similarly, respecting assessment of points for OV 1, this Court held that

       there was no evidence that defendant’s possession of the gun, which was used to
       support the felon-in-possession conviction, entailed defendant’s discharge of the
       weapon, let alone discharging it at or toward a human being. The trial court thus
       clearly erred by assessing 25 points for OV 1 . . . . [Id. at 166.]

        In this case, the jury acquitted defendant of the only offense to which the discharge of a
firearm or injury to a victim were relevant—the AWIM charge. Similar to Biddles, looking
solely at defendant’s conduct during the sentencing offenses, the trial court could not properly
conclude that defendant’s conduct involved the discharge of a firearm or injury to a victim
because of defendant’s mere possession of a firearm and ammunition which served as the basis
for his convictions of felony-firearm, felon-in-possession, and CCW. Defendant’s commission
of the sentencing offenses did not entail the discharge of the firearm nor had any causal
connection with Russell’s injury. Biddles, 316 Mich App at 165-166.

      Moreover, our Supreme Court clarified recently in People v Beck, ___ Mich ___; ___
NW2d ___ (2019), a case similar to this case, where a jury acquitted the defendant of open
murder but the sentencing judge imposed a sentence for that crime, that because:

       the sentencing court punished the defendant more severely on the basis of the
       judge’s finding by a preponderance of the evidence that the defendant committed
       the murder of which the jury had acquitted him, it violated the defendant’s due-
       process protections.



                                                -4-
              We hold that due process bars sentencing courts from finding by a
       preponderance of the evidence that a defendant engaged in conduct of which he
       was acquitted. [Id. at ___; slip op at 21-22.]

Consequently, our Supreme Court vacated the defendant’s sentence for felon-in-possession and
remanded the case to the trial court for resentencing. Under Beck, defendant’s due process rights
were violated when the trial court assessed points for OVs 1 and 3 and imposed a sentence based
on the offense for which the jury acquitted him.

        Reduction of the 50 points erroneously assessed for OVs 1 and 3 results in a change in
the applicable guidelines range because his OV total would equal zero placing him in the OV
Level I instead of Level V, resulting in a minimum sentence range of 7 to 28 months. Because
the scoring errors affected the guidelines range, and because there is no indication that the trial
court, in the exercise of its discretion, would have imposed the same sentence in the absence of
these scoring errors, defendant is entitled to remand for resentencing. See People v Francisco,
474 Mich 82, 89 n 8; 711 NW2d 44 (2006).

                               B. SENTENCE ENHANCEMENT

        In a Standard 4 brief, defendant raises unpreserved claims that the prosecutor failed to
timely file the notice of intent to seek a sentence enhancement and that trial counsel provided
ineffective assistance by failing to address this issue. We disagree.

        Unpreserved claims of error are reviewed for plain error affecting defendant’s substantial
rights. People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). To avoid forfeiture under
the plain error rule, defendant bears the burden of establishing (1) that an error occurred, (2) the
error was plain, i.e., clear or obvious, and (3) the plain error affected his substantial rights. Id.
“The third requirement generally requires a showing of prejudice, i.e., that the error affected the
outcome of the lower court proceedings.” Id. (citation omitted). We are required to exercise
“discretion in deciding whether to reverse” and reversal “is warranted only when the plain,
forfeited error resulted in the conviction of an actually innocent defendant or when an error
seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings
independent of the defendant’s innocence.” Id. at 763-764 (quotation marks and citation
omitted).

       “Whether a defendant has been denied the effective assistance of counsel is a mixed
question of fact and constitutional law.” People v Solloway, 316 Mich App 174, 187; 891 NW2d
255 (2016). Generally, this Court reviews for clear error the trial court’s findings of fact and
reviews de novo questions of law. Id. at 188. However, because “no factual record was created
with respect to defendant’s claim . . . this Court’s review is limited to mistakes apparent on the
lower court record.” Id.

       MCR 6.113(E) states:

              A circuit court may submit to the State Court Administrator pursuant to
       MCR 8.112(B) a local administrative order that eliminates arraignment for a
       defendant represented by an attorney, provided other arrangements are made to

                                                -5-
       give the defendant a copy of the information and any notice of intent to seek an
       enhanced sentence, as provided in MCR 6.112(F).

       MCR 6.112(F) states:

               A notice of intent to seek an enhanced sentence pursuant to MCL 769.13
       must list the prior convictions that may be relied upon for purposes of sentence
       enhancement. The notice must be filed within 21 days after the defendant’s
       arraignment on the information charging the underlying offense or, if arraignment
       is waived or eliminated as allowed under MCR 6.113(E), within 21 days after the
       filing of the information charging the underlying offense. [Emphasis added.]

        The Genesee County Circuit Court eliminated circuit court arraignments through its local
administrative order LAO #11-04. On September 15, 2016, the prosecutor filed both the felony
information and a notice of intent to seek sentence enhancement. In so doing, the prosecutor
timely filed the notice within 21 days after the filing of the information as required by MCR
6.112(F). Defendant’s claim of error, therefore, lacks merit. Consequently, defendant’s claim
that his trial counsel provided ineffective assistance by not raising the notice filing issue also
lacks merit because a defendant’s trial counsel had no obligation to advocate a meritless position.
People v Snider, 239 Mich App 393, 425; 608 NW2d 502 (2000). Accordingly, defendant is not
entitled to relief in this regard.

        We vacate defendant’s sentence respecting his convictions of felon-in-possession, felon
in possession of ammunition, and CCW1 and remand to the trial court for resentencing. We do
not retain jurisdiction.

                                                            /s/ Colleen A. O’Brien
                                                            /s/ Michael F. Gadola
                                                            /s/ James Robert Redford




1
 Defendant’s conviction of felony-firearm is not subject to the sentencing guidelines because it
carries a mandatory sentence of two years’ imprisonment. See MCL 750.227b(1); MCL
777.16m.


                                                -6-
