            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 PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                      May 14, 2020
                Plaintiff-Appellee,

 v                                                                    No. 346833
                                                                      Eaton Circuit Court
 RUBEN CALVIN WALKER,                                                 LC No. 2018-020242-FH

                Defendant-Appellant.


Before: CAVANAGH, P.J., and SAWYER and RIORDAN, JJ.

PER CURIAM.

        Following a bench trial, defendant was convicted of being a felon in possession of a firearm
(felon-in-possession), MCL 750.224f, assault with a dangerous weapon (felonious assault), MCL
750.82, and possession of a firearm during the commission of a felony (felony-firearm), MCL
750.227b. Defendant was sentenced as a fourth-offense habitual offender, MCL 769.12, to serve
concurrent prison terms of 30 to 180 months for felon-in-possession and felonious assault, and a
consecutive prison term of two years for felony-firearm. Defendant appeals as of right. We affirm.

                                              I. FACTS

       Defendant, his son, and his son’s girlfriend were at the apartment of defendant’s girlfriend,
YM, when defendant and YM engaged in an argument concerning whether defendant’s son was
welcome in the apartment. Defendant went to the bedroom and returned with a handgun.
Defendant slammed the handgun on the counter and told YM, “When you call the police, I’m
gonna wait till they get here and blow your mother****n’ head off in front of ’em.” YM grabbed
the handgun, ran into her bedroom, and threw the handgun in the closet. When defendant
attempted to go into the bedroom to retrieve the handgun, YM grabbed a butcher knife and
attempted to stop defendant from getting to the handgun in the closet. With the knife in one hand
and a cell phone in the other, YM called 911. After defendant was arrested, the police recovered
the handgun from YM’s closet.




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                                          II. ANALYSIS

                                  A. WAIVER OF JURY TRIAL

        The trial court did not plainly err by granting defendant’s request for waiver of trial by
jury.

         Unpreserved claims are reviewed for plain error affecting the defendant’s substantial
rights. People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). In order to show such error,
“1) error must have occurred, 2) the error was plain, i.e., clear or obvious, 3) and the plain error
affected substantial rights . . . . The third requirement generally requires a showing of prejudice,
i.e., that the error affected the outcome of the lower court proceedings.” Id. (citations omitted).
Further, defendant must also demonstrate “that the error either resulted in the conviction of an
actually innocent defendant or seriously affected the fairness, integrity, or public reputation of
judicial proceedings.” People v Vaughn, 491 Mich 642, 654; 821 NW2d 288 (2012).

        MCL 763.3(1) provides:
                In all criminal cases arising in the courts of this state the defendant may,
        with the consent of the prosecutor and approval by the court, waive a determination
        of the facts by a jury and elect to be tried before the court without a jury. Except
        in cases of minor offenses, the waiver and election by a defendant shall be in writing
        signed by the defendant and filed in the case and made a part of the record. The
        waiver and election shall be entitled in the court and case, and in substance as
        follows: “I, ______________________, defendant in the above case, hereby
        voluntarily waive and relinquish my right to a trial by jury and elect to be tried by
        a judge of the court in which the case may be pending. I fully understand that under
        the laws of this state I have a constitutional right to a trial by jury.”

        _______________________

        Signature of defendant.

        Further, MCR 6.402(B) provides:
                Before accepting a waiver, the court must advise the defendant in open court
        of the constitutional right to trial by jury. The court must also ascertain, by
        addressing the defendant personally, that the defendant understands the right and
        that the defendant voluntarily chooses to give up that right and to be tried by the
        court. A verbatim record must be made of the waiver proceeding. [Emphasis
        added.]

        “[W]ith the consent of the prosecutor and the approval of the trial court, a defendant may
waive his right to a jury trial.” People v Cook, 285 Mich App 420, 422; 776 NW2d 164 (2009).
“In order for a jury trial waiver to be valid, however, it must be both knowingly and voluntarily
made.” Id. In order to ensure compliance with MCL 763.3, the trial court record must show that
in addition to defendant personally, voluntarily, and understandingly giving up his right to trial by

                                                 -2-
jury, “based upon information conveyed to the judge in open court by the defendant, or in his
presence,” defendant has signed the waiver of trial by jury form after he has been “arraigned on
the information and has had an opportunity to consult with counsel.” People v Pasley, 419 Mich
297, 302-303; 353 NW2d 440 (1984).

        In this case, defendant’s waiver of trial by jury form, which conforms to the provisions of
MCL 763.3(1), was signed by defendant, defense counsel, the prosecutor, and the trial court.
Defendant personally agreed that he was requesting a bench trial and that he was waiving his
constitutional right to a jury trial. The trial court informed defendant that if he waived the trial by
jury, the trial court would be the trier of fact, as required by MCR 6.402(B). The record reflects
that defendant was personally informed of the advantages and disadvantages of a jury trial and that
he personally signed the waiver of jury trial form knowingly and voluntarily. Accordingly, the
trial court did not plainly err by granting defendant’s request for waiver of trial by jury.

                                         B. SENTENCING

        Defendant challenges several offense variable (OV) and prior record variable (PRV)
scores. Defendant additionally contends that he was denied the effective assistance of counsel at
sentencing. We conclude that the trial court properly assessed 15 points for OV 1 and 10 points
for OV 9. The trial court improperly assessed 1 point for OV 12 and 50 points for PRV 1, but
correction of the errors does not change defendant’s minimum guidelines range. Finally, trial
counsel was not ineffective for failing to object to the trial court’s calculation of defendant’s
sentence.

                                              1. OV 1

         “[OV 1] is aggravated use of a weapon.” MCL 777.31(1). Under MCL 777.31(1)(c), when
“[a] firearm was pointed at or toward a victim or the victim had a reasonable apprehension of an
immediate battery when threatened with a knife or other cutting or stabbing weapon,” 15 points
are scored for OV 1. “OV 1 is an ‘offense-specific’ variable; therefore, in scoring OV 1, the trial
court [is] limited to ‘considering the sentencing offense alone.’ ” People v Chelmicki, 305 Mich
App 58, 72; 850 NW2d 612 (2014), quoting People v McGraw, 484 Mich 120, 127; 771 NW2d
655 (2009).1 “However, in doing so, a trial court may properly consider all of [the] defendant’s
conduct during that offense.” Chelmicki, 305 Mich App at 71-72 (quotation marks and citation
omitted).

        In this case, when defendant and YM were arguing, defendant left and went to the bedroom
and came back with a handgun. Defendant slammed the handgun down on the counter and
threatened to shoot YM in the head when she called the police. YM testified that she was afraid
and believed defendant would shoot her in the head. This evidence supports a finding that YM



1
 Defendant argues that under MCL 777.31(2)(e), zero points should be scored for OV 1 because
defendant’s sentencing offense was felonious assault. However, according to the PSIR,
defendant’s sentencing offense was felon-in-possession.

                                                 -3-
had “a reasonable apprehension of an immediate battery” when defendant threatened to shoot her
in the head in front of the police officers. See MCL 777.31(1)(c).



                                              2. OV 9

        “[OV 9] is number of victims.” MCL 777.39(1). Under MCL 777.39(1)(c), when “[t]here
were 2 to 9 victims who were placed in danger of physical injury or death,” 10 points are scored
for OV 9. A victim, under MCL 777.39(2)(a), is “each person who was placed in danger of
physical injury or loss of life.” “A person may be a victim under OV 9 even if he or she did not
suffer actual harm; a close proximity to a physically threatening situation may suffice to count the
person as a victim.” People v Gratsch, 299 Mich App 604, 624; 831 NW2d 462 (2013), vacated
in part on other grounds 495 Mich 876 (2013) (emphasis added). See also People v Rodriguez,
327 Mich App 573, 582; 935 NW2d 51 (2019) (holding that where the defendant used a tire iron
to smash the windows of the truck before robbing the victim hiding inside and a second person
watched from “outside his apartment, in close proximity to the robbery, the trial court properly
counted [the second person] as a victim”); People v Walden, 319 Mich App 344, 349-350; 901
NW2d 142 (2017) (holding that 10 points were properly assessed for OV 9 where “at least three
people were near [the] defendant when he drew a knife and began swinging it”; “although [the
victim] was the only person stabbed, at least two other people were placed in immediate danger of
physical injury or loss of life and [were] thus victims for the purpose of scoring OV 9”).

        In this case, defendant’s son, the son’s girlfriend, and YM were present and in close
proximity in YM’s apartment when defendant retrieved a handgun and threatened to shoot YM.
All three count as victims in this case, because they were all placed in immediate danger of physical
injury or loss of life. See MCL 777.39(1)(c). Therefore, the trial court properly scored 10 points
for OV 9.

                                             3. OV 12

        “[OV 12] is contemporaneous felonious criminal acts.” MCL 777.42(1). Under MCL
777.42(1)(f), when “[o]ne contemporaneous felonious criminal act involving any other crime was
committed,” one point is scored. A felonious criminal act is contemporaneous if it occurs under
the following circumstances: “(i) The act occurred within 24 hours of the sentencing offense,”
MCL 777.42(2)(a)(i), and “(ii) The act has not and will not result in a separate conviction,” MCL
777.42(2)(a)(ii).

        “OV 12 distinguishes within the same sentence between the ‘act’ that occurred and the
‘sentencing offense.’ ” People v Light, 290 Mich App 717, 723; 803 NW2d 720 (2010). Therefore,
“the language of OV 12 clearly indicates that the Legislature intended for contemporaneous
felonious criminal acts to be acts other than the sentencing offense and not just other methods of
classifying the sentencing offense.” Light, 290 Mich App at 726. “What matters, [for purposes of
scoring OV 12], is whether the ‘sentencing offense’ can be separated from other distinct ‘acts.’ ”
People v Carter, 503 Mich 221, 227; 931 NW2d 566 (2019).



                                                -4-
        In this case, it appears that OV 12 was scored on the basis of a dismissed charge of
receiving and concealing a stolen firearm under MCL 750.535b. 2 However, there is no evidence
in the record to support a finding that defendant’s alleged receiving and concealment of the
handgun occurred within 24 hours of the sentencing offense, felon-in-possession. Therefore, the
trial court clearly erred by assessing one point for OV 12 on this basis. However, the subtraction
of one point from OV 12 does not change defendant’s minimum guidelines range. Therefore,
defendant is not entitled to resentencing on this basis. See People v Francisco, 474 Mich 82, 89 n
8; 711 NW2d 44 (2006); People v Davis, 468 Mich 77, 83; 658 NW2d 800 (2003).

                                             4. PRV 1

        “[PRV 1] is prior high severity felony convictions.” MCL 777.51(1). Under MCL
777.51(1)(b), when “[t]he offender has 2 prior high severity felony convictions,” 50 points are
scored. Additionally, when “[t]he offender has 1 prior high severity felony conviction,” 25 points
are scored. MCL 777.51(1)(c).

       MCL 777.51(2) provides:
              As used in this section, “prior high severity felony conviction” means a
       conviction for any of the following, if the conviction was entered before the
       sentencing offense was committed:

               (a) A crime listed in offense class M2, A, B, C, or D.

               (b) A felony under a law of the United States or another state corresponding
       to a crime listed in offense class M2, A, B, C, or D.

              (c) A felony that is not listed in offense class M2, A, B, C, D, E, F, G, or H
       and that is punishable by a maximum term of imprisonment of 10 years or more.

               (d) A felony under a law of the United States or another state that does not
       correspond to a crime listed in offense class M2, A, B, C, D, E, F, G, or H and that
       is punishable by a maximum term of imprisonment of 10 years or more.

       In this case, it appears that one of the prior convictions counted in scoring PRV 1 was
attempted breaking and entering a building with intent to commit a larceny or felony, MCL
750.110; MCL 750.92. MCL 777.19(3) provides as follows:
                For an attempt to commit an offense enumerated in this part, the offense
       class is as follows:

               (a) Class E if the attempted offense is in class A, B, C, or D.



2
 Receiving and concealing a stolen firearm in violation of MCL 750.535b was count one of the
original charges against defendant in the felony information, apparently because the handgun used
during the incident had been reported stolen.

                                                -5-
               (b) Class H if the attempted offense is in class E, F, or G.

        Breaking and entering with intent to commit a felony or larceny is a class D offense. See
MCL 777.16f. Therefore, attempted breaking and entering with intent to commit a felony or
larceny, which defendant pleaded guilty to, is a class E offense. Given that MCL 777.51(2)(a)
defines prior high severity felony convictions as those listed under classes M2, A, B, C, or D, then
attempted breaking and entering with intent to commit a felony or larceny is a prior low severity
felony conviction.

        Therefore, as the prosecution concedes, it appears that defendant has only one prior high
severity felony conviction, and that only 25 points should have been assessed for PRV. Further,
although only 10 points were scored for PRV 2, as a result of the improper scoring of PRV 1, 20
points should have been assessed for PRV 2, because defendant has three prior low severity felony
convictions. See MCL 777.52(1)(b).

        Therefore, the trial court plainly erred by assessing 50 points for PRV 1, instead of 25
points. However, because the change in the scoring of PRVs 1 and 2 does not change defendant’s
minimum guidelines range, defendant is not entitled to resentencing on this basis. See Francisco,
474 Mich at 89 n 8; Davis, 468 Mich at 83. For the same reason, any error in the contents of the
PSIR is harmless, and defendant is not entitled to a remand for correction of the PSIR.

                       5. INEFFECTIVE ASSISTANCE OF COUNSEL

        Finally, defendant argues that trial counsel was ineffective for failing to object to the
erroneous calculation of the sentencing guidelines. “Trial counsel is presumed to have been
effective, and defendant must prove otherwise.” People v Blevins, 314 Mich App 339, 351; 886
NW2d 456 (2016). In order to establish ineffective assistance of counsel, a defendant must show
that “(1) counsel’s performance was deficient, meaning that it fell below an objective standard of
reasonableness, and (2) but for counsel’s error, there is a reasonable probability that the outcome
of the defendant’s trial could have been different.” People v Solloway, 316 Mich App 174, 188;
891 NW2d 255 (2016). The defendant “bears the burden of establishing the factual predicate for
his claim.” People v Putman, 309 Mich App 240, 248; 870 NW2d 593 (2015) (quotation marks
and citation omitted).

       Presumably, defense counsel should have objected to the erroneous scores for OV 12 and
PRV 1. However, defendant has failed to show how, but for trial counsel’s error, the trial court
would have sentenced defendant differently. As discussed, correction of the scoring errors
regarding OV 12 and PRV 1 does not result in a different guidelines range. Therefore, it cannot




                                                -6-
be concluded that, but for counsel’s error, the result would have been different. See Solloway, 316
Mich App at 188.

       Affirmed.



                                                            /s/ Mark J. Cavanagh
                                                            /s/ David H. Sawyer
                                                            /s/ Michael J. Riordan




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