            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PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    September 12, 2019
               Plaintiff-Appellee,

v                                                                   No. 344610
                                                                    Calhoun Circuit Court
JACK LEROY WINE, JR.,                                               LC No. 2013-001828-FC

               Defendant-Appellant.


Before: MURRAY, C.J., and METER and FORT HOOD, JJ.

PER CURIAM.

       Defendant appeals as of right his sentence for armed robbery, MCL 750.529. The trial
court sentenced defendant, as a fourth habitual offender, MCL 769.12, to 25 to 50 years’
imprisonment. We affirm.

                          I. FACTS AND PROCEDURAL HISTORY

        This is defendant’s third appeal to this Court. In his first appeal, this Court summarized
the relevant facts of the robbery as follows:

               The victim, Penelope White, was at home with several people in the
       middle of the day when the robbery occurred. She heard a disturbance, and then
       the door to the room she was in crashed open[]. Defendant’s son, Jack Wine III
       [(JR)], came into the room and hit her in the head with a fence post that had
       cleated steal. He hit her so hard that she had a scar on her head months later at the
       time of trial, and he broke her arm. He continually beat her until she stayed
       down. [JR] then dragged Penelope to the basement by her hair, and continued to
       hit Penelope in the face with the pole. He also attacked her daughter, Stephanie.
       His attack on her was so vicious that Stephanie had a sizable scar on her arm at
       the time of trial.

             Defendant was in the basement, and Penelope surmised that defendant did
       not want her to get hurt. [JR] was holding a gun. Defendant eventually asked



                                                -1-
       Penelope, “[W]hy did you rip me off?” When she claimed that it was not her but
       [her other daughter] Brittany and another individual, defendant replied, “This is
       over.” Penelope offered them her purse, defendant asked her where it was, and
       [JR] retrieved it. The men eventually left, and Penelope and Stephanie went to
       the hospital for their injuries. Penelope’s arm was injured so badly that she
       required surgery, and Stephanie required . . . stitches. [People v Wine (Wine I),
       unpublished per curiam opinion of the Court of Appeals, issued February 24,
       2015 (Docket No. 318822), p 1, vacated in part by People v Wine, 500 Mich 859
       (2016).]

        Defendant was ultimately convicted by a jury of armed robbery under a theory of aiding
and abetting, and sentenced by the trial court to 25 to 50 years’ imprisonment. This Court
affirmed defendant’s conviction and sentence, Wine I, unpub op at 1, 12, but the Supreme Court
vacated his sentence, and remanded to the trial court for resentencing, holding that the “trial
court erred in assigning 10 points for Offense Variable 4 (OV 4), MCL 777.34, since there was
no record support that the victims suffered psychological injury.” Wine, 500 Mich at 859.

        On remand, the trial court1 declined to adjust the score for OV 4, and resentenced
defendant to 25 to 50 years’ imprisonment. As a result, defendant again appealed his sentence,
and this Court vacated and remanded to the trial court for a second resentencing hearing, because
“the law of the case doctrine required the [trial] court to score OV 4 at zero points and to
resentence defendant accordingly.” People v Wine (Wine II), unpublished per curiam opinion of
the Court of Appeals, issued March 6, 2018 (Docket No. 336042), p 2.2

        At defendant’s second resentencing hearing, he challenged the accuracy of the
presentence investigation report (PSIR) on several bases, as well as his score for OVs 1, 2, 3, 4,
and 9, citing to Penelope’s medical records, which he argued constituted new evidence. The trial
court reassessed OV 4 at zero points, but refused to rescore the other challenged OVs,
determining that “[t]here are sufficient facts appropriate based upon the trial to score each of
those in the levels as currently placed . . . .” Additionally, after upholding the scores for OVs 1,
3, and 9, the court did make defendant’s requested PSIR corrections, striking references to
defendant possessing a baseball bat, defendant causing any injury himself, Matthew McClurg,
another participant in the robbery, possessing a gun, and defendant grabbing Brittany by the
throat. With a stipulated guidelines range of 126 to 420 months, the court again sentenced
defendant to 25 to 50 years’ imprisonment.




1
  Defendant was resentenced by a different judge than the one who presided over his trial and
original sentencing hearing.
2
 Further, the Court stated, “Because a remand for resentencing places this case before the trial
court in a presentence posture, we need not address defendant’s claims of error regarding the
accuracy of his [Presentence Investigation Report] and the trial court’s scoring of OVs other than
OV 4.” Wine II, unpub op at 3-4, n 2 (citations omitted).


                                                -2-
                                           II. ANALYSIS

                                    A. OFFENSE VARIABLES

       Defendant first argues, in both his appellate3 and Standard 44 briefs,5 that the trial court
erred when it assessed 10 points for OVs 1, 3, and 9.

       The sentencing guidelines are no longer mandatory, People v Lockridge, 498 Mich 358,
391-392; 870 NW2d 502 (2015), but a trial court must still properly score the OVs, id. at 392 n
28. In so doing, a court may consider all record evidence, including the PSIR and preliminary
examination testimony. People v McChester, 310 Mich App 354, 358; 873 NW2d 646 (2015).

                 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. Clear error exists when the reviewing court is left with a definite and
         firm conviction that a mistake was made. 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. [People v Lampe, ___ Mich App ___, ___;
         ___ NW2d ___ (2019) (Docket No. 342325); slip op at 2 (quotation marks and
         citations omitted).]

        We hold that the trial court did not clearly err when it assessed 10 points for OVs 1, 3,
and 9. A trial court must assess 10 points for OV 1, the aggravated use of a weapon, where
“[t]he victim was touched by any . . . type of weapon,” MCL 777.31(1)(d), 10 points for OV 3 if
“[b]odily injury requiring medical treatment occurred to a victim,” MCL 777.33(1)(d); People v
Armstrong, 305 Mich App 230, 245; 851 NW2d 856 (2014), and 10 points for OV 9 if “[t]here
were 2 to 9 victims who were placed in danger of physical injury or death, or 4 to 9 victims who
were placed in danger of property loss,” MCL 777.39(1)(c). Defendant asserts that because he
himself did not possess a weapon, cause injury to anyone, or personally place anyone in danger,
the scores for each should be zero points. But this ignores defendant’s participation in the armed



3
    Defendant’s appellate brief challenges the scores for OVs 1 and 9 only.
4
  In defendant’s Standard 4 statement of questions presented, he asserts that the court erred in
scoring OVs 1, 2, 3, 9, and 16, but makes no argument with regard to OVs 2 and 16 in the body
of his brief. Accordingly, we decline to address those OVs. See People v Payne, 285 Mich App
181, 195; 774 NW2d 714 (2009) (quotation marks and citation omitted) (“An appellant may not
merely announce his position and leave it to this Court to discover and rationalize the basis for
his claims, nor may he give only cursory treatment with little or no citation of supporting
authority.”).
5
 Along with his Standard 4 brief, defendant filed a motion to remand, which this Court denied.
People v Wine, unpublished order of the Court of Appeals, entered April 2, 2019 (Docket No.
344610).


                                                  -3-
robbery and conviction as an aider and abettor. “Every person concerned in the commission of
an offense, whether he directly commits the act constituting the offense or procures, counsels,
aids, or abets in its commission may . . . be prosecuted, indicted, tried and on conviction shall be
punished as if he had directly committed such offense.” MCL 767.39. Accordingly, the trial
court was justified in scoring the guidelines for defendant on the basis of all of the conduct
committed during the armed robbery, whether by defendant or the other individuals involved.
And, considering the actions of all participants in the robbery, a preponderance of the evidence
justifies a score of 10 points for each challenged OV.

        Penelope and Stephanie both testified that JR struck them with a fence post and that they
received treatment for their injuries at a hospital. This testimony alone establishes that two to
nine victims were placed in danger of physical injury, and suffered bodily injury requiring
medical treatment as a result of being hit by a weapon.6 Further, contrary to defendant’s
argument that Penelope’s medical records constitute “new evidence” that undermines the court’s
scores for OVs 1, 3, and 9, the records were admitted into evidence at trial by stipulation,7 and do
not alter our conclusion. The alleged time-of-incident conflict between Penelope’s testimony
and her medical records, and the absence of any mention of stab wounds to Penelope’s back in
the medical records, do not negate her testimony that JR hit her with a weapon, or the
information in the medical records indicating that she was treated at the hospital for injuries
related to the attack.8 Accordingly, the testimony and medical records support, by a
preponderance of the evidence, the trial court’s scores for OVs 1, 3, and 9.9 As the trial court did
not err in scoring OVs 1, 3, and 9, defendant’s ineffective assistance of counsel argument
necessarily fails. See People v Ericksen, 288 Mich App 192, 201; 793 NW2d 120 (2010)
(“Failing to advance a meritless argument or raise a futile objection does not constitute
ineffective assistance of counsel.”).



6
 A weapon, for purposes of scoring OV 1, is any instrument or device used for attack. People v
Lange, 251 Mich App 247, 257; 650 NW2d 691 (2002).
7
 In other words, despite this Court remanding the case to the trial court in a presentence posture,
see Lampe, ___ Mich App at ___; slip op at 2-3 n 2, defendant presented no new evidence for the
court to consider at his second resentencing hearing.
8
  We note, as well, that defendant overestimates the viability of his argument regarding the
alleged discrepancy between Penelope’s testimony about the time the robbery occurred and the
time that she arrived at the hospital according to her medical records. Penelope testified several
times at trial that she did not know the exact time the robbery occurred, estimating that it
happened around noon or sometime in the afternoon.
9
  Defendant also asserts, in his Standard 4 brief, that the trial court erred by using judge-found
facts to score OVs 1, 2, 3, and 9, because the findings required to score those OVs are “not
required for a conviction of armed robbery.” However, the Court in Lockridge clarified that its
holding striking down the mandatory nature of the guidelines did “nothing to undercut the
requirement that the highest number of points possible must be assessed for all OVs, whether
using judge-found facts or not.” Lockridge, 498 Mich at 392 n 28.


                                                -4-
                                              B. PSIR

       Defendant also argues, in his Standard 4 brief, that each of his attorneys was ineffective
for “allowing the use of inaccurate information contained in the [PSIR].” Defendant
acknowledges that the trial court ultimately corrected the errors at his second resentencing
hearing, but asserts that because the trial court made the corrections after it scored the guidelines,
the court improperly considered the inaccurate information to assess 10 points for OVs 1, 3, and
9.

        “A defendant is entitled to be sentenced by a trial court on the basis of accurate
information.” People v Francisco, 474 Mich 82, 88; 711 NW2d 44 (2006). “At sentencing,
either party may challenge the accuracy or relevancy of any information contained in the [PSIR].
The information is presumed to be accurate, and the defendant has the burden of going forward
with an effective challenge, but upon assertion of a challenge to the factual accuracy of
information, a court has a duty to resolve the challenge.” Lampe, ___ Mich App at ___; slip op
at 7 (quotation marks and citations omitted). “We review for an abuse of discretion the trial
court’s decision regarding the information in the PSIR.” Id.

        Defendant is correct that the court did not make his requested changes to the PSIR10 until
after upholding its scores for OVs 1, 3, and 9, but there is no indication at all from the record that
the court took any of the challenged content into account when scoring the OVs, stating only that
“[t]here are sufficient facts appropriate based upon the trial to score [OVs 1, 3, and 9] in the
levels as currently placed . . . .” Nor did the court need to consider the challenged content to
conclude that a preponderance of evidence supported the scores. The court struck from the PSIR
references to defendant possessing a baseball bat, defendant himself causing injury to anyone,
McClurg possessing a gun, and defendant grabbing Brittany by the throat. But, as provided
above, defendant was convicted of armed robbery as an aider and abettor, and the testimony of
Penelope and Stephanie (which did not include any reference to the statements stricken from the
PSIR) justified 10-point scores for OVs 1, 3, and 9. Consequently, the trial court did not violate
defendant’s due-process rights, and defendant’s ineffective assistance of counsel arguments fail.
See Ericksen, 288 Mich App at 201.

                                    C. PROPORTIONALITY

        Finally, in his appellate brief, defendant asserts that he is entitled to resentencing because
the sentence imposed was unreasonable and disproportionate. Specifically, he contends that his
past convictions are drug offenses, not assault crimes, his prison history is stellar, the trial court
did not articulate its reasons for the sentence imposed, and he did not do anything wrong at
Penelope’s house—JR committed most of the conduct alleged.




10
   This Court did not receive the corrected PSIR with the record, but defendant does not argue
that the trial court failed to ultimately make the corrections.


                                                 -5-
        To review a sentence for reasonableness, we look at “whether the trial court abused its
discretion by violating the ‘principle of proportionality’ set forth in People v Milbourn, 435 Mich
630, 636; 461 NW2d 1 (1990), ‘which requires sentences imposed by the trial court to be
proportionate to the seriousness of the circumstances surrounding the offense and the offender.’ ”
People v Steanhouse, 500 Mich 453, 459-460; 902 NW2d 327 (2017). However, absent a
scoring error or reliance on inaccurate information in the PSIR, which we have rejected above, a
minimum sentence within the guidelines range is presumptively proportionate. People v
Schrauben, 314 Mich App 181, 196; 886 NW2d 173 (2016). Defendant’s 25-year minimum
sentence is within the 126 to 420-month sentencing guidelines range stipulated to by the
parties.11 Therefore, defendant’s sentence is presumptively proportionate, and must be upheld.

       Affirmed.



                                                            /s/ Christopher M. Murray
                                                            /s/ Patrick M. Meter
                                                            /s/ Karen M. Fort Hood




11
  Beyond asserting that the trial court incorrectly scored OVs 1, 3, and 9, defendant does not
challenge the sentencing guidelines range stipulated to by the parties and imposed by the court.


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