            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 PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                    February 20, 2020
                Plaintiff-Appellee,

 v                                                                  No. 346240
                                                                    Wayne Circuit Court
 BRANDON DARCEL VAUGHN,                                             LC No. 18-002672-01-FC

                Defendant-Appellant.


Before: REDFORD, P.J., and CAVANAGH and SERVITTO, JJ.

PER CURIAM.

        A jury convicted defendant of carrying a concealed weapon (CCW), MCL 750.227, felon
in possession of a firearm (felon-in-possession), MCL 750.224, and possession of a firearm in the
commission of a felony (felony-firearm), MCL 750.227b. Defendant appeals as of right his
sentence as a fourth habitual offender, MCL 769.12, to concurrent terms of 46 months to 20 years’
imprisonment for the CCW and felon-in-possession convictions, and two years’ imprisonment for
the felony-firearm conviction. We affirm.

                                I. FACTUAL BACKGROUND

        On the morning of February 20, 2018, defendant and two men, Darrian Baker and
Davaughn West, planned to smoke marijuana. Defendant and West had a brief argument about
money. Defendant and West walked to the Bottle Stop liquor store located on East State Fair and
Irvington in Detroit. Baker drove separately to the store to purchase cigarettes. When he arrived,
he found defendant there and struck up a conversation. Defendant told him that West had robbed
and shot at him. Baker exited the store and saw West walking fast crossing Irvington toward the
store. Baker heard the store door open and then several gunshots. Baker saw West try to flee into
the street where a van hit him and knocked him to the ground. Baker heard more gunshots, and he
saw defendant flee the scene with a black semiautomatic handgun. Baker drove West to Detroit
Receiving Hospital. Baker admitted that he told the police that defendant was carrying a handgun,
and that he observed defendant firing his weapon. West sustained twelve gunshot wounds. West
denied observing the person who shot him, denied knowing defendant or Baker, and denied having
any confrontation with defendant.



                                               -1-
        Defendant was charged with several offenses but the jury acquitted him of assault with
intent to murder, assault with intent to do great bodily harm less than murder, carrying a dangerous
weapon with unlawful intent, and three counts of felony-firearm. However, the jury convicted
defendant of CCW, felon-in-possession, and felony-firearm.

        At defendant’s sentencing hearing, defense counsel objected to the presentence
investigation report’s (PSIR) assessment of points for offense variable (OV) 12, MCL 777.42, and
argued that it should have been scored at zero. The prosecution agreed and the trial court amended
OV 12 accordingly, resulting in a decrease from 12 months to 9 months for the calculation of
defendant’s minimum sentence under the sentencing guidelines. The trial court determined
defendant’s minimum sentence as a habitual offender under the sentencing guidelines as 9 months
to 46 months. The trial court sentenced defendant as a fourth-offense habitual offender to two
years’ imprisonment for his felony-firearm conviction, to be served consecutive to concurrent
sentences of 46 months to 20 years’ imprisonment for his CCW and felon-in-possession
convictions.

                                 II. STANDARD OF REVIEW

        “The trial court’s discretionary decisions—including its exercise of sentencing
discretion—are reviewed for an abuse of discretion.” People v Odom, 327 Mich App 297, 303;
933 NW2d 719 (2019) (citations omitted). “A trial court abuses its discretion when it selects an
outcome that falls outside the range of reasonable and principled outcomes.” Id. In addition, “[a]
trial court abuses its discretion when it imposes a sentence that is not proportional to the
seriousness of the circumstances surrounding the offense and the offender.” People v Sabin, 242
Mich App 656, 661; 620 NW2d 19 (2000).

                                         III. ANALYSIS

                                A. DEFENDANT’S SENTENCE

       Defendant argues that the trial court imposed an unreasonable and disproportionate
sentence despite the fact that his 46-month minimum sentences fell within the advisory sentencing
guidelines range of 9 months to 46 months because of his fourth habitual offender status. We
disagree.

       MCL 769.34(10) provides:

                If a minimum sentence is within the appropriate guidelines sentence range,
       the court of appeals shall affirm that sentence and shall not remand for resentencing
       absent an error in scoring the sentencing guidelines or inaccurate information relied
       upon in determining the defendant’s sentence. A party shall not raise on appeal an
       issue challenging the scoring of the sentencing guidelines or challenging the
       accuracy of information relied upon in determining a sentence that is within the
       appropriate guidelines sentence range unless the party has raised the issue at
       sentencing, in a proper motion for resentencing, or in a proper motion to remand
       filed in the court of appeals.


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        While a court must score and consider the sentencing guidelines, the guidelines are
advisory only. People v Lockridge, 498 Mich 358, 365; 870 NW2d 502 (2015) “Notably,
Lockridge did not alter or diminish MCL 769.34(10).” People v Schrauben, 314 Mich App 181,
196 n 1; 886 NW2d 173 (2016). “Although the Legislature’s [sentencing] guidelines are advisory,
they ‘remain a highly relevant consideration in a trial court’s exercise of [its] sentencing
discretion.’ ” Odom, 327 Mich App at 314-15, quoting Lockridge, 498 Mich at 391. Because
Lockridge did not alter the continued validity of MCL 769.34(10), we must affirm a sentence that
falls within the recommended sentencing guidelines range, absent an error in scoring or reliance
on inaccurate information. Schrauben, 314 Mich App at 196, 196 n 1.

       Under the guidelines the trial court determined defendant’s minimum sentence range as a
habitual offender of 9 months to 46 months. The trial court sentenced defendant to a minimum of
46 months’ imprisonment. Defendant does not dispute that the trial court correctly calculated his
guidelines range, nor does he argue that the trial court relied on inaccurate information. Therefore,
under MCL 769.34(10) we must affirm defendant’s sentence.

         Defendant argues further that the trial court imposed a sentence disproportionate to the
crimes of which the jury convicted him. “A sentence is reasonable when it is proportionate to the
seriousness of the circumstances surrounding the offense and the offender. Odom, 327 Mich App
at 305, citing People v Steanhouse, 500 Mich 453, 471-472; 902 NW2d 327 (2007). “A sentence
that falls within the appropriate sentencing guidelines range is presumptively proportionate.”
People v Armisted, 295 Mich App 32, 51; 811 NW2d 47 (2011). “In order to overcome the
presumption that the sentence is proportionate, a defendant must present unusual circumstances
that would render the presumptively proportionate sentence disproportionate.” People v Lee, 243
Mich App 163, 187; 622 NW2d 71 (2000). “If a defendant or his attorney believes that unusual
circumstances exist so that a sentence within the guidelines range would not be proportionate, then
those circumstances should be presented to the sentencing judge in open court before sentencing
so that the judge may consider them. If this is not done, then the issue that a sentence that is within
the guidelines range violates the principle of proportionality may not be raised on appeal.” People
v Sharp, 192 Mich App 501, 505-506; 481 NW2d 773 (1992).

        In this case, defendant failed to present to the trial court unusual circumstances to overcome
the presumption of proportionality. Accordingly, defendant cannot raise this issue on appeal and
he is not entitled to resentencing.

       Defendant also argues that the trial court imposed an unreasonable sentence because it
based his sentence on his youth and his fourth habitual offender status and opined that the
community needed protection when there were no victims of defendant’s convicted offenses. We
disagree.

        We are only required to consider the reasonableness of sentences that depart from the
sentencing guidelines range. People v Anderson, 322 Mich App 622, 636; 912 NW2d 607 (2018),
citing Lockridge, 498 Mich at 365. The trial court stated: “And so I think something within the
guidelines is almost required in this case, uh, given the nature of the charges.” The trial court
found that defendant’s extensive criminal record evidenced a pattern of criminality and disregard
for others. Despite his youth, defendant had already achieved fourth-offense habitual offender
status. The record reflects that the trial court appropriately acknowledged that the jury acquitted

                                                 -3-
defendant of various charges indicating that it did not take defendant’s acquittals into account
when sentencing defendant. The trial court based defendant’s sentence on the specific offenses of
which the jury convicted him and his fourth-offense habitual offender status. Therefore, the trial
court did not impose an unreasonable sentence and defendant is not entitled to resentencing.

       Defendant also asserts that he was sentenced at the high end of the guidelines range as a
punishment for taking his case to trial. Defendant fails to support his claim with any evidence.
Defendant even concedes on appeal that the trial court did not state that defendant was being
punished for taking his case to trial. An appellant may not simply “announce a position or assert
an error and then leave it up to this Court to discover and rationalize the basis for his claims, or
unravel and elaborate for him his arguments, and then search for authority either to sustain or reject
his position.” People v Bowling, 299 Mich App 552, 559-560; 830 NW2d 800 (2013), quoting
Kevorkian, 248 Mich App at 389 (quotation marks and citation omitted).

       Next, defendant argues that this Court should find that MCL 769.34(10) is invalid.
Defendant asserts that MCL 769.34(10) is constitutionally invalid because a mandatory,
nonrebuttable presumption of proportionality continues to exist, despite the Michigan Supreme
Court’s holding in Lockridge. “Lockridge did not alter or diminish MCL 769.34(10),” Schrauben,
314 Mich App at 196 n 1, and contrary to defendant’s assertion, a rebuttable presumption of
proportionality exists. Lee, 243 Mich App at 187; Odom, 327 Mich App at 305. While “[t]he trial
court must consult the resulting guidelines range, [] it retains its discretion to depart from that
range.” Odom, 327 Mich App at 305, citing Lockridge, 498 Mich at 391-392. Thus, defendant’s
contention has no basis in the law.

                        B. INEFFECTIVE ASSISTANCE OF COUNSEL

        Defendant also argues he was denied the effective assistance of counsel at his sentencing
hearing. Defendant claims that if defense counsel had properly advocated for defendant rather
than being surprised at the jury verdict, the trial court could have given defendant a lesser sentence.
We disagree.

         To preserve a claim of ineffective assistance of counsel, a defendant must move for a new
trial or an evidentiary1 hearing in the trial court. People v Payne, 285 Mich App 181, 188; 774
NW2d 714 (2009) (citation omitted). Defendant did not move for a new trial or seek an evidentiary
hearing in the trial court. Therefore, defendant failed to preserve his ineffective assistance of
counsel claim.

        “This Court reviews an unpreserved ineffective-assistance-of-counsel claim for errors
apparent on the record.” People v Hoang, 328 Mich App 45, 63; 935 NW2d 396 (2019) (citation
omitted). “Generally, an ineffective-assistance-of-counsel claim presents a mixed question of fact
and constitutional law.” Id. “Constitutional questions are reviewed de novo[.]” Id. “[F]indings
of fact are reviewed for clear error.” Id. “A finding is clearly erroneous when, although there is
evidence to support it, the reviewing court is left with a definite and firm conviction that a mistake



1
    People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).

                                                 -4-
has been made.” People v Lanzo Const Co, 272 Mich App 470, 473; 726 NW2d 746 (2006)
(citation omitted).

         Criminal defendants are entitled to the effective assistance of counsel. Hoang, 328 Mich
App at 63. To prevail on a claim of ineffective assistance of counsel, a defendant must show “(1)
that trial counsel’s performance was objectively deficient, and (2) that the deficiencies prejudiced
the defendant.” People v Randolph, 502 Mich 1, 9; 917 NW2d 249 (2018), citing Strickland v
Washington, 466 US 668; 104 S Ct 2052; 80 L Ed 2d 674 (1984).

        In satisfying the first prong, “a defendant must show that (1) counsel’s performance fell
below an objective standard of reasonableness[.]” People v Trakhtenberg, 493 Mich 38, 51; 826
NW2d 136 (2012) (citations omitted). “[A] defendant must ‘overcome the strong presumption
that counsel’s performance was born from a sound trial strategy.’ ” People v Ackley, 497 Mich
381, 388; 870 NW2d 858 (2015), citing Trakhtenberg, 493 Mich at 52, citing Strickland, 466 US
at 689. A “defendant has the burden of establishing the factual predicate for his claim of ineffective
assistance of counsel.” People v Hoag, 460 Mich 1, 6; 594 NW2d 57 (1999).

       In this case, the record reflects that defense counsel appropriately advocated for the
imposition of a minimum sentence at the lower end of the range established under the sentencing
guidelines. Defendant’s contention that defense counsel acted surprised at the verdict and faltered
in representing him is unsupported in the record. Further, defense counsel objected to the
assessment of points for OV 12 and obtained a change in scoring that favored defendant.
Defendant has failed to establish a factual predicate for his claim of ineffective assistance. Hoag,
460 Mich at 6. Defense counsel’s performance did not fall below an objective standard of
reasonableness.

        Defendant also has failed to establish that a reasonable probability exists that the outcome
of his sentencing would have been different. Trakhtenberg, 493 Mich at 51. The trial court
appropriately sentenced defendant within the sentencing guidelines minimum range. Therefore,
defendant has failed to demonstrate prejudice.

       Affirmed.

                                                              /s/ James Robert Redford
                                                              /s/ Mark J. Cavanagh
                                                              /s/ Deborah A. Servitto




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