            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PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED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. 335193
                                                                   Genesee Circuit Court
AARON ANTWAUN ROBINSON,                                            LC No. 11-029956-FC

              Defendant-Appellant.


                                        ON REMAND

Before: MURRAY, C.J., and K.F. KELLY and FORT HOOD, JJ.

PER CURIAM.

         This matter returns to this Court by order of our Supreme Court for reconsideration of
defendant’s sentencing challenge in light of People v Beck, 504 Mich 605; 939 NW2d 213 (2019),
wherein our Supreme Court unequivocally concluded that, once a defendant is acquitted of a crime,
it violates due process to sentence the defendant as if he or she committed that very same crime,
id. at 630. We have also been instructed to “analyze: (1) whether defendant’s argument pertaining
to the consecutive nature of his sentences is outside the scope of the remand for ‘resentencing’;
and (2) if not, whether the trial court articulated an appropriate basis for imposing consecutive
sentences.” People v Robinson, 505 Mich 872 (2019). We affirm.

                     I. FACTUAL AND PROCEDURAL BACKGROUND

       The Genesee County Prosecutor charged defendant with first-degree felony murder,
second-degree murder, carjacking, armed robbery, first-degree home invasion, safe breaking,
larceny of a firearm, receiving and concealing a firearm, and felony-firearm. The jury convicted
defendant of first-degree home invasion, safe breaking, larceny of a firearm, receiving and
concealing a firearm, and felony-firearm. The jury acquitted defendant of the remaining charges.

       On October 28, 2013, defendant was sentenced to 144 to 240 months’ imprisonment for
the home invasion conviction, 140 to 360 months’ imprisonment for the safe breaking conviction,
13 to 60 months’ imprisonment for the larceny conviction, 24 to 120 months’ imprisonment for
the receiving and concealing conviction, and 2 years’ imprisonment for the felony-firearm


                                               -1-
conviction. The safe breaking, larceny, and receiving and concealing sentences were to run
concurrently to one another and consecutively to the home invasion and felony-firearm sentences.
The home invasion sentence was to run consecutively to the felony-firearm sentence. The trial
court explained its imposition of consecutive sentencing for the home invasion sentence as follows:

       I think that’s appropriate because I do think punishment is important in this
       particular case because this involved a death of an individual who had shown
       himself to [be a] . . . contributor to society. He had reached his . . . old age had
       reached retirement. And come home and to be killed in his own home by two
       individuals who were trying to rob him. This Court thinks that that’s just totally
       egregious. It was totally unnecessary. I think that the factors that the prosecution
       has laid on the record as to why the Court should exceed the guidelines also justify
       running the home invasion consecutive to the other offenses in this case.

Defendant’s 144-month minimum home invasion sentence exceeds the top end of the sentencing
guidelines range of 57 to 95 months by 49 months. His 140-month minimum safe-breaking
sentence exceeds the top end of the sentencing guidelines range of 43 to 86 months by 54 months.

        Defendant appealed to this Court challenging the validity of both his convictions and
sentences, and this Court affirmed the former. People v Robinson, unpublished per curiam opinion
of the Court of Appeals, issued February 17, 2015 (Docket No. 319226), at 1. As pertains to
defendant’s sentences, defendant asserted that the trial court incorrectly scored Offense Variables
3, 10, 12, and 14, and failed to articulate substantial and compelling reasons to depart from the
minimum sentencing guidelines range when imposing the upward departure sentences. This Court
concluded that the trial court correctly scored defendant’s offense variables, and that he articulated
substantial and compelling reasons to deviate from the sentencing guidelines. Id. at 11-13, 16.
However, this Court also concluded that the trial court failed to “specifically state how the extent
of [defendant’s] departure [sentence] was proportionate.” Id. at 14-16. As a consequence, this
Court remanded the case for “resentencing so that the trial court may articulate the justification for
the extent of the departure from the recommended guidelines range.” Id. at 1, 17. In so doing,
this Court noted:

       When departing, the trial court must explain why the sentence imposed is more
       proportionate than a sentence within the guidelines recommendation would have
       been.” Smith, 482 Mich at 304 (emphasis added). Thus, while there is sufficient
       evidence to support a departure from the recommended guidelines, the matter must
       be remanded. Upon remand, the trial court shall articulate how its sentence was
       more proportionate than a sentence within the guidelines. [Robinson, unpub op at
       16.]

Our Supreme Court denied defendant’s application for leave to appeal. People v Robinson, 499
Mich 966 (2016).

        The trial court convened remand proceedings on September 12, 2016. The proceedings
opened with a discussion of whether People v Lockridge, 498 Mich 358; 870 NW2d 502 (2015),
controlled and, thus, whether the guidelines in this matter were only advisory. The consensus
reached by the parties and the judge was that Lockridge did apply and that the guidelines were now


                                                 -2-
advisory. Thereafter, the trial court listened to the parties’ arguments and the allocution offered
by defendant. The trial court then offered the following articulation of the reasoning underlying
its decision to impose departure sentences:

              This offense was a very serious offense; and even though you may
       downplay your role in this, you were up to this to the top of your neck. You guys
       – you had – you knew the person because you either lived or were in close proximity
       to where the victim lived at. You had gone to his house the day before. The
       evidence clearly showed that you knew he had coins and other things in his home
       of value. I think you had gone over there to make a request for some items from
       him or for something from him. At that time, you had an opportunity to see what
       was in his home.

               You then, according to the evidence that I heard, went and got your friend,
       the one who pled to second degree murder for killing this man; and you both went
       back to his home and you broke into his home. You went in through an air
       conditioning – where he had an air conditioner on the side of his house. You
       removed that air conditioner, you and your co-defen—when I say you, both you
       together, entered into his home; and, while you’re in his home, I think he showed
       up; and that was his mistake because he showed up at home. Now this was a man
       who was retired from the Sheriff’s Deputy [sic]—but he wasn’t a Sheriff’s Deputy
       at the time. He was retired, enjoying his retirement, minding his own business.
       And you and your co-defendant went into his home; and not only did you rob him,
       but you murdered him. He was shot and killed.

              Now I’ll be honest with you, I thought the jury was incorrect in not
       convicting you of murder. I can’t even – sitting here today, for the life of me, see
       how they could not have convicted you of murder[.]

                                              * * *

               [T]here is no question you were in the house when the shooting occurred,
       all the evidence points to that. And it’s no doubt that you were involved in the
       safebreaking that occurred. I think maybe even your fingerprints were on the safe
       that they found in there. No question that you took his truck because, as the—even
       the report says here, you were found the next day riding around in this truck with
       items from the house inside the truck; so it says he was located riding in the victim’s
       vehicle, was found to have the victim’s personal items in his possession. I think
       your girlfriend you were taking your girlfriend to the movies in this man’s truck
       after you – after he had been killed, had gone to a party and had a party after this
       man was killed; and you’re riding around in his truck.

               I’ve listened to everything you’ve said here and I haven’t heard you once
       say you were sorry for what happened to the victim, not even once. All I’ve heard
       is woe is me, you—how you were mistreated in the system. This man is dead. His
       life was taken. His family will never see him again. His property was taken . . .[.]




                                                -3-
         Now your co-defendant was the better man than you in my opinion, ‘cause
at least he came forward and admitted what he did and pled guilty to what he did;
and then he testified about what your role was in it; and it was clear what your role
was. There’s no question about that, what the evidence showed.

                                       * * *

        When I sent you to prison last time, I sent you to prison because I looked at
the totality of the circumstances irregardless of what the jury convicted you of; and
I had the right to look at the totality of the circumstances. And what were the
circumstances? This man’s house was broken into; he was retired, enjoying his
life; and you and your co-defendant went in there and when you all – by the time
you left, this man was dead. So I had a right to consider that.

                                       * * *

        Your offense score was a hundred and eighty; that would be more than
double what the maximum is on the offense score. That just shows you how
egregious this incident you were involved in was. But what really got me is when
you were riding around in this man’s car, having a good time, taking your girlfriend
to the movie in his vehicle after he—after he’s dead, that to me was just a little bit
much with his property in the back of the vehicle. That was a little bit much. And
there’s some other details that I’m sure I’m forgetting right now that I certainly
pointed out at the time of sentencing that gave me great concern about you, not to
mention your manipulative behavior and your unwillingness to take any
responsibility for what you did.

        In fact, when I heard you today, you basically said the co-defendant came
in here and testified and told a lie because he was pressured. In other words, you
were basically saying the system forced the co-defendant to take a plea bargain and
testify against you; that’s what I heard you say today, which again shows me no
willingness whatsoever to take responsibility for what you’ve done, which is, in my
opinion, something the Court can consider because to me it has an impact on
whether you’re more likely to do the same thing again.

        And, by the way, I was also convinced, from all the evidence that I heard,
that the co-defendant was not the leader in this situation; you were, you know. . . .

         And Ms. McLaren [the prosecutor] has already pointed out that, in the
report, it reflects that you had done the same thing just previously to doing this one.
You had done a home invasion so it wasn’t the first time for you. So it’s no doubt
in my mind you’re the mastermind, which was another thing that I took into
consideration.

       I would note that, since you’ve been incarcerated, they indicate that you
have twenty-five major misconducts. Let’s see, you’ve been found guilty to ten
out-of-place bounds, two disobeying a direct order, one possession of forged
papers, which I’m not surprised—six interfering with the administration of the


                                         -4-
       rules, one substance use, one alcohol use and two theft – thefts of property. So you
       have twenty-five misconducts while in prison, while incarcerated; so I question
       whether or not you still have learned anything even while you’ve been incarcerated.

                Is this sentence reasonable? Yes. The sentence of a hundred forty-four
       months on the Home Invasion . . . plus a hundred and forty on the Safebreaking was
       a gift for somebody who took this man’s life[.]

                                              * * *

                Again, I think the jury made a mistake in not sent—in not convicting you,
       but that’s the jury’s mistake, all right. But, when I look at the circumstances, this
       man was killed and you were part of it; you were involved in it. You were the
       ringleader; your were the mastermind. And so, when I look at the circumstances,
       yes, I think a hundred forty-four months and a hundred forty months was a gift to
       you. I was—because if somebody takes your life, Mr. Robinson, and they come in
       front of me, I’m gonna make sure that they—that they pay a price for it. To me,
       that’s what I call justice. I don’t know what you call justice, but I call justice a
       person paying a price for what they’ve done. And you committed a Home Invasion;
       you did a Safebreaking; and you were the mastermind behind all of this; and if you
       had not been the one to mastermind this, your co-defendant would not have killed
       this man. This man would still be alive.

              So again, when I look at your offense score of a hundred and eighty on the
       Offense Variable as double of what the, uh—the maximum is, the top of the
       guidelines would have been eighty-six months. That actually would have come out
       to a hundred and seventy-something months. So, actually, I gave you less than
       what the offense score in my opinion would have dictated.

                Is it proportionate? Yes, because, in this circumstance, a man lost his life.
       Is it reasonable? Yes, because in this circumstance a man lost his life. Now you
       weren’t convicted of killing him, but you definitely were convicted of being
       involved in the incident that involved his death; and that’s what you don’t quite get.
       In fact, you were the mastermind. And not only were you the mastermind, but you
       drove around in his vehicle in broad daylight with all his property in the back, which
       to me is just—it’s just a little bit much. So, yes, justice does require, in my opinion,
       that you serve a significant prison term. That’s what you deserve in my opinion.
       And, if someone had done this to you, I would feel they deserve the same. So I try
       to be fair; and that means fair to you and fair to everyone else.

               So taking into consideration the misconducts that he’s had in prison, taking
       into consideration the circumstances, I do believe that imposing the same sentence
       is the appropriate thing to do.

Immediately thereafter, Judge Hayman resentenced defendant and imposed the same sentences as
originally imposed.




                                                 -5-
         Defendant appealed a second time, asserting that the departure sentences for his first-
degree home invasion and safe-breaking convictions were disproportionate and therefore
unreasonable. This Court rejected defendant’s arguments and affirmed his sentences. People v
Robinson, unpublished per curiam opinion of the Court of Appeals, issued December 28, 2017
(Docket No. 335193), 2-4. Defendant then sought leave to appeal to our Supreme Court, and by
an order entered on November 27, 2019, our Supreme Court vacated that decision and remanded.
Robinson, 505 Mich 872. As previously noted, we must now reconsider defendant’s sentences “in
light of Beck,” and “analyze: (1) whether defendant’s argument pertaining to the consecutive
nature of his sentences is outside the scope of the remand for ‘resentencing’; and (2) if not, whether
the trial court articulated an appropriate basis for imposing consecutive sentences.” Id.

       We conclude that the departure sentences imposed by the trial court do not violate the rule
announced in Beck, and that the trial court articulated an appropriate basis for imposing
consecutive sentences. Consequently, we once again affirm.

                         II. DEFENDANT’S ACQUITTED CONDUCT

       First, the trial court did not violate Beck by sentencing defendant as though he was guilty
of conduct for which he had been acquitted.

        In Beck, a jury convicted the defendant of felon in possession of a firearm and of felony-
firearm, second offense. Beck, 504 Mich at 610. The jury acquitted the defendant of open murder
and two additional counts of felony-firearm. Id. Although the sentencing guidelines range for the
felon-in-possession conviction was 22 to 76 months, defendant was sentenced to 240 to 400
months’ imprisonment to run consecutively to the mandatory 5-year term for the second-offense
felony-firearm conviction. Id. The trial court imposed the departure sentence, in part, in reliance
on its determination that the defendant had committed a murder of which the jury had acquitted
him. Id.

        The defendant appealed to this Court and argued, in part, that the trial court’s reliance on
conduct of which he was acquitted to increase his sentence length violated his constitutional rights
under the Sixth and Fourteenth Amendments of the United States Constitution, and this Court
remanded the matter to the circuit court for a Crosby remand proceeding under People v
Steanhouse, 313 Mich App 1; 880 NW2d 297 (2015), aff’d in part and rev’d in part by People v
Steanhouse, 500 Mich 453; 902 NW2d 327 (2017). The defendant, in turn, sought leave to appeal
to our Supreme Court, which ultimately concluded that, once a defendant is acquitted of a crime,1
it violates due process to sentence the defendant as if he or she committed that very same crime.
Beck, 504 Mich at 630. The Court elaborated:

              When a jury has made no findings (as with uncharged conduct, for
       example), no constitutional impediment prevents a sentencing court from punishing
       the defendant as if he engaged in that conduct using a preponderance-of-the-



1
  For purposes of Beck, the Court defined the term “acquitted conduct” as conduct that “has been
formally charged and specifically adjudicated by a jury.” Beck, 504 Mich at 620.



                                                 -6-
       evidence standard. But when a jury has specifically determined that the prosecution
       has not proven beyond a reasonable doubt that a defendant engaged in certain
       conduct, the defendant continues to be presumed innocent. “To allow the trial court
       to use at sentencing an essential element of a greater offense as an aggravating
       factor, when the presumption of innocence was not, at trial, overcome as to this
       element, is fundamentally inconsistent with the presumption of innocence itself.”
       [State v] Marley, 321 NC [415,] at 425[; 364 SE2d 133 (1988)].

              Unlike the uncharged conduct in [McMillan v Pennsylvania, 477 US 79;
       106 S Ct 2411; 91 L Ed 2d 67 (1986), overruled by Alleyne v United States, 570
       US 99, 112; 133 S Ct 2151; 186 L Ed 2d 314 (2013)], conduct that is protected by
       the presumption of innocence may not be evaluated using the preponderance-of-
       the-evidence standard without violating due process. [Beck, 504 Mich at 626-627
       (footnotes omitted).]

The Court then concluded that the trial court had “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.” Id. at 629. As a consequence, the Court reversed
this Court’s decision, vacated the defendant’s sentence for his felon-in-possession conviction, and
remanded the case to the trial court for resentencing. Beck, 504 Mich at 629-630.

       In summation, pursuant to Beck, once a defendant is acquitted of a given crime, it violates
due process to sentence the defendant using an essential element of the acquitted offense as an
aggravating factor. Beck, 504 Mich at 627. It is also true, however, that a trial judge can consider
conduct underlying an acquittal as an aggravating factor without turning that consideration into an
independent finding of guilt. People v Shavers, 448 Mich 389, 393; 531 NW2d 165 (1995).

        In Shavers, the defendant was charged with murder but convicted of voluntary
manslaughter, and at sentencing, the trial court imposed a departure sentence after concluding that
the defendant’s crime had been particularly “cold blooded,” and that the defendant would “kill
again.” Id. at 392. On appeal, we reversed, concluding that, as a result of the comments, the trial
court deprived the defendant of due process and “placed [him] in double jeopardy.” Id. Writing
in dissent, Judge MURPHY noted:

              In my opinion, the court gave ample reasons for the guideline departure and
       for what the court considered to be an appropriate sentence in view of the fact that
       the victim was shot in the back five times, was unarmed and completely
       defenseless. This sentence, in my opinion, does not violate the principle of
       proportionality . . . .

               Additionally, in my view, the court did not make an independent finding of
       defendant’s guilt of first-degree murder by referring to his actions as cold-blooded,
       but, rather, the court considered the evidence admitted at trial as an aggravating
       factor in determining the appropriate sentence. See People v Fleming, 428 Mich
       408, 418; 410 NW2d 266 (1987); People v Purcell, 174 Mich App 126, 130; 435
       NW2d 782 (1989). Further, the court’s comment regarding defendant repeating the
       act, in my opinion, is no more than the court’s method of verbalizing its view that


                                                -7-
       society must be protected. [Id. at 393, quoting People v Shavers, unpublished per
       curiam opinion of the Court of Appeals, issued February 24, 1994 (Docket No.
       122523) (MURPHY, J., dissenting).]

Our Supreme Court adopted Judge MURPHY’s reasoning, noting:

                It is not disproportionate to impose a ten-year minimum sentence for
       manslaughter, where an unarmed victim was repeatedly shot in the back. Neither
       is there any basis for the conclusion that the sentencing judge improperly found that
       the defendant was actually guilty of first-degree murder. As indicated by Judge
       Murphy, the sentencing judge was making permissible inferences from the
       evidence introduced at trial. [Shavers, 448 Mich at 393.]

         Beck contains no express overruling of the rule enunciated in Shavers. Thus, the question
presented by this appeal is: On which side of the fine line that separates these two legal rules does
the trial court’s action fall? We conclude this case is more akin to Shavers.

        In our previous opinion, we expressly rejected defendant’s assertion that the trial court in
this case erroneously relied upon its personal belief that defendant was guilty of offenses of which
the jury had acquitted him as an aggravating factor that supported the departure sentences imposed.
We opined:

               [W]hile a trial court “may not make an independent finding of guilt with
       respect to a crime for which a defendant has been acquitted, and then sentence the
       defendant on the basis of that finding, the court in fashioning an appropriate
       sentence may consider evidence offered at trial[.]” People v Compagnari, 233
       Mich App 233, 236; 590 NW2d 302 (1998) (citation omitted). Such evidence may
       include “other criminal activities established even though the defendant was
       acquitted of the charges[.]” Id. (Citation omitted). While the trial court did state
       its disagreement with the jury’s verdict, our review of the record confirms that the
       trial court’s considered all of the evidence offered at trial in formulating and
       justifying its departure sentences, and there is no indication from the record that the
       trial court sentenced defendant on the basis of independent conclusions of guilt for
       crimes of which the jury acquitted him. [Robinson, unpub op at 4 (footnote
       omitted).]

This Court’s prior ruling is consistent with Beck and Shavers, and supported by the trial court’s
sentencing articulation as a whole. A review of the trial court’s sentencing articulation reveals that
the court neither expressly nor impliedly used an essential element of the acquitted murder offense
as an aggravating factor. Instead, the court relied on the conduct underlying both the conviction
offenses and acquitted offenses as an aggravating factor, i.e., defendant’s role in setting into
motion the events leading to the shooting death of the returning homeowner. Beck does not bar
the trial court from relying on such underlying events as an aggravating sentencing factor.
Moreover, the fact that the homeowner was shot and killed during the home invasion significantly
elevates the severity of the offense above the average home invasion offense, as correctly
recognized by the trial court.




                                                 -8-
                              III. CONSECUTIVE SENTENCING

        Our Supreme Court has also tasked this Court with determining “whether defendant’s
argument pertaining to the consecutive nature of his sentences is outside the scope of the remand
for ‘resentencing.’ ” We conclude that defendant’s argument is within the scope of the remand for
“resentencing,” but discern no error from the trial court’s imposition of consecutive sentences.

        With respect to the scope of the remand, “[w]hen a case is remanded by an appellate court,
proceedings on remand are limited to the scope of the remand order.” People v Canter, 197 Mich
App 550, 567; 496 NW2d 336 (1992). As a consequence of defendant’s first appeal, this Court
expressly remanded this matter for “resentencing.” People v Robinson, unpublished per curiam
opinion of the Court of Appeals, issued February 17, 2015 (Docket No. 319226), at 1, 17. The
scope of the second appeal, such as this appeal, is limited by the scope of the remand. People v
Jones, 394 Mich 434, 435-436; 231 NW2d 649 (1975). When a defendant is resentenced on
remand, the “second appeal shall be concerned only with matters which arose at resentencing.”
Id. at 436. Notably, however, remanding a case for “resentencing” returns “the case to the trial
court in a presentence posture, allowing the trial court to consider every aspect of defendant’s
sentences de novo,” People v Lampe, 327 Mich App 104, 112; 933 NW2d 314 (2019), which in
turn allows “for objection to any part of the new sentence,” People v Rosenberg, 477 Mich 1076,
1076; 729 NW2d 222 (2007).

        In the present matter, the trial court resentenced defendant on remand and imposed the
same sentences as he imposed at defendant’s first sentencing, including a consecutive sentence for
the home invasion conviction. The trial court’s decision to impose the consecutive sentence a
second time should not have been impacted by defendant’s previously vacated sentence, but
instead by a de novo review of the case. See Lampe, 327 Mich App at 112. Thus, because the
judge imposed a consecutive sentence on resentencing, and because defendant is permitted to
object to any part of the new sentence, Rosenberg, 477 Mich at 1076, defendant’s challenge to that
consecutive sentence is properly before this Court for plenary review and resolution, Jones, 394
Mich at 435-436.

        With respect to whether consecutive sentencing was proper in this case, “[i]n Michigan,
concurrent sentencing is the norm, and a consecutive sentence may be imposed only if specifically
authorized by statute.” People v Ryan, 295 Mich App 388, 401; 819 NW2d 55 (2012) (citation
and quotation marks omitted). MCL 750.110a(8) provides that “[t]he court may order a term of
imprisonment imposed for home invasion in the first degree to be served consecutively to any term
of imprisonment imposed for any other criminal offense arising from the same transaction.”
“[T]he decision to impose a consecutive sentence when not mandated by statute is reviewable for
an abuse of discretion.” People v Norfleet, 317 Mich App 649, 664; 897 NW2d 195 (2016). To
aid appellate review, a sentencing judge must articulate his or her rationale for the imposition of
each discretionary consecutive sentence. Id. at 665. “[R]equiring trial courts to justify each
consecutive sentence imposed will help ensure that the ‘strong medicine’ of consecutive sentences
is reserved for those situations in which so drastic a deviation from the norm is justified.” Id.

       In the instant matter, the trial court noted both at defendant’s original sentencing and at
defendant’s resentencing that he was exercising his discretion to impose the home invasion
sentence as a consecutive sentence for the same reasons that he was departing from the sentencing


                                               -9-
guidelines. He expressly stated so at defendant’s original sentencing, and his application of the
same reasoning may be reasonably inferred from his statements on resentencing. We can think of
no more drastic deviation from the norm of home invasions than a home invasion that results in
the death of a homeowner. And, although defendant did not shoot and kill the homeowner in this
case, he did set into motion and participate in the events that culminated in the killing of the
homeowner. Under these circumstances, the trial court did not abuse his discretion by imposing
consecutive sentences.

       Affirmed.



                                                           /s/ Christopher M. Murray
                                                           /s/ Kirsten Frank Kelly
                                                           /s/ Karen M. Fort Hood




                                              -10-
