                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    April 14, 2016
               Plaintiff-Appellee,

v                                                                   No. 324773
                                                                    Ingham Circuit Court
DEQUAN LAWAINE TAYLOR,                                              LC No. 12-000207-FC

               Defendant-Appellant.


Before: TALBOT, C. J., and HOEKSTRA and SHAPIRO, JJ.

PER CURIAM.

        Following a jury trial, defendant was convicted of assault with intent to do great bodily
harm less than murder, MCL 750.84, felon in possession of a firearm, MCL 750.224f, and
possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b. For
the reasons stated in this opinion, we affirm.

       Defendant was convicted in 2012. The trial court sentenced him as a third habitual
offender, MCL 769.11, to concurrent terms of 120 to 240 months’ imprisonment for the assault
conviction and 57 to 120 months’ imprisonment for the felon-in-possession conviction, and a
consecutive two-year prison term for the felony-firearm conviction. The sentence constituted an
upward departure, and defendant appealed to this Court. We concluded that the trial court’s
reasons for the upward departure were not objective and verifiable, and remanded for
resentencing or for the trial court to articulate substantial and compelling reasons for the upward
departure. People v Taylor, unpublished opinion per curiam of the Court of Appeals, issued
August 12, 2014 (Docket No. 315853), p 2.

       On September 24, 2014, the trial court resentenced defendant to concurrent terms of 96 to
244 months for the assault conviction and 19 to 60 months for the felon-in-possession
conviction, with the same consecutive two-year sentence for felony-firearm. This sentence was
within the guidelines range. Approximately eight months after defendant was resentenced, our
Supreme Court held that Michigan’s legislative sentencing guidelines were unconstitutional to
the extent that they “require judicial fact-finding beyond facts admitted by the defendant or
found by the jury to score offense variables (OVs) that mandatorily increase the floor of the
guidelines minimum sentence range[.]” People v Lockridge, 498 Mich 359, 364; 870 NW2d 502
(2015) (emphasis in original).




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         Following the decision in Lockridge, defendant filed a motion for resentencing with the
trial court, arguing that the trial court impermissibly engaged in judicial fact-finding in violation
of defendant’s constitutional rights when it scored OVs 1 and 3, and that as a result, he was
entitled to resentencing. On September 30, 2015, defendant’s motion was adjourned on the
record.1 Subsequently, on November 21, 2015, defendant withdrew his motion for resentencing
in the trial court. On the same day, defendant filed his brief on appeal with this Court, raising the
same issue that he raised in his motion for resentencing before the trial court, but adding an
argument that he should be resentenced by a different judge.

        Pursuant to Lockridge, a defendant’s sentence, imposed under the mandatory application
of the legislative sentencing guidelines, violates the Sixth Amendment when the judge scores
OVs based on judicial fact-finding, i.e., by using facts that were not admitted by the defendant or
found by the jury beyond a reasonable doubt. Lockridge, 498 Mich at 373-374. To remedy the
constitutional defect, our Supreme Court held that the sentencing guidelines are now advisory,
severed MCL 769.34(2) to the extent that it made the scoring of the guidelines using judicial
fact-finding mandatory, and severed the requirement in MCL 769.34(3) that a judge articulate
substantial and compelling reasons before departing from the applicable guidelines range. Id. at
364-365, 399. Further, a defendant is entitled to a Crosby2 remand if his or her “guidelines
minimum sentence range was actually constrained by the violation of the Sixth Amendment” and
his or her sentence was “not subject to an upward departure[.]” Lockridge, 498 Mich at 395.

        OV 1 addresses aggravated use of a weapon. MCL 777.31. A trial court must assess 25
points if “[a] firearm was discharged at or toward a human being[.]” MCL 777.31(1)(a). Here,
defendant testified that he fired a gun at the victim. Accordingly, the trial court did not engage in
judicial fact-finding in violation of the Sixth Amendment because the facts necessary to score
OV 1 were admitted by defendant.

        OV 3 addresses physical injury to a victim. MCL 777.33. A trial court must assess 100
points if “a victim was killed,” MCL 777.33(1)(a), and the “death results from the commission of
a crime and homicide is not the sentencing offense,” MCL 777.33(2)(b). Here, the sentencing
offense was not homicide; it was assault with intent to do great bodily harm less than murder.
The elements of that sentencing offense do not require the jury to conclude beyond a reasonable
doubt that a victim was killed. Nor is there evidence that defendant admitted at trial that a victim
was killed. Accordingly, the trial court engaged in unconstitutional judicial fact-finding when it
scored OV 3 at 100 points. If OV 3 were not scored at 100 points, defendant’s sentencing
guideline range would be lower. Thus, defendant has established the “threshold showing of the


1
  A transcript of the September 30, 2015 proceedings has not been provided to us. The
prosecution’s brief represents that defendant was not present for the September 30, 2015
proceedings, but that the trial court informed appellate defense counsel that if defendant sought
resentencing the court would, in light of the ruling in Lockridge, be inclined to impose the
original 120 month minimum sentence. Defendant has not contested this version of events and it
appears that his counsel did obtain a copy of the transcript from the court reporter.
2
    United States v Crosby, 397 F3d 103 (CA 2, 2005).



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potential for plain error sufficient to warrant a remand to the trial court for further inquiry.”
Lockridge, 498 Mich at 395.

       On a Crosby remand,

       a trial court should first allow a defendant an opportunity to inform the court that
       he or she will not seek resentencing. If notification is not received in a timely
       manner, the court (1) should obtain the views of counsel in some form, (2) may
       but is not required to hold a hearing on the matter, and (3) need not have the
       defendant present when it decides whether to resentence the defendant, but (4)
       must have the defendant present, as required by law, if it decides to resentence the
       defendant. [Id. at 398.]

In this case, however, a Crosby remand would serve no purpose because defendant already
presented these issues in a proper motion for resentencing before the trial court. Before the trial
court issued its ruling, defendant withdrew his motion for resentencing. Thus, defendant has
already been given “an opportunity to inform the court” that he would not seek resentencing. By
withdrawing the motion, defendant signaled that he did not want to be resentenced. “Counsel
may not harbor error as an appellate parachute.” People v Carter, 462 Mich 206, 214; 612
NW2d 144 (2000). Further, “[o]ne who waives his rights under a rule may not then seek
appellate review of a claimed deprivation of those rights, for his waiver has extinguished any
error.” Id. at 215 (quotation omitted). Accordingly, by withdrawing his motion, defendant
affirmatively waived his right to proceed with resentencing. See id. (defining “waiver” as “the
intentional relinquishment or abandonment of a known right”). Because a waived error is
extinguished, there is nothing for this Court to review. Id. at 216. Thus, on this record, given
defendant’s clear indication that he does not wish to be resentenced by the trial court, there is no
error for us to review.3




3
  More precisely, defendant has made clear that he does not want to be resentenced by the trial
judge that presided over his initial sentencing and resentencing. Defendant argues that if his
request for resentencing is granted, resentencing should be before a different judge because he
was already sentenced twice by the same judge. We disagree. First, a Lockridge error does not
mandate that a defendant be resentenced. See Lockridge, 497 Mich at 399 (holding that
resentencing is only required if the trial court determines that it would not have imposed the
same sentence but for the unconstitutional constraint on its sentencing discretion). Rather, a
defendant sentenced in violation of Lockridge is entitled to a Crosby remand to determine
whether he or she will be resentenced. In this case, such a procedure would be futile because
defendant already withdrew his motion for resentencing.

       Moreover, assuming arguendo that defendant was entitled to resentencing, we would still
not remand for resentencing before a new judge. In determining whether a defendant should be
resentenced by a different judge, this Court must consider:




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       Affirmed.

                                                             /s/ Michael J. Talbot
                                                             /s/ Joel P. Hoekstra
                                                             /s/ Douglas B. Shapiro




               (1) whether the original judge would reasonably be expected upon
               remand to have substantial difficulty in putting out of his or her
               mind previously-expressed views or findings determined to be
               erroneous or based on evidence that must be rejected, (2) whether
               reassignment is advisable to preserve the appearance of justice, and
               (3) whether reassignment would entail waste and duplication out of
               proportion to any gain in preserving the appearance of fairness.
               [People v Hill, 221 Mich App 391, 398; 561 NW2d 862, (1997)
               (internal quotation marks and citation omitted).]

Here, if resentencing were required it would be because of the post-sentencing decision in
Lockridge, not because the trial court’s sentence was erroneous. Thus, the first part of the test is
not met. Second, we have reviewed the resentencing transcripts and they do not give us cause
for concern that the sentences were based on inappropriate considerations. Third, there is
nothing on the record that indicates the judge is actually biased or prejudiced against defendant
or that the sentence imposed was the product of any such bias or prejudice. The trial court
instead made it clear that the sentence was based on the circumstances surrounding the offense
and the offender. Accordingly, even if we were remanding for resentencing, defendant’s request
that resentencing occur before a different judge would be without merit.




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