                          STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     May 10, 2016
               Plaintiff-Appellee,

v                                                                    No. 324856
                                                                     Macomb Circuit Court
DWAYNE EDMUND WILSON,                                                LC No. 2009-002637-FC

               Defendant-Appellant.


Before: MURPHY, P.J., and CAVANAGH and RONAYNE KRAUSE, JJ.

PER CURIAM.

       Defendant appeals as of right his jury trial convictions of possession of a firearm during
the commission of a felony (felony-firearm), MCL 750.227b, and two counts of unlawful
imprisonment, MCL 750.349b. Defendant was sentenced to 10 years’ imprisonment for the
felony-firearm conviction as a third felony-firearm offender, and 100 to 180 months’
imprisonment for the unlawful imprisonment convictions.1 We affirm defendant’s convictions
but remand for correction of the judgment of sentence to reflect a term of five years’
imprisonment for defendant’s felony-firearm conviction and for reconsideration of defendant’s
unlawful imprisonment sentences.

       Defendant first argues that he was denied his right to a speedy trial. We disagree. “The
determination whether a defendant was denied a speedy trial is a mixed question of fact and law.
The factual findings are reviewed for clear error, while the constitutional issue is a question of
law subject to review de novo.” People v Waclawski, 286 Mich App 634, 664; 780 NW2d 321
(2009) (citations omitted).

        “[A] defendant’s right to a speedy trial is guaranteed by the United States and Michigan
Constitutions.” People v Rivera, 301 Mich App 188, 193; 835 NW2d 464 (2013), citing US
Const, Am VI; Const 1963, art 1, § 20. See also MCL 768.1 (codifying the right to a speedy
trial). No fixed number of days of delay exists after which the right to a speedy trial is violated.
People v Williams, 475 Mich 245, 261; 716 NW2d 208 (2006). “Whether an accused’s right to a


1
 The jury found defendant not guilty of the additional charges of second-degree murder, MCL
750.317, and assault with intent to do great bodily harm, MCL 750.84.


                                                -1-
speedy trial is violated depends on consideration of four factors: (1) the length of delay, (2) the
reason for delay, (3) the defendant’s assertion of the right, and (4) the prejudice to the
defendant.” Rivera, 301 Mich App at 193 (quotation marks omitted). “Following a delay of
eighteen months or more, prejudice is presumed, and the burden shifts to the prosecution to show
that there was no injury.” Williams, 475 Mich at 262. “[A] presumptively prejudicial delay
triggers an inquiry into the other factors to be considered in the balancing of the competing
interests to determine whether a defendant has been deprived of the right to a speedy trial.” Id.
(quotation marks omitted). “In assessing the reasons for delay, this Court must examine whether
each period of delay is attributable to the defendant or the prosecution.” Waclawski, 286 Mich
App at 666. Delays that inhere in the court system, such as docket congestion, are technically
attributable to the prosecution but are given a neutral tint and assigned only minimal weight in
determining whether a speedy trial violation occurred. Williams, 475 Mich at 263.

        We note that, before trial, defendant filed in federal district court a habeas corpus petition
raising his speedy trial claim. See Wilson v Michigan, unpublished order of the United States
District Court for the Eastern District of Michigan, entered July 17, 2014 (Docket No. 14-
12490), 2014 WL 3543305. On July 17, 2014, the federal district court dismissed defendant’s
petition and reasoned, in relevant part, that much of the delay was due to interlocutory appeals
and that defendant’s case had been steadily progressing in state court. Id. at 2-3.

        On September 8, 2014, the trial court in the present case denied defendant’s motion to
dismiss for violation of his right to a speedy trial. In addressing the reasons for the delay, the
trial court summarized the relevant proceedings as follows:

                On September 6, 2011, the Supreme Court denied the prosecutor’s
       application for leave to appeal the Court of Appeals’s May 10, 2011 decision
       [reversing defendant’s earlier convictions in this case from a 2009 trial].
       Moreover, on September 9, 2011, the Circuit Court file was returned from the
       Supreme Court. A pre-trial conference was held in November 2011. The Circuit
       Court denied defendant’s prior motions to dismiss for violation of the 180-day
       trial rule on February 16, 2012 and March 1, 2012. Defendant filed a delayed
       application for leave to appeal the denial of his original motion to dismiss, which
       was denied by the Court of Appeals on April 18, 2012. On July 6, 2012, the
       Circuit Court granted defendant’s motion to dismiss the felony murder charge.
       Thereafter, on July 16, 2012, the Court of Appeals stayed this matter pending
       appeal. On August 13, 2012, the trial court entered an order placing this matter
       on the inactive docket due to the stay. That order stated that “[i]t appears that no
       further progress in this cause will be possible because of [the stay].”

               Prior to the stay, defendant filed numerous motions, including, but not
       limited [to], the motions to dismiss for violation of the 180-day trial rule, a motion
       for [sic] dismiss for failure to arraign, discovery motions, a motion for bond
       reduction, a request for an investigator, for additional scientific experts, and to
       dismiss the felony murder charge. Further, on April 18, 2012, the Court granted
       defendant’s motion to adjourn the April 24, 2012 trial date to July 17, 2012 to
       allow defendant time for trial preparation.


                                                 -2-
               On November 15, 2012, the Court of Appeals reversed the Circuit Court’s
       decision. The Supreme Court issued its decision on June 18, 2014 and its
       corresponding order reversing the Court of Appeals’s decision and remanding the
       matter to this Court for further proceedings was entered on July 16, 2014.
       Further, on July 24, 2014, these proceedings were removed from the Circuit
       Court’s inactive docket. On July 30, 2014, the Circuit Court received the
       Supreme Court’s order and the file was returned from the Supreme Court. Shortly
       thereafter, on August 4, 2014, the Court took defendant’s pending motions under
       advisement. On August 21, 2014, a pre-trial conference was held. A pre-trial
       conference/hearing is set for September 8, 2014.

               Thus, this Court was precluded from proceeding with this matter pending
       appeal and acted promptly after the Supreme Court’s decision was entered. It
       should be noted that the federal court’s decision, as discussed above, primarily
       attributed the delay to interlocutory appeals and noted that this case has been
       steadily progressing in state court. Further, some of the delay can be attributed to
       defendant inasmuch as he filed numerous motions and requested that the trial date
       be adjourned prior to the stay. Under the totality of circumstances, this Court sees
       no evidence that the prosecution is substantially to blame for the delays in this
       case or that they were unwarranted. [Quotation marks and citation omitted;
       alterations in original.]

The trial court noted that the prosecutor did not dispute that defendant had asserted his right to a
speedy trial numerous times throughout the proceedings. The trial court found that defendant’s
general allegations of prejudice were insufficient to establish that he was denied his right to a
speedy trial. Balancing the factors, the trial court concluded that defendant’s speedy trial right
was not violated.

        We agree with the trial court’s analysis. First, with respect to the length of delay, the
parties agree that the relevant period of delay began on September 6, 2011, which was the date
that our Supreme Court denied leave to appeal, see People v Wilson, 490 Mich 861 (2011)
(Wilson II), from this Court’s reversal of defendant’s earlier convictions, see People v Wilson,
unpublished opinion per curiam of the Court of Appeals, issued May 10, 2011 (Docket No.
296693), pp 1-3 (Wilson I), and ended on September 24, 2014, the date that defendant’s second
trial began. Because the delay exceeded 18 months, prejudice is presumed and an inquiry must
be made into the other factors in order to determine whether a speedy trial violation occurred.
See Williams, 475 Mich at 262.

       Regarding the reasons for delay, it is undisputed that the vast majority of delay,
approximately two years, is attributable to an interlocutory appeal arising from the dismissal of a
charge of first-degree felony murder, MCL 750.316(1)(b). The trial court dismissed the felony
murder charge on July 6, 2012. On July 12, 2012, the prosecutor filed an interlocutory
application for leave to appeal in this Court. On July 16, 2012, this Court granted the
prosecutor’s application for leave to appeal and stayed further proceedings in the trial court
pending the resolution of the appeal. People v Wilson, unpublished order of the Court of
Appeals, entered July 16, 2012 (Docket No. 311253). On November 15, 2012, this Court issued
an opinion reversing the trial court’s order, reinstating the felony murder charge, and remanding

                                                -3-
the case to the trial court for further proceedings. People v Wilson, unpublished opinion per
curiam of the Court of Appeals, issued November 15, 2012 (Docket No. 311253), pp 1-3 (Wilson
III), reversed 496 Mich 91 (2014). On January 9, 2013, defendant filed an application for leave
to appeal in our Supreme Court. On May 24, 2013, our Supreme Court granted defendant’s
application for leave to appeal. People v Wilson, 494 Mich 853 (2013). On June 18, 2014, our
Supreme Court issued an opinion holding that double jeopardy precluded recharging defendant
with felony murder because he had previously been acquitted of the predicate felony; the
Supreme Court therefore reversed this Court’s decision and remanded the case to the trial court
for further proceedings. People v Wilson, 496 Mich 91, 108; 852 NW2d 134 (2014) (Wilson IV).
Our Supreme Court entered its corresponding order returning the matter to the trial court on July
16, 2014.

       The two-year period of delay related to the interlocutory appeal is not weighed in favor of
defendant’s speedy trial claim.

       Given the important public interests in appellate review, it hardly need be said
       that an interlocutory appeal by the Government ordinarily is a valid reason that
       justifies delay. In assessing the purpose and reasonableness of such an appeal,
       courts may consider several factors. These include the strength of the
       Government’s position on the appealed issue, the importance of the issue in the
       posture of the case, and – in some cases – the seriousness of the crime. For
       example, a delay resulting from an appeal would weigh heavily against the
       Government if the issue were clearly tangential or frivolous. Moreover, the
       charged offense usually must be sufficiently serious to justify restraints that may
       be imposed on the defendant pending the outcome of the appeal. [United States v
       Loud Hawk, 474 US 302, 315-316; 106 S Ct 648; 88 L Ed 2d 640 (1986)
       (citations omitted).]

Although the prosecutor did not ultimately prevail in our Supreme Court on the appealed issue
concerning whether double jeopardy barred retrial on the felony murder charge, the prosecutor’s
position was not clearly tangential or frivolous. Indeed, the prosecutor’s argument was
sufficiently strong that this Court ruled in favor of the prosecutor, see Wilson III, unpub op at 1-
3, and three dissenting justices of our Supreme Court also agreed with the prosecutor’s position,
see Wilson IV, 496 Mich at 132 (MARKMAN, J., dissenting). Defendant has not demonstrated that
the prosecutor acted in bad faith or had a dilatory purpose in pursuing the interlocutory appeal.
See Loud Hawk, 474 US at 316 (noting that the defendant had made no showing of bad faith or
dilatory purpose on the part of the prosecutor). The issue whether double jeopardy barred retrial
on the felony murder charge was an important issue in the posture of the case given that it was
the most serious charge being pursued and the trial court’s ruling prevented prosecution on that
charge. Likewise, the seriousness of the crime of felony murder is beyond dispute.

        It is also notable that the appellate delay during the period from this Court’s issuance of
its opinion on November 15, 2012, until the case returned to the trial court in July of 2014, is due
to defendant’s decision to pursue in our Supreme Court an interlocutory appeal of this Court’s
decision.



                                                -4-
       In that limited class of cases where a pretrial appeal by the defendant is
       appropriate, delays from such an appeal ordinarily will not weigh in favor of a
       defendant’s speedy trial claims. A defendant with a meritorious appeal would
       bear the heavy burden of showing an unreasonable delay caused by the
       prosecution in that appeal, or a wholly unjustifiable delay by the appellate court.
       [Loud Hawk, 474 US at 316 (citation omitted).]

Defendant has not shown that the prosecutor caused an unreasonable delay or that there was a
wholly unjustifiable delay by our Supreme Court. Accordingly, the delay attributable to the
interlocutory appeal is not weighed in favor of defendant’s speedy trial claim.

        Moreover, most of the period of delay that preceded and followed the interlocutory
appeal is either attributable to defendant or given only minimal weight because of delays
inherent in the court system. The prosecutor concedes that there was a two-week adjournment at
the prosecutor’s request and a one-month delay attributable to the trial court’s unavailability and
the reassignment of the initial trial judge to the Family Division of the Macomb Circuit Court.
But by far most of the delays appear to be attributable to motions or requests by defendant.

        In particular, at a November 15, 2011 pretrial conference, defendant, who was then
represented by an attorney, requested through defense counsel a new pretrial conference in order
to have more time to review discovery material and to prepare defense motions. At a December
13, 2011 pretrial conference, defense counsel again said that he was in the process of reviewing
discovery items and would need to review some transcripts that the prosecutor was supposed to
provide; defense counsel indicated that defendant wanted counsel to look into a legal issue and
suggested coming back in January to set a trial date and address any pretrial motions. At a
January 19, 2012 hearing, defendant asked the trial court to appoint him a new attorney and
indicated that otherwise defendant might represent himself; the trial court agreed to appoint a
new lawyer for defendant. At a February 16, 2012 pretrial conference, it was revealed that
defendant was unhappy with the new attorney that the court had appointed for him, and
defendant indicated that he wished to represent himself; defendant also indicated that he wanted
to file a motion for further discovery and requested appointments of a private investigator, an
independent medical examiner, and a crime reconstructionist to assist in the defense. At a March
1, 2012 pretrial hearing, the trial court asked defendant if he would be ready for trial the
following week or the week after that, and defendant indicated that he was not ready for trial at
those times; defendant also indicated that he planned to file a motion to remove the trial judge.
At an April 18, 2012 pretrial hearing, defendant requested an adjournment of at least 90 days so
he could have more time to prepare for trial. At defendant’s request, on April 18, 2012, the trial
court adjourned the trial from April 24, 2012 to July 17, 2012. At a May 4, 2012 pretrial
hearing, defendant again pursued a motion regarding further discovery and requested bond.
Defendant also pursued various motions at hearings held on July 9, 2012; July 12, 2012; July 21,
2014; August 21, 2014; and September 8, 2014.

       In short, the record reflects that the bulk of the delay before and after the interlocutory
appeal is attributable to defendant given his numerous motions, requests for adjournment, and
requests for new appointed counsel. Any remaining adjournments appear to be inherent to the
court system and thus, while technically attributable to the prosecution, are assigned only
minimal weight. Williams, 475 Mich at 263.

                                                -5-
        Next, as the trial court noted, it is undisputed that defendant made numerous assertions of
his speedy trial right.

        Defendant did not suffer any prejudice to his defense. “Prejudice to the defense is the
more serious concern [than prejudice to the person], because the inability of a defendant
adequately to prepare his case skews the fairness of the entire system.” Williams, 475 Mich at
264 (quotation marks removed). Defendant concedes on appeal that there are no specific
witnesses that have become unavailable and no specific documents that have been lost as a result
of the delay. See Waclawski, 286 Mich App at 669 (concluding that the defendant’s defense was
not prejudiced where there was “no indication that a potential defense witness was lost or that
other exculpatory evidence was misplaced during the delay.”). Defendant contends that he has
suffered prejudice to his person because he endured anxiety from facing a murder charge of
which, defendant claims, he has now been cleared. The mere fact that defendant was not
ultimately convicted of murder does not establish that his incarceration pending trial on murder
and other charges comprised unfair prejudice to his person. Anxiety alone is insufficient to
establish a speedy trial violation. People v Gilmore, 222 Mich App 442, 462; 564 NW2d 158
(1997). Defendant was ultimately convicted of three felonies and has received credit for the time
that he was incarcerated before trial.2

        We conclude that, although the three-year delay is presumptively prejudicial and
defendant asserted his speedy trial right, the reasons for delay do not weigh in favor of his claim,
and his ability to prepare a defense was not prejudiced. Therefore, defendant’s right to a speedy
trial was not violated. See Waclawski, 286 Mich App at 669 (finding no speedy trial violation
where, although the length of the delay was presumptively prejudicial and the defendant asserted
his speedy trial right, the defendant’s ability to prepare a defense was not prejudiced and the
reasons for delay weighed against the defendant).

        Defendant next argues that the trial court erred in sentencing him to 10 years’
imprisonment as a third felony-firearm offender. We agree. This issue presents a question of
statutory interpretation, which is reviewed de novo. People v Gardner, 482 Mich 41, 46; 753
NW2d 78 (2008).



2
  Defendant alludes to the fact that, after this Court reversed his earlier convictions in 2011, he
remained incarcerated with the Department of Corrections and was not transferred to the
Macomb County Jail until March of 2014. If defendant is suggesting that this fact somehow
weighs in favor of his speedy trial claim by showing prejudice to his person, then his argument is
disingenuous. At pretrial hearings in 2012, the prosecutor repeatedly urged that defendant be
transferred from the Department of Corrections to the Macomb County Jail, and defendant
emphatically resisted this suggestion, insisting that he wished to remain in a Department of
Corrections facility because it had a better law library than the Macomb County Jail. Defendant
repeatedly opposed any efforts to move him from the Department of Corrections facility to the
Macomb County Jail. In any event, defendant cites no authority indicating that his incarceration
in the Department of Corrections rather than in the Macomb County Jail affects the
determination whether he suffered prejudice to his person for the purpose of a speedy trial claim.


                                                -6-
       MCL 750.227b(1) provides:

              A person who carries or has in his or her possession a firearm when he or
       she commits or attempts to commit a felony, except a violation of section 223,
       227, 227a, or 230, is guilty of a felony and shall be punished by imprisonment for
       2 years. Upon a second conviction under this subsection, the person shall be
       punished by imprisonment for 5 years. Upon a third or subsequent conviction
       under this subsection, the person shall be punished by imprisonment for 10 years.

In People v Stewart, 441 Mich 89, 95; 490 NW2d 327 (1992), our Supreme Court held “that a
defendant may be convicted of felony-firearm (third offense) if the third offense is preceded by
two convictions of felony-firearm, and both prior felony-firearm convictions have arisen from
separate criminal incidents.” In requiring that the two prior felony-firearm convictions arise
from separate criminal incidents, the Supreme Court in Stewart relied in relevant part on its
earlier opinion in People v Preuss, 436 Mich 714; 461 NW2d 703 (1990), overruled by People v
Gardner, 482 Mich 41 (2008), which had interpreted the general habitual offender statutes. See
Stewart, 441 Mich at 93-95. The Supreme Court noted in Stewart: “We said in Preuss that the
habitual offender statute ‘requires only that the fourth offense be preceded by three convictions
of felony offenses, and that each of those three predicate felonies arise from separate criminal
incidents.’ ” Stewart, 441 Mich at 94, quoting Preuss, 436 Mich at 717.

       In Gardner, 482 Mich at 44, our Supreme Court overruled Preuss because the holding in
Preuss contradicted the language of the general habitual offender statutes. Summarizing its
decision, the Supreme Court stated in Gardner:

              Michigan’s habitual offender laws clearly contemplate counting each prior
       felony conviction separately. The text of those laws does not include a same-
       incident test. This Court erred by judicially engrafting such a test onto the
       unambiguous statutory language.       Accordingly, we overrule Preuss . . . .
       [Gardner, 482 Mich at 68.]

Our Supreme Court in Gardner did not interpret the felony-firearm statute or overrule Stewart.

        In deciding to sentence defendant to 10 years’ imprisonment as a third felony-firearm
offender, the trial court reasoned that, because Stewart relied on Preuss, and because Preuss was
overruled in Gardner, the separate criminal incident requirement in Stewart is no longer
controlling. But the trial court and this Court are bound to follow Stewart unless and until it is
overruled by our Supreme Court. “[O]nly [our Supreme] Court has the authority to overrule one
of its prior decisions. Until [our Supreme] Court does so, all lower courts and tribunals are
bound by that prior decision and must follow it even if they believe that it was wrongly decided
or has become obsolete.” Paige v Sterling Hts, 476 Mich 495, 524; 720 NW2d 219 (2006).
Although the rationale for the holding in Stewart has arguably been called into question by
Gardner, the fact remains that Gardner did not overrule Stewart or interpret the felony-firearm
statute that was addressed in Stewart. Therefore, only the Supreme Court can decide whether
Stewart should, like Preuss, be overruled. Paige, 476 Mich at 524.




                                               -7-
        In this case, it is undisputed that defendant’s two prior felony-firearm convictions arose
from the same criminal incident, which occurred on January 4, 1997. Because defendant’s two
prior felony-firearm convictions did not arise from separate criminal incidents, Stewart precludes
sentencing him as a third felony-firearm offender. See Stewart, 441 Mich at 95.

         We conclude that the proper remedy is to remand the case to the trial court for correction
of the judgment of sentence to reflect a lesser five-year term for defendant’s felony-firearm
conviction as a second offender. See MCL 750.227b(1) (providing for a five-year term of
imprisonment upon a second felony-firearm conviction). A full resentencing hearing is not
necessary because the required modification is ministerial. The trial court’s error was not a
product of inaccurate information but was due to a misunderstanding of the law; the appropriate
sentence for this offense is not discretionary; and no due process concerns are implicated. Cf.,
generally, People v Miles, 454 Mich 90, 100-101; 559 NW2d 299 (1997). Indeed, defendant
does not request a full resentencing but instead asks for a remand with instructions to the trial
court to amend the judgment of sentence to correct the felony-firearm sentence. Nonetheless, if
the trial court on remand determines that resentencing is required for the unlawful imprisonment
convictions, as discussed later in this opinion, then the trial court may include the felony-firearm
resentencing in that hearing, even though, as discussed, the appropriate sentence for felony-
firearm is not discretionary.

        Defendant next argues that the trial court made a scoring error in assessing points for
Offense Variables (OVs) 3 and 7. We disagree. “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. 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 Hardy, 494 Mich
430, 438; 835 NW2d 340 (2013) (citations omitted). “When calculating the sentencing
guidelines, a court may consider all record evidence, including the contents of a [presentence
investigation report].” People v Thompson, ___ Mich App ___, ___; ___ NW2d ___ (2016)
(Docket No. 318128); slip op at 3.

        OV 3 addresses physical injury to the victim. MCL 777.33(1); People v Laidler, 491
Mich 339, 343; 817 NW2d 517 (2012). A trial court must assess 100 points under OV 3 “if
death results from the commission of a crime and homicide is not the sentencing offense.” MCL
777.33(2)(b); Laidler, 491 Mich at 343. For the purpose of OV 3, a victim includes any person
harmed by the defendant’s criminal actions, id. at 349 n 6; a victim is not limited to the victim of
the charged offense, People v Albers, 258 Mich App 578, 593; 672 NW2d 336 (2003). To assess
points under OV 3, factual causation is required, in that the victim would not have died but for
the defendant’s criminal conduct. Laidler, 491 Mich at 345. The defendant’s actions need not
constitute the only cause of the death. Id. at 346.

        “Offense variables must be scored giving consideration to the sentencing offense alone,
unless otherwise provided in the particular variable.” People v McGraw, 484 Mich 120, 133;
771 NW2d 655 (2009). OV 3 does not provide for consideration of conduct that occurs after
completion of the sentencing offense. See MCL 777.33. Therefore, the scoring of OV 3 must be
limited to the circumstances of the sentencing offenses, i.e., unlawful imprisonment. Unlawful
imprisonment is an ongoing offense; all of a defendant’s actions during the time that the victim is

                                                -8-
restrained constitute conduct that occurred during the offense of unlawful imprisonment. See
People v Chelmicki, 305 Mich App 58, 70-72; 850 NW2d 612 (2014). A trial court may
properly consider all of a defendant’s conduct during the sentencing offense. Id. at 72. In
sentencing a defendant, a trial court is permitted to consider facts underlying an acquittal, People
v Parr, 197 Mich App 41, 46; 494 NW2d 768 (1992), and need only find facts to support its
scoring decisions by a preponderance of the evidence, People v Osantowski, 481 Mich 103, 111;
748 NW2d 799 (2008).

         In recommending a 100-point score for OV 3, the presentence investigation report noted:
“Although the defendant was found not guilty in the murder of Kenyetta Williams, he created the
circumstances that ultimately led to the death of Mr. Williams.” In assessing 100 points for OV
3, the trial court stated:

             I’m ready to rule on OV3. OV3 is scored correctly in the court’s opinion.
       No question that the, even though the Defendant was not –

               He was found not guilty of the murder of Kenyetta Williams, the Court
       after hearing all the testimony does think that he created the circumstances that
       led to the death of Mr. Williams. So OV3 is properly scored. Let’s move on.

        The trial court properly assessed 100 points for OV 3. The sentencing offenses were two
counts of unlawful imprisonment. The victims of those offenses, Justina Horton and Jasmine
Horton, remained bound by duct tape in another room of the house when defendant confronted
Katherine Horton and Williams in the front of the house and Williams was shot and killed. The
unlawful imprisonment offenses thus remained ongoing when Williams was shot, and
defendant’s actions in the front of the house may be considered in scoring the offense variables.
See Chelmicki, 305 Mich App at 70-72. Although Williams was not the victim of the sentencing
offenses of unlawful imprisonment, he nonetheless was a victim for the purpose of OV 3 because
he was harmed by defendant’s criminal acts. See Laidler, 491 Mich at 349 n 6; Albers, 258
Mich App at 593. Even if Williams was shot in a struggle or in self-defense, defendant’s
criminal acts were a factual cause of Williams’s death. Defendant used the firearms to commit
the sentencing offenses by pointing the weapons at Justina and Jasmine, and he then pointed and
used the same weapons when he confronted Katherine and Williams while Justina and Jasmine
remained restrained. If defendant had not used these weapons in committing the crimes,
Williams would not have been killed. Hence, the trial court did not err in scoring OV 3.

        OV 7 addresses aggravated physical abuse. MCL 777.37(1); Hardy, 494 Mich at 439.
On the date of the crimes in this case, OV 7 required a score of 50 points if “[a] victim was
treated with sadism, torture, or excessive brutality or conduct designed to substantially increase
the fear and anxiety a victim suffered during the offense[.]” MCL 777.37(1)(a).3 In scoring OV



3
  Effective January 5, 2016, MCL 777.37(1)(a) was amended to require a 50 point score if “[a]
victim was treated sadism, torture, excessive brutality or similarly egregious conduct designed to
substantially increase the fear and anxiety a victim suffered during the offense[.]” See 2015 PA

                                                -9-
7, a court must count as a victim each person who was placed in danger of injury or loss of life.
MCL 777.37(2); People v Hunt, 290 Mich App 317, 323; 810 NW2d 588 (2010). For the
purpose of OV 7, “ ‘sadism’ means conduct that subjects a victim to extreme or prolonged pain
or humiliation and is inflicted to produce suffering or for the offender’s gratification.” MCL
777.37(3). OV 7 may be scored on the basis of emotional or psychological abuse; physical abuse
is not required. People v Mattoon, 271 Mich App 275, 276; 721 NW2d 269 (2006).

        In Hardy, 494 Mich at 440, our Supreme Court addressed the fourth category for which
50 points may be assessed under OV 7, i.e., “conduct designed to substantially increase the fear
and anxiety a victim suffered during the offense.” MCL 777.37(1)(a). The Hardy Court
“conclude[d] that it is proper to assess points under OV 7 for conduct that was intended to make
a victim’s fear or anxiety greater by a considerable amount.” Hardy, 494 Mich at 441. “The
relevant inquiries are (1) whether the defendant engaged in conduct beyond the minimum
required to commit the offense; and, if so, (2) whether the conduct was intended to make a
victim’s fear or anxiety greater by a considerable amount.” Id. at 443-444. The Court found that
racking a shotgun during a carjacking to make the victim fear an imminent violent death
supported an assessment of 50 points for OV 7. Id. at 445. Also, threatening and striking
victims with what appeared to be a sawed-off shotgun went beyond what was necessary to
commit an armed robbery and was intended to increase the victims’ fear by a considerable
amount, thus supporting a 50-point assessment for OV 7. Id. at 446-447. In light of McGraw, a
sentencing court may consider only conduct that occurred during the criminal offense for the
purpose of scoring OV 7. Thompson, ___ Mich App at ___; slip op at 4-5.

        The presentence investigation report explained the recommendation of assessing 50
points for OV 7 as follows:

              OV7 notes the victim was treated with sadism, torture, excessive brutality
       or conduct to substantially increase the fear and anxiety the victims suffered from
       the offense. Accordingly, the Probation Department scored 50 points. Justina
       and Jasmine Howard informed investigators they experienced fear and anxiety
       when the defendant held them at gunpoint and later duct-taped them. Jasmine
       Horton informed investigators that she believed the defendant would ultimately
       shoot her in the back of the head. The fear and anxiety of the victims was further
       increased when they heard the gunshots that killed Kenyetta Williams.

In addressing OV 7 at sentencing, the prosecutor noted that defendant went into the basement of
the home, pointed guns at Justina and Jasmine, duct-taped them, and had them get on their
stomachs. Jasmine thought she was going to be shot in the head. Defendant then escorted the
girls to the main floor of the house and had them sit on a couch while he waited for Katherine
and Williams to arrive; defendant then shot Williams in the girls’ presence. The prosecutor also
noted that Katherine and Williams could be counted as victims for the purpose of OV 7, and that
Williams lost his life and Katherine sustained injuries to her face from fighting with defendant.
The prosecutor continued:

137. A sentence must be imposed in accordance with the version of the guidelines in effect
when the crime was committed. See People v Buehler, 477 Mich 18, 24; 727 NW2d 127 (2007).


                                              -10-
              A big part of offense variable 7 is sadism, conduct as to subject a victim to
       extreme or prolonged pain or humiliation.

             This entire incident was to humiliate and to cause suffering to Katherine
       Horton and Kenyetta Williams for their perceived transgression against the
       Defendant.

The trial court asked the probation officer to comment on OV 7, and the probation officer stated:

               Your Honor, per the author of the [presentence investigation] report, OV-7
       notes the victim was treated with sadism, torture, or excessive brutality based on
       the investigator’s report. These two individuals experienced fear and anxiety
       when the defendant held them at gun point and later duct –aped [sic] their mouth
       and hand [sic].

The trial court then stated: “For the argument made by the people and the probation department,
the Court is going, the Court finds OV-7 was properly scored.”

        The trial court properly assessed 50 points for OV 7. There was more than ample
evidence that defendant engaged in conduct beyond the minimum necessary to commit the
offense of unlawful imprisonment, and that the conduct was designed to make the victims’ fear
or anxiety greater by a considerable amount. Defendant went into the basement where Justina
and Jasmine were sleeping, pointed guns at them, ordered them to lie on their stomachs, bound
their hands with duct tape, and put duct tape on their mouths. Jasmine feared that she would be
shot in the back of the head. He then ordered the girls upstairs, removed the duct tape from their
mouths but not their hands, and had them sit in a back room while he waited for their mother,
Katherine, and her boyfriend, Williams, to arrive home. The girls were later subjected to hearing
defendant confront Katherine and Williams in the front of the house while the girls remained
bound by duct tape in the back room. The girls heard the sounds of defendant striking Katherine
and the gunshots that killed Williams, which increased their fear and anxiety. The girls
screamed during the incident. In addition, Williams and Katherine may be counted as victims
because they were placed in danger of injury or loss of life. See MCL 777.37(2); Hunt, 290
Mich App at 323. Williams was killed from gunshot wounds, and Katherine sustained injuries to
her face from being struck by defendant with a gun. The unlawful imprisonment offense
remained ongoing during this incident because the girls were still confined in the back room, and
defendant’s conduct thus occurred during the sentencing offenses. See Chelmicki, 305 Mich
App at 70-72. Hence, the trial court did not err in assessing 50 points for OV 7.

       Defendant next argues that a Sixth Amendment violation occurred because judicial fact-
finding in the scoring of OVs 3, 4, 7, and 10 increased his minimum sentencing guidelines range.
We agree. A Sixth Amendment challenge presents a question of constitutional law that is
reviewed de novo. People v Lockridge, 498 Mich 358, 373; 870 NW2d 502 (2015).

       In Lockridge, 498 Mich at 364, our Supreme Court held that Michigan’s sentencing
guidelines are constitutionally deficient under the Sixth Amendment to the extent that “the
guidelines 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

                                              -11-
minimum sentence range, i.e. the ‘mandatory minimum’ sentence under Alleyne [v United States,
570 US ___; 133 S Ct 2151; 186 L Ed 2d 314 (2013)].” As a remedy for this constitutional
violation, our Supreme Court “sever[ed] MCL 769.34(2) to the extent that it makes the
sentencing guidelines range as scored on the basis of facts beyond those admitted by the
defendant or found by the jury beyond a reasonable doubt mandatory.” Lockridge, 498 Mich at
364. The Court also struck “down the requirement in MCL 769.34(3) that a sentencing court that
departs from the applicable guidelines range must articulate a substantial and compelling reason
for that departure.” Id. at 364-365. The Court held “that a guidelines minimum sentence range
calculated in violation of Apprendi [v New Jersey, 530 US 466; 120 S Ct 2348; 147 L Ed 2d 435
(2000),] and Alleyne is advisory only and that sentences that depart from that threshold are to be
reviewed by appellate courts for reasonableness.” Lockridge, 498 Mich at 365. Courts must
continue to determine the applicable guidelines range and take it into account at sentencing. Id.

        For cases that were held in abeyance for Lockridge, most of which involved challenges
that were not preserved in the trial court, our Supreme Court held that a defendant’s Sixth
Amendment right is impaired if the “facts admitted by a defendant or found by the jury verdict
were insufficient to assess the minimum number of OV points necessary for the defendant’s
score to fall in the cell of the sentencing grid under which he or she was sentenced.” Lockridge,
498 Mich at 395. “[A]ll defendants (1) who can demonstrate that their guidelines minimum
sentence range was actually constrained by the violation of the Sixth Amendment and (2) whose
sentences were not subject to an upward departure can establish a threshold showing of the
potential for plain error sufficient to warrant a remand to the trial court for further inquiry.” Id.
“[I]n cases in which a defendant’s minimum sentence was established by application of the
sentencing guidelines in a manner that violated the Sixth Amendment, the case should be
remanded to the trial court to determine whether that court would have imposed a materially
different sentence but for the constitutional error.” Id. at 397. Such remands are warranted only
in cases in which the defendant was sentenced on or before July 29, 2015, the date of the
Lockridge decision. Id.4 On 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. Further, in determining whether the court would have imposed a
       materially different sentence but for the unconstitutional constraint, the court
       should consider only the circumstances existing at the time of the original
       sentence. [Id. at 398 (quotation marks and citations omitted).]




4
 For defendants sentenced after the Lockridge decision, traditional plain-error review will apply.
Lockridge, 498 Mich at 397.


                                                -12-
        In the present case, defendant preserved his Lockridge issue by raising it at sentencing.
See People v Steanhouse, ___ Mich App ___, ___; ___ NW2d ___ (2015) (Docket No. 318329);
slip op at 21, lv pending. In People v Stokes, ___ Mich App ___, ___; ___ NW2d ___ (2015)
(Docket No. 321303); slip op at 9-10, lv pending, this Court explained that a preserved
Lockridge error is not structural and is therefore subject to the harmless beyond a reasonable
doubt standard. This Court further held that in order to determine whether the preserved
Lockridge error in Stokes was harmless, the remand procedure described in Lockridge must be
followed. Id. at 10. That is, the remand procedure described in Lockridge applies to both
preserved and unpreserved pre-Lockridge sentencing errors. Id. at 11.

      Defendant argues that there was judicial fact-finding in the scoring of OVs 3, 4, 7, and
10. We agree. The prosecutor confesses error on this defense argument.

        As discussed, OV 3 addresses physical injury to the victim. MCL 777.33(1); Laidler,
491 Mich at 343. A trial court must assess 100 points under OV 3 “if death results from the
commission of a crime and homicide is not the sentencing offense.” MCL 777.33(2)(b); Laidler,
491 Mich at 343. The jury made no finding and defendant made no admission concerning the
facts necessary to score this OV. Neither of the offenses of which defendant was convicted, i.e.,
felony-firearm and unlawful imprisonment, contains an element concerning the death of a victim.
See MCL 750.227b; MCL 750.349b. The trial court’s assessment of 100 points for OV 3 was
thus based on judicial fact-finding.

        OV 4 addresses psychological injury to a victim. MCL 777.34(1); People v Lockett, 295
Mich App 165, 182; 814 NW2d 295 (2012). OV 4 requires a 10 point assessment if “[s]erious
psychological injury requiring professional treatment occurred to a victim[.]”          MCL
777.34(1)(a). The jury made no finding and defendant made no admission concerning the facts
necessary to score this OV. Neither of the offenses of which defendant was convicted, i.e.,
felony-firearm and unlawful imprisonment, contains an element concerning a victim’s
psychological injury. See MCL 750.227b; MCL 750.349b. The trial court’s assessment of 10
points for OV 4 was therefore based on judicial fact-finding.

        As discussed, OV 7 addresses aggravated physical abuse. MCL 777.37(1); Hardy, 494
Mich at 439. On the date of the crimes in this case, OV 7 required a score of 50 points if “[a]
victim was treated with sadism, torture, or excessive brutality or conduct designed to
substantially increase the fear and anxiety a victim suffered during the offense[.]” MCL
777.37(1)(a). The jury made no finding and defendant made no admission concerning the facts
necessary to score this OV. Neither of the offenses of which defendant was convicted, i.e.,
felony-firearm and unlawful imprisonment, contains an element concerning the facts needed to
score this OV. See MCL 750.227b; MCL 750.349b. The trial court’s assessment of 50 points
for OV 7 was therefore based on judicial fact-finding.

        OV 10 addresses the exploitation of a vulnerable victim. MCL 777.40(1). A 5 point
score is required if “[t]he offender exploited a victim by his or her difference in size or strength,
or both, or exploited a victim who was intoxicated, under the influence of drugs, asleep, or
unconscious[.]” MCL 777.40(1)(c). The jury made no finding and defendant made no
admission concerning the facts necessary to score this OV. Neither of the offenses of which
defendant was convicted, i.e., felony-firearm and unlawful imprisonment, contains an element

                                                -13-
concerning the facts needed to score this OV. See MCL 750.227b; MCL 750.349b. The trial
court’s assessment of 5 points for this OV was therefore based on judicial fact-finding.

        Subtracting 100 points from the OV 3 score, 10 points from the OV 4 score, 50 points
from the OV 7 score, and 5 points from the OV 10 score, reduces defendant’s total OV score
from 195 points to 30 points. This changes his OV level from VI to III, causing his sentencing
cell to change from D-VI to D-III on the Class C grid. His sentencing guidelines range would
then become 29 to 57 months, instead of the originally calculated range of 50 to 100 months.
See MCL 777.64. It follows, then, that facts admitted by defendant or found by the jury beyond
a reasonable doubt at trial were insufficient to assess the minimum number of OV points
necessary for defendant’s score to fall within the cell of the sentencing grid under which he was
sentenced. Defendant’s unlawful imprisonment sentences were not subject to an upward
departure from the originally calculated range; his 100-month minimum sentences for unlawful
imprisonment fell within the calculated guidelines range of 50 to 100 months. Therefore, an
unconstitutional constraint on the trial court’s sentencing discretion impaired defendant’s
constitutional rights. See Lockridge, 498 Mich at 364. Defendant was sentenced before July 29,
2015. It is therefore necessary to remand the case to the trial court in accordance with the
remand procedure set forth in Lockridge, as described earlier in this opinion, to determine
whether the court would have imposed a materially different sentence but for the constitutional
error. See id. at 395-399.

        We affirm defendant’s convictions but remand for correction of the judgment of sentence
to reflect a term of five years’ imprisonment for defendant’s felony-firearm conviction and for
reconsideration of defendant’s unlawful imprisonment sentences. We do not retain jurisdiction.



                                                           /s/ William B. Murphy
                                                           /s/ Mark J. Cavanagh
                                                           /s/ Amy Ronayne Krause




                                              -14-
