                           Court of Appeals, State of Michigan

                                           ORDER
                                                                      Michael J. Riordan
People of MI v Terreik Jaylel Latham                                    Presiding Judge

Docket No.    338891                                                  David H. Sawyer

LC No.        16-009739-01-FC                                         Kathleen Jansen
                                                                        Judges


              The Court orders that the February 6, 2020 opinion is hereby VACATED, and
a new opinion is attached.



                                                   /s/ Michael J. Riordan




                             February 20, 2020
            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,                                     FOR PUBLICATION
                                                                      February 20, 2020
                Plaintiff-Appellee,                                   9:00 a.m.

 v                                                                    No. 338891
                                                                      Wayne Circuit Court
 TERREIK JAYLEL LATHAM,                                               LC No. 16-009739-01-FC

                Defendant-Appellant.


Before: RIORDAN, P.J., and SAWYER and JANSEN, JJ.

RIORDAN, P.J.

       Defendant appeals as of right his bench trial conviction of first-degree criminal sexual
conduct (CSC I), MCL 750.520b (multiple variables). Defendant was sentenced to 4 to 10 years
of imprisonment for first-degree criminal sexual conduct. We affirm.
                            I. FACTS & PROCEDURAL HISTORY

        Defendant contacted the victim, a prostitute who advertised her services online, and after
agreeing on a price and specific services, they met up at a gas station and walked together to a
nearby abandoned house. Before engaging in any sexual acts, the victim asked to be paid.
Defendant refused to pay, held a sharp object to the victim’s throat, and forced her to engage in
oral and vaginal sex.

       Defendant was found guilty of CSC I. His recommended sentencing guidelines range was
51 to 85 months, and he was assigned 10 points for Offense Variable (OV) 1, 5 points for OV 2,
10 points for OV 4, and 25 points for OV 11. In total, defendant was assigned 50 OV points which
equated to an OV level III. Defendant was sentenced to 4 to 10 years of imprisonment.

         Defendant then filed a motion to correct an invalid sentence in the trial court and argued
that he is entitled to resentencing because OV 11 was incorrectly scored at 25 points when, he said,
it should have been assigned 0 points pursuant to MCL 777.41(2)(c). Defendant asserted that if
OV 11 was properly scored, he would have been sentenced at OV level II not OV level III. He
contended that the recommended guidelines range would have been 42 to 70 months, rather than
51 to 85 months which was used at sentencing. Therefore, defendant argued, he was entitled to


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resentencing. The prosecution responded that OV 11 was properly scored and, even if the
guidelines were initially improperly scored, defendant’s sentence should not be altered because
defendant’s sentence was below the original recommended guidelines range and was tailored to
defendant.

        The trial court granted defendant’s motion to rescore OV 11 at 0 points, but denied
defendant’s motion for resentencing. The trial court corrected defendant’s original sentencing
information report and the recommended minimum guidelines range was lowered to 42 to 70
months. The trial court’s order states that resentencing was not required because defendant’s
original sentence of 48 to 120 months of imprisonment is within the recalculated recommended
minimum guidelines range. Defendant now appeals.
                                          II. ANALYSIS

       Defendant argues that he is entitled to resentencing pursuant to People v Francisco, 474
Mich 82, 88; 711 NW2d 44 (2006), because he was sentenced on the basis of inaccurate
information and an inaccurate guidelines range. We disagree.

       The issue of whether defendant is entitled to resentencing is a legal question which this
Court reviews de novo. Francisco, 474 Mich at 85.

        In People v Francisco, 474 Mich 82, 88-92; 711 NW2d 44 (2006), our Supreme Court held
that the defendant was entitled to resentencing when the trial court erred in scoring the sentencing
guidelines even though the original sentence was within the appropriate, re-scored guidelines
range. The Supreme Court remanded that case for resentencing because an appellate court cannot
know whether the trial court would have imposed the same sentence if the guidelines had been
accurately scored. Id. at 49. The Supreme Court reasoned that “appellate correction of an
erroneously calculated guidelines range will always present this dilemma, i.e., the defendant will
have been given a sentence which stands differently in relationship to the correct guidelines range
than may have been the trial court’s intention.” Id. at 91-92. “Thus, requiring resentencing in
such circumstances not only respects the defendant’s right to be sentenced on the basis of the law,
but it also respects the trial court’s interest in having defendant serve the sentence that it truly
intends.” Id. at 92.

       The matter before us presents us with circumstances that are unlike those described in
Francisco. We know the trial court would impose the same sentence for defendant under the now
accurately scored guidelines range. The trial court’s order states that resentencing was not required
because defendant’s original sentence of 48 to 120 months of imprisonment is within the
recalculated recommended minimum guidelines range. The trial court had the opportunity to
resentence defendant and it expressly declined to do so.1 After rescoring OV 11 and recalculating



1
 During oral arguments, defense counsel argued for the first time that defendant should have
been physically present for the post-conviction sentencing guidelines hearing in order to satisfy
his constitutional right to due process. We disagree.


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the correct guidelines range, the trial court decided to maintain defendant’s original sentence.
Thus, the trial court’s explanation, its familiarity with this matter, particularly in light of the
procedural posture and its ultimate disposition of the case, demonstrates the trial court’s intent to
maintain the same sentence, regardless of the prior scoring error. Thus, “[r]esentencing is . . . not
required [because] the trial court has clearly indicated that it would have imposed the same
sentence regardless of the scoring error and the sentence falls within the appropriate guidelines
range.” Id. at 89 n 8, citing People v Mutchie, 468 Mich 50, 51; 658 NW2d 154 (2003). Therefore,
resentencing is not required.
                                       III. CONCLUSION

        We are not confronted with a Francisco error. There was no remand for resentencing to
the trial court. Here, the trial court only decided a post-trial motion, corrected the applicable
guidelines range, and then maintained defendant’s original sentence. Affirmed.

                                                              /s/ Michael J. Riordan
                                                              /s/ David H. Sawyer




        “The court is obligated only to review issues that are properly raised and preserved; the
court is empowered, however, to go beyond the issues raised and address any issue that, in the
court's opinion, justice requires be considered and resolved.” Paschke v Retool Industries (On
Reh), 198 Mich App 702, 705; 499 NW2d 453 (1993) (emphasis in original), rev’d on other
grounds 445 Mich 502; 519 NW2d 441 (1994). Indeed, a defendant has the right to be
physically present at a felony sentencing. People v Heller, 316 Mich App 314, 318–321; 891
NW2d 541 (2016). A defendant may waive his right to be present at sentencing if the record
establishes a valid waiver, which “arises when the defendant specifically knows of the right to be
present and intentionally abandons the protection of that right.” People v Palmerton, 200 Mich
App 302, 303; 503 NW2d 663 (1993) (citations omitted).
       Here, however, the trial court was not required to resentence defendant and it specifically
declined to do so. Instead, the trial court held a post-conviction hearing regarding whether
resentencing was necessary and it ruled that it was not. The record is silent as to whether
defendant attended the hearing or whether defense counsel waived defendant’s presence.
Nonetheless, defendant was not required to be physically present at that post-conviction hearing.
People v Lockridge, 498 Mich 358, 398; 870 NW2d 502 (2015). See also United States v
Parrish, 427 F3d 1345, 1348 (CA 11, 2005) (holding that there was no due process violation
where the sentencing court vacated the defendant’s original sentence and imposed the exact same
sentence); People v Woodward, 321 Mich App 377, 385 n 2; 909 NW2d 299 (2017) (“While the
decisions of lower federal courts and other state courts are not binding on this Court, they may be
considered as persuasive authority.”).
        Therefore, defendant’s right to due process was not implicated or violated in this case.
Additionally, defendant has not pointed to any statute or court rule that requires his physical
presence at a post-conviction hearing, and has therefore failed to show that he is entitled to any
relief on this basis.

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