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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED February 19, 2015

v No. 318526 Wayne Circuit Court KENNETH ANTHONY TAYLOR, LC No. 13-001078-FH

Defendant-Appellant.

Before: B ECKERING , P.J., and J ANSEN and B OONSTRA , JJ.

P ER C URIAM

.

Defendant appeals by right his jury-trial convictions of opera ting with a suspended license causing death, MCL 257.904(4), and leaving the scene of an accident causing death, MCL 257.617(3). Defendant was sentenced as a fourth habitual o ffender, MCL 769.12, to 19 to 80 years in prison for each conviction. We affirm.

Defendant first argues that he is entitled to resentencing bec ause prior record variable (PRV) 2 was improperly scored. We disagree.

The trial court’s factual determ inations under the sentencing guidelines are reviewed for clear error and must be supporte d by a preponderance of the evi dence. People v Hardy , 494 Mich 430, 438; 835 NW2d 340 (2013). “Whether the facts, as found, are adequate to satisfy the scoring conditions prescribed by statute, i.e., the applicationof the facts to the law, is a question of statutory interpr etation, which an appe llate court reviews d e novo.” Id

.

Twenty points may be assessed for PRV 2 if “[t]he offender has three prior low severity felony convictions.” MCL 777.52(1 )(b). A “prior low severity felony conviction” is a conviction, entered before the se ntencing offense, of (1) a cri me listed in offense class E, F, G, or H; (2) a felony under a law of the United States or another sta te that corresponds t o a crime listed in offense class E, F, G, or H; (3) a felony that is not listed in offense class M2, A, B, C, D, E, F, G, or H and that is punishable by a maximum term of imprisonmen t of less than 10 years; or (4) a felony under a law of the Unite d States or another state that does not correspond to a crime listed in offense class M2, A, B, C, D, E, F, G, or H and that is punishable by a maximum term of imprisonment of less than 10 years. MCL 777.52(2); see also People v Crews , 299 Mich App 381, 388-389; 829 NW2d 898 (2013). When scoring PRV 2, a court may not use a conviction “that precedes a period of 10 or more years between the dischar ge date from a conviction or juvenile adjudication and the de fendant’s commission of the nex t offense resulting in a-2- conviction or juvenile adjudication.” MCL 777.50(1). The cour t is required to determine “whether, starting with the present offense, there was ever a g ap of 10 or more years between a discharge date and a subsequent commission date that would cut off the remainder of [the defendant’s] prior convictions or juvenile adjudications.” People v Billings , 283 Mich App 538, 552; 770 NW2d 893 (2009).

In this case, defense counsel d id not raise any objections to the scoring of PRV 2 at sentencing, and because no objections were made, the trial cour t did not make any factual findings with respect to PRV 2. The Presentence Investigation Report lists defendant’s prior convictions. In 2008, defendant was convicted in Tennessee of burglary other than habitation, Tenn Code Ann § 39-14-202. Defendant’s burglary other than hab itation conviction corresponds to the crime of breaking and entering, MCL 750.110, which is a crime listed in offense class D. See MCL 777.16f. Because the corresponding Michigan crime is n ot listed in offense class E, F, G, or H, defendant’s Tennessee conviction of burglary other tha n habitation is not a prior low severity felony conviction.

In 2001, defendant was convicted of burglary in an unknown sta te, 1 but was sentenced to 15 years in prison. Thus, the burglary conviction is not consi dered a low severity felony because the maximum term of imprisonm ent was not less than 10 years.

In 1998, defendant was convicted in Michigan of armed robbery, MCL 750.529, a crime listed in offense class A. See MCL 777.16y. Because armed rob bery is a crime listed in offense class A, it is not a crime listed in offense class E, F, G, or H. Thus, defendant’s armed robbery conviction is not a prior lo w severity conviction.

In 1997, defendant was convicted in Alabama of second-degree b ail jumping, Ala Code § 13A-10-40, a misdemeanor. Becau se second-degree bail jumping is not a felony, it does not constitute a prior low s everity felony conviction.

In 1996, defendant was convicted in Tennessee of criminal tres pass, Tenn Code Ann § 39-14-405. Because criminal trespass is a misdemeanor, it do es not constitute a prior low severity felony conviction.

Also in 1996, defendant was convicted in Tennessee of possessi on of unlawful drug paraphernalia, Tenn Code Ann § 39-17-425. Possession of unlawf ul drug paraphernalia is a misdemeanor. Thus, defendant’s T ennessee conviction of possess ion of unlawful drug paraphernalia is not considered a prior low severity felony con viction.

Again in 1996, defendant was convicted in Alabama of third-deg ree armed robbery, Ala Code § 13A-8-43. Defendant’s thi rd-degree armed robbery convic tion corresponds to armed robbery, MCL 750.259, which is a crime listed in offense class A. Because armed robbery is not

1 Because the Presentence Investigation Report does not specify the state where defendant was convicted, it is difficult to determine the offense class to wh ich this out-of-state conviction most closely corresponds.-3- an offense listed in classes E, F, G, or H, defendant’s Alabama third-degree armed robbery conviction does not constitute a prior low severity felony conv iction.

In 1995, defendant was convicted in Tennessee of theft of a ve hicle, Tenn Code Ann § 39-14-405, which is a misdemeanor. Therefore, defendant’s co nviction of theft of a vehicle does not constitute a prior low severity felony conviction.

In 1995 and 1994, defendant was convicted of theft up to $500, Tenn Code Ann 39-14- 105(1), which is a misdemeanor. Because theft up to $500 is a misdemeanor, it does not constitute a prior low s everity felony conviction.

In 1994, defendant was convicted in Michigan of armed robbery, MCL 750.529, and carrying a firearm during the commission of a felony (felony-fi rearm), MCL 750.227b. As stated above, armed robbery is crime listed in offense class A and does not constitute a low severity felony conviction. Felon y-firearm is not listed in an y of the classes M2-H, but is punishable by a maximum term of imprisonment of less than 10 ye ars. Therefore, defendant’s felony-firearm conviction consti tutes a low severity felony con viction.

Defendant only has one prior low severity conviction, the 1994 felony-firearm
conviction. When a defendant has one prior low severity convic tion, five points are properly assessed for PRV 2. MCL 777.52(1)(d).

Operating with a suspended license causing death, MCL 257.904( 4), and leaving the scene of an accident causing death, MCL 257.617(3), are both cl ass C felonies. MCL 777.12e; MCL 777.12h. With 20 points assessed for PRV 2, defendant had a total PRV score of 130, placing him in PRV level F on th e sentencing grid for class C f elonies. Defendant’s total offense variable (OV) score was 75, placing him in OV level VI on the s entencing grid for class C felonies. MCL 777.64. Accordingly, defendant’s minimum guidel ines range, as a fourth habitual offender, was 62 to 228 months. MCL 777.64; MCL 777.2 1(3)(c). Even if the trial court had properly assessed only five points for PRV 2, defenda nt still would have remained squarely within PRV level F on the sentencing grid for class C felonies. MCL 777.64. As a consequence, his minimum sente ncing guidelines range, as a four th habitual offender, would have remained unchanged at 62 to 228 months. The trial court’s erroneous scoring of the guidelines does not require resen tencing because the error has not altered defendant’s recommended minimum guidelines range. People v Phelps , 288 Mich App 123, 136; 791 NW2d 732 (2010).

Defendant also argues that OV 12 was improperly scored. We di sagree. Five points may be assessed for OV 12 when “one contemporaneous felonious crimi nal act involving a crime against a person was committed” or “two contemporaneous felonio us criminal acts involving other crimes were committed.” MCL 777.42(1)(d) and (e). A fel onious criminal act is contemporaneous if the act occurred within 24 hours of the sent encing offense and has not and will not result in a separate conviction. MCL 777.42(2)(a); se e also People v Light , 290 Mich App 717, 722; 803 NW2d 720 (2010).

In this case, defendant committed a contemporaneous felonious criminal act involving a crime against a person. Second-degree murder is a crime agains t a person. See MCL 777.16p.-4- Although defendant was acquitted of second-degree murder, “situ ations may arise wherein although the factfinder declined t o find a fact proven beyond a reasonable doubt for purposes of conviction, the same fact may be found by a preponderance of th e evidence for purposes of sentencing.” People v Ratkov (After Remand) , 201 Mich App 123, 126, 505 NW2d 886 (1993).

Second-degree murder consists of the following elements: “ ‘( 1) a death, (2) caused by an act of the defendant, (3) with malice, and (4) without justi fication or excuse.’ ” People v

Aldrich , 246 Mich App 101, 123; 631 NW2d 67 (2001), quoting People v Mayhew , 236 Mich App 112, 125; 600 NW2d 370 (1999). M alice is defined as “ ‘the intent to kill, the intent to cause great bodily harm, or the intent to do an act in wanton a nd willful disregard of the likelihood that the natural tendency of such behavior is to cau se death or great bodily harm.’ ”

Aldrich , 246 Mich App at 123 (citation omitted). “ ‘The offense of se cond-degree murder does not require an actual intent to harm or kill, but only the inte nt to do an act that is in obvious disregard of life-endangering consequences.’ ” People v Roper , 286 Mich App 77, 84; 777 NW2d 483 (2009), quoting Mayhew , 236 Mich App at 125.

Sufficient evidence was presented to prove that defendant comm itted second-degree murder by a preponderance of the evidence. Testimony showed th at defendant caused the car accident and Craig Buchanon’s death by “deliberately” driving h is vehicle into Buchanon’s vehicle. Additionally, a “substantial amount of force” was req uired for defendant’s “smaller vehicle” to force Buchanon’s “larger vehicle” into the median w all. The amount of force was substantial enough to push Bucha non’s vehicle “up onto the [med ian] wall to the point where [Buchanon’s vehicle] start[ed] to roll over.” Moreover, eviden ce was presented that defendant did not attempt to “disengage” his vehicle from Buchanon’s vehi cle at any point during the car accident. The sentencing court could reasonably conclude that defendant acted with malice because defendant acted in wanton and willful disregard of the likelihood that the natural tendency of his behavior was to cause death or great bodily har m. Defendant deliberately drove
his vehicle into Buchanon’s vehi cle, which was traveling at 70 miles per hour, with enough force to cause Buchanon’s vehicle to roll over upon hitting the media n wall. Defendant’s act of driving with malice and with wont on disregard for Buchanon’s li fe was a separate act from the behavior establishing the senten cing offense, occurred within 2 4 hours of the sentencing offense, and will not result in a separate conviction as defendant was a cquitted of second-degree murder. The evidence established, by a preponderance of the evidence, t hat defendant committed a contemporaneous felonious criminal act involving a crime agains t a person. The trial court properly assessed five points for OV 12.

Defendant also argues that the trial court erred by engaging i n judicial fact finding when scoring OV 17, in violation of the Sixth and Fourteenth Amendme nts. We disagree. Questions of constitutional law are generally reviewed de novo. People v Harper , 479 Mich 599, 610; 739 NW2d 523 (2007).

In Michigan, the maximum sentence is set by statute but the tr ial court may utilize judicially ascertained facts to fashion a minimum sentence with in the guidelines range. People v

Drohan , 475 Mich 140, 164; 715 NW2d 778 (2006). In addition, this Co urt has previously held that “the exercise of judicial d iscretion guided by the sentenc ing guidelines score through judicial fact finding does not v iolate due process or the Sixth Amendment right to jury trial” because judicial fact finding when scoring the sentencing guide lines does not establish a-5- mandatory minimum. People v Herron , 303 Mich App 392, 404; 845 NW2d 533 (2013). Thus,
defendant’s Sixth and Fourteent h Amendment rights were not viol ated.

Defendant also argues that he was denied the effective assista nce of counsel. We disagree. Defendant did not move for a Ginther 2 hearing or a new trial on t he basis of ineffective
assistance of counsel. Therefore , appellate revie w of this iss ue is limited to mistakes apparent on
the record. People v Rodgers , 248 Mich App 702, 713-714; 645 NW2d 294 (2001).

The United States and Michigan Constitutions guarantee a defen dant the right to effective assistance of counsel. US Const, Am VI; Const 1963, art 1, § 2 0; People v Trakhtenberg , 493 Mich 38, 51; 826 NW2d 136 (2012). To establish ineffective ass istance of counsel, the defendant must show that “(1) defense counsel’s performance was so deficient that it fell below an objective standard of reasonableness and (2) there is a reas onable probability that defense counsel’s deficient performance prejudiced the defendant.” People v Heft , 299 Mich App 69, 80-81; 829 NW2d 266 (2012). A defendant is prejudiced if, but for defense counsel’s errors, the result of the proceeding would have been different. Id. at 81. Effective assistance of counsel is presumed, and the defendant bears a heavy burden of proving oth erwise. People v Eisen , 296 Mich App 326, 329; 820 NW2d 229 (2012). Failing to advance a m eritless argument or raise a futile objection does not constitute ineffective assistance of counsel. People v Ericksen , 288 Mich App 192, 201; 793 NW2d 120 (2010).

Defendant argues that counsel was ineffective for failing to o bject to the scoring of PRV 2. As discussed previously, th e proper scoring of PRV 2 would not have affected defendant’s minimum guidelines range. Therefore, defendant has failed to d emonstrate that he was prejudiced by counsel’s per formance in this regard.

Defendant also argues that counsel was ineffective for failing to object to the scoring of OV 12. As stated earlier, five points were properly assessed f or OV 12. Therefore, any objection to the scoring of OV 12 would have been futile. Fail ing to raise a futile objection does
not constitute ineffective assistance of counsel. Ericksen , 288 Mich App at 201.

Defendant lastly argues that he was denied the effective assis tance of counsel when his attorney failed to object to jud icial fact finding at sentencin g. In particular, defe ndant asserts that
the rule set forth in Alleyne v United States , 570 US ___; 133 S Ct 2151; 186 L Ed 2d 314 (2013), prohibits judicial fact fi nding that raises the floor o f a defendant’s minimum sentence. As already discussed, “the exerc ise of judicial discretion guid ed by the sentencing guidelines score through judicial fact findi ng does not violate due proces s or the Sixth Amendment right to jury trial” because judicial fact finding when assessing the se ntencing guidelines does not establish a mandatory minimum. Herron , 303 Mich App at 404. Therefore, any objection would have been futile. Counsel was not ineffective for failing to o bject. Ericksen , 288 Mich App at

201.

2 People v Ginther , 390 Mich 436; 212 NW2d 922 (1973).-6- Affirmed.

/s/ Kathleen Jansen