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S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

UNPUBLISHED

October 26, 2017

v No. 334380

Wayne Circuit Court

JOHN CHRISTOPHER-CHARLE GASTON, LC No. 13-003484-01-FH

Defendant-Appellant.

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

PER CURIAM. 

This case returns to this Court after a protracted procedural history. Defendant was found 

guilty by a jury of criminal sexual conduct, third degree (CSC III—force or coercion), MCL 

750.520d(1)(b). This Court’s first opinion contains the following brief summary of the 

underlying facts in this case: 

Defendant was convicted of vaginally penetrating the then 15-year-old 

complainant. Defendant, the son of a family friend, followed complainant into 

the bathroom of his mother’s home and then vaginally penetrated her. The 

evidence at trial consisted primarily of complainant’s testimony about the assault 

and forensic evidence showing defendant’s DNA on complainant’s neck, where 

he had kissed her during the assault. The sexual assault forensic examiner who 

examined and treated complainant testified that she found no external physical 

injury but discovered redness and point tenderness during the genitalia 

examination consistent with complainant’s version of events. [People v Gaston 

(Gaston I), unpublished opinion per curiam of the Court of Appeals, issued 

February 26, 2015 (Docket No. 319018, p 1).] 

Defendant was sentenced, as a habitual offender fourth, MCL 769.12, to serve 20 to 30 years in 

prison. 

Defendant appealed, arguing that hearsay evidence had been improperly introduced at 

trial and that the sentencing court made several mistakes in sentencing. This Court affirmed 

defendant’s conviction, but remanded for resentencing because offense variable (OV) 8 was 

improperly scored at 15 points. Gaston I, unpub op at 4. The Court held that “[t]here was no 

evidence that complainant was ‘asported’ . . . ,” and “the correct scoring of OV 8 would alter 

defendant’s sentencing guidelines . . . ” Gaston I, unpub op at 4, citing People v Francisco, 474 
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Mich 82, 89 n 8; 711 NW2d 44 (2006). The majority rejected defendant’s sentencing issues as 

they related to judicial fact-finding, following People v Herron, 303 Mich App 392, 403-405; 

845 NW2d 533 (2013), which was overruled by People v Lockridge, 498 Mich 358; 870 NW2d 

502 (2015). Defendant, acting in propria persona, filed an application for leave to appeal to the 

Michigan Supreme Court, reiterating the issues presented in Gaston I that he did not prevail on, 

and arguing that he received ineffective assistance of counsel and that his refusal to admit guilt 

and lack of remorse were improperly used against him at sentencing. The prosecution also filed 

an application for leave to appeal, reiterating the issues that it failed to prevail on in Gaston I. 

In an order that encompassed both party’s applications, the Michigan Supreme Court, in 

lieu of granting leave to appeal, stated: 

[W]e VACATE that part of the judgment of the Court of Appeals that vacated the 

defendant’s sentence and remanded for resentencing, and we REMAND this case 

to the Court of Appeals for reconsideration in light of People v Lockridge, 498 

Mich 358 (2015). In all other respects, leave to appeal is DENIED because we 

are not persuaded that the remaining questions presented should be reviewed by 

this Court. [People v Gaston, 498 Mich 900; 870 NW2d 909 (2015).] 

On remand, this Court again determined that the scoring error was “a Francisco error, not 

a Lockridge error” since “the sentencing court’s sentencing decision was in error, not because it 

engaged in judicial factfinding, but because there was no evidence to support the scoring 

decision.” People v Gaston (On Remand), unpublished opinion per curiam of the Court of 

Appeals, issued January 14, 2016 (Docket No 319018). This Court held: “Given that the court’s 

sentencing decision in this case was based on inaccurate information regarding the scoring of OV 

8, resentencing under Francisco is required.” Id. The case was remand[ed] for resentencing and 

the Court noted that “the sentencing court shall resentence defendant guided by, but not bound, 

by the sentencing recommendation for the guidelines when OV 8 is scored at zero points.” Id. at 

3 (footnote omitted). 

Defendant now appeals from his sentence on remand of 190 months to 30 years in prison, 

which was within the guideline range of 57 months to 190 months. Because another panel of this 

Court determined that MCL 769.34(10) was unchanged by the decision in People v Lockridge, 

498 Mich 358; 870 NW2d 502 (2015), this Court must affirm defendant’s sentence. 

Defendant argues that the circumstances of the offense and this offender make the 

sentence unreasonable. Defendant points to the fact that his previous arrests were for “low 

severity felony theft convictions” and ordinance violations, along with his juvenile assault armed 

robbery adjudication. Defendant also argues that while he has been found guilty of seven 

misconduct violations while in prison, he has completed several certifications in selfimprovement programs, and has earned his GED. None of defendant’s arguments suggests that 

the sentence is unreasonable, however. 

This Court reviews the reasonableness of a sentence by applying the principal of 

proportionality set forth in People v Milbourn, 435 Mich 630; 461 NW2d 1 (1990), overruled by 

statute as recognized in People v Armisted, 295 Mich App 32, 51; 811 NW2d 47 (2011). People 

v Steanhouse, ___ Mich ___ ; ___ NW2d ___ (2017) (Docket Nos. 152671, 152849, 152871 to 
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152873, and 152946 to 152948). According to the Michigan Court of Appeals in Steanhouse, 

under the Milbourn test, “a given sentence [could] be said to constitute an abuse of discretion if 

that sentence violate[d] the principle of proportionality, which require[d] sentences imposed by 

the trial court to be proportionate to the seriousness of the circumstances surrounding the offense 

and the offender.” People v Steanhouse, 313 Mich App 1, 45; 880 NW2d 297 (2015) (quotation 

marks and citation omitted; alterations in Steanhouse), affirmed in part, reversed in part, ___ 

Mich ___ (2017) (Docket Nos. 152671, 152849, 152871 to 152873, and 152946 to 152948). The 

Court of Appeal’s Steanhouse panel identified the following nonexclusive factors as relevant in 

determining whether a sentence was proportionate: 

(1) the seriousness of the offense; (2) factors that were inadequately considered by 

the guidelines; and (3) other factors not considered by the guidelines, such as the 

relationship between the victim and the aggressor, the defendant’s misconduct 

while in custody, the defendant’s expression of remorse, and the defendant’s 

potential for rehabilitation. [Id. at 46 (citations omitted).] 

Defendant was convicted of raping a 15-year-old family friend. The victim testified that 

she had known defendant since she was five or six years old. Defendant did not express remorse 

until his second sentencing and is a fourth habitual offender. These factors, identified as relevant 

in determining proportionality according to Steanhouse, suggest that 190 months is not an 

unreasonable minimum sentence. 

Furthermore, MCL 769.34(10) states, in relevant part: “If a minimum sentence is within 

the appropriate guidelines sentence range, the court of appeals shall affirm that sentence and 

shall not remand for resentencing absent an error in scoring the sentencing guidelines or 

inaccurate information relied upon in determining the defendant’s sentence.” Like the defendant 

in People v Schrauben, 314 Mich App 181; 886 NW2d 173 (2016), defendant “does not dispute 

that his sentence was within the recommended minimum guidelines range, and he does not argue 

that the trial court relied on inaccurate information or that there was an error in scoring the 

guidelines.” Schrauben, 314 Mich App at 196 (footnote omitted). Schrauben noted that 

Lockridge “did not alter or diminish MCL 769.34(10),” id. at 196 n 1, and therefore held that 

“this Court must affirm the sentence.” Id. at 196. 

Here, defendant was sentenced to a minimum of 190 months’ imprisonment. His 

minimum sentencing guidelines range was 57 to 190 months. Defendant does not allege that his 

guidelines were scored incorrectly, or that they were based on incorrect information. Defendant 

simply alleges that his sentence is unreasonable. However, a reasonableness and proportionality 

argument is only applicable in cases where a minimum sentence departs from the recommended 

guidelines range. Schrauben, 314 Mich App at 196. 

Defendant also argues, in a Standard 4 brief filed pursuant to Administrative Order 2004-

6, that he received ineffective assistance of counsel at trial, and at his second sentencing. 

Defendant’s claims that his trial counsel was ineffective are squarely outside the scope of the 

remand order from the Michigan Supreme Court to the Court of Appeals, which remanded the 

case for resentencing only, and as such will not be considered by this Court. See People v Blue, 

178 Mich App 537, 539; 444 NW2d 226 (1989). Defendant’s claims that he received ineffective 

assistance of counsel at his second sentencing are considered, but are meritless. 
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Defendant first claims that he was denied the effective assistance of counsel because, at 

sentencing, his counsel failed to object to the scoring of OVs 3 and 4. An attorney’s failure to 

argue for the proper sentencing guidelines may satisfy the prejudice prong of the ineffective 

assistance of counsel test, Glover v United States, 531 US 198; 121 S Ct 696; 148 L Ed 2d 604

(2001), but first, the defendant must show that counsel’s performance fell below an objective 

standard of reasonableness under prevailing professional norms. See People v Davis, 250 Mich 

App 357, 368-369; 649 NW2d 94 (2002); Strickland v Washington, 466 US 668, 687; 104 S Ct 

2052; 80 L Ed 2d 674 (1984). 

Defendant first argues that his counsel should have objected to the scoring of OV 3. The 

scoring of OV 3 was the subject of a prior appeal, and this Court “concluded that the sentencing 

court did not err in scoring OV 3” and, relying on People v Herron, 303 Mich App 392; 845 

NW2d 533 (2013), overruled 498 Mich at 399 (2015), “rejected defendant’s objection to the

guidelines scoring insofar as it related to judicial factfinding.” Gaston (On Remand), unpub op 

at 1. Because reviewing courts had already affirmed the scoring for OV 3, sentencing counsel 

cannot be ineffective for failing to object. See People v Putman, 309 Mich App 240, 245; 870 

NW2d 593 (2015) (stating “counsel is not ineffective for failing to raise meritless or futile 

objections.”). 

Counsel is also not ineffective for failing to object to the scoring of OV 4, which was 

scored at 10 points. First, such objection would have had to have been made during the first 

appeal. Second, a heightened score for OV 4 is appropriate, and sentencing counsel cannot be 

ineffective for failing to object. See Putman, 309 Mich App at 245 (stating “counsel is not 

ineffective for failing to raise meritless or futile objections.”). OV 4 concerns psychological 

injury to a victim, and requires a court to score 10 points if “[s]erious psychological injury 

requiring professional treatment occurred to a victim.” MCL 777.34(1)(a). 

Defendant does not explain why he believes that OV 4 was scored improperly; “[a]n 

appellant may not merely announce his position and leave it to this Court to discover and 

rationalize the basis for his claims, nor may he give only cursory treatment with little or no 

citation of supporting authority.” People v Kelly, 231 Mich App 627, 640-641; 588 NW2d 480 

(1998). “Failure to brief a question on appeal is tantamount to abandoning it.” Mitcham v 

Detroit, 355 Mich 182, 203; 94 NW2d 388 (1959). Furthermore, the complainant’s mother 

wrote in the victim impact statement that, due to the rape, the complainant “has been seeing a 

[therapist] (at her school) as well as a psychiatrist (outside of school). Since when calculating 

sentencing guidelines, a court can consider all record evidence, including the contents of a 

presentence investigation report, People v Johnson, 298 Mich App 128, 131; 826 NW2d 170 

(2012), such information was properly considered to increase defendant’s OV 4 score. Since 

counsel cannot be ineffective for failing to raise meritless objections, his failure to object to the 

heightened score for OV 4 is not ineffective assistance. See Putman, 309 Mich App at 245. 

Finally, defendant claims that this court should overrule precedent, which states that 

mitigating factors need not be considered at sentencing. See, e.g. People v Endres, 269 Mich 

App 414; 711 NW2d 398 (2006), overruled on other grounds in People v Hardy, 494 Mich 430, 

43 n 18; 835 NW2d 340 (2013), stating that Blakely v Washington, 542 US 296; 124 S Ct 2531 

(2004), which requires trial courts to review all mitigating factors, does not apply to sentencing 

in Michigan. “A published opinion of the Court of Appeals has precedential effect under the rule 
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of stare decisis.” MCR 7.215(C)(2). Moreover, “[a] panel of the Court of Appeals must follow 

the rule of law established by a prior published decision of the Court of Appeals issued on or 

after November 1, 1990, that has not been reversed or modified by the Supreme Court, or by a 

special panel of the Court of Appeals as provided in this rule.” MCR 7.215(J)(1). While the 

court rule provides for a conflict procedure when a panel of this Court disagrees with a prior 

opinion, defendant has not made any compelling argument for invoking the conflict procedure.

Affirmed. 

/s/ Stephen L. Borrello 

/s/ William B. Murphy 

/s/ Amy Ronayne Krause