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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED December 6, 2016

v No. 328044 Wayne Circuit Court RYAN KEITH LEWIS, LC No. 14-009641-FH

Defendant-Appellant.

Before: G ADOLA , P.J., and B ORRELLO and S TEPHENS , JJ.

P ER C URIAM

. Defendant appeals as of right his bench trial convictions of f irst-degree home invasion, MCL 750.110a(2), unlawfully driving away an automobile, MCL 750 .413, and larceny in a building, MCL 750.360. The trial c ourt sentenced defendant, as a fourth habitual offender, MCL 769.12, to 10 to 25 years’ imprisonment for the first-degree ho me invasion conviction, 2 to 10 years’ imprisonment for the unlawfully driving away an automobi le conviction, and 2 to 10 years’ imprisonment for the larceny in a building conviction. For the reasons set forth in this opinion, we affirm the convictions of defendant, but remand for further proceedings consistent with this opinion.

This case arises from defendant’s unauthorized entry into the home of Odessa Wash 1 on August 22, 2014, and continuing through August 24, 2014. Testi mony revealed that Wash lived with her husband who was in hospi ce care at the time of the inc ident. On occasion, Wash would ask defendant to come over to help with lawn and home maintenan ce as well as help with the care of her husband. Wash’s granddaughter, Neferteria Gray, wo uld visit “every couple of days” to check on her grandp arents’ well-being.

Ms. Gray testified at trial t hat beginning on August 22, and co ntinuing on until August 24, she repeatedly telephoned 9-1- 1 reporting that defendant wa s removing items from her grandmother’s home and garage. Gray also testified and the 9-1 -1-tapes 2 confirmed that she

1 The record reveals that Ms. W ash passed away on the second day of trial.

2 The record reveals that Ms. Gray made numerous 9-1-1- calls. However, the record does not disclose exactly when the police finally arrived at the home of Ms. Wash. Furthermore, because-2- reported that defendant had tak en her 1998 Dodge Durango, and t he only way he had access to the keys to the automobile would have been by going into Gray’s purse which was located inside her grandmother’s home.

Defendant testified that he and Gray were “husband and wife und er Islam” and accordingly he had permission to enter the home. Defendant tes tified that he entered Ms. Wash’s home on August 22, 2014 at approximately 6:00 p.m. with “one of [his] little Muslim brothers” to get “kufis” made. D efendant further testified tha t he had the keys to the house and got angry because there was a “homosexual” present in the home and because “homosexuality is against his religion,” defendant left the home to “cool down.” When defendant returned to the home he testified that he and Gray had another argument, though the specifics of the argument are unclear.

To bolster his claim that he and Gray were “husband and wife un der Islam,” defendant offered the testimony of his mother Lillian Newbern and his lon g-time friend Johnny Davis. Both Newbern and Davis testified that defendant and Gray believ ed themselves to be husband and wife, however, and quite unf ortunately for defendant, neith er of them could identify Gray, provide her name, or give any othe r relevant information about her.

On appeal, defendant first alleges that he received ineffective assistance of counsel because his counsel failed to interview and call Leslie Bronner (a.k.a.) Shareef Ali, who would have testified to the length of t he relationship between defend ant and Gray.

A defendant may preserve a clai m of ineffective assistance of counsel for appellate review by making a motion for a new trial or for a Ginther 3 hearing in the lower court. People v Lopez , 305 Mich App 686, 693; 854 NW2d 205 (2014). Defendant did no t move for a new trial

or a Ginther hearing in the trial court. Therefore, this issue is unpreser ved for appellate review. See id

. An ineffective assistance of counsel claim is a mixed question of fact and constitutional law. People v Trakhtenberg , 493 Mich 38, 47; 826 NW2d 136 (2012). We review a trial cour t’s findings of fact for clear error, and questions of constitution al law de novo. Id . “A finding is clearly erroneous if the reviewing court is left with a definit e and firm conviction that a mistake has been made.” Lopez , 305 Mich App at 693 (citation and quotation marks omitted). When a claim of ineffective assistance of counsel has not been preserv ed for appellate review, our review is limited to errors apparent on the record. Id

. Criminal defendants have a right to effective assistance of co unsel under both the United States and Michigan Constitutions. US Const, Am VI; Const 1963 , art 1, § 20. To prevail on an ineffective assistance of counsel claim, defendant must show: ( 1) that counsel’s performance fell below an objective standard of reasonableness under prevailing professional norms, and (2) that there is a reasonable probability that, but for counsel’s error , the result of the proceeding would

the two Detroit police officers who initially responded to the address failed to appear at trial, it is also unclear where the stolen items were found.

3 People v Ginther , 390 Mich 436; 212 NW2d 922 (1973).-3- have been different. People v Vaughn , 491 Mich 642, 669; 821 NW2d 288 (2012) (citation and quotation marks omitted). Defenda nt bears the burden of persua sion in establishing a factual predicate for his claim. People v Putman , 309 Mich App 240, 248; 870 NW2d 593 (2015).

“Trial counsel is responsible for preparing, investigating, an d presenting all substantial defenses.” People v Chapo , 283 Mich App 360, 371; 770 NW2d 68 (2009). However, “[e]ffective assistance of counsel is presumed, and the defenda nt bears a heavy burden of proving otherwise.” People v Eisen , 296 Mich App 326, 329; 820 NW2d 229 (2012) (quotation marks and citation omitted). Mo re specifically, trial counsel is presumed to implement sound trial strategy, People v Gaines , 306 Mich App 289, 310; 856 NW2d 222 (2014), and we “will not substitute our judgment for that of counsel on matters of trial strategy, nor will we use the benefit of hindsight when assessing counsel’s competence,” People v Unger , 278 Mich App 210, 242- 243; 749 NW2d 272 (2008). Moreover, trial counsel’s decision w hether to call a witness at trial is presumed to be sound trial strategy. People v Meissner , 294 Mich App 438, 460; 812 NW2d 37 (2011). Generally, “the failure to call a witness can const itute ineffective assistance of counsel only when it deprives t he defendant of a substantial de fense.” People v Payne , 285 Mich App 181, 190; 774 NW2d 714 (2009) (quotation marks and citation omitted). A substantial defense is one that could have m ade a difference in the trial’s outcome. Chapo , 283 Mich App at 371.

For purposes of this appeal we accept, without deciding the pr oposition put forth by defendant that his counsel failed to interview the witness and that counsel’s failure to call Bronner fell below an objective standard of reasonableness.

The crux of defendant’s argument relative to Bronner is that byfailing to interview and call Bronner as a witness, defenda nt was denied a substantial d efense as there was little record that defendant had permission to enter the home. However, even if defendant had successfully shown that defense counsel’s per formance was deficient, defenda nt nevertheless fails to establish how he was deprived of a substant ial defense that would have ma de a difference in the outcome of his trial. See Chapo , 283 Mich App at 371. At trial, defendant took the stand and testified in an attempt to establish his theory that Gray had fabricated the allegations of his unlawful entry and taking of personal property from Wash’s home. Defendant te stified that he and Gray were “husband and wife in Islam” and that they had gotten into a hea ted argument on the date of the incident.

As previously stated, Newbern an d Davis also testified in an a ttempt to establish that defendant and Gray were in a relationship, but neither witness did much to bolster defendant’s claim. Accordingly, defendant w as able to produce his defense, however in hindsight it was not a particularly effective defense. “A particular strategy does not constitute ineffective assistance of counsel simply because it does not work.” People v Matuszak , 263 Mich App 42, 61; 687 NW2d 342 (2004). Additionally, to the extent defendant argues that he was prejudiced by weaknesses in Gray’s testimony, que stions of witness credibilit y are generally for the factfinder. Unger , 278 Mich App at 232. In this case, the trial judge acted as the factfinder and in his findings noted several relevant facts that he found especially important in making his determination. Specifically, th e trial judge referenced the fo ur 9-1-1 calls that Gray made where she physically described defendant to the operator, gave his na me, and stated that she knew him as a handyman. Moreover, the trial judge noted that, in the ca lls, Gray stated that she saw-4- defendant stealing several items from Wash’s home and that neit her she nor Wash had given defendant permission to take the items from the home. It is ev ident from the record that the trial judge found Gray’s testimony more credible when coupled with th e supporting evidence of the 9-1-1 tapes. Therefore, the trial court had sufficient evidenc e to consider without Bronner being called as a witness. Accordingly, defendant has failed to show that the outcome of his proceedings would have been different had Bronner testified, an d there are no errors apparent on the record to justify defendant’s ineffective assistance of cou nsel claim. See Vaughn , 491 Mich at 669.

Next, defendant argues that he is entitled to a remand under People v Lockridge , 498 Mich 358; 870 NW2d 502 (2015) because the trial court impermiss ibly engaged in judicial factfinding in scoring offe nse variable (OV) 16 and, but for the er ror, his sentencing guidelines range would have changed.

This Court reviews preserved Lockridge sentencing claims for harmless error beyond a reasonable doubt. People v Terrell , 312 Mich App 450, 464; 879 NW2d 294 (2015); see also People v Stokes , 312 Mich App 181, 198; 877 NW2d 752 (2015) (stating that a pr eserved Lockridge claim must be reviewed for harmless error). In order to deter mine whether the sentencing error was harmless, the case must be remanded to the trial court for a Crosby 4 hearing. Stokes , 312 Mich App at 198-199.

In Lockridge , 498 Mich at 373, the Michigan Supr eme Court held that Michiga n’s prior mandatory sentencing guidelines scheme under MCL 769.34(2) cons tituted a violation of a defendant’s Sixth Amendment righ t. The Court explained that th e violation occurs when a trial court scores OVs based on facts not admitted by defendant or de cided by a jury because it raises the “floor of the guidelines range.” Id . at 373-374. Accordingly, in an attempt to remedy the unconstitutionality of the mandatory guidelines, the Lockridge Court severed MCL 769.34(2) to the extent that it made the sentencing guidelines mandatory and held that the guidelines are merely advisory. Id . at 391, 399. If a trial court would have imposed a materiall y different sentence but for this constitutional error, we must remand for resentencing. Id. at 397.

Defendant argues that OV 16 was improperly assessed at five po ints because the trial judge found facts not admitted by defendant or found by a jury, and if OV 16 had been assessed zero points, defendant’s minimum sentencing guidelines range wo uld have changed. We agree to the extent that the trial judge found facts not admitted by defendant or found by the trier of fact. MCL 777.46 provides the offense scoring for OV 16, which pertains to property obtained, damaged, lost, or destroyed. More specifically, MCL 777.46(1)( c) provides that if the property had a value of $1,000 or more, but not more than $20,000, the O V should be scored at five points. In this case, the tria l court scored OV 16 at five poi nts finding that the value of the property obtained by defendant was more than $1,000, but did no t exceed $20,000.

As discussed above, defendant’s trial was a bench trial. As s uch the trial court acted as the fact-finder. In order to e stablish a defendant’s guilt for a charge of first-degree home

4 United States v Crosby , 397 F3d 103, 117-118 (CA 2, 2005).-5- invasion, the prosecution must e stablish that (1) the defendant either breaks and e nters a dwelling or enters a dwelling without per mission (2) the defendant eithe r intends to commit a felony, larceny, or assault in the dwelling when entering or at any tim e while entering, present in, or exiting the dwelling commits a felony, larceny, or assault, and (3) the defendant, while entering, present in, or exiting the dwelling is armed with a dangerous w eapon or another person is lawfully present in the dw elling. See MCL 750.110a(2); People v Wilder , 485 Mich 35, 42-43; 780 NW2d 265 (2010).

Although the trial court found de fendant guilty of first-degre e home invasion, the value of property obtained is not an element of the crime. See MCL 7 50.11a(2). The trial court never explicitly stated how it arrived at value of the property obtai ned by defendant or what information it considered when scoring OV 16, but it is evident from its findings of fact that it considered the property taken when it found defendant guilty of first-degree home invasion. Further, a review of the record does not reveal that defendant admitted to taking items let alone taking items in this amount. Thus, defendant has successfully demonstrated that OV 16 was calculated using facts beyond those found by a jury or admitted by defendant. See Lockridge
, 498 Mich at 399.

Moreover, a reduction in defenda nt’s OV score to account for t he error would change the minimum guidelines range. See id . First-degree home invasion is a Class B offense under Michigan’s Sentencing Guidelines. Defendant’s total OV score w as 10 points placing him in OV Level II on the sentencing grid, and defendant’s total prior record variable (PRV) score, based in part on his fourth habitual offender status, was 80 po ints placing him in PRV Level F. See MCL 777.63. Because of the fourth-habitual sentencing enha ncement, the applicable minimum sentencing guidelines range was 78 to 260 months. See id . The trial court did not depart from this applicable minimum sentencing guidelines range . However, if defendant’s OV 16 score was reduced based on the trial court engaging in imper missible fact-finding, his OV level would be reduced to OV Lev el I reducing his minimum sente ncing range to 72 to 240 months. Id . Thus, defendant is thereby entitled to a remand for a Crosby hearing in order for the trial court to determine if it w ould have imposed a materially different sentence but for the constitutional error. See Lockridge , 498 Mich at 395, 397, 399.

Defendant’s convictions are a ffirmed, but this case is remande d for further proceedings consistent with this opinion. We do not retain jurisdiction.

/s/ Michael F. Gadola /s/ Stephen L. Borrello /s/ Cynthia Diane Stephens