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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED April 11, 2017

v No. 328195 Saginaw Circuit Court FREDERICK HARVEY GRUMBLEY, LC No. 04-024013-FC

Defendant-Appellant.

Before: B ORRELLO , P.J., and W ILDER and S WARTZLE , JJ.

P ER C URIAM

. In 2006, this Court affirmed def endant’s convictions of posses sion of child sexually abusive material, MCL 750.145c(4), extortion, MCL 750.213, chil d sexually abusive activity, MCL 750.145c(2), felon in possession of a firearm, MCL 750.224f , and possession of a firearm during the commission of a felony (felony firearm), MCL 750.227 b, and our Supreme Court denied defendant’s applicat ion for leave to appeal. People v Grumbley , unpublished opinion per curiam of the Court of Appeals, issued December 21, 2006 (Docke t No. 261275), lv den 480 Mich 854 (2007). Defendant later filed a petition for habeas c orpus relief in federal court, which ultimately issued an order in 2015 vacating the possession of c hild sexually abusive material and the two firearm convictions, and directing that defendant be re sentenced on the extortion and child sexually abusive activity convictions. See Grumbley v Burt , 591 Fed Appx 488, 492 (CA 6, 2015). In June 2015, the trial court resentenced defendant as a fourth-offense habitual offender, MCL 769.12, to 24 to 50 years each for the extortion and child sexually abusive activity convictions, with cre dit for 4,199 days served. Defen dant appeals as of right from the judgment of sentence issued on resentencing. We remand for fur ther proceedings in accordance with People v Lockridge , 498 Mich 358, 396-399; 870 NW2d 502 (2015), but affirm in all other respects.

I. FACTS

Defendant was accused of telling his 13-year-old half-sister, MG, that he wanted to make a sex movie involving her and her 18-year-old friend, CF, that defendant could show “online.” MG testified that defendant told her that if she refused to mak e the movie, he would “press charges” against CF for statutory rape, even though—according t o both MG and CF—they had not had sexual relations. Defendant allegedly told MG to give him her decision within 24 hours. Instead, MG told her parents about the threat. She also told t hem that defendant had touched her vagina when she was seven years old and had touched her breast when she was 12 years old. CF-2- testified that defendant admitted to him that he had touched MG ’s vagina, that defendant admitted that he possessed child pornography, and that defendan t had requested that CF allow defendant to make a video of CF and MG having sex on more than one occasion.

As a result of MG’s allegations, officers went to defendant’s home to arrest him and obtained his consent to search. During the search, the police found firearms and a computer with child pornography images. The y also found unprocessed film wit h images of defendant’s roommate’s three- t o four-year-old d aughter, DR, wearing an adu lt bra.

Following a trial in 2004, a jury convicted defendant of posse ssion of child sexually abusive material, extortion, ch ild sexually abusive activity (a s to MG and CF), felon in possession of a firearm, and felony-firearm. The jury acquitte d defendant of two charges of second-degree criminal sexual conduct and one count of child se xual abusive activity (as to DR). Defendant was originally senten ced as a fourth-offense habitual offender to concurrent prison terms of 5 to 15 years for the possession of child sexually abu sive material conviction and 24 to 50 years each for the extortion, child sexually abusive activit y, and felon-in-possession convictions, to be served consecu tive to a two-year term of imp risonment for the felony-firearm conviction.

Defendant appealed to this Cour t, which affirmed his convictio ns. This Court concluded in part that

given the subject matter of the i nvestigation, the nature of th e information provided by witnesses during the interviews conducted prior to the search[, which indicated images on computers an d firearms would be present], a nd the limitless scope of defendant’s consent, it is reasonable to conclude that : (1) the officers had probable cause to conduct the s earch, (2) defendant’s voluntary , limitless consent vitiated the need for officers to obtain a search warrant, (3) the incriminating nature of the items seized was readily apparent, and (4) the of ficers’ search never exceeded the scope of defendant’s consent. The evidence was th erefore admissible. [ Grumbley , unpub op at 5.]

Eventually, defendant filed a pro se petition for a writ of habeas corpus pursuant to 28 USC 2254 in the United States Dis trict Court for the Eastern Di strict of Michigan, which denied the petition. Subsequently, the Sixth Circuit Court of Appeals determined that trial counsel was ineffective for failing to file a motion to suppress the eviden ce seized during the search of defendant’s home. Specifically, that court determined that the arrest of defendant without a warrant, exigent circumstances, or consent violated the Fourth Amendment. Grumbley , 591 Fed Appx at 498. It further determined that defendant’s consent to search “alone [wa]s insufficient to purge the taint of an illegal seizure.” Id . at 499. The court conclude d that the trial court would need to vacate all of defendant’s convictions dependent on the effects found during the illegal search (i.e., the felon-in-posse ssion, felony-firearm, and poss ession of child sexually abusive material convictions) and recalculate the sentencing guidelines for the remaining convictions. Id

. at 501-502. The Sixth Circuit therefore remanded the case to t he Eastern District Court with instructions to grant a conditional writ of habeas corpus. Id . at 502. Thereafter, the Eastern District Court directed that our state trial court vacate the t hree convictions and resentence defendant for the remai ning two convictions.-3- The trial court resentenced defendant to 288 months to 50 year s in prison for both the extortion and the child sexuall y abusive activity convictions, the same sentences previously imposed for each of these crimes. Defendant then filed this ap peal. While this appeal was pending, defendant filed a pro se motion for resentencing with the trial court, asserting that the offense variables (OVs) and prior record variables (PRVs) were erroneously scored, that his sentences were based on impermi ssible judicial fact-finding in violation of Apprendi v New Jersey , 530 US 466; 120 S Ct 2348; 147 L Ed 2d 435 (2000), and that h e was erroneously sentenced as a fourth-offense ha bitual offender. The trial cou rt denied the motion.

On appeal, defendant, in a brief filed by appointed appellate counsel, seeks sentencing relief pursuant to Lockridge , 498 Mich 358. Defendant also raises numerous issues challeng ing both his convictions and sentenc es in a pro se supplemental bri ef filed pursuant to Supreme Court Administrative Order No. 2004-6, Standard 4.

II. RESENTENCING ISSUES

In his Standard 4 brief, defendant argues that the attorney who represented him at his resentencing proceeding was ineffective because he failed to ch allenge defendant’s status as a fourth-offense habitual offender and the scoring of various OVs and PRVs. In his principal brief on appeal, defendant also argues that his constitutional rights were violated because the sentencing court relied on judici al fact-finding in scoring the guidelines.

Preliminarily, defendant’s ineffective assistance claim lacks merit because he cannot show prejudice, inasmuch as he u ltimately raised the issues in his pro se motion for resentencing, which was considered and denied by the trial court. People v Brown , 294 Mich App 377, 387- 388; 811 NW2d 531 (2011). We note that the interpretation and application of the statutory sentencing guidelines are legal questions subject to de novo re view. People v Cannon , 481 Mich 152, 156; 749 NW2d 257 (2008). If preserved, however, “the tri al court’s findings of fact [relative to scoring the guidelines] are reviewed for clear err or and must be supported by a preponderance of the evidence.” People v McChester , 310 Mich App 354, 358; 873 NW2d 646 (2015). “Clear error is present when the reviewing court is le ft with a definite and firm conviction that an error occurred.” Id . This Court reviews a challenge to the constitutionality of a defendant’s sentence de novo. Lockridge , 498 Mich at 373.

In People v Biddles , 316 Mich App 148, ___; ___ NW2d ___ (2016) (Docket No. 326140), slip op at 5, the Court noted that where there is a co nstitutional challenge to the defendant’s sentence under Lockridge and an evidentiary challeng e to the scoring of the sentencing guidelines,

the evidentiary challenge must initially be entertained, becaus e if it has merit and requires resentencing, the constitutional or Lockridge challenge becomes moot, as a defendant will receive the protections of Lockridge on resentencing. And if an evidentiary challenge does not succeed, then and only then shou ld we entertain the constitutional challenge.

With respect to the evidentiary challenge,-4- if the trial court clearly erred in finding that a preponderanc e of the evidence supported one or more of the OVs or otherwise erred in applying the facts to the OVs, People v Hardy , 494 Mich 430, 438; 835 NW2d 340 (2013), and if the scoring error resulted in an alteration of the minimum sentence range, he would be entitled to resentencing, People v Francisco , 474 Mich 82, 89; 711 NW2d 44 (2006). [ Biddles , 316 Mich App at ___; slip op at 4.]

In scoring the guidelines, “j udicial fact-finding remains part of the process” and “ ‘the highest number of points possible must be assessed for all OVs, whether using judge-found facts

or not .’ ” Id . at ___; slip op at 6, quoting Lockridge , 498 Mich at 392 n 28. “A sentencing court may consider all record evidence before it when calculating the guidelines, including, but not limited to, the contents of a presentence investigation report, admissions made by a defendant during a plea proceeding, or tes timony taken at a preliminary e xamination or trial.” People v Ratkov (After Remand) , 201 Mich App 123, 125; 505 NW2d 886 (1993). When there is a challenge, however, the prosecution must establish the fact by a preponderance of the evidence. Id . “Offense variables are properl y scored by reference only to the sentencing offense except when the language of a particular offense variable statute spec ifically provides otherwise.” People v McGraw , 484 Mich 120, 135; 771 NW2d 655 (2009).

A. OV 2

Defendant takes issue with the scoring of OV 2, which, in pert inent part, provides for a score of five points when “the offender possessed or used a pis tol, rifle, shotgun, or knife or other cutting or stabbing weapon.” MCL 777.32(1)(d). Defendan t argues that this variable should not have been scored because the federal court vacated h is firearms convictions. The record, however, discloses that the trial court scored this var iable at zero points. Accordingly, there is no error.

B. OV 4

Defendant challenges the scoring of OV 4 at 10 points for “ser ious psychological injury requiring professional treatment o ccur[ing] to a victim,” MCL 7 77.34(1)(a), which may be scored if the victim “may” require professional treatment. MCL 777.34(2). Defendant asserts that there was a lack of testim ony in this regard. “There must be some evidence of psychological injury on the record to justify a 10-point score.” People v Lockett , 295 Mich App 165, 183; 814 NW2d 295 (2012).

Citing People v Williams , 298 Mich App 121, 124; 825 NW2d 671 (2012), the trial court correctly noted that fearfulness, anger, hurt, and feelings vio lated can constitute sufficient evidence of psychological injury. At trial, MG testified that she was “scared and embarrassed” when defendant touched her vagina when she was about seven, tha t she “freaked out” and cried when defendant said she would have to make the movie to avoid c harges being made against CF, and that she did not immediately go to her parents and tell the m what was going on because she was “scared.” Because fearfulness can constitute sufficient ev idence of psychological injury and MG testified to being scared, there was record evidence to supp ort this score.-5- C. OV 9

Defendant argues that OV 9 was improperly scored at 10 points because it requires that two to nine victims be placed in danger of physical injury or d eath, see MCL 777.39(1)(c), and neither victim testified to such danger. The trial court found that a preponderance of the evidence supported this score giv en testimony that defendant at tempted to coerce MG and CF to have videotaped sexual intercour se while MG was blindfolded and chained to a bed and that defendant threatened to place the video on the Internet. Had t hey succumbed to defendant’s threats, the compelled sexual intercourse would have been a phy sical injury to both. Accordingly, both victims were placed in danger of physical inj ury and this variable was accurately scored.

D. OV 13

Defendant argues that OV 13 was improperly scored at 25 points for the offense being “part of a pattern of felonious criminal activity involving thr ee or more crimes against a person.” MCL 777.43(1)(c). Defendant maintains that there were only two crimes as of the resentencing because the trial court had vacated the firearm and child porno graphy convictions. The trial court, however, appropriately noted that it was free to conside r charges that had been dismissed if a preponderance of the evidenc e showed that the offense had, in fact, occurred. See People v Harmon , 248 Mich App 522, 532; 640 NW2d 314 (2001); People v Nix , 301 Mich App 195, 205; 836 NW2d 224 (2013). In that r egard, all crimes within a five-year period, including the sentencing offense, must be counted, regardless of whether the offense resulted in a conviction, MCL 777.43(2)(a); Francisco , 474 Mich at 85. Accordingly, the trial court properly counte d the extortion, child sexually abus ive activity, and child pornograp hy crimes.

E. PRV 7

Defendant argues that the trial court improperly scored PRV 7 at 10 points for “the offender ha[ving] one subsequent or concurrent conviction.” MC L 777.57(1)(b). The Sentencing Information Report was scored for child sexually abu sive activity. The extortion offense was concurrent. Thus, t here was no error with respect to this score.

F. PRV 2

The trial court scored PRV 2 at 20 points for “the offender ha v[ing] three prior low severity felony convictions.” MCL 777.52(1)(b). Defendant arg ues that this was improper because an Oklahoma conviction for larceny of a vehicle is unco nstitutional because the car was actually taken from Arkansas. Defendant has not provided any f actual support for his assertion that this crime was based on a theft in another state, and he h as not provided any legal support for his contention that such a circumstance would render his co nviction constitutionally infirm. Accordingly, defendant has not est ablished any basis for rescor ing this variable.

G. FOURTH HABITUAL OFFENDER STATUS

Defendant argues that he was improperly sentenced as a fourth- offense habitual offender, asserting that when he was originally sentenced, which was befo re our Supreme Court decided-6- People v Gardner , 482 Mich 41; 753 NW2d 78 (2008), convictions arising from the same criminal transaction could not be separately counted. The reco rd discloses that defendant has two 1984 convictions ari sing from the same transaction—unlawful ly driving away an automobile and attempted breaking and ente ring—and two 1985 convictions—br eaking and entering and unlawful use of an automobile. Defendant also has a 1988 Oklah oma conviction for larceny of an automobile, but again argues that this conviction is unconst itutional and could not be counted. As noted above, defendant has provided no support for this asse rtion. Accordingly, he has not established that his sentences were wrongfully enhanced based o n his status as a fourth-offense habitual offender.

H. JUDICIAL FACT-FINDING

Defendant asserts that the sente ncing guidelines were scored o n the basis of judicial factfinding, in violation of his Sixth Amendment rights. Plaintiff concedes, and we agree, that defendant is entitled to relief under our Supreme Court’s decis ion in Lockridge

.

In Lockridge , 498 Mich at 364, our Supreme Cour t held that Michigan’s sente ncing guidelines violated a defendant’s Sixth Amendment right to a ju ry trial because they require “judicial fact-finding beyond fact s admitted by the defendant o r found by the jury to score offense variables (OVs) that mandatorily increase[d] the floor of the guidelines minimum sentence range.”

In the present case, it is not disputed that judicial fact-fin ding took place in scoring the offense variables. While there was no discussion of the OVs at the resentencing proceeding, the trial court discussed the scoring of the OVs in response to def endant’s motion for resentencing. The court upheld the score of 10 points for OV 4 (psychological injury to the victim). The victim’s psychological state was not a matter before the jury a nd was not the subject of any admission by defendant. The determination that MG suffered a p sychological injury that may need treatment was made solely by the court. Similarly, the co urt determined that both MG and CF were subject to coercion as the result of defendant’s threat and were therefore victims placed in danger of injury, justifying a score of 10 points for OV 9. This was not a matter determined by the jury or the subject of any admission by defendant. Also , the trial court found a pattern of felonious criminal activity involving three or more crimes agai nst a person, justifying a score of 25 points for OV 13, based in part on the vacated conviction fo r possession of child sexually abusive material. The court noted that the variable allowed fo r a score regardless of whether the offense resulted in a conviction. Id

. To avoid unconstitutional applic ation of the sentencing guidel ines occasioned by judicial fact-finding, the Lockridge Court held that the guidelines would be advisory only. Lockridge
, 498 Mich at 365. While the advisory procedure set forth in Lockridge cures the Sixth Amendment “flaw in [Michigan’s] guidelines scheme” going forwar d, id ., it does not address past violations. In People v Stokes , 312 Mich App 181, 197-198; 877 NW2d 752 (2015), held in abeyance 878 NW2d 886 (2016), this Court noted that Lockridge provided guidance on how to deal with unpreserved challenges based on judicial fact-finding , but that the issue in the case before it was preserved. The Lockridge Court had held that unpreserved challenges were subject to plain-error analysis and that if it could be shown that judi cial fact-finding resulted in a higher-7- sentencing range, then a Crosby 1 remand would be required. Regarding this procedure, Lockridge explains:

[O]n a Crosby remand, a trial court should first allow a defendant an opport unity 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 vi ews 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 defenda nt. Further, in determining w hether the court would have imposed a materially d ifferent sentence but for the unconstitutional constraint, the court should consider only the “circumstances e xisting at the time of the original sentence.” [ Crosby , 397 F3d] at 117; see also United States v Ferrell , 485 F3d 687, 688 (CA 2, 2007) (holding that the trial court’s failure to consider the circumstances as they existed at the time of the r esentencing hearing, including evidence of the defe ndant’s postjudgment prison rehab ilitation, did not violate the defendant’s due process rights). [ Lockridge , 498 Mich at 398-399.]

The Stokes Court concluded that a “ Lockridge error” was not structural and therefore, where the issue has been preserved, automatic reversal is not r equired. Stokes , 312 Mich App at 198. Rather, the issue is reviewe d to determine whether it was harmless beyond a reasonable doubt. Id . The Stokes Court also concluded that, “given that our Supreme Court specif ically expressed its ‘agreement with’ the quoted analysis stated in Crosby , we believe our Supreme Court intended the Crosby procedure to apply to both preser ved and unpreserved errors.” Id. at 200. The Court further stated:

Ultimately, the purpose of a Crosby remand is to determine what effect Lockridge would have on the defendant’s sentence so that it may be determ ined whether any prejudice resulted from the error. Similarly, we cannot say wi th certainty that the error was or was not harmless without knowing what sentence wou ld result had the trial court “been aware that the guidelines were merely adv isory.” Perhaps the largest difference between establishing prejudice under the pla in error test and the harmless error test is on whichparty the burden lies. Under t he plain error test, the burden lies with the defendant to demonstrate “that the err or affected the outcome of the lower court proceedings.” But when a constituti onal error is preserved, the burden falls on “the beneficiary of the error,” in this case, the prosecution, to “establish[] that it is harmless beyond a reaso nable doubt.” Yet whether this Court’s review is for plain error or for harmless error, the overriding question is the same: what effect, if any, did the error have o n the lower court proceedings? On whom the burden falls does not change the natu re of the inquiry. We see no logical reason why the Crosby remand procedure should apply to unpreserved errors, but not to preserved errors. [ Id. at 200-201.]

1 United States v Crosby , 397 F3d 103 (CA 2, 2005).-8- Because defendant was resentenced before Lockridge was decided, it is undisputed that the trial court relied on judicial fact-finding in scoring the offense variables, and that scoring affects defendant’s placement in the cell of the sentencing gri d under which he was resentenced, defendant is entitled to a Crosby remand

.

III. RE-SENTENCING TRANSCRIPT ERRORS

Defendant asserts in his Standard 4 brief that some statements in the resentencing hearing transcript were altered. Reviewing the identified statements i n context, it appears that a name was twice erroneously transcribed. Yet, defendant has not indi cated what end would be served by recognizing the corrections. We accordingly find no reason to provide relief with respect to this issue. People v Abdella , 200 Mich App 473, 476; 505 NW2d 18 (1993).

IV. EXTORTION AND COUNT 5

In his Standard 4 brief, defendant raises a number of issues r elated to the fact that the Information named CF as the victim of the extortion charge, but that the proofs showed MG was the person threatened, and that the Information expressly liste d DR as the victim of the child sexually abusive activity charge and did not expressly name MG and CF as victims. We note that these matters could have been raised on defendant’s first direct appeal or in his first motion for relief from judgment, and that “[a]n appeal from resentenci ng is limited to the resentencing proceeding.” People v Gauntlett , 152 Mich App 397, 400; 394 NW2d 437 (1986); see also People v Jones , 394 Mich 434, 435-436; 231 NW2d 649 (1975). Because these is sues are beyond the scope of this appeal, w e decline to c onsider them.

V. ERRORS IN TRANSCRIPTS PRE-DATING RESENTENCING

Defendant argues in his Standard 4 brief that statements were omitted from some trial transcripts, a post-conviction he aring transcript, and the orig inal sentencing transcript, and that his attorney on direct appeal failed to obtain recordings of th ese proceedings that would have established the errors. Again, we decline to address these iss ues because they are beyond the scope of this appeal, which is limited to the resentencing proc eeding. People v Gauntlett , 152 Mich App at 400.

VI. ALLEGEDLY PERJURED TESTIMONY

Defendant argues that he was convicted on the basis of perjure d testimony because a police officer erroneously stated that a police interview laste d about 20 minutes when the trial transcript indicates that it w as about 12 minutes in length. D efendant claims that this establishes that the officer falsified evidence. Once again, this issue is not properly before this Court because this appeal is limited to the resentencing proceeding o nly. Gauntlett , 152 Mich App at 400. Accordingly, we decline t o consider the issue.-9- Affirmed in part and remanded for further proceedings consiste nt with Lockridge . We do not retain jurisdiction.

/s/ Stephen L. Borrello /s/ Kurtis T. Wilder /s/ Brock A. Swartzle