-1- 

STATE OF MICHIGAN 

COURT OF APPEALS 

PEOPLE OF THE STATE OF MICHIGAN, 

 Plaintiff-Appellee, 

UNPUBLISHED 

March 21, 2017 

v No. 329692 

St. Clair Circuit Court 

RICHARD DANIEL CLAY, LC No. 13-000472-FC 

 Defendant-Appellant. 

Before: TALBOT, C.J., and MURRAY and BOONSTRA, JJ. 

PER CURIAM. 

 Defendant appeals by right his conviction, following a jury trial, of assault with intent to 

murder (AWIM), MCL 750.83. The trial court sentenced defendant, as a fourth habitual 

offender, MCL 769.12, to 30 to 75 years’ imprisonment for his conviction. We affirm 

defendant’s conviction, but remand for further proceedings pursuant to People v Lockridge, 498 

Mich 358; 870 NW2d 502 (2015). 

I. PERTINENT FACTS AND PROCEDURAL HISTORY 

 This case arises from defendant’s assault of his neighbor, Jeremy Finch, in the basement 

of the Silver Pines Apartment Complex in Port Huron in 2012. Defendant asked Finch to assist 

him with moving a box in his storage unit in the basement. As Finch picked up the box, 

defendant stabbed him in the back and wrenched Finch’s neck. Defendant then grabbed the 

utility knife Finch used for work and attempted to slit his throat. Defendant stomped on Finch’s 

head and said, “Just die.” Finch pretended to be dead in order to get defendant to stop. 

 Defendant was found by police in the apartment complex basement, bleeding from a selfinflicted wound on his right arm. He fled from police and was ultimately apprehended down the 

street from the apartment complex, armed with a knife. 

 After defendant was treated for his injuries, Port Huron Police Officer Dennis Huisman 

took him to the Port Huron Police Department for processing. While there, Huisman began 

asking defendant questions to elicit personal information, i.e., his name, date of birth, address, 

employment information. While being asked his employment information, defendant made the 

statement, “I tried to kill the guy. I had some serious issues going on there. I mean, he’s my 

friend. I mean, he’s never done a bad thing to me.” 
-2- 

 Defendant was then given a form advising him of his Miranda1 rights, which he was 

asked to read aloud. After doing so, defendant signed the form and acknowledged that he 

understood his rights. Defendant then told Port Huron Police Detective Keith Merritt that he had 

consumed alcohol, Vicodin, and crack cocaine before attacking Finch, and that he attacked Finch 

because he felt Finch “had evil inside him.” 

 At trial, defendant testified that he had not intended to kill Finch and denied stabbing him 

with the knife; however, on cross-examination he admitted to telling Merritt that he had stabbed 

Finch. The prosecution also played a clip from defendant’s interview, during which defendant 

admitted to stabbing Finch. 

 Defendant was convicted and sentenced as described above. Defendant filed a claim of 

appeal nearly two years later; this Court eventually accepted defendant’s delayed application for 

leave to appeal.2

 Defendant also filed a motion to remand with this Court on January 4, 2016, 

seeking a Ginther3

 hearing in the trial court to further develop the factual record for his 

ineffective assistance of counsel claim and for a Crosby4

 hearing in light of Lockridge because 

the trial court had engaged in impermissible judicial fact-finding. This Court denied defendant’s 

motion, holding that the record did not require further factual development to review the issues 

on appeal.5

II. INEFFECTIVE ASSISTANCE OF COUNSEL 

 Defendant contends that he received the ineffective assistance of counsel on a number of 

grounds. We disagree. 

 A defendant may preserve a claim of ineffective assistance of counsel for appellate 

review by moving for a new trial or for a Ginther hearing in the lower court. People v Lopez, 

305 Mich App 686, 693; 854 NW2d 205 (2014). Because defendant did not move for a new trial 

or a Ginther hearing in the trial court, and this Court denied his motion for remand, our review is 

limited to errors apparent on the record. Lopez, 305 Mich App at 693. 

 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 court’s 

findings of fact for clear error, and questions of constitutional law de novo. Id. “A finding is 

clearly erroneous if the reviewing court is left with a definite and firm conviction that a mistake 

 

1 Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966). 

2 People v Clay, unpublished order of the Court of Appeals, entered August 19, 2015 (Docket 

No. 328719). 

3 People v Ginther, 390 Mich 436; 212 NW2d 922 (1973). 

4 United States v Crosby, 397 F3d 103, 117-118 (CA 2, 2005). 

5 People v Clay, unpublished order of the Court of Appeals, entered February 4, 2016 (Docket 

No. 329692). 
-3- 

has been made.” Lopez, 305 Mich App at 693 (citation and quotation marks omitted). “If the 

record does not contain sufficient detail to support defendant’s ineffective assistance claim, then 

he has effectively waived the issue.” People v Davis, 250 Mich App 357, 368; 649 NW2d 94 

(2002). 

 Criminal defendants have a right to effective assistance of counsel 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, a 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 have been different. People v Vaughn, 491 Mich 642, 669; 821 NW2d 288 (2012) 

(citation and quotation marks omitted). However, “[e]ffective assistance of counsel is presumed, 

and the defendant bears a heavy burden of proving otherwise.” People v Eisen, 296 Mich App 

326, 329; 820 NW2d 229 (2012) (quotation marks and citation omitted). The defendant bears 

the burden of establishing a factual predicate for his claim. People v Putman, 309 Mich App 

240, 248; 870 NW2d 593 (2015). 

A. PRELIMINARY EXAMINATION 

 First, defendant argues that defense counsel provided ineffective assistance of counsel 

when he advised defendant to waive his right to a preliminary examination. We disagree. 

 Considering the weight of the evidence against defendant, i.e., witness testimony, 

physical evidence, and defendant’s admissions of guilt, it was reasonable trial strategy for 

defense counsel to advise defendant to waive the preliminary examination. “[T]he primary 

function of a preliminary examination is to determine if a crime has been committed and, if so, if 

there is probable cause to believe that the defendant committed it.” People v McGee, 258 Mich 

App 683, 696; 672 NW2d 191 (2003) (quotation marks omitted). The jury found defendant 

guilty beyond a reasonable doubt of AWIM, which demonstrates that sufficient evidence existed 

to bind defendant over on that charge because a lesser standard of probable cause is used at 

preliminary examination. See id. Thus, defendant fails to show how defense counsel’s 

performance fell below an objective standard of reasonableness and that, but for the alleged 

error, the outcome would have been different. See Vaughn, 491 Mich at 669. 

 Additionally, defendant’s argument that defense counsel should have used the 

preliminary examination as a means for establishing the need for a competency examination is 

untenable. As discussed earlier, the purpose of the preliminary examination is to determine 

whether a crime has been committed and, if so, whether probable cause exists to believe 

defendant committed the crime. Id. The purpose is not to determine defendant’s competency to 

stand trial. A criminal defendant is presumed competent to stand trial, MCL 330.2020(1), and it 

is up to the court, defense counsel, or the prosecution to raise the issue of incompetence, 

MCL 330.2024. The issue of defendant’s competence to stand trial or participate in other 

criminal proceedings may be raised at any time. MCR 6.125(B). Indeed, two forensic 

psychologists evaluated defendant before his trial began to determine his competency to stand 

trial and defendant was found competent. And defendant has not shown that an evaluation 

conducted at the same time as the preliminary examination would have resulted in a different 
-4- 

outcome. See Vaughn, 491 Mich at 669. Accordingly, defendant has failed to establish that 

defense counsel was ineffective for advising him to waive the preliminary examination. 

B. TRIAL STRATEGY 

 Next, defendant contends that defense counsel provided ineffective assistance of counsel 

when he failed to “have an overall strategy as to how he might deal with the fact that this case 

involved a Defendant suffering from profound mental illness exacerbated by drug use.” More 

specifically, defendant argues that defense counsel failed to obtain an expert who could support 

an insanity defense, failed to request a competency evaluation, and failed to introduce 

defendant’s mental health records. We disagree. 

 “Trial counsel is responsible for preparing, investigating, and presenting all substantial 

defenses.” People v Chapo, 283 Mich App 360, 371; 770 NW2d 68 (2009). Additionally, 

“[d]ecisions regarding what evidence to present and whether to call or question witnesses are 

presumed to be matters of trial strategy.” People v Rockey, 237 Mich App 74, 76; 601 NW2d 

887 (1999). Trial counsel is presumed to implement sound trial strategy, People v Gaines, 306 

Mich App 289, 310; 856 NW2d 222 (2014), and this Court “will not substitute [its] judgment for 

that of counsel on matters of trial strategy, nor will [this Court] use the benefit of hindsight when 

assessing counsel’s competence,” People v Unger, 278 Mich App 210, 242-243; 749 NW2d 272 

(2008). “A sound trial strategy is one that is developed in concert with an investigation that is 

adequately supported by reasonable professional judgments.” People v Grant, 470 Mich 477, 

486; 684 NW2d 686 (2004). 

 Contrary to defendant’s assertion, defense counsel moved on April 4, 2013 for the 

appointment of an independent expert to conduct a competency evaluation of defendant. 

Ultimately, the trial court granted defendant’s motion to retain an independent expert. At trial, 

defense counsel stated on the record that defendant had been independently evaluated by Dr. 

Michael Abrambsky. Additionally, defense counsel noted that he had the opportunity to review 

Dr. Abrambsky’s findings with defendant and that he was not pursuing the insanity defense in 

light of those findings. Presumably, Dr. Abrambsky concluded that defendant was competent to 

stand trial. 

 Based on the record evidence, defense counsel reasonably determined, after adequate 

preparation and investigation, that an insanity defense would not be viable. See Grant, 470 Mich 

at 486. In order to establish an insanity defense, the defendant must show that, as the result of a 

mental illness6

 or mental retardation, he lacked the “substantial capacity either to appreciate the 

nature and quality or the wrongfulness of his . . . conduct or to conform his . . . conduct to the 

requirements of the law.” MCL 768.21a(1); People v Lacalamita, 286 Mich App 467, 470; 780 

NW2d 311 (2009). However, a mental illness, alone, does not constitute the defense of legal 

 

6

 Mental illness is defined as “a substantial disorder of thought or mood that significantly impairs 

judgment, behavior, capacity to recognize reality, or ability to cope with the ordinary demands of 

life.” MCL 330.1400(g). 
-5- 

insanity. MCL 768.21a(1). Moreover, a defendant “who was under the influence of voluntarily 

consumed or injected alcohol or controlled substances at the time of his . . . alleged offense is not 

considered to have been legally insane solely because of being under the influence of the alcohol 

or controlled substances.” MCL 768.21a(2). 

 Thus, even if defense counsel had pursued the insanity defense or a defense based on 

defendant’s mental health issues, defendant has not shown that such a defense would have been 

viable. Defense counsel was not ineffective for failing to advance a meritless position, People v 

Ericksen, 288 Mich App 192, 201; 793 NW2d 120 (2010), and defense counsel’s decision not to 

introduce defendant’s mental health records is presumed to be a matter of trial strategy that this 

Court will not second-guess, Unger, 278 Mich App at 242-243; see also Rockey, 237 Mich App 

at 76. 

 Even assuming that defense counsel’s performance was deficient, defendant nevertheless 

has failed to establish a factual predicate for how these alleged errors prejudiced him. See 

Putman, 309 Mich App at 248. Defendant fails to show that any other forensic psychologist 

would have concluded differently from the first two evaluators. Additionally, defendant does not 

reference the content of any of defendant’s mental health records and their possible effect on the 

proceedings. Consequently, defendant has failed to establish a claim for ineffective assistance of 

counsel on this ground. See Vaughn, 491 Mich at 669. 

C. WALKER HEARING 

 Finally, defendant contends that defense counsel provided ineffective assistance of 

counsel when he failed to move for a Walker7

 hearing in order to challenge the admissibility of 

defendant’s incriminating statements made to police, arguing that the statements were made in 

violation of Miranda and made involuntarily. We disagree. 

 As an initial matter, “[i]n order to establish ineffective assistance of counsel for failure to 

move to suppress a custodial statement made before the Miranda warnings were given, the 

defendant must show that he or she would have prevailed on the issue.” People v Comella, 296 

Mich App 643, 652-653; 823 NW2d 138 (2012). We look at the totality of the circumstances 

when determining whether a defendant was subjected to “custodial interrogation” within the 

context of Miranda. People v Cortez, 299 Mich App 679, 691; 832 NW2d 1 (2013). 

Interrogation, for purposes of Miranda, “refers to express questioning and to any words or 

actions on the part of the police that the police should know are reasonably likely to elicit an 

incriminating response from the suspect.” People v Anderson, 209 Mich App 527, 532-533; 531 

NW2d 780 (1995). See also People v Henry (After Remand), 305 Mich App 127, 175; 854 

NW2d 114 (2014) (BOONSTRA, J., concurring) (citing Rhode Island v Innis, 446 US 291, 300-

301; 100 S Ct 1682; 64 L Ed 2d 297 (1980)). “However, the simple asking of a defendant’s 

name is not interrogation or an investigative question requiring the issuance of Miranda

 

7 People v Walker (On Rehearing), 374 Mich 331; 132 NW2d 87 (1965). 
-6- 

warnings.” People v Armendarez, 188 Mich App 61, 73; 468 NW2d 893 (1991) (citation 

omitted). 

 Defendant first challenges the admission of his statement to Huisman that he “tried to kill 

the guy” because defendant had not been given his Miranda warnings and was still under the 

influence of controlled substances and alcohol at the time. However, contrary to defendant’s 

assertion, a review of the record reveals that Huisman was simply asking defendant’s personal 

information for processing purposes. Because Huisman was not engaged in investigative 

questioning, but rather, was merely seeking defendant’s personal information, he was not 

required to give defendant Miranda warnings. See Armendarez, 188 Mich App at 73. 

Accordingly, defendant’s spontaneous statement was admissible and not barred by the Fifth 

Amendment, Anderson, 209 Mich App at 532. Defense counsel was not required to make what 

would have been a futile motion. People v Fonville, 291 Mich App 363, 384; 804 NW2d 878 

(2011). 

 Next, defendant challenges as involuntary the statements he made to Merritt after he 

received Miranda warnings. Specifically, defendant argues that his statements were involuntary 

because of “drugs, mental illness, fatigue, etc.,” and that defendant’s request to speak with 

someone from Community Mental Health should be construed as a request for an attorney that 

should have suspended the interrogation. “Whether a defendant’s statement was knowing, 

intelligent, and voluntary is a question of law, which the court must determine under the totality 

of the circumstances.” People v Tierney, 266 Mich App 687, 707; 703 NW2d 204 (2005) 

(citation omitted). “[T]he voluntariness prong cannot be resolved in [a] defendant’s favor absent 

evidence of police coercion or misconduct.” People v Howard, 226 Mich App 528, 543; 575 

NW2d 16 (1997). “Intoxication from alcohol or other substances can affect the validity of a 

waiver of Fifth Amendment rights, but is not dispositive.” Id. 

 Our review of defendant’s interview with Merritt reveals that defendant was coherent and 

alert and clearly and unambiguously expressed that he understood his rights. While defendant 

did express some hesitancy before signing the form, Merritt clearly expressed that it was 

defendant’s decision. Thus, there is no evidence of police misconduct or coercion. Accordingly, 

we hold that defendant knowing, intelligently, and voluntarily waived his Miranda rights. See 

Tierney, 266 Mich App at 707. 

 With regard to defendant’s argument regarding his request for a mental health worker, 

“after a knowing and voluntary waiver of the Miranda rights, law enforcement officers may 

continue questioning until and unless the suspect clearly requests an attorney.” Davis v United 

States, 512 US 452, 461; 114 S Ct 2350; 129 L Ed 2d 362 (1994). “[I]nvocation of the Miranda

right to counsel requires a statement that can reasonably be construed to be an expression of a 

desire for the assistance of counsel.” People v Adams, 245 Mich App 226, 237; 627 NW2d 623 

(2001). “If the accused makes a reference to an attorney and the reference is ambiguous or 

equivocal in that a reasonable police officer in light of the circumstances would have understood 

only that the accused might be invoking the right to counsel, the cessation of questioning is not 

required.” Id. at 237-238. See also Henry (After Remand), 305 Mich App at 168 (BOONSTRA, J., 

concurring). Defendant’s request for a mental health worker cannot be construed as the 

unequivocal and unambiguous request for an attorney as contemplated in Davis. Accordingly, 
-7- 

any effort by defense counsel to challenge defendant’s statements to police or to request a 

Walker hearing would have been futile. See Fonville, 291 Mich App at 384. 

 Additionally, defendant also fails to demonstrate how he was prejudiced by defense 

counsel’s alleged error. Even without the admission of his incriminating statements, the weight 

of the evidence was strong based on witness testimony and physical evidence, and defendant has 

failed to show that the outcome would have been different. Vaughn, 491 Mich at 669. 

III. WITNESS SEQUESTRATION 

 Defendant contends that he is entitled to a new trial because Finch was not properly 

sequestered during his trial. Specifically, defendant argues that by allowing the victim to hear 

the other witnesses testify before he took the stand, Finch was able to “subtly prepare” for his 

testimony. We disagree. 

 On the first day of trial, defense counsel requested that the trial court sequester all the 

witnesses before they testify. The prosecution asked the trial court to allow the officer-in-charge 

and the victim to remain in the courtroom, noting that a victim had the right to be present at trial. 

A bench conference was held, but the record for the first day is silent regarding the trial court’s 

ruling. However, on the second day of trial, the trial court addressed the sequestration issue. In 

particular, the trial court noted the existence of a constitutional provision granting a victim the 

right to be present at trial, and ruled that Finch had the right to be present during all the 

proceedings in defendant’s case. 

 We review decisions regarding the sequestration of witnesses for an abuse of discretion. 

People v Roberts, 292 Mich App 492, 502-503; 808 NW2d 290 (2011). “A trial court abuses its 

discretion when it selects an outcome that does not fall within the range of reasonable and 

principled outcomes.” People v Snyder, 301 Mich App 99, 104; 835 NW2d 608 (2013) 

(quotation marks and citation omitted). Additionally, this Court reviews de novo questions of 

constitutional law. People v Gaines, 306 Mich App 289, 304; 856 NW2d 222 (2014). However, 

a preserved, nonconstitutional error does not require reversal unless it is more probable than not 

that the error was outcome determinative. See People v Lukity, 460 Mich 484, 495-496; 596 

NW2d 607 (1999). 

 Under the Michigan Constitution, crime victims have the right to attend court 

proceedings against the accused. In relevant part, Const 1963, art 1, § 24, provides: 

(1) Crime victims, as defined by law, shall have the following rights, as provided 

by law: 

* * * 

The right to attend trial and all other court proceedings the accused has the right 

to attend. 

Additionally, under the Crime Victim’s Rights Act, MCL 780.761 provides: 
-8- 

The victim has the right to be present throughout the entire trial of the defendant, 

unless the victim is going to be called as a witness. If the victim is going to be 

called as a witness, the court may, for good cause shown, order the victim to be 

sequestered until the victim first testifies. The victim shall not be sequestered 

after he or she first testifies. [Emphasis added.] 

The sequestration of witnesses is also set out by the Michigan Rules of Evidence. However, 

addressing the issue of the sequestration of witnesses only generally, MRE 615 states: 

At the request of a party the court may order witnesses excluded so that they 

cannot hear the testimony of other witnesses, and it may make the order of its own 

motion. This rule does not authorize exclusion of (1) a party who is a natural 

person, or (2) an officer or employee of a party which is not a natural person 

designated as its representative by its attorney, or (3) a person whose presence is 

shown by a party to be essential to the presentation of the party’s cause. 

“The purposes of sequestering a witness are to prevent him from coloring his testimony to 

conform with the testimony of another, and to aid in detecting testimony that is less than candid.” 

People v Meconi, 277 Mich App 651, 654; 746 NW2d 881 (2008) (quotation marks and citations 

omitted). 

 Defendant argues that to the extent MCL 780.761 allows a trial court to sequester a crime 

victim during trial, it is inconsistent with Const 1963, art 1, § 24, and thus, unconstitutional. 

However, as both parties recognize, we may decide the issue on nonconstitutional grounds. See 

id. at 653 (stating that this Court may refrain from deciding a constitutional issue when the case 

can be decided on other grounds). 

 We are unable to determine from the record in this case whether defendant offered any 

“good cause” (under MCL 780.761) to sequester Finch until he testified. Consequently, we are 

unable to conclude that the trial court abused its discretion. Even assuming an abuse of 

discretion, however, our review of the record confirms that any such error was harmless. 

 The purpose of witness sequestration is to prevent an individual from coloring his 

testimony to conform to the testimony of another and to aid in detecting testimony that is less 

than candid. Meconi, 277 Mich App at 654. The record reflects, in comparing Finch’s testimony 

to other witness testimony, that there were several similarities. However, these similarities were 

supported by defendant’s own testimony. Specifically, defendant admitted that he and Finch 

were friends, that he lied to lure Finch into the basement, that he took a knife from another 

neighbor without his permission, and that he attacked Finch in the basement. Finch’s testimony 

was also consistent with defendant’s admissions during his recorded interview with Merritt, 

admitted at trial, in which defendant clearly confessed he had stabbed Finch and tried to kill him. 

Finch’s testimony differed from his prior statements in some ways, and defense counsel crossexamined Finch on these points in an attempt to draw out the inconsistencies of Finch’s in-court 

testimony and his prior statements to police officers. 

 In short, defendant has not demonstrated that Finch’s testimony was “colored” by other 

witnesses’ testimony. Accordingly, even if the trial court abused its discretion in allowing Finch 
-9- 

to remain in the courtroom (and assuming that Finch had no constitutional right to remain), the 

error was harmless. See Lukity, 460 Mich at 495-496. Because we are able to decide this issue 

on these nonconstitutional grounds, we decline to address the constitutionality of MCL 780.761. 

IV. SENTENCING ISSUES 

 Defendant also challenges his sentence, alleging an evidentiary error and a constitutional 

error. More specifically, defendant contends that, given the record evidence, the trial court erred 

when it scored offense variable (OV) 7 (aggravated physical abuse), and that he is entitled to a 

Crosby remand under Lockridge because the trial court impermissibly engaged in judicial factfinding when it scored the OVs. We disagree that the trial court erred in scoring OV 7, but 

agree, as the prosecution concedes, that defendant is entitled to a Crosby remand under 

Lockridge. 

 Under a preserved evidentiary challenge, “the trial court’s findings of fact are reviewed 

for clear error 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 left with a definite and firm conviction that an error occurred.” Id. (citation and 

quotation marks omitted). However, “[w]hether the facts, as found, are adequate to satisfy the 

scoring conditions, i.e., the application of the facts to the law, is a question of statutory 

interpretation, which an appellate court reviews de novo.” People v Hardy, 494 Mich 430, 438; 

835 NW2d 340 (2013). “When calculating the sentencing guidelines, a court may consider all 

record evidence, including the contents of a PSIR, plea admissions, and testimony presented at a 

preliminary examination.” McChester, 310 Mich App at 358. “[I]f the trial court clearly erred in 

finding that a preponderance of the evidence supported one or more of the OVs or otherwise 

erred in applying the facts to the OVs, [Hardy, 494 Mich at 438], and if the scoring error resulted 

in the alteration of the minimum sentence range, [a defendant] would be entitled to resentencing, 

People v Francisco, 474 Mich 82, 89; 711 NW2d 44 (2006).” People v Biddles, ___ Mich App 

___, ___; ___ NW2d ___ (2016) (Docket No. 326140); slip op at 4. 

 Additionally, we review preserved8 Lockridge issues 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). If a defendant can establish a 

Lockridge error, he is entitled a Crosby hearing on remand for further inquiry regarding whether 

the error was harmless. People v Stokes, 312 Mich App 181, 198; 877 NW2d 752 (2015). 

Moreover, “[a] Sixth Amendment challenge presents a question of constitutional law that this 

Court reviews de novo.” See Lockridge, 498 Mich at 373. 

 

8

 Although defendant was sentenced prior to the issuance of Lockridge, a defendant may 

preserve a sentencing issue for appellate review at sentencing, in a motion for resentencing, or in 

a motion to remand. MCL 769.34(10); People v Terrell ̧ 312 Mich App 450, 464 n 40; 879 

NW2d 294 (2015). Defendant raised the issue of a Lockridge error in his motion to remand. We 

therefore treat this issue as preserved. 
-10- 

 The Biddles Court provides the analytical framework that applies when both an 

evidentiary and a constitutional challenge are presented with regard to the scoring of the 

guidelines: 

When this Court is presented with an evidentiary and a constitutional challenge 

regarding the scoring of the guidelines, the evidentiary challenge must initially be 

entertained, because 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 should we entertain the constitutional challenge. [Biddles, ___ 

Mich App ___ at ____; slip op at 5.] 

 Defendant challenges the trial court’s scoring of OV 7. In relevant part, MCL 777.37(1) 

provided at the time of defendant’s sentencing:9

(a) A victim was treated with sadism, torture, excessive brutality, or conduct 

designed to substantially increase the fear and anxiety a victim suffered during the 

offense...............................................................................50 points 

(b) No victim was treated with sadism, torture, excessive brutality, or conduct 

designed to substantially increase the fear and anxiety a victim suffered during the 

offense.................................................................................0 points 

 Although, the prosecution provides two alternative grounds for why a 50-point score for 

OV 7 was proper, the trial court relied on the “excessive brutality” element when it scored OV 7. 

Thus, the issue is whether defendant treated Finch with “excessive brutality.” In making this 

determination, the focus is on defendant’s conduct. People v Hunt, 290 Mich App 317, 326; 810 

NW2d 588 (2010). MCL 777.37 does not define “excessive brutality.” Thus, “we presume that 

the Legislature intended for the words to have their ordinary meaning.” MCL 8.3a; Hardy, 494 

Mich at 440. This Court has previously defined the ordinary meaning of “excessive brutality” 

stating: “Random House Webster’s College Dictionary (2d ed., 1997) defines ‘excessive’ as 

going beyond the usual, necessary, or proper limit or degree. ‘Brutality’ is defined as the quality 

of being brutal. Id. ‘Brutal,’ in turn, is defined as savage; cruel; inhuman or harsh; severe. Id. 

Thus, excessive brutality means savagery or cruelty beyond even the ‘usual’ brutality of a 

crime.” People v Glenn, 295 Mich App 529, 533; 814 NW2d 686 (2012), rev’d on other grounds 

by Hardy, 494 Mich at 440. 

 

9

 MCL 777.37(1)(a) and (b) have since been amended by 2015 PA 137, effective January 5, 

2016, to read, respectively, that “a victim” or “no victim” “was treated with sadism, torture, 

excessive brutality or similarly egregious conduct designed to substantially increase the fear and 

anxiety a victim suffered during the offense.” (Emphasis added.) We review the trial court’s 

decision in light of the version of the statute that existed at the time of defendant’s sentencing. 

See People v Doxey, 263 Mich App 115, 122-123; 687 NW2d 360 (2004) (discussing 

retroactivity in sentencing statutes). 
-11- 

 Evidence at trial established that defendant stabbed Finch in the back with a knife, 

grabbed Finch in a chokehold, attempted to slit his throat, and stomped on his head while saying, 

“Just die.” This Court has held that a 50-point assessment of OV 7 was appropriate where the 

defendant choked the victim a number of times, cut her, dragged her, and kicked her in the head. 

People v Wilson, 265 Mich App 386, 396-398; 695 NW2d 351 (2005). By committing these 

acts, defendant engaged in conduct beyond the minimum necessary to commit AWIM. Hardy, 

494 Mich at 443. Accordingly, the trial court properly assessed 50 points for OV 7, and 

defendant is not entitled to resentencing on this ground. 

 Defendant also raises a Lockridge claim, arguing that the trial court impermissibly 

engaged in judicial fact-finding when it scored OV 7, and thus, that he is entitled to a Crosby

remand. The prosecution concedes that defendant is entitled to a Crosby remand on this basis. 

Our Supreme Court has held that Michigan’s prior mandatory sentencing guidelines scheme 

under MCL 769.34(2) constituted a violation of a defendant’s Sixth Amendment right. 

Lockridge, 498 Mich at 373. As a result, the guidelines are now advisory. Id. at 391, 399. 

 It is undisputed that defendant was sentenced before July 29, 2015, and that he is entitled 

to a Crosby remand. AWIM is a Class A offense under Michigan’s Sentencing Guidelines. 

MCL 777.16d. Defendant’s total prior record variable (PRV) score was 85 placing him in PRV 

Level F on the sentencing grid, and defendant’s total OV score was 145 points placing him in 

OV Level VI. See MCL 777.62. Because of defendant’s fourth habitual sentencing 

enhancement, the applicable minimum sentencing guidelines range was 270 months to 900 

months. Id. If defendant’s OV 7 score were removed to account for the trial court’s 

impermissible fact-finding, defendant’s OV level would be reduced to OV Level V, thereby 

reducing his minimum sentencing guidelines range to 225 months to 750 months. Id. Thus, 

defendant is entitled to a Crosby remand. See Lockridge, 498 Mich at 373-374. In sum, the trial 

court properly assessed 50 points for OV 7, but it impermissibly engaged in judicial fact-finding 

under Lockridge. Consequently, defendant is entitled to a Crosby remand. 

 We affirm defendant’s conviction, but remand for further proceedings consistent with this 

opinion. We do not retain jurisdiction. 

/s/ Michael J. Talbot 

/s/ Christopher M. Murray 

/s/ Mark T. Boonstra