-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Plaintiff-Appellee, UNPUBLISHED March 21, 2017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: T ALBOT , C.J., and M URRAY and B OONSTRA , JJ.

P ER C URIAM

. Defendant appeals by right his conviction, following a jury tr ial, 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 c onviction. We affirm defendant’s conviction, but remand for further proceedings purs uant 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, Jer emy Finch, in the basement of the Silver Pines Apartment Complex in Port Huron in 2012. D efendant 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. D efendant then grabbed the utility knife Finch used for work and attempted to slit his thr oat. Defendant stomped on Finch’s head and said, “Just die.” Fin ch pretended to be dead in order to get defendant to stop.

Defendant was found by police in the apartment complex basemen t, 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 Polic e Officer Dennis Huisman took him to the Port Huron Police Department for processing. W hile there, Huisman began asking defendant questions to el icit 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 Miranda 1 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 D etective Keith Merritt that he had consumed alcohol, Vicodin, and crack cocaine before attacking F inch, 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 te lling Merritt that he had stabbed Finch. The prosecution also played a clip from defendant’s int erview, during which defendant admitted to stabbing Finch.

Defendant was convicted and sent enced as described above. Def endant filed a claim of appeal nearly two years later; this Court eventually accepted d efendant’s delayed application for leave to appeal. 2 Defendant also filed a motion to remand with this Court on Ja nuary 4, 2016, seeking a Ginther 3 hearing in the trial court to further develop the factual reco rd for his ineffective assistance of counsel claim and for a Crosby 4 hearing in light of Lockridge because the trial court had engaged in impermissible judicial fact-find ing. 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 clai m 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 f or 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 questionof 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

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 sufficien t 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 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, a defendant must show: (1) that counsel’s performance fell below an objective standard of reasonableness under prevai ling professional norms, and (2) that there is a reasonable proba bility 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 omi tted). 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 d efense counsel provided ineffect ive assistance of counsel when he advised defendant to waive his right to a preliminary e xamination. 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 ex amination. “[T]he primary function of a preliminary examinat ion is to determine if a crim e 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). T he jury found defendant guilty beyond a reasonable doubt of AWIM, which demonstrates th at 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 fo r a competency examination is untenable. As discussed earlier, the purpose of the preliminar y 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 sta nd trial, MCL 330.2020(1), and it is up to the court, defense counsel, or the prosecution to rais e the issue of incompetence, MCL 330.2024. The issue of defendant’s competence to stand tri al 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 det ermine 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 establ ish that defense counsel was ineffective for advising him to waive the p reliminary examination.

B. TRIAL STRATEGY

Next, defendant contends that d efense counsel provided ineffec tive 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 exa cerbated by drug use.” More specifically, defendant argues that defense counsel failed to o btain an expert who could support an insanity defense, failed to r equest a competency evaluation, and failed to introduce defendant’s mental health records. We disagree.

“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). 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 no t substitute [its] judgment for that of counsel on matters of tr ial strategy, nor will [this Co urt] 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 co ncert 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 asserti on, defense counsel moved on Ap ril 4, 2013 for the appointment of an independent expert to conduct a competency ev aluation of defendant. Ultimately, the trial court granted defendant’s motion to retai n an independent expert. At trial, defense counsel stated on the record that defendant had been in dependently 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 pur suing the insanity defense in light of those findings. Presumably, Dr. Abrambsky concluded t hat defendant was competent to stand trial.

Based on the record evidence, defense counsel reasonably deter mined, after adequate preparation and investigation, tha t an insanity de fense would n ot be viable. See Grant , 470 Mich at 486. In order to establish an insanity defense, the defenda nt must show that, as the result of a mental illness 6 or mental retardation, he lacked the “substantial capacity eit her 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 co nstitute the defense of legal

6 Mental illness is defined as “a substantial disorder of though t or mood that significantly impairs judgment, behavior, capacity to recognize reality, or ability t o cope with the ordinary demands of life.” MCL 330.1400(g).-5- insanity. MCL 768.21a(1). Moreover, a defendant “who was unde r the influence of voluntarily consumed or injected alcohol or controlled substances at the ti me of his . . . alle ged offense is not considered to have been legally insane solely because of being under the influence of the alcohol or controlled substa nces.” 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 adv ance a meritless position, People v Ericksen , 288 Mich App 192, 201; 793 NW2d 120 (2010), and defense couns el’s decision not to introduce defendant’s mental health records is presumed to be amatter 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 alleg ed 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, defe ndant does not reference the content of any of d efendant’s mental health recor ds 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 inef fective assistance of counsel when he failed to move for a Walker 7 hearing in order to challenge the admissibility of defendant’s incriminating statements made to police, arguing th at the statements were made in violation of Miranda and made involuntarily. We disagree.

As an initial matter, “[i]n order to establish ineffective ass istance 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 tot ality of the circumstances when determining whether a defendant was subjected to “custodia l 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 polic e that the polic e should know a re 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) (B OONSTRA , J., concurring ) (citing Rhode Island v Innis , 446 US 291, 300- 301; 100 S Ct 1682; 64 L Ed 2d 297 (1980)). “However, the simp le asking of a defendant’s name is not interrogation or an investigative question requirin g 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 H uisman 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. Ho wever, contrary to defendant’s assertion, a review of the record reveals that Huisman was simp ly asking defendant’s personal information for processing purposes. Because Huisman was not e ngaged in investigative questioning, but rather, was mer ely seeking defendant’s persona l information, he was not required to give defendant Miranda warnings. See Armendarez , 188 Mich App at 73. Accordingly, defendant’s spontaneo us statement was admissible a nd not barred by the Fifth Amendment, Anderson , 209 Mich App at 532. Defense counsel was not required to mak e 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 ma de to Merritt after he received Miranda warnings. Specifically, defendant argues that his statements were involuntary because of “drugs, mental illness, fatigue, etc.,” and that def endant’s request to speak with someone from Community Mental Health should be construed as a r equest 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 cour t must determine under the totality of the circumstances.” People v Tierney , 266 Mich App 687, 707; 703 NW2d 204 (2005) (citation omitted). “[T]he vol untariness prong c annot be resol ved 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 ri ghts, but is not dispositive.” Id

.
Our review of defendant’s interview with Merritt reveals that defendant was coherent and alert and clearly and unambiguous ly expressed that he understoo d his rights. While defendant did express some hesitancy before signing the form, Merritt cle arly expressed that it was defendant’s decision. Thus, there is no evidence of police mis conduct 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 reque sts 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 co nstrued 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 c ircumstances would have understood only that the accused might be invoking the right to counsel, t he cessation of questioning is not required.” Id . at 237-238. See also Henry (After Remand) , 305 Mich App at 168 (B OONSTRA , J., concurring ). Defendant’s request for a men tal health worker cannot be co nstrued as the unequivocal and unambiguous request for an attorney as contempl ated in Davis . Accordingly,-7- any effort by defense counsel to challenge defendant’s statemen ts 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 p rejudiced by defense counsel’s alleged error. Even without the admission of his inc riminating statements, the weight of the evidence was strong base d on witness testimony and physi cal evidence, and defendant has failed to show that the outco me 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, defe nse counsel requested that the trial court sequester all the witnesses before they testify. T he 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 i s silent regarding the trial court’s ruling. However, on the second d ay of trial, the trial court a ddressed the sequestration issue. In particular, the trial court not ed the existence of a constituti onal provision granting a victim the right to be present at trial, and ruled that Finch had the righ t to be present during all the proceedings in defendant’s case.

We review decisions regarding the sequestration of witnesses f or an abuse of discretion. People v Roberts , 292 Mich App 492, 502-503; 808 NW2d 290 (2011). “A trial cou rt 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 Cou rt 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 a ccused has the right to attend.

Additionally, under the Crime Vi ctim’s Rights Act, MCL 780.761 provides:-8- The victim has the right to be present throughout the entire tr ial 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 tes tifies. [Emphasis added.]

The sequestration of witnesses is also set out by the Michigan Rules of Evidence. However, addressing the issue of the se questration of witnesses only gen erally, MRE 615 states:

At the request of a party the court may order witnesses exclude d so that they cannot hear the testimony of other witnesses, and it may make t he order of its own motion. This rule does not autho rize 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 pers on whose presence is shown by a party to be essential t o the presentation of the par ty’s cause.

“The purposes of sequestering a witness are to prevent him from coloring his testimony to conform with the testimony of a nother, 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 a nd citations omitted).

Defendant argues that to the extent MCL 780.761 allows a trial court to sequester a crime victim during trial, it is i nconsistent 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 c onstitutional issue when the case can be decided on other grounds).

We are unable to determine from the record in this case whethe r defendant offered any “good cause” (under MCL 780.761) to sequester Finch until he te stified. Consequently, we are unable to conclude that the tria l 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 individu al 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 similaritie s. However, these similarities were supported by defendant’s own tes timony. Specifically, defendan t admitted that he and Finch were friends, that he lied to lure Finch into the basement, tha t 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 reco rded 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 wa ys, and defense counsel crossexamined Finch on these points in an attempt to draw out the in consistencies of Finch’s in-court testimony and his prior statem ents to police officers.

In short, defendant has not demonstrated that Finch’s testimon y was “colored” by other witnesses’ testimony. Accordingly, even if the trial court abu sed its discretion in allowing Finch-9- to remain in the courtroom (and assuming that Finch had no cons titutional right to remain), the error was harmless. See Lukity , 460 Mich at 495-496. Because we are able to decide this issu e on these nonconstitutional grounds, we decline to address the c onstitutionality of MCL 780.761.

IV. SENTENCING ISSUES

Defendant also challenges his sentence, alleging an evidentiar y error and a constitutional error. More specifically, defendant contends that, given the r ecord evidence, the trial court erred when it scored offense variable (OV) 7 (aggravated physical abu se), and that he is entitled to a Crosby remand under Lockridge because the trial court impermissibly engaged in judicial fact

finding when it scored the OVs. We disagree that the trial cou rt 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 fi ndings 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 pr esent when the reviewing court is left with a definite a nd firm conviction that an error occurred.” Id . (citation and quotation marks omitted). However, “[w]hether the facts, as fo und, are adequate to satisfy the scoring conditions, i.e., the application of the facts to the l aw, is a question of statutory interpretation, which an appe llate court reviews de novo.” People v Hardy , 494 Mich 430, 438; 835 NW2d 340 (2013). “When calculating the sentencing guidelin es, a court may consider all record evidence, including the contents of a PSIR, plea admissi ons, and testimony presented at a preliminary examination.” McChester , 310 Mich App at 358. “[I]f the trial court cl early erred in finding that a preponderance of t he evidence supported one or m ore 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 preserved 8 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 c an 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 ch allenge 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 r egard to the scoring of the guidelines:

When this Court is presented with an evidentiary and a constitutional challenge regarding the scoring of the gui delines, the evidentiary challe nge 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 protec tions of Lockridge on resentencing. And if an evid entiary challenge does not suc ceed, then and only then should we ent ertain the constitutional chall enge. [ Biddles , ___ Mich App ___ at ____; slip op at 5.]

Defendant challenges the trial court’s scoring of OV 7. In re levant part, MCL 777.37(1) provided at the time of d efendant’s sentencing: 9

(a) A victim was treated with sadism, torture, excessive brutal ity, or conduct designed to substantially increas e the fear and a nxiety a victi m suffered during the offense...............................................................................50 points

(b) No victim was treated with sadism, torture, excessive bruta lity, or conduct designed to substantially increas e the fear and a nxiety a victi m suffered during the offense.................................................................................0 points

Although, the prosecution provide s two alternative grounds for why a 50-point score for OV 7 was proper, the trial court relied on the “excessive bruta lity” element when it scored OV 7. Thus, the issue is whether defendant treated Finch with “excess ive 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 brutali ty.” Thus, “we presume that the Legislature intended for the words to have their ordinary m eaning.” MCL 8.3a; Hardy , 494 Mich at 440. This Court has prev iously defined the ordinary me aning 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 h arsh; 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 gr ounds by Hardy , 494 Mich at 440.

9 MCL 777.37(1)(a) and (b) have sin ce been amended by 2015 PA 13 7, effective January 5, 2016, to read, respectively, that “a victim” or “no victim” “wa s treated with sadism, torture, excessive brutality or similarly egregious conduct designed to substant ially 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 committin g these acts, defendant engaged in conduct beyond the minimum necessary to commit AWIM. Hardy
, 494 Mich at 443. Accordingly, the trial court properly assesse d 50 points for OV 7, and defendant is not entitled t o resentencing on this ground.

Defendant also raises a Lockridge claim, arguing that the trial court impermissibly engaged in judicial fact-finding wh en 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 sent encing guidelines scheme under MCL 769.34(2) constituted a violation of a defendant’s Si xth Amendment right. Lockridge , 498 Mich at 373. As a result, t he 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) sco re 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 ha bitual 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 tr ial court’s impermissible fact-finding, defendant’s OV level would be reduc ed 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 impermissibl y engaged in judicial fact-finding under Lockridge . Consequently, defendant is entitled to a Crosby remand.

We affirm defendant’s convict ion, but remand for further proce edings consistent with this opinion. We do not retain jurisdiction.

/s/ Michael J. Talbot /s/ Christopher M. Murray /s/ Mark T. Boonstra