If this opinion indicates that it is “FOR PUBLICATION,” it is subject to 

revision until final publication in the Michigan Appeals Reports.

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

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

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

UNPUBLISHED

October 15, 2019

v No. 345119

Kent Circuit Court

HENRY RICHARD HARPER, LC No. 12-006969-FC

Defendant-Appellant.

Before: MARKEY, P.J., and BORRELLO and BOONSTRA, JJ.

PER CURIAM.

A jury convicted defendant of first-degree criminal sexual conduct (CSC-I) (victim 

under 13, defendant 17 years of age or older), MCL 750.520b(2)(b), and third-degree criminal 

sexual conduct (CSC-III) (victim 13 to 15), MCL 750.520d. For reasons that we will explain, 

the trial court sentenced defendant on three separate occasions. At issue on this appeal is the trial 

court’s sentencing of defendant at the third sentencing (i.e., the second resentencing) proceeding, 

as a third-offense habitual offender, MCL 769.11, to 28 to 50 years’ imprisonment for CSC-I to 

be served concurrently with 20 to 30 years’ imprisonment for CSC-III, with credit for 2,209 days 

served. We affirm.

I. PERTINENT FACTS AND PROCEDURAL HISTORY

This case has been before us on two earlier appeals. We summarized the facts underlying 

defendant’s convictions in our first unpublished opinion:

1

The victims in this case are half-brothers, D.H. and D.A. At the time of 

the sexual assaults, defendant was 40 years old, D.A. was 14 years old, and D.H. 

was 12 years old. Defendant leased property to the victim’s family and, at some 

 1 People v Harper, unpublished per curiam opinion of the Court of Appeals, issued June 11,

2015 (Docket No. 319942) (Harper I) at 1, vacated in part and remanded to the trial court by 

People v Harper, 498 Mich 968 (2016).
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point, defendant obtained approval from the boys’ mother to have D.A. and D.H. 

help him at his home. D.A. and D.H. went to defendant’s house separately, at 

different times, ostensibly to help him. According to D.A., when he went to 

defendant’s house, defendant forced him to urinate in defendant’s mouth, and the 

next morning, when D.A. awoke at defendant’s house, defendant had D.A.’s penis 

in his mouth. When D.H. subsequently went to defendant’s house, he was also 

forced to urinate in defendant’s mouth. D.H. and D.A. told their mother and 

stepfather about the incidents with defendant, and their mother called the police.

At issue on defendant’s first appeal was the trial court’s original sentencing of defendant,

as a fourth-offense habitual offender, MCL 769.12, to prison terms of 25 to 50 years for the 

CSC-I conviction and 20 to 50 years for the CSC-III conviction. The trial court ordered the 

sentences to run consecutively, in what it believed complied with MCL 750.520b(3), because it 

found that the offenses arose from the same transaction. Defendant appealed his sentences and 

conviction, and this Court held that the consecutive sentences imposed by the trial court were 

invalid because the offenses did not arise from the same transaction, and that defendant 

accordingly was entitled to resentencing. The prosecution sought leave to appeal this Court’s 

decision, and our Supreme Court, in lieu of granting leave, vacated the portion of this Court’s 

opinion holding that the two assaults were not part of the same transaction. People v Harper, 

498 Mich 968 (2016). It agreed with this Court that the trial court had failed to identify specific 

evidence to support consecutive sentencing and remanded to the trial court to either provide a 

basis for its conclusion that the two offenses arose from the same transaction or to impose 

concurrent sentences. Id.

On remand, the trial court issued an opinion and order justifying its consecutive 

sentencing and resentenced defendant to 221⁄2 years to 50 years for CSC-I to be served 

consecutively to 171⁄2 years to 30 years for CSC-III. Defendant again appealed, arguing that 

consecutive sentencing was improper because the offenses did not arise from the same 

transaction. In our second opinion, another panel of this Court concluded that the consecutive 

sentencing was not lawful because, although the offenses occurred on the same day, the assaults 

did not arise from the same transaction; therefore, consecutive sentencing was not authorized by 

statute.

2

 We vacated the consecutive sentences and remanded for resentencing consistent with 

our opinion.

At the second resentencing, the trial court assessed defendant an additional 15 points for 

Offense Variable (OV) 8 and an additional 25 points for OV 12. These modifications increased 

defendant’s OV scores for each offense from 35 to 75 points. As a result, the minimum 

sentencing guidelines for defendant’s CSC-I conviction increased from a range of 108 to 270 

months, to a range of 135 to 337 months; the guidelines for his CSC-III conviction increased

from a range of 84 to 210 months, to a range of 99 to 240 months. The trial court resentenced 

defendant as described.

 2 People v Harper, unpublished per curiam opinion of the Court of Appeals, issued March 15, 

2018 (Docket No. 336201) (Harper II).
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This appeal followed.

II. FULL RESENTENCING

Defendant argues that the trial court erred by conducting a full resentencing on remand, 

rather than merely correcting defendant’s judgment of sentence to reflect that his sentences were 

concurrent rather than consecutive. We disagree. We review de novo as a question of law the 

scope of a trial court’s powers on remand. Hill v City of Warren (On Remand), 276 Mich App 

299, 305; 740 NW2d 706 (2007).

When a sentence is vacated and remanded for resentencing, the case generally is “before 

the trial court in a presentence posture, allowing for objection to any part of the new sentence.” 

People v Rosenburg, 477 Mich 1076; 729 NW2d 222 (2007). “The power of the lower court on 

remand is to take such action as law and justice may require so long as it is not inconsistent with 

the judgment of the appellate court.” People v Fisher, 449 Mich 441, 446-447; 537 NW2d 577 

(1995) (quotation marks and citation omitted). However, “[w]hen an appellate court remands a 

case with specific instructions, it is improper for a lower court to exceed the scope of the order.” 

People v Russell, 297 Mich App 707, 714; 825 NW2d 623 (2012).

In People v Thomas, 223 Mich App 9, 10-11; 566 NW2d 13 (1997), the defendant 

appealed after the trial court, realizing it had mistakenly imposed concurrent sentences when 

consecutive sentences were required by statute, sua sponte corrected its mistake without 

conducting a hearing. The defendant argued, and this Court agreed, that a resentencing hearing 

was necessary. Id. This Court stated: “It is axiomatic that conversion of concurrent sentences to 

consecutive sentences will have a significant effect on the length of time a defendant will be 

incarcerated. At sentencing, the court has the benefit of a presentence report to guide it in its 

exercise of sentencing discretion.” Id. at 16. We noted that the trial court would have all the 

parties’ information when fashioning a sentence and would be able to consider the effects of the 

consecutive sentencing in conjunction with the other material: “Given the significant effect of 

converting a prisoner’s concurrent sentences to consecutive sentences, the defendant, as well as 

the prosecutor, should have the opportunity to inform the court of its position on this 

situation . . . .” Id.

By contrast, in People v Alexander, 234 Mich App 665; 599 NW2d 749 (1999), this 

Court held that a full resentencing was not required because “the due process concerns addressed 

by the full resentencing in Thomas” were not present. In Alexander, the defendant had 

committed a crime in Michigan after escaping from a prison in Louisiana. The trial court 

imposed consecutive sentencing under the mistaken belief that it was empowered (and required), 

under MCL 768.7a, to order that the defendant’s Michigan prison sentence be served 

consecutively to his Louisiana prison sentences. Id. at 678.3 This Court distinguished Thomas

 3 MCL 768.7a(1) permits (and indeed requires) the imposition of a consecutive sentence for a 

defendant who commits a crime while incarcerated in Michigan or after having escaped from a 

penal or reformatory institution in Michigan. In Alexander, the defendant committed the 

offenses for which he was convicted in Michigan after escaping from a Louisiana prison. 
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by noting that the defendant’s sentences (in Alexander) only required amendment to correct the 

trial court’s mistaken belief about the applicability of MCL 768.7a. Moreover, because the 

correction of the error would result in reduced punishment and was not (as in Thomas) carried 

out without notice or a hearing, we held that it was “extremely unlikely” that the trial court in 

that case would impose a shorter sentence on the defendant if he was given a full resentencing, 

and that “a full resentencing would be unnecessary and would waste the resources of the courts.” 

Id. at 678.4

We conclude that Alexander does not compel us to hold that the trial court erred by 

conducting a full resentencing. First, although this Court in Alexander declined, in the exercise 

of its discretion, to order full resentencing on remand, it did not prohibit doing so whenever a 

defendant’s sentences are corrected from consecutive to concurrent. Further, the trial court in 

Alexander only sentenced the defendant on one charge, but mistakenly believed it could order 

that the start of the defendant’s sentence on that charge could be delayed until he had served his 

Louisiana prison time. By contrast, the trial court here heard arguments and concluded that 

defendant could be sentenced to consecutive sentences on two CSC charges based on its 

conclusion that they arose from the same transaction. That belief may well have informed the 

trial court’s choice of sentence length for each offense. See Thomas, 223 Mich App at 16 

(“When the court is aware that consecutive sentencing is required, it is able to consider the effect 

of consecutive sentencing in conjunction with this other information and remarks when 

fashioning an appropriate sentence.”). The trial court’s belief was based on “a misconception of 

the law” for which “the remedy traditionally employed by this Court” is resentencing. Id. at 12. 

We believe that in this case, like in Thomas, “the defendant, as well as the prosecutor,” should 

have been given the opportunity to inform the trial court of “any circumstances they believe the 

trial court should consider in imposing sentence.” Id. at 16.

Further, we also note that in defendant’s last appeal before this Court, we vacated 

defendant’s sentences and ordered resentencing without specific instructions or prohibitions. A 

vacated sentence is one that has been cancelled, nullified, made void, or invalidated. See Black’s 

Law Dictionary (9th ed), 1688. Therefore, on remand, there were no existing valid sentences to 

consider; instead, this Court returned the case to the trial court in a presentence posture, allowing 

the trial court to consider every aspect of defendant’s sentence de novo.5 See Rosenburg, 477 

Mich 1076. Although the trial court was prohibited from taking action inconsistent with this 

Court’s previous opinion, see Fisher, 449 Mich at 446-447, that opinion did not address whether 

to hold a full resentencing hearing or the assessment of points for various OVs. Therefore, the 

 

Therefore, the statute authorizing and requiring consecutive sentencing did not apply. 

Alexander, 234 Mich App at 669.

4 We note that, unlike in this case, the defendant in Alexander was seeking a full resentencing.

5 By contrast, in defendant’s initial appeal, we never declared defendant’s sentences “vacated” 

but instead noted that “because the consecutive sentencing in this case was not authorized by

statute and we cannot discern from the record whether defendant was appropriately sentenced as 

a fourth-habitual offender, we remand for resentencing,” and we ordered the trial court to address 

specific issues on remand. Harper I, unpub op at 1, 4-6.
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trial court’s authority on remand extended to allowing a full rehearing regarding the sentencing 

guidelines, and the trial court did not take action inconsistent with this Court’s opinion. See

Rosenburg, 477 Mich 1076. We accordingly hold that defendant is not entitled to relief on this 

issue.

Defendant also argues that People v Bailey, 310 Mich App 703, 726 n 3; 873 NW2d 855 

(2015), required the trial court to specify its grounds for imposing longer concurrent sentences 

after remand and that it failed to do so in this case. However, the record reflects that the trial 

court did, in fact, state grounds for imposing longer concurrent sentences after remand, including 

the increased scores for OV 8 and OV 12 and the increased minimum sentence ranges 

recommended by the sentencing guidelines.

II. OV SCORING

Defendant next argues that the prosecution vindictively challenged the scoring of OVs 8 

and 12 because defendant was successful in establishing his statutory right to concurrent 

sentencing, and that the trial court improperly assessed defendant 25 points for OV 12. We 

disagree.

Defendant failed to raise the issue of prosecutorial vindictiveness before the trial court, 

leaving this issue unpreserved. Unpreserved claims of prosecutorial misconduct are reviewed for 

plain error affecting substantial rights. People v Parker, 288 Mich App 500, 509; 795 NW2d 

596 (2010).

Punishing a person for doing what the law plainly allows him to do is a due-process 

violation of the most basic sort. People v Ryan, 451 Mich 30, 35-36; 545 NW2d 612 (1996). 

“Prosecutorial vindictiveness” refers to the prosecution’s punishment of a person for asserting a 

statutory or constitutional right in violation of due process. Id. at 36. There are two types of 

prosecutorial vindictiveness, presumed and actual. Id. Actual vindictiveness is found only when 

“objective evidence of an expressed hostility or threat suggests that the defendant was 

deliberately penalized for his exercise of a procedural, statutory, or constitutional right,” and it is 

the defendant’s burden to affirmatively establish actual vindictiveness. Id. Presumptive 

prosecutorial vindictiveness has been found in cases where action detrimental to the defendant 

was taken after the exercise of a legal right despite a lack of explicit threats or hostility. United 

States v Goodwin, 457 US 368, 373; 102 S Ct 2485; 73 L Ed 2d 74 (1982). To prove 

presumptive prosecutorial vindictiveness, a defendant must show a reasonable likelihood of 

vindictiveness. Id.

In this case, defendant does not argue that the prosecution overtly threatened to penalize 

him for asserting his rights in appealing his sentences. See Ryan, 451 Mich at 36. Further, we 

conclude on this record that there is not a reasonable likelihood that the prosecution’s actions in 

requesting that the trial court score OVs 8 and 12 on resentencing were intended to punish the 

defendant for asserting his rights. There is no evidence that defendant was punished for asserting 

his statutory right to concurrent sentencing. Defendant has made no legal or factual argument as 

to why the prosecution’s challenge to the scoring of the OVs at the second resentencing was 

vindictive, other than pointing out that he in fact received longer (although concurrent) sentences 

on resentencing based, at least in part, on the prosecution’s assertion that OVs 8 and 12 had been 

incorrectly scored. The record reflects that the prosecution admitted that its failure to argue for 
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the assessment of points for OV 8 and OV 12 was an oversight at the prior sentencings, which 

failure the prosecution now wished to correct. We conclude that defendant has failed to carry his 

burden of demonstrating prosecutorial vindictiveness and, therefore, that the trial court did not 

plainly err by altering defendant’s scores for OVs 8 and 12. See Parker, 288 Mich App at 509.

Finally, defendant argues that he was improperly assessed 25 points for OV 12.

6

 Again, 

we disagree. Defendant objected to the trial court’s assessment at resentencing on the ground 

that the purported “contemporaneous felonious acts” were in fact subsumed by the charged 

offenses; this issue is therefore preserved.

For preserved sentencing guideline scoring errors, “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. (quotation 

marks and citation omitted). Preponderance of the evidence means that the evidence, “when 

weighed with that opposed to it, has more convincing force and the greater probability of truth.” 

People v Cross, 281 Mich App 737, 740; 760 NW2d 314 (2008). However, “[w]hether the facts, 

as found, are adequate to satisfy the scoring conditions prescribed by statute, 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). A scoring error that 

affects the guidelines range requires resentencing. People v Francisco, 474 Mich 82, 92; 711 

NW2d 44 (2006).

MCL 777.42 governs OV 12, and provides in relevant part:

(1) Offense variable 12 is contemporaneous felonious criminal acts. Score 

offense variable 12 by determining which of the following apply and by assigning 

the number of points attributable to the one that has the highest number of points:

(a) Three or more contemporaneous felonious criminal acts involving 

crimes against a person were committed .................................................25 points

* * *

(d) One contemporaneous felonious criminal act involving a crime against 

a person was committed ............................................................................5 points

A felonious criminal act is contemporaneous if the act occurred within 24 hours of the 

sentencing offense and it has not resulted, and will not result, in a separate conviction. 

MCL 777.42(2)(a); People v Light, 290 Mich App 717, 722; 803 NW2d 720 (2010). It must be a 

separate act from the behavior that established the sentencing offense. Light, 290 Mich App at 

723.

 6 Defendant makes no challenge to the validity of the trial court’s assessment of points for OV 8.
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Defendant was assigned 25 points for committing “three or more contemporaneous 

felonious criminal acts,” but he argues that two of the three acts that were counted toward the 

assignment of points were subsumed in the charges of which he was convicted and that,

therefore, they could not also be counted in scoring OV 12. Specifically, defendant argues, the 

acts of accosting or soliciting each minor victim could not be used to assess points under OV 12 

because they were subsumed under the completed CSC-I and CSC-III. Defendant contends that 

he should have at most been assessed 5 points for one contemporaneous felonious criminal act.

We are not persuaded. Defendant’s CSC-I and CSC-III convictions did not include the 

additional acts that defendant took to accost, entice, or solicit his victims, but were based solely 

upon his sexual penetration of the victims and their ages. See MCL 750.520b(2)(b); 750.520d. 

The record reflects that defendant also lured the victims to his home under the guise of asking 

their parents if the victims could work around his house in exchange for money and forced them 

to submit to multiple acts of gross indecency (including urinating in his mouth) in addition to the 

sexual penetrations. Further, the record reflects that defendant was not charged with at least one 

additional sexual penetration (which fact defendant does not challenge on appeal).

The additional acts performed by defendant in accosting, enticing, or soliciting minors for 

immoral purposes and at least one uncharged act of sexual penetration amply support the trial 

court’s assessment of 25 points for OV 12. Three or more contemporaneous felonious criminal 

acts involving crimes against a person were committed that were separate from the acts 

establishing the sentencing offenses. See Light, 290 Mich App at 723. Accordingly, the trial 

court did not err by assessing defendant 25 points for OV 12. MCL 777.42(1)(a); See 

McChester, 310 Mich App at 358.

Affirmed.

/s/ Jane E. Markey

/s/ Stephen L. Borrello

/s/ Mark T. Boonstra