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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED January 27, 2015

v No. 318827 Saginaw Circuit Court ALEXANDER LEE TAYLOR, LC No. 11-035992-FC

Defendant-Appellant.

Before: M URPHY , P.J., and M ETER and S ERVITTO , JJ.

P ER C URIAM

.

Following a jury trial, defenda nt was convicted of assault wit h intent to commit murder (AWIM), MCL 750.83, and carrying a dangerous weapon with unlawf ul intent, MCL 750.226. The trial court sentenced defendant as an habitual offender, th ird offense, MCL 769.11, to 25 to 45 years’ imprisonment for the AWIM conviction and 6 to 10 year s’ imprisonment for the dangerous-weapon conviction. In an earlier appeal, this Court vacated the dangerous-weapon conviction and remanded for resentencing in order for the court to contemplate any potential alteration to the guidelines scoring in light of the vacated co nviction. People v Taylor

, unpublished opinion per curiam of the Court of Appeals, issued July 11, 2013 (Docket No. 310729). On remand, defendant was again sentenced to 25 to 45 years’ imprisonment for the AWIM conviction. The new judgmen t of sentence indicated that d efendant had 913 days of jail credit, and it still included the dangerous-weapon conviction. Subsequently, after the filing of defendant’s appellate brief and pursuant to a stipulation, the trial court amended this judgment, such that it now reflected 950 days of jail credit and omitted the dangerous-weapon conviction that had been vacated by this Court. 1 Defendant now appeals the AWIM sentence, arguing that

1 This amended judgment of senten ce is not included in the lower court record tha t was conveyed

to us because it was entered afte r appellate proceedings were w ell underway. It is attached to the prosecutor’s response brief on appeal, and defendant has not gi ven any indication that it lacks authenticity. Accordingly, we sua sponte expand the record to include the newly amended judgment of sentence. One of defendant’s arguments on appeal i s that the judgment of sentence contained clerical errors, given his entitlement to 950 instead of 913 days of jail credit and the

failure to delete the vacated d angerous-weapon conviction. In light of the stipulated amended judgment that corrected these errors consistent with defendant’ s wishes, the issue has now been

rendered moot.-2- offense variable (OV) 6, MCL 777.36, was incorrectly scored at 50 points instead of 25 points.

We affirm.

In the previous opinion, this C ourt summarized the underlying facts as follows:

Defendant lived at Beacon Harbor House, an adult foster care h ome for people with mental limitations. On February 3, 2011, defendant entered a room and repeatedly stabbed a staff member who was giving medication s to another

resident. As a result of the att ack, the victim lost 80 percent of his blood, his lung collapsed, and he had to undergo two emergency surgeries. The p olice arrested defendant later that day at his mother’s house, and defendant g ave two incriminating statements that were recorded and played for the jury. [ Taylor , slip op at 1.]

In People v Hardy , 494 Mich 430, 438; 835 NW2d 340 (2013), our Supreme Court provided clarification with respe ct to the approp riate standard s of review on issues concerning the scoring of the s entencing guidelines:

Under the sentencing guidelines, the circuit court’s factual d eterminations are reviewed for clear error and must be supported by a prepond erance of the evidence. Whether 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 interpret ation, which an appellate court reviews de novo.

Pursuant to MCL 777.36(1)(a), 50 points for OV 6 must be score d by the trial court under any one of the following three circumstances:

The offender had premeditated intent to kill or the killing was committed while committing or attempting to commit arson, criminal sexual conduct in the first or third degree, child abuse in the first degree, a major controlled substance offense, robbery, breaking and entering of a dwelling, home inv asion in the first or second degree, larceny of any kind, extortion, or kidnapping or the killing was the murder of a peace officer or a corrections officer. [Empha sis added.]

Given that the last two circumstances, i.e., the felony-murder situation and the murder of an officer, require an actual kil ling, the only potentially app licable prong of subsection (1)(a) as to our case concerns an offender who had a “had premeditated in tent to kill.” We note that defendant does not argue that th e premeditation prong requires an actual killing. And under MCL 777.22(1), a trial court must “ [s]core offense variable[] . . . 6 for homicide, attempted homicide, conspiracy or solicitation to commit a homicide, or assault with intent to commit

murder .” (Emphasis added.) At resentencing, defendant’s counsel obj ected to the scoring of 50 points for OV 6, arguing that only 25 points should be scored b ecause defendant did not have a premeditated intent to kill. 2 Twenty-five points is the approp riate score when a 50-point s core is

2 We note that OV 6 had been scored at 50 points for purposes of the original sentencing, that defendant expressly agreed to that score, and that defendant di d not challenge the 50-point score-3- inapplicable and “[t]he offender had unpremeditated intent to k ill, the intent to do great bodily harm, or created a very high risk of death or great bodily harm knowing that death or great bodily harm was the probable result.” MCL 777.36(1)(b). 3 In ruling that 50 points were properly scored under OV 6, the trial court observed:

Here the primary issue, I think, is the premeditated intent to kill. I will note that this, arguably, could be an — an intent to kill that was based on a larceny, but — what we did have here certainly was something th at appeared to be out of the blue, but, first of all, the defendant has an ass aultive history, I would note that. That’s clearly reflect ed in the Presentence Report.

The size of the knife, certainly — maybe it was small, but it certainly very nearly killed this individual, and part of the reason was that he, the defendant, stabbed the victim repeatedly. There was a total of 10 puncture wounds or cuts that were noted during the course of the trial. That size of a knife might be all he had access to. He certainly wasn’t supposed to have that kind o f a weapon or object in his possession in that home where he was living.

I would also note that, based on the jury verdict, which was a verdict of guilty for assault with intent to commit murder, that’s a basis or a support for the score. But in addition, there is the trial testimony, there’s t he Presentence Report, and that gives an indication of the statement he gave to the po lice, which is also noted in the transcript, although not directly, because there w ere tapes played at trial. But he — if you want to look at something in writing, th e Presentence Report refers to the statement that he gave to the officers, an d that is noted on page three of the Presentence Investigation Report [PSIR]. The defendant was [M]irandized, he agreed to speak with the officers. He stated h e was with [the victim] in the medication room. He stabbed him a couple times i n the neck, took keys on the table, took the van to his mother’s. He stated he d ecided to do it the day prior, and — and that it was going to be someone that was w orking in the home, not necessarily [the victim ]. He did it because he wanted to be someone in

life. He stated that he — he ha d felt it was necessary to do th is, as life was tough and he might have to put someone out. Sergeant Pfau asked the d efendant if he perceived this as wrong. He replied that he did.

in the initial appeal. Regardless of any possible waiver issue or concern that this particular scoring matter exceeded the scope of the remand directive, we s hall address the substance of defendant’s argument.

3 If defendant’s argument was le gally sound, which it is not, th e error would alter the OV level under the applicable grid and thus change the guidelines range, necessitating resentencing. MCL 777.16d (AWIM is a class A offense); MCL 777.62 (class A grid); MCL 777.21(3)(b) (adjustment of top end of guidelines range for third habitual o ffender status); People v

Francisco , 474 Mich 82, 89-90; 711 NW2d 44 (2006) (alteration of guideli nes range generally mandates resentencing).-4- He was [M]irandized again about two hours later. He stated he had purchased the knife on Friday at the Dollar Store in Carrollton . He stated that it necessarily — it wasn’t necessari ly going to be [the victim] th at got stabbed. Then he talked about the other individuals there, at the home, and t hen he goes on an

talks about the knife. So all of that put together certainly wa rrants the score of 50 points . . . .

Later in the sentencing hearing, the trial court remarked, “I believe he did plan it over, you know, a period of a few days, perhaps.”

Defendant first argues that the trial court’s initial referenc e to “a larceny” suggested reliance on the felony-murder or second prong of MCL 777.36(1)( a), which defendant claims would be improper because there was no killing. As is evident from the passage quoted above, the trial court’s fleeting reference to a larceny did not serve as the basis for its decision to score OV 6 at 50 points. Rather, the trial court ultimately premised its ruling on the basis of the trial testimony and the information in the PSIR that reflected a prem editated intent to kill. 4

Defendant next argues that the trial court erred in relying on the jury’s verdict in scoring OV 6 at 50 points, given that AWIM does not include a premedita tion element. We note that MCL 777.36(2)(a) provides that “[t] he sentencing judge shall sc ore . . . [OV 6] consistent with a jury verdict unless the judge has information that was not pres ented to the jury.” The elements of AWIM “are (1) an assault, (2) with an actual intent to kill, (3) which, if successful, would make the killing murder.” People v Warren (After Remand) , 200 Mich App 586, 588; 504 NW2d 907 (1993) (citation omitted). Given that a “murder” can still occur absent premeditation, e.g., second-degree murder,” est ablishing the offense of AWIM d oes not require proof of premeditation. The trial court’ s ruling on OV 6 was not incons istent with the jury’s verdict; rather, it merely complemented the verdict by addressing an iss ue the jurors were not required to reach. Although the trial court wa s mistaken in concluding tha t the jury’s verdict itself supported a finding of premeditation and the score of 50 points, the cour t then proceeded to discuss the additional grounds that showe d premeditation, as reflected in t he trial testimony and the PSIR.

Defendant next argues that the trial testimony and PSIR inform ation did not support the 50-point score for OV 6. We disagree. “Premeditation, which r equires sufficient time to permit the defendant to take a second look, may be inferred from the c ircumstances surrounding the killing.” People v Coy , 243 Mich App 283, 315; 620 NW2d 888 (2000). The high number of stab wounds, defendant’s statement that he decided to do the st abbing the day before the actual assault, the preparatory purchase of the knife used in the atta ck, and defendant’s asserted desire to kill someone, all of which were alluded to by the trial cour t in scoring OV 6 at 50 points, certainly support a conclusion th at defendant had time to take a second look, thereb y establishing premeditation. There was a pre ponderance of evidence supportin g the scoring of OV 6 at 50 points, there were no clear erro rs in the court’s underlying fa ctual determinati ons, and the court properly applied the facts to t he law set forth in OV 6. Rever sal is unwarranted.

4 “A court may rely on the contents of a PSIR in calculating the guidelines.” People v Nix , 301 Mich App 195, 205 n 3; 836 NW2d 224 (2013) (citation omitted).-5- Finally, defendant contends, pursuant to Alleyne v United States , __ US __; 133 S Ct 2151; 186 L Ed 2d 314 (2013), that his constitutional rights un der the Sixth and Fourteenth Amendments to a jury trial and to have the prosecution prove it s case beyond a reasonable doubt were violated, given that the trial court engaged in impermissi ble judicial fact-finding in regard to scoring OV 6. In Alleyne , the United States Supreme Court held that facts that increase a mandatory minimum sentence must “be submitted to the jury and f ound beyond a reasonable

doubt.” Id. at 2163. In People v Herron , 303 Mich App 392, 405; 845 NW2d 533 (2013), this Court rejected application of Alleyne to Michigan’s sentencing scheme. In People v Lockridge

, 304 Mich App 278; 849 NW2d 388 (2014), this Court acknowledged that it was bound by

Herron and therefore concluded that Alleyne did not impact sentencing in Michigan, although two members of the panel voiced disagreement with Herron . Our Supreme Court granted leave

in Lockridge , 496 Mich 852 (2014), and is holding Herron in abeyance pending its ruling in Lockridge , 846 NW2d 924 (2014). We reject defendant’s argument in light of the fact that we currently remain bound by Herron and Lockridge. MCR 7.215(J)(1).

Affirmed.

/s/ William B. Murphy

/s/ Patrick M. Meter

/s/ Deborah A. Servitto