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

revision until final publication in the Michigan Appeals Reports.

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UNPUBLISHED

January 15, 2019

v No. 328443

Washtenaw Circuit Court

DERRICK ALDEN JOHNSON, LC No. 08-001534-FC

Defendant-Appellant.

Before: BOONSTRA, P.J., and SAWYER and TUKEL, JJ.

PER CURIAM.

Defendant appeals by right the sentences imposed by the trial court in its May 15, 2015 

resentencing order. We affirm.

I. PERTINENT FACTS AND PROCEDURAL HISTORY

Defendant was convicted, following a jury trial, of assault with intent to do great bodily 

harm less than murder, MCL 750.84; unlawful imprisonment, MCL 750.349b; and domestic 

violence, MCL 750.81a(2).1 The trial court originally sentenced defendant in 2012 to prison 

terms of 60 months to 10 years for the assault with intent to do great bodily harm conviction and 

10 to 15 years for the unlawful imprisonment conviction, as well as one year in jail for the 

domestic violence conviction. Defendant appealed his convictions and sentences to this Court. 

This Court affirmed defendant’s convictions but remanded the case to the trial court for 

resentencing.2 This Court concluded that the trial court had failed to adequately articulate its 

reasoning in support of its out-of-guidelines sentence for the unlawful imprisonment conviction;

specifically, it did not indicate how the factors it cited were given inadequate or disproportionate 

 1 Defendant was acquitted of first-degree criminal sexual conduct (CSC-I), MCL 750.520b.

2 See People v Johnson, unpublished opinion per curiam of the Court of Appeals, issued March 

20, 2014 (Docket No. 310075). A detailed recitation of the facts underlying defendant’s

convictions can be found in that opinion.
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weight under the guidelines. This Court ordered that, on remand, the trial court should either 

“more adequately justify” the sentence or sentence defendant within the guidelines.” After a 

resentencing hearing, the trial court imposed the same sentences it had originally imposed.

II. OUT-OF-GUIDELINES SENTENCE

Defendant challenges the trial court’s out-of-guidelines sentence for defendant’s unlawful 

imprisonment conviction. However, this issue is now moot because defendant has already 

served his minimum sentence. Defendant served his minimum sentence and became eligible for 

parole on August 20, 2018. “Where a subsequent event renders it impossible for this Court to 

fashion a remedy, an issue becomes moot.” People v Rutherford, 208 Mich App 198, 204; 526 

NW2d 620 (1994). Any reduction of defendant’s minimum sentence would not alter the fact that 

defendant has already served this sentence. Id.

Moreover, even if we could grant defendant relief, the trial court did not abuse its 

discretion in resentencing defendant. This appeal was pending at the time the Michigan Supreme 

Court decided People v Lockridge, 498 Mich 358; 870 NW2d 502 (2015); Lockridge and its 

progeny are therefore applicable to our review of defendant’s sentences. See People v Barnes, 

502 Mich 265, 268; 907 NW2d 577 (2018). This Court “review[s] a trial court’s upward 

departure from a defendant’s calculated guidelines range for reasonableness.” People v Walden, 

319 Mich App 344, 351; 901 NW2d 142 (2017). “[T]he reasonableness of a sentence [is 

reviewed] for an abuse of the trial court’s discretion.” Id.

In support of its out-of-guidelines sentence, the trial court stated that the guidelines did 

not adequately capture or gave inadequate weight to the brutality of defendant’s assault, 

defendant’s attempts to stop the victim from testifying, and defendant’s domestic relationship 

with the victim. The trial court also noted that defendant’s Offense Variable (OV) score was 40 

points in excess of the score required for the maximum OV level, as well as defendant’s 

misconduct in prison. Although the trial court assessed 50 points under OV 7 for brutality and 

declined to assess defendant any points under OV 10 for exploitation of a domestic relationship, 

we conclude, on balance, that the sentence was “proportionate to the seriousness of the 

circumstances of the offense and the offender,” People v Milbourne, 435 Mich 630, 636; 461 

NW2d 1 (1990); accordingly, it was reasonable under Lockridge. See Walden, 319 Mich App at 

353-354 (holding that an out-of-guidelines sentence was reasonable where the trial court noted 

the seriousness of the offense, the defendant’s low potential for rehabilitation, defendant’s lack 

of remorse, and defendant’s extensive criminal history).

III. REQUEST TO STRIKE INFORMATION FROM PRESENTENCE INVESTIGATION 

REPORT

Defendant also argues that the trial court erred by denying his request to strike 

information from the presentence investigation report (PSIR) regarding the CSC-I of which he 

was acquitted. We disagree. “This Court reviews a trial court’s response to a defendant’s 

challenge to the accuracy of a PSIR for an abuse of discretion.” People v Uphaus (On Remand), 

278 Mich App 174, 181; 748 NW2d 899 (2008).
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Once a defendant challenges the accuracy of the information in the PSIR, the trial court is 

required to respond. Id. at 182. “The court may determine the accuracy of the information, 

accept the defendant’s version, or simply disregard the challenged information.” Id. (quotation 

marks and citation omitted). “Once a defendant effectively challenges a factual assertion,” the 

trial court must determine whether the challenged fact was established by a preponderance of the 

evidence. People v Waclawski, 286 Mich App 634, 690; 780 NW2d 321 (2009).

In this case, this issue was raised and decided in defendant’s first appeal:

Here, although the trial court’s reasons for rejecting defendant’s challenge [to the 

PSIR] were somewhat brief, the trial court rejected defendant’s challenge based 

on the evidence presented. The trial court did not abuse its discretion by doing so 

because a preponderance of the evidence supported the allegation that defendant 

sexually assaulted the victim.[3]

Our earlier opinion remains the law of the case on this issue. See People v Fisher, 449 Mich 

441, 444-445; 537 NW2d 577 (1995) (explaining that if an appellate court has decided a legal 

question “and remanded the case for further proceedings, the legal questions thus determined by 

the appellate court will not be differently determined on a subsequent appeal in the same case 

where the facts remain materially the same”) (quotation marks and citation omitted), overruled in 

part on other grounds by People v Houthoofd, 487 Mich 568; 790 NW2d 315 (2010). In any 

event, the trial court found by a preponderance of the evidence, on the basis of the victim’s trial 

testimony, that defendant had sexually assaulted the victim. The trial court was permitted to 

consider conduct of which defendant was acquitted when “fashioning an appropriate sentence.” 

People v Compagnari, 233 Mich App 233, 236; 590 NW2d 302 (1998). See also United States v 

Watts, 519 US 148, 149; 117 S Ct 633; 136 L Ed 2d 554 (1997) (holding that a court may 

consider at sentencing “conduct of the defendants underlying charges of which they have been 

acquitted” if established by a preponderance of the evidence). The trial court acted within its 

discretion in denying defendant’s request to amend the PSIR. See Uphaus (On Remand), 278 

Mich App at 181.

IV. STANDARD 4 BRIEF

Finally, defendant raises several claims in his Standard 4 brief,

4 none of which have 

merit.

Defendant argues that the trial court erred by assessing offense variable (OV) 3, physical 

injury to a victim, MCL 777.33, at 10 points rather than 5 because neither the victim nor the 

nurse who examined her testified that she had received medical treatment. We disagree. We 

review the trial court’s factual determinations for clear error to see if they are supported by a 

 3 Johnson, unpub op at 11.

4 A supplemental appellate brief filed by a criminal defendant in propria person under Supreme 

Court Administrative Order 2004-6, Standard 4.
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preponderance 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 interpretation that we review de novo. See People v Hardy, 494 Mich 430, 438; 835 

NW2d 340 (2013) (citations omitted).

Ten points should be assessed for OV 3 where bodily injury to the victim occurred 

requiring medical treatment. MCL 777.33(d). Five points are assessed where the victim’s 

injuries did not require medical treatment. MCL 777.33(e). Contrary to defendant’s assertion, 

the nurse who examined the victim after the assault testified that she conducted a scan of the 

victim’s brain in addition to other tests and that the victim was also examined by a physician. 

We have held that 10 points may properly be assessed where the victim suffered bodily injury 

that resulted in “precautionary medical treatment,” even if no ongoing treatment is necessary. 

See People v McDonald, 293 Mich App 292, 298; 811 NW2d 507 (2011). The record shows that 

the victim received, at a minimum, precautionary medical treatment. The trial court’s score for 

OV 3 was appropriate.

Defendant also argues that OV 8 (victim asportation or captivity), MCL 777.38, was 

improperly assessed at 15 points. He argues that because zero points are to be assessed for this 

variable where the sentencing offense is kidnapping, the same should apply to his sentencing 

offense of unlawful imprisonment. However, in People v Kosik, 303 Mich App 146, 148, 157; 

841 NW2d 906 (2013), this Court stated:

The Legislature made unlawful imprisonment a distinct crime, but chose not to 

amend MCL 777.38(2)(b) to direct the assessment of zero points for OV 8 when 

the sentencing offense is unlawful imprisonment—even though it amended 

MCL 777.16q to include unlawful imprisonment in the list of crimes to which the 

sentencing guidelines apply. The Legislature is presumed to have been aware of 

the language in MCL 777.38 when it revised MCL 750.349 and added 

MCL 750.349b, and it is presumed to have considered the consequences of failing 

to include unlawful imprisonment in MCL 777.38(2)(b). In light of these 

presumptions, we conclude that the Legislature intended that MCL 777.38(2)(b) 

direct the assessment of zero points for OV 8 only when the sentencing offense is 

kidnapping. [Id. at 159.]

Under Kosik, OV 8 was properly scored in this case. See also People v Chelmicki, 305 Mich 

App 58, 69; 850 NW2d 612 (2014).5

Defendant also argues that the prosecution committed misconduct when it told the 

resentencing court that defendant had admitted to sodomizing the victim following the attack, 

 5 Defendant also argues in his Standard 4 brief that the trial court’s statement at resentencing that 

the score of 10 points for OV 3 (bodily injury to the victim) did not adequately capture the 

severity of the offense indicates that the trial court was unaware that 50 points had been assessed 

for brutality under OV 7 (as discussed earlier in this opinion). The record does not support that 

assertion.
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and that his defense trial counsel was ineffective for failing to object to the prosecution’s 

comment. Although we agree with defendant that the record only reflects that defendant stated 

that he had had consensual sexual intercourse with the victim, we do not find that the 

prosecution’s comment rises to the level of misconduct because defendant has not shown that he 

was prejudiced by the prosecution’s comment.

Issues of prosecutorial misconduct are decided on a case-by-case basis, and “this Court 

must examine the entire record and evaluate a prosecutor’s remarks in context.” People v 

Dobek, 274 Mich App 58, 64; 732 NW2d 546 (2007). The test for prosecutorial misconduct is 

whether the defendant was denied a fair and impartial trial. People v Bennett, 290 Mich App 

465, 475; 802 NW2d 627 (2010). The prosecution is permitted to argue the evidence and all 

reasonable inferences arising from it, but may not argue facts not in evidence or mischaracterize 

the evidence presented. People v Ackerman, 257 Mich App 434, 453; 669 NW2d 818 (2003); 

People v Watson, 245 Mich App 572, 588; 629 NW2d 411 (2001). A defendant bears a heavy 

burden to show that counsel made errors so serious that he was not performing as the counsel 

guaranteed by the Sixth Amendment, and the defendant must overcome a strong presumption 

that counsel’s performance constituted sound trial strategy. People v McGraw, 484 Mich 120, 

142; 771 NW2d 655 (2009), citing Strickland v Washington, 466 US 668; 104 S Ct 2052; 80 L 

Ed 2d 674 (1984). “Moreover, the defendant must establish prejudice, i.e., a reasonable 

probability that but for counsel’s error, the result of the proceeding would have been different.” 

Id.

Defendant has not shown that his sentence was affected by the prosecution’s isolated 

comment. The trial court stated that it would not strike the statement in the PSIR that defendant 

had sodomized the victim because it “believe[d] that it is a historical truth and she testified to it. 

[Defendant] was acquitted of it and [the parole board] will see that.” There is no evidence that 

the trial court based any of its rulings or its out-of-guidelines sentence on the prosecution’s 

statement that defendant had admitted to sodomizing the victim. Because defendant was not 

harmed by the prosecution’s statement, relief is not warranted. See Ackerman, 257 Mich App at 

448. For the same reason, defendant’s counsel was not ineffective for failing to object to the 

statement. Id. at 455; see also McGraw, 484 Mich at 142.

Defendant also contends that the trial court erred by failing to strike from the PSIR 

statements indicating that he had locked all the doors in the victim’s trailer during the 

commission of the offense. The parties discussed these changes at resentencing, and the trial 

court agreed to implement them. The updated PSIR reflects those changes. Defendant’s 

argument is moot.

Defendant also argues that the trial court erred by refusing to strike from the PSIR a 

statement that he had struck the victim 100 times and that defense counsel was ineffective for 

failing to object to the inclusion of that statement in the PSIR. We disagree. This information 

was contained in the probation officer’s description of the offense and was consistent with the 

victim’s testimony. Moreover, defendant has not shown how this statement prejudiced him. 

Defendant testified at trial that he hit the victim five or six (or more) times in the face, the victim 

testified that the assault lasted approximately eight hours, and the evidence showed that she 

suffered injuries to 22 areas of her body. Regardless of whether defendant struck the victim

exactly 100 times, the victim’s testimony on this issue was indicative of the severity of the attack 
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and the statement was consistent with the evidence. Uphaus (On Remand), 278 Mich App at 

181. For the same reason, defense counsel was not ineffective for failing to object to the 

statement in the PSIR. McGraw, 484 Mich at 142.

Finally, defendant asserts that he was not afforded an opportunity to “allocute” in order to 

refute the resentencing court’s finding by a preponderance of the evidence that he had committed

CSC-I against the victim, and that his counsel was ineffective for failing to secure for him an 

opportunity for such allocution. Because there is no indication in the record that defendant was 

not permitted to respond, and because defense counsel actually did argue at resentencing that 

defendant had not committed a sexual assault, this argument lacks merit.

At resentencing, defense counsel cited the jury’s acquittal of defendant on this charge and 

argued that based on the evidence no sexual assault had occurred. Counsel also asked the 

resentencing court to strike the reference to the sexual assault from the PSIR, despite this Court’s 

ruling in defendant’s previous appeal that the reference was supported by a preponderance of the 

evidence. Defendant does not explain what would have resulted from further “allocution,” or 

why counsel’s efforts on this issue constituted ineffective assistance. In addition, the court did 

not rely on the sexual assault in resentencing defendant. Defendant cannot show that defense 

counsel’s performance was deficient or that he was prejudiced by defense counsel’s 

performance. See id.

Affirmed.

/s/ Mark T. Boonstra

/s/ David H. Sawyer

/s/ Jonathan Tukel