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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED February 2, 2017

v No. 328310
Oakland Circuit Court COREY DEQUAN BROOME, LC No. 2015-253574-FC

Defendant-Appellant.

Before: S TEPHENS , P.J., and S AAD and M ETER , JJ.

P ER C URIAM

.

Defendant appeals as of right h is jury-trial convictions of as sault with intent to do great bodily harm less than murder (AWIGBH), MCL 750.84; felon in pos session of a firearm (felonin-possession), MCL 750.224f; carrying a concealed weapon (CCW) , MCL 750.227; and two counts of possession of a firearm during the commission of a fe lony (felony-firearm), MCL 750.227b. The trial court sentenced defendant, as a fourth-off ense habitual offender, MCL 769.12, to 25 to 50 years’ imprisonment for the AWIGBH convicti on, 5 to 25 years’ imprisonment for the felon-in-possession conviction, 5 to 25 ye ars’ imprisonment for the CCW conviction, and two years’ imprisonment for each of the felony- firearm convictions. We affirm
defendant’s convictions and sentences but remand for the minist erial task of clarifying the judgment of sentence.

The facts of this case are disturbing. The prosecution presen ted evidence that defendant ran a red light with his car, cr ashed into the victim’s truck, and subsequently shot the victim after
the victim offered to settle the matter without police involvem ent and was attempting to retrieve a cellular telephone in order to t ake down defendant’s personal information.

Defendant first argues that he is entitled to a remand for res entencing because his 25-year mandatory minimum sentence, imposed pursuant to MCL 769.12(1)(a ) because defendant was a fourth-offense habitual offender, constitutes cruel and unusual punishment under both the United States and Michigan Constitutions. We disagree.

Defendant failed to preserve this issue by raising it in the l ower court. People v Bowling

, 299 Mich App 552, 557; 830 NW2d 800 (2013). Unpreserved claims of unconstitutionality based on cruel or unusual punishment are reviewed using the sta ndard for plain error. Id . For reversal to be warranted, an error must have been “clear or obv ious,” and the error must have-2- affected defendant’s “substantial rights.” People v Carines , 460 Mich 750, 763; 597 NW2d 130 (1999). Defendant must have been prejudiced by the error. Id . Further, “[r]eversal is warranted only when the plain, forfeited error resulted in the conviction of an actually innocent defendant or when an error seriously affected the fairness, integrity or public reputation of judicial proceedings independent of defendant’s innocence.” Id . at 763-764 (quotation marks, citation, and alteration omitted). This C ourt reviews de novo constituti onal challenges to statutes. People

v Benton , 294 Mich App 191, 203; 817 NW2d 599 (2011).

The Eighth Amendment of the United States Constitution prohibi ts the infliction of “cruel and unusual punishments[.]” US Const, Am VIII. Similarly, the Michigan Constitution prohibits the infliction of “cruel or unusual punishment[.]” Const 1963, art I, § 16 (emphasis added). This Court accepts the logical rule that “[i]f a punis hment passes muster under the state constitution, then it necessarily passes muster under the feder al constitution.” Benton , 294 Mich App at 204 (quotation marks and citation omitted).

Defendant’s argument that M CL 769.12(1)(a) unconstitutionally limited the sentencing judge’s discretion and ability to consider defendant’s circumst ances or probability of rehabilitation is without merit. In Michigan, “the ultimate au thority to provide penalties for criminal offenses is constitutionally vested in the Legislature .” People v Hegwood , 465 Mich 432, 436; 636 NW2d 127 (2001). “[T]he Legislature may impose r estrictions on a judge’s exercise of discretion in imposing sentence.” Id . at 440. In other words, the only discretion sentencing courts have is that which is given to them by the Le gislature; courts do not, on their own, have discretion in imposing and administering sentences. See People v Conat , 238 Mich App 134, 147; 605 NW2d 49 (1999). MCL 769.12(1)(a) is not inva lid, nor are the sentences imposed pursuant to it cruel or unusual, simply because the Leg islature chose to limit the discretion available to the sentencing courts. See People v Garza , 469 Mich 431, 434; 670 NW2d 662 (2003) (explaining that the Legislature holds the powe r to “delegate various amounts of sentencing discretion to the judiciary,” which includes the power to limit judicial discretion completely).

Typically, to determine whether a punishment is cruel or unusu al under the Michigan Constitution, this Court employs a three-part test: (1) it exam ines “the severity of the sentence imposed and the gravity of the offe nse,” (2) it compares “the p enalty to penalties for other crimes under Michigan law,” and (3) it c ompares “Michigan’s penalty an d penalties imposed for the
same offense in other states.” Benton , 294 Mich App at 204. Defendant has not attempted to
demonstrate that his sentence is cruel or unusual in comparison to the penalties imposed for the same crimes in other states, and this Court need not do so for him. This Court has repeatedly stated that “an appellant ma y not simply a nnounce his position or assert an error and then leave it up to this Court to discover an d rationalize the basis for his claims, or unravel and elaborate for him his arguments, and then sear ch for authority either to sust ain or reject his position.” Bowling , 299 Mich App at 559-560 (quotation marks and citations omitte d). 1 Defendant does

1 In terms of comparing his penalty to the penalties for other c rimes in this state, defendant refers to penalties for cer tain drug offenses, which we do not find ap posite.-3- argue, however, that although the United States Supreme Court h as upheld “similar” habitual offender statutes in “other jur isdictions,” MCL 769.12(1)(a) is distinguishable from each of those other statutes. Defendant has provided only one such statutory scheme for comparison—
California’s “three strikes” law—and this Court need not search for others. Bowling , 299 Mich App at 559-560.

Defendant’s comparison of Michi gan’s statute and California’s “three strikes” law is unpersuasive, because, firstly, the individual sentence itself is to be considered when a defendant claims cruel or unusual punishment. See, generally, Benton , 294 Mich App at 204-206. As
noted infra , defendant’s sentence was appr opriate under the circumstances presented. Also, while defendant correctly notes that California’s habitual offe nder policy differs from Michigan’s, providing protections such as requiring that at lea st one prior conviction be violent, defendant incorrectly implies that it was because of these prot ections that the United States Supreme Court upheld the constitutionality of California’s sent encing scheme in Ewing v California , 538 US 11; 123 S Ct 1179; 155 L Ed 2d 108 (2003). Contrary t o defendant’s argument, the Supreme Cour t in that case stated:

Our traditional deference to legislative policy choices finds a corollary in the principle that the Constitution does not mandate adoption of any one penological theory. A sentence can have a variety of justifications, such as incapacitation, deterrence, retribution, or rehabilitation. Some or all of the se justifications may play a role in a State’s sentenc ing scheme. Selecting the sent encing rationales is generally a policy choice to be m ade by state legislatures, not federal courts.

When the California Legislature enacted the three strikes law, it made a judgment that protecting the publ ic safety requires incapacitat ing criminals who have already been convicted of at least one serious or violent crime. Nothing in the Eighth Amendment prohibits C alifornia from making that choi ce. To the contrary, our cases establish that States have a valid interest in deterring and segregating habitual criminals. . . . Recidivism has long been recognized as a legitimate basis for increased punishment.

* * *

To be sure, California’s three strikes law has sparked controv ersy. Critics have doubted the law’s wisdom, cost-efficiency, and effectivene ss in reaching its goals. This criticism is appropriately directed at the legisla ture, which has primary responsibility for making the difficult policy choices that underlie any criminal sentencing scheme. We do not sit as a “superlegislatu re” to secondguess these policy choices. It is enough that the State of Cal ifornia has a reasonable basis for believing that dramatically enhanced sente nces for habitual felons advance[] the goals of [its] criminal justice system in any substantial way. [ Id . at 25, 27-28 (quotations marks and citations omitted; emphasi s added).]

Michigan’s habitual offender scheme has not been held unconsti tutional, and it is the Legislature’s chosen scheme. Defendant was sentenced appropria tely, pursuant to the Legislature’s prescribed guidelin es. We note that defendant em phasizes his age of 23 years. As-4- the Michigan Supreme Court has recognized, however, courts are not required to consider a defendant’s age in determining whether a sentence is disproport ionate. People v Lemons , 454 Mich 234, 258-259; 562 NW2d 447 (1997). Here, defendant was co nvicted of a serious and violent crime, AWIGBH, and four s eparate firearms-related offen ses. His presentence investigation report in dicates that his adult criminal record i ncludes multiple felonies and misdemeanors—including a conviction for driving without a licen se, a conviction for CCW, a conviction for attempting to res ist arrest, a conviction for ut tering counterfeit notes, and a conviction for felon-in-possession. Defendant’s criminal recor d, extensive given that defendant has not been an adult for long, establishes a pattern of disreg ard for others and the law. The evidence indicates that his instant crimes were committed again st a complete stranger and that he shot the victim from the back as the victim was walking away. Defendant’s 27-year total minimum sentence allows for release when defendant is approxima tely 50 years old, and given the evidence supporting his convic tion for the severe, violent crime of AWIGBH (which caused significant injury), this wa s appropriate. We find no plain er ror and no basis for a remand.

Next, defendant argues that he is entitled to a remand for res entencing because the trial court engaged in judicial fact-finding to arrive at his 25-year mandatory minimum sentence in
violation of Alleyne v United States , 570 US ___; 133 S Ct 2151; 186 L Ed 2d 314 (2013), and People v Lockridge , 498 Mich 358; 870 NW2d 502 ( 2015). We disagree.

After Lockridge , this Court reviews a preserved claim of sentencing error base d on allegedly impermissible judicial fact-finding to determine if i t qualifies as harmless beyond a
reasonable doubt. People v Terrell , 312 Mich App 450, 464; 879 NW2d 294 (2015); People v
Stokes , 312 Mich App 181, 198; 877 NW2d 752 (2015).

Defendant argues that he is ent itled to resentencing because t he sentencing judge, rather than a jury, made “findings of fact” to increase his mandatory minimum sentence in violation of Alleyne and Lockridge . Specifically, defendant argues that the sentenc ing court inc reased his mandatory minimum sentence by relying on the existence of prior convictions.

In Alleyne , 570 US at ___; 133 S Ct at 2155, the United States Supreme Co urt held that any fact that increases the mandatory minimum sentence for a cr ime is an “element” that must “be submitted to the jury and found beyond a reasonable doubt.” In Lockridge , 498 Mich at 364, the Michigan Supreme Court held that “the rule from Apprendi v New Jersey , 530 US 466; 120 S Ct 2348; 147 L Ed 2d 435 (2000), as extended by Alleyne , applies to Michigan’s sentencing guidelines and renders them constitutionally deficient” and in violation of the Sixth Amendment to the extent that they “ require judicial fact-finding beyond facts admitted by the defendant o r found by the jury to score offense variables (OVs) that mandatorily increase the floor of the guidelines minimum sentence range . . .” (citation omitted).

However, the existence of prior convictions is a well-recogniz ed exception to the general requirement that any fact that increases the penalty for a crim e must be either admitted by a defendant or found beyond a reasonable doubt by a jury. This e xception was first articulated by the Supreme Court in Apprendi , 530 US at 490, wherein the S upreme Court explained that,

“ [o]ther than the fact of a prior conviction , any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, a nd proved beyond a reasonable-5- doubt” (emphasis added). The Michigan Supreme Court specifical ly noted this exception in Lockridge , 498 Mich at 370.

Defendant suggests that this Cour t eliminate the exception for prior convictions. According to defendant, because the exception, as articulated i n Apprendi

, was premised on the Supreme Court’s holdin g in an earlier case, Almendarez-Torres v United States , 523 US 224; 118 S Ct 1219; 140 L Ed 2d 350 (1998), a case that defendant argues has been “eroded” by subsequent decisions “to the ext ent that it should no longer be considered binding precedent,” the exception itself should no longer be considered good law. Defe ndant supports this argument, in part, on the four-justice Almendarez-Torres dissent, which challenged the majority’s conclusion that prior convictions were not elements necessitating jury con sideration. See id . at 257-258, 261. Defendant also argues that the Supreme Court questioned t he exception in Alleyne

, declining to consider the issue only because it was not raised by the parties in that case.

Defendant’s arguments are unpersuasive. Indeed, defendant has failed to adequately explain how the exception, explicitly adopted by the United Sta tes Supreme Court in Apprendi and by the Michigan Supreme Court in Lockridge , does not remain good law. We note that one of the justices that defendant m entions in support of his argum ent that a majority of the United States Supreme Court no longer supports the exception is no lon ger with the Court. Under the circumstances, we again find no basis for a remand.

Next, defendant argues that the trial court erred when it orde red defendant to serve two two-year sentences for the felony-firearm offenses concurrently with each other but consecutively to his other sent ences because the felony-firearm sentences can only run consecutively to the sentences f or their listed predicate felon ies.

The proper interpretation of MCL 750.227b, the felony-firearm statute, and its rules regarding consecutive sentencing is a question of law that we r eview de novo. See, generally, People v Dimoski , 286 Mich App 474, 476; 780 NW2d 896 (2009). The proper appli cation of MCR 6.435(A), which governs ministerial correction of clerical errors, is also a question of law
reviewed de novo. People v Walters , 266 Mich App 341, 346; 700 NW2d 424 (2005).

Defendant was convicted of AWIGBH (Count 1), felon-in-possessi on (Count 3), and CCW (Count 5). Defen dant was also convict ed of two counts of f elony-firearm—one count each
for his use of a firearm duri ng the commission of his crimes ofAWIGBH (Count 2) and felon-inpossession (Count 4). Defendant was sentenced to 25 to 50 year s’ imprisonment for AWIGBH, two terms of 5 to 25 years’ imprisonment for felon-in-possessio n and CCW, and two terms of two years’ imprisonment for felony-firearm. His judgment of se ntence contains the following language, which defendant claims is improper:

COUNTS 2, 4, & 5 ARE CONCURRENT TO EACH OTHER AND COUNTS 1,
3 AND 5 ARE CONCURRENT TO EACH OTHER. COUNTS 1 AND 3 ARE
CONSECUTIVE TO COUNTS 2 AND 4.

Defendant is correct that, had the trial court imposed defendant’s two-year felony-firearm sentences to be served consecutively to sentences for convictio ns other than their respective-6- predicate felonies, such an imposition would constitute error. As the Michigan Supreme Court has explained:

From the plain language of the felony-firearm statute, it is e vident that the Legislature intended that a felony-firearm sentence be consecut ive only to the sentence for a specific underl ying felony. Subsection 2 [now 3 ] clearly states that the felony-firearm sentence “sha ll be served consecutively withand preceding any term of imprisonment imposed for the conviction of the felony or attempt to commit the felony .” It is evident that the emphasized language refers back to t he predicate offense discussed in subsection 1, i.e., the offense during which the defendant possessed a firearm. No language in the statute perm its consecutive sentencing with convictions other than the predicate offense. [ People v Clark

, 463 Mich 459, 463-464; 619 NW2d 538 (2000).]

However, we are not convinced that the sentencing judge intende d to impose defendant’s felonyfirearm sentences to be served consecutively to the sentences f or all three of his other offenses rather than, appropriately, to the sentences for their respecti ve predicate felonies.

At sentencing, the trial judge m ade clear that the felony-fire arm sentences were concurrent with each other. The trial court’s statements at se ntencing, combined with the language of the judgment of sentence, support the inference tha t neither felony-firearm sentence was to run consecutively to the C CW sentence. Indeed, the sent ences could not be both
consecutive to and concurrent with the CCW sentence. The felon y-firearm sentences were to run consecutively to the sentences f or defendant’s AWIGBH and felon -in-possession convictions.

It is true that the language of the judgment of sentence is co nfusing and does not definitively pair the sentence for each felony-firearm convicti on with its predicate felony, i.e., does not specify that the senten ce for Count 2 is specifically consecutive to the sentence for Count 1, and that the sentence fo r Count 4 is specifically cons ecutive to the sentence for Count 3. However, it is a strained reading of the judgment of sentence, especially as a whole and in the context of the entire lower court file, that leads to any other conclusion. The felony information specified that defendant’s felony-firearm charges were to accom pany the predicate felonies of assault with intent to murder (the higher charge for the AWIGBH conviction) and felon-inpossession, and the first page of the judgment of sentence at l east implies that Count 2 depends on predicate felony Count 1 and Count 4 depends on predicate fe lony Count 3. Also, for all practical purposes, any confusi on over whether the sentence for Count 2 or Count 4 is intended to run consecutively to the sen tence for Count 1 makes no diffe rence. Each sentence is two years long, and one of them, regardless of which one, must run consec utively to defendant’s 25-to-50- year sentence for his AWIGBH conviction. 2 The other runs concurrently, as indicated by the judgment of sentence.

2 A sentence for felony-firearm is to precede the sentence for the predicate felony. MCL 750.227b(3).-7- It is apparent that the trial court did not intend to impose d efendant’s two-year felonyfirearm sentences to run consecutively to sentences for convict ions other than their respective predicate felonies. However, in light of the Clark Court’s call to literal specificity—“[n]o language in the [felony-firearm] s tatute permits consecutive se ntencing with convictions other than the predicate offense”—see id . at 464, we conclude that defendant is entitled to clarificati on of the terms of his sentence. Where a judgment of sentence con tains a mistake, a remand to allow the trial court to amend the judgment is appropriate. MC R 6.435(A); People v Katt , 248 Mich App 282, 311-312; 639 NW2d 815 (2001). We remand to the t rial court for the ministerial task of rewriting the “court recommendation” section of the jud gment of sentence to clarify that
the sentence for Count 2 is consecutive to the sentence for Cou nt 1 and the sentence for Count 4
is consecutive to the sentence for Count 3 and to otherwise ens ure that the section contains appropriate wording.

Defendant argues that defense c ounsel’s affirmation of the tri al court’s “consecutive sentencing” constituted ineffective assistance of counsel. Def endant’s argument is wholly without merit. Defendant has not argued that his consecutive s entences were erroneously imposed. Indeed, they were not, and defense counsel therefore could not have affirmed the propriety of any improper consecutive sentencing. Defense coun sel raised the issue of consecutive sentencing at defendant’s sentencing hearing to ens ure that the judgment of sentence accurately reflected the appropriate sentence. Defense counsel ’s attempts did not fall below any objective standard of reasonableness. People v Riley (After Remand) , 468 Mich 135, 140; 659 NW2d 611 (2003). To the extent defendant suggests that defense counsel’s failure to object to the trial court’s ambiguous phraseology was unreasonable, his c laim also fails. Defendant has suffered no prejudice. Id

.

We affirm defendant’s convictions and sentences but remand for the ministerial tasks of correcting the judgment of sentence and transmitting the judgme nt to the Department of Corrections. We do not retain jurisdiction.

/s/ Cynthia Diane Stephens /s/ Henry William Saad
/s/ Patrick M. Meter