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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED April 12, 2016

v No. 323681 Wayne Circuit Court AMIRE ARMSTRONG-NICHOLS, a/k/a AMIRE AZURE ARMSTRONG-NICHOLS, LC No. 14-002961-FC

Defendant-Appellant.

Before: S TEPHENS , P.J., and H OEKSTRA and S ERVITTO , JJ.

P ER C URIAM

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Defendant appeals as of right his sentence following jury tria l convictions of felon in possession of a firearm, MCL 750.224f, and possession of a fire arm during the commission of a felony, MCL 750.227b. 1 The trial court sentenced defendant, as a habitual second off ender (MCL 769.10), to 38 to 90 months’ imprisonment for the felon-in -possession conviction and two years’ imprisonment for the felony-firearm conviction. We rema nd to the trial court for further proceedings consistent with this opinion.

On August 18, 2013, Rico Rombus shot Jeffery Staples on Bliss Street in Detroit. Several people were gathered in the street talking and Staples and Rombus had been playing dice amongst the crowd when the tw o began arguing. Friends broke up their first fight.

Defendant testified at trial that he was a felon, that he was not supposed to have a firearm, but that he did have a firearm in his possession on Au gust 18, 2013. Defendant testified that when he stepped in to break up the fight between Rombus an d Staples, Rombus “snatched” the gun from his hoody pocket and used it to shoot Staples. An tonio Baker, a witness to the shooting, first testified that R ombus took the gun from defenda nt, but then admitted that he did not actually see Rombus’s hand go into defendant’s jacket. Don ald Sistrunk, Staples’s brother, testified that he saw defendant hand Rombus the gun before Romb us used it to shoot Staples. However, he did not hear defendant tell Rombus to shoot Staples

.

1 Defendant does not challenge h is convictions on appeal.-2- In any event, when Staples and Rombus began arguing after thei r initial fight was broken up, Rombus shot Staples with a gun he had obtained from defenda nt. He fired one shot at Staples’s chest, and two more s hots as Staples ran away. Stapl es was pronounced dead on arrival at the hospital, and Dr. Jeffery Hudson, the Wayne County Assis tant Medical Examiner, testified that he performed an autopsy and conc luded that Staples died fr om a single gunshot wound to the
chest. Dr. Hudson testified that the manner of death was homic ide. The jury found defendant guilty of felon in possession and felony firearm and acquitted him of first-degree premeditated murder (MCL 750.316(1)(a)).

At sentencing, the trial court assessed 25 points for offense variable (OV) 1, 100 points for OV 3, and one point for OV 12. As a result, defendant’s OV score was 126 points, and the sentencing guidelines range was 19 to 38 months. The court sen tenced defendant, as a second habitual offender, to 38 to 90 months’ imprisonment for the fel on-in-possession conviction.

Defendant first argues on appeal that he is entitled to resent encing because the trial court should have assessed zero points for OVs 1, 3, and 12, and the scoring error altered the guidelines range. He asserts that, because he was acquitted of first-degree murder, the court could not assess points for OVs 1 and 3 in accordance with People v McGraw , 484 Mich 120; 771 NW2d 655 (2009). Defendant also argues that the court shou ld not have assessed one point for OV 12 because felony-firearm cannot be considered a contemp oraneous criminal act for purposes of scoring OV 12. Defendant additionally argues that he is entitled to resentencing because his Fifth and Sixth Amendment rights were violated whenthe trial court used facts not found by a jury or proven beyond a reasonable doubt to determin e defendant’s sentencing guidelines range. We agree with defendant’s constitutional arg ument.

“Under the sentencing guidelines, the circuit court’s factual determinations are reviewed for clear error and must be supported by a preponderance of the evidence.” People v Hardy , 494 Mich 430, 438; 835 NW2d 340 (2013). “Whether the facts, as fou nd, are adequate to satisfy the scoring conditions prescribed by statute, i.e., the applicationof the facts to the law, is a question of statutory interpr etation, which an appe llate court reviews d e novo.” Id

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“A Sixth Amendment challenge presents a question of constituti onal law that this Court
reviews de novo.” People v Stokes , ___ Mich App ___, ___; ___ NW2d ___ (2015) (Docket No. 321303); slip op at 6, quoting People v Lockridge , 498 Mich 358, 373; 870 NW2d 502 (2015).

In Lockridge , the Supreme Court considered the application of the rules set forth in Apprendi v New Jersey , 530 US 466, 490; 120 S Ct 2348; 147 L Ed 2d 4 35 (2000), and Alleyne v
United States , 570 US ___; 133 S Ct 2151; 186 L Ed 2d 314 (2013), to Michiga n’s sentencing guidelines, and “held that Michiga n’s sentencing scheme violate s the Sixth Amendment right to a jury trial because it requires ‘judicial fact-finding beyond facts admitted by the defendant or found by the jury to score offense variables (OVs) that mandato rily increase the floor of the guidelines minimum sentence range, i.e., the “mandatory minimum ” sentence under Alleyne .’ ”
Stokes , ___ Mich App ___; slip op at 6, quoting Lockridge , 498 Mich at 364. The Lockridge Court ruled that Michigan’s se ntencing guidelines are advisory only. Id . at 399. However, “a sentencing court must determine the applicable guidelines range and take it into account when imposing a sentence.” Id . at 365.-3- OV 1 applies to crimes against public safety. MCL 777.22(5). Felon-in-possession is a crime against public safety. MCL 777.16m. A trial court shoul d assess 25 points for OV 1 where “a firearm was discharged at or toward a human being or a victim was cut or stabbed with a knife or other cutting or s tabbing weapon.” MCL 777.31(1)(a) . Further, “[i]n multiple offender cases, if 1 offender is assessed points for the presen ce or use of a weapon, all offenders
shall be assessed the same numbe r of points.” MCL 777.31(2)(b) ; People v Morson , 471 Mich 248, 257; 685 NW2d 203 (2004). OV 1 is an offense-specific var iable. People v Chelmicki , 305 Mich App 58, 72; 850 NW2d 612 (2014).

Here, defendant’s sentencing offense was felon-in-possession. He argues that because the jury acquitted him of first-degree murder 2 , and because he no longer possessed or controlled the firearm when Rombus shot Staples, the gun was not discharge d in relation to defendant’s sentencing offense. Therefore, t he trial court should not have assessed 25 points for OV 1.

Because defendant did not object to the score for OV 1 at sent encing, the trial court did not provide a reason for assessing 25 points. However, it is c lear from the record that defendant did not admit to a discharging the firearm at or toward a humanbeing, no one at trial testified that he did so, and the jury did not find that he did so. And, the jury did not find, beyond a reasonable doubt, that defendant aided and abetted Staples’s mu rder. Moreover, the jury’s finding defendant guilty of felon in possession or felony firea rm does not require a finding that defendant discharged a firear m at or toward a human being.

The elements of felon-in-possession are: (1) the defendant po ssessed a firearm, (2) the defendant was convicted of a specified felony, and (3) the defe ndant’s right to possess the
firearm had not been restored. MCL 750.224f. See also People v Perkins , 262 Mich App 267, 270-271; 686 NW2d 237 (2004), abr ogated on other grounds by People v Smith-Anthony , 494 Mich 669 (2013). “The elements of felony-firearm are that the defendant possessed a firearm during the commission of, or the attempt to commit, a felony.” People v Johnson , 293 Mich App 79, 82-83; 808 NW2d 815 (2011), quoting People v Avant , 235 Mich App 499, 505; 597 NW2d 864 (1999). To assess 25 points for OV 1, gi ven the absence of an admission of rel evant facts by defendant or a finding of the requisite facts by the jury, the trial court would have had to have determined, by a preponderance of the evidence, that defendant handed Rombus the gun he used to shoot Staples. The jury woul d not have had to find this fac t, beyond a reasonable doubt, to convict defendant of felon-in-pos session or felony-firearm, and the jury found defendant not guilty of first-degree murder. F urther, at trial, defendant sp ecifically denied handing Rombus the gun. Thus, the trial court used facts not admitted by defendan t or found by the jury beyond a
reasonable doubt to score OV 1 in contravention of Lockridge

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OV 3 also applies to crimes ag ainst public safety. MCL 777.22 (5). The trial court may assess 50 or 100 points for OV 3 if “[a] victim was killed.” M CL 777.33(1)(a) and (b). One hundred points should be assessed “if death results from the co mmission of a crime and homicide is not the sentencing offense.” MCL 777.33(2)(b). Fu rther, “[i]n multiple offender

2 The court also instructed the jury regarding second-degree mur der, MCL 750.317.-4- cases, if 1 offender is assessed points for death or physical i njury, all offenders shall be assessed the same number of points.” MCL 777.33(2)(a).

For death to “result from” the commission of a crime, the crim e need not have been the proximate cause of the victim’s death. People v Laidler , 491 Mich 339, 346; 817 NW2d 517 (2012). Instead, the crime must b e a factual cause of the vict im’s death. Id . at 344-345. In other words, “[i]n determining whether a defendant’s conduct is a fac tual cause of the result, one must ask, ‘but for’ the defendant’s c onduct, would the result have o ccurred?” Id . at 345 (quotation marks and citation omitted).

Here again, because defendant did not challenge the score for OV 3 at sentencing, the trial court did not provide its reasoning for the score. Howev er, the trial court said, “[B]ecause of the fact that you are the one who brought the gun into the s ituation, if you had taken the gun out of your pocket, sat it on the porch and then went down into the street to break up the fight, if I accept what you testified at t rial to be true, you had that c hoice.” The trial court also stated, “All you had to do was take the g un out of your pocket and leav e it on the porch and Rico wouldn’t be looking at going away f or life, if he’s still alive .” Homicide was not defendant’s sentencing offense. And, the jury did not have to find, beyond a reasonable doubt, that Staples
died to convict defendant of fe lon-in-possession or felony-fire arm. At trial, when asked why he wanted to get away from the crime scene after Staples was shot, defendant said, “I was shocked. Someone was just killed.” But, when asked if, after the shooti ng, he knew Staples was dead, defendant said no. This conflicting testimony is not enough to be considered an admission by defendant that Staples died. Thus, the trial court used facts not admitted by defendant or found by the jury beyond a reasona ble doubt to score OV 3.

OV 12 applies to crimes against public safety. MCL 777.22(5). A trial court may assess one point for OV 12 if “[o]ne c ontemporaneous felonious crimina l act involving any other crime was committed.” MCL 777.42(1)(f). To be contemporaneous, the act must have occurred within 24 hours of the sentencing offens e, and the act must not result in a separate conviction. MCL 777.42(2)(a)( i ) and ( ii ); People v Light , 290 Mich App 717, 722; 803 NW2d 720 (2010). A trial court cannot consider felony-firearm to score OV 12. MCL 777.4 2(2)(b). Thus, to assess one point for OV 12, the court would have had to find, by a prepond erance of the evidence, that defendant handed Rombus the gun. Again, the jury did not have to find this fact, beyond a reasonable doubt, to convict defendant of felon-in-possession o r felony-firearm, and defendant specifically denied this.

In sum, the trial court committed a Lockridge error by relying on facts not admitted by defendant or found by the jury to score these OVs, which result ed in an increase in defendant’s minimum sentence guidelines range. A constitutional error that is not structural will be subject to the harmless beyond a reasonable doubt test. Stokes , ___ Mich App at ___; slip op at 9-10.
“A Lockridge error is not structural, and thus, must be reviewed for harmle ss error.” Id . at ___; slip op at 10.-5- To determine if the error here is harmless, the Crosby 3 procedure must be followed 4

. Id

. As the Lockridge Court explained:

[I]n cases in which a defendant’s minimum sentence was establis hed by application of the sentencing guidelines in a manner that viola ted the Sixth Amendment, the case should be remanded to the trial court to de termine whether that court would have imposed a materially different sentence b ut for the
constitutional error. If the trial court determines that the a nswer to that question is yes, the court shall order resentencing. [ Lockridge , 498 Mich at 397, citing United States v Crosby , 397 F3d 103, 118 (CA 2, 2005).]

The specific procedure is as follows:

[O]n a Crosby remand, a trial court should first allow a defendant an opport unity to inform the court that he or she will not seek resentencing. If notification is not received in a timely manner, the court (1) should obtain the vi ews of counsel in some form, (2) may but is not required to hold a hearing on the matter, and (3) need not have the defendant present when it decides whether to resentence the defendant, but (4) must have the defendant present, as required by law, if it
decides to resentence the defenda nt. Further, in determining w hether the court would have imposed a materially different sentence but for the constitutional constraint, the court should cons ider only the circumstances ex isting at the time of the original sentence. [ Id . at 398 (citations and quotation marks omitted).]

At sentencing, the trial court did not state defendant’s sente ncing guidelines range, but the unofficial SIR prepared by the probation officer provides arange of 19 to 38 months. Further, the trial court stated t hat it was sentencing defendan t at the top of the range, and sentenced defendant to a minimum term of 38 months’ imprisonmen t. Had the trial court assessed zero points for OVs 1, 3 and 12, defendant’s sentencin g guidelines range would have been 5 to 23 months, or 5 to 28 mo nths, if sentenced as a secon d habitual offender. On remand,
the trial court is directed to follow the Crosby procedure and determine whether it would have imposed a materially different sen tence but for the constitutio nal error.

3 United States v Crosby , 397 F3d 103 (CA 2, 2005).

4 The Stokes Court explained that in United States v Lake , 419 F3d 111, 113-114, n 2 (CA 2, 2005), the Second Circuit Court of Appeals “held that, with res pect to preserved sentencing errors of the type now at issue, the Crosby procedure does not apply. Stokes ___ Mich App at ___; slip op at 10. However, the Stokes Court concluded that “given that our Supreme Court specifically expressed its ‘agree ment with’ the quoted analysis stated in Crosby , we believe our Supreme Court intended that the Crosby procedure would apply to both preserved and unpreserved errors.” Id . at ___; slip op at 11.-6- Next, defendant argues on appeal that he is entitled to have t hree sentences/paragraphs containing irrelevant and incorr ect information stricken from h is presentence report (PSIR). We disagree with respect to the fi rst two statements but agree wit h respect to the third.

Defendant did not challenge the accuracy and relevancy of info rmation in the PSIR at sentencing. When asked, specifically, if he had any additions, corrections, or deletions to the PSIR, defense counsel said no. Furth er, this Court denied defe ndant’s motion to remand. People v Armstrong-Nichols , unpublished order of the Court of Appeals, entered July 22, 2 105 (Docket No. 323681). Nonetheless, because defendant raised this issue in his motion to remand, we find
that he did not waive appellate review.

“The Department of Corrections relies on the information conta ined in the PSIR to make critical decisions regarding a defendant’s status.” People v Lloyd , 284 Mich App 703, 705-706; 774 NW2d 347 (2009). “At a sentenc ing hearing, either party ma y challenge the accuracy or relevancy of information contained in the PSIR.” Id . at 705, citing MCL 771.14(6). It is presumed that the information in the PSIR is accurate. Id . If the defendant raises an effective challenge, the prosecution has to prove, by a preponderance of the evidence, that the information
is accurate. Id

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A trial court is required to r espond when a party challenges t he accuracy of the PSIR. Id

., citing People v Uphaus (On Remand) , 278 Mich App 174, 182; 748 NW2d 899 (2008). If the
trial court determines that information in the PSIR is inaccura te or irrelevant, the trial court must correct or strike the information from the report. People v Waclawski , 286 Mich App 634, 690; 780 NW2d 321 (2009), citing MCL 771.14(6) and MCR 6.425(E)(2)(a ). Further, “[w]hen a sentencing court disregards information challenged as inaccurat e, the court effectively
determines that the information is irrelevant and the defendant is entitled to have the information stricken from the report.” Id ., citing People v Spanke , 254 Mich App 642, 649; 658 NW2d 504 (2003).

First, defendant challenges the accuracy of the following stat ement in the evaluation and plan section of the PSIR: “The within offense resulted in a hom icide, however, the defendant was found not guilty by jury.” A PSIR must include “a complete description of the offense and the circumstances surrounding it.” MCR 6.425(A)(1)(b). One co uld conclude, from the evidence presented at trial, that defendant’s choice to possess a gun, and carry that gun near a fight, resulted in a homicide. These were the circumstances surrounding the offense. Because only inaccurate or irrelevant inf ormation must be stricken from the PSIR, Waclawski , 286 Mich App at 690, and the challenged statement is not irrelevant or i naccurate, these statements were properly included in the PSIR.

Next, defendant challenges the following information from the agent’s description in the PSIR: “ ‘[S]hots in progress.’ T hey made the location and disc overed a blood trail from 8086 Bliss to 8151 Bliss. Officers discovered the victim, Jeffery S taples, age 18, was privately conveyed to the hospital by his mother, Patricia Johnson. Scou t 7-71 was dispatched to Detroit Receiving Hospital who confirmed there was a shooting [at] the above location and the victim was fatally wounded and was dead on arrival. The victim’s rema ins were conveyed to the W.C.M.E. An autopsy was performed by Dr. Diaz, who ruled the m anner of death was a gunshot wound and the cause of death is homicide.” He alleges that this information is irrelevant-7- to his sentencing offense. Again, the PSIR must include “a com plete description of the offense and the circumstances surrounding it.” MCR 6.425(A)(1)(b). Th ese statements describe the circumstances surrounding the o ffense; specifically, that Rombu s used defendant’s gun to shoot and kill Staples. Further, thes e facts are supported by eviden ce presented at trial. These statements are, therefore, relev ant to defendant’s sentencing o ffense.

Finally, defendant challenges the following statement included in the agent’s description of the events: “The defendant retrieved a pistol from his jacke t pocket and gave it to Rico Rambus [sic], and stated, ‘shoot him.’ ” He argues that no evi dence was presented at trial that defendant made this statement, and that the trial court disrega rded this information when determining his sentence.

The PSIR indicates that the information in the agent’s descrip tion of the offense “was garnered from a Detroit Police Investigator’s Report.” There w as no evidence presented at trial, or in the preliminary examination, that defendant told Rombus t o shoot Staples. When asked, at trial, if he heard defendant say “shoot him,” Sistrunk said “no .” Defendant also specifically denied, in his testimony, that he told Rombus to shoot Staples. On remand, the trial court is to
remove this statement from the PSIR.

Next, defendant argues on appeal that he was denied the effect ive assistance of counsel when his attorney failed to object to the scoring errors for OV s 1, 3, and 12, and failed to make a formal objection to the irrelevant and incorrect information in the PSIR. We disagree.

Generally, to preserve a claim of ineffective assistance of co unsel, a defendant must file a
motion for a new trial or a Ginther 5 hearing in the trial court to establish evidence supporting th e claim. People v Sabin ( On Second Remand ), 242 Mich App 656, 658-659; 620 NW2d 19 (2000). Defendant did not raise this issue in a motion for a n ew trial or a Ginther hearing in the trial court. Although defendant filed a motion to remand in th is Court which included these claims of ineffective assistance of counsel, he did not specifi cally request a new trial or Ginther hearing. Regardless, this Court denied defendant’s motion to r emand. Therefore, defendant has not preserved this issue for appeal.

Claims of ineffective assistance of counsel are mixed question s of law and fact. People v Trakhtenberg , 493 Mich 38, 47; 826 NW2d 136 (2012). This Court reviews a t rial court’s findings of fact for clear error, and reviews questions of cons titutional law de novo. Id . The defendant must establish a factual predicate for the ineffectiv e assistance of counsel claim. People v Hoag , 460 Mich 1, 6; 594 NW2d 57 (1999). Because defendant did not seek a new trial

or Ginther hearing in the trial court, and this Court denied his motion t o remand, this Court’s review is limited to the appellate record. Sabin ( On Second Remand ), 242 Mich App at 658-659.

To evaluate a claim of ineffective assistance of counsel, this Court uses the standard
established in Strickland v Washington 466 US 668, 687; 104 S Ct 2052; 80 L Ed 2d 674 (1984). Hoag , 460 Mich at 5-6, citing People v Pickens , 446 Mich 298; 521 NW2d 797 (1994). For a

5 People v Ginther , 390 Mich 436; 212 NW2d 922 (1973).-8- successful claim of ineffective assistance of counsel, the defe ndant must show: “(1) counsel’s performance fell below an objective standard of reasonableness and (2) but for counsel’s deficient performance, there is a reasonable probability that t he outcome would have been
different.” Trakhtenberg , 493 Mich at 51. The effective assistance of counsel is presu med. People v Roscoe , 303 Mich App 633, 644; 846 NW2d 402 (2014). Further, the def endant must overcome the presumption that defense counsel’s alleged actions were simply sound trial strategy. Trakhtenberg , 493 Mich at 52.

Both of defendant’s claims of ineffective assistance of counse l lack merit. Defendant’s objection to the scoring errors, as well as the first two chall enged statements in the PSIR, would have been futile (according to t he law that existed at that tim e). Defense counsel need not make futile or meritless objections. People v Ericksen , 288 Mich App 192, 201; 793 NW2d 120 (2010). Although defense counsel’s performance may have fallen below an objective standard of reasonableness when he failed to object to the portion of the a gent’s description in the PSIR that
said defendant handed Rombus t he gun and said “shoot him,” defe ndant does not explain how
his sentence would have been different had the PSIR been correc ted. In fact, in his brief on appeal, defendant claims that the trial court indicated that itwas basing his sentence on defendant’s version of the incident, and that the court apparen tly disregarded these statements in the presentence report. Further, the motion to remand preserve d this issue for appeal, and this
Court will remand to the trial court for this statement to be r emoved from this PSIR. When removed, the statement will not affect defendant’s security cla ssification or parole eligibility.

We remand to the trial court to strike the statement that defe ndant told Rombus to shoot Staples from the PSIR, and to follow the Crosby procedure to determine whether it would have imposed a materially different sentence but for the constitutio nal error. We do not retain jurisdiction.

/s/ Cynthia Diane Stephens
/s/ Joel P. Hoekstra
/s/ Deborah A. Servitto