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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED July 14, 2016

v No. 326738 Muskegon Circuit Court MICAH ISHONE QUINN, LC No. 14-064748-FC

Defendant-Appellant.

Before: M URRAY , P.J., and S AWYER and M ETER , JJ.

P ER C URIAM

.

Defendant appeals as of right his jury trial convictions of ar med robbery, MCL 750.529, unlawful imprisonment, MCL 750.349b, and two counts of possessi on of a firearm during the commission of a felony (“felony-firearm”), MCL 750.227b. He wa s sentenced to 21 to 40 years’ imprisonment for his armed robbery convictions, 10 to 15 years’ imprisonment for his unlawful imprisonment conviction, and two years’ imprisonment for each o f the felony-firearm
convictions. We affirm his convi ctions but remand to comply wi th the procedures set forth in People v Lockridge , 498 Mich 358; 870 NW2d 502 (2015).

I. FACTUAL BACKGROUND

This appeal arises out of the robbery of a pizza delivery man, Roy Ferguson. As Ferguson was delivering an orde r to a house in Muskegon, defend ant and codefendant Taylin Alexander Glenn followed Fergus on to the door, and defendant pu t a gun to the back of Ferguson’s head. Ferguson was ordered to walk back to his car and to empty his pockets, which included approximately $20, his cell phone, wallet, and keys. Defendant took Ferguson’s money and wallet and then ordered Fergu son into the trunk of the car. Ferguson complied. Unsure of what to do with Ferguson, Glenn and defendant drove the car whi le Ferguson was locked in the
trunk.

After stopping the car multiple times to physically assault Fe rguson, Glenn and defendant stopped the car a final time, unlocked the trunk, and told Ferg uson to count to 100 before exiting the trunk. After counting to 100, Ferguson exited the trunk an d began walking to the nearest gas
station to call the police.-2- After a police investigation, defendant was arrested and charg ed with armed robbery, unlawful imprisonment, and two counts of felony-firearm. A jur y convicted defendant as charged and this appeal ensued.

II. ANALYSIS

A. UNNECESSARILY SUGGESTIV E IDENTIFICATION PROCEDURE

Defendant first argues that Fer guson’s identific ation of him a fter seeing his picture in the newspaper constitutes an unneces sarily suggestive identificatio n procedure that tainted Ferguson’s subsequent identifications of defendant at the preli minary examination and at trial.
Defendant did not raise this issu e in the trial court, and is t herefore unpreserved for appellate
review. People v Cameron , 291 Mich App 599, 617; 806 NW2d 371 (2011). We review unpreserved issues for plain error affecting his substantial ri ghts. People v Carines , 460 Mich 750, 762-765; 597 NW2d 130 (1999). Under the plain error stand ard, the defendant bears the burden of showing that: “1) error . . . occurred, 2) the error was plain, i.e., clear or obvious, 3) and the plain error affected subs tantial rights,” “i.e., that t he error affected the outcome of the lower court proceedings.” Id . at 763.

“An identification procedure that is unnecessa rily suggestive and conducive to irreparable misidentification c onstitutes a denial of due proce ss.” People v Williams , 244 Mich App 533, 542; 624 NW2d 575 (2001). However, the due process pr otections against unnecessarily suggestive identificat ion procedures do not apply in the absence of state action. As the Supreme Court has recently held, the “due process check on the admission of eyewitness identification [is] applicable when the police have arrange d suggestive circumstances leading the witness to identify a particular person as the perpetrator of a crime.” Perry v New Hampshire

, __ US __; 132 S Ct 716, 730; 181 L Ed 2d 694 (2012) (emphasis adde d).

Here, defendant has not identif ied any act by law enforcement officers that improperly suggested that defendant was the perpetrator. Ferguson merely testified that he had seen a picture of defendant in the newspaper. Defendant has not come forth with any evidence indicating that Ferguson’s viewing of the news report was arran ged by law enforcement or that the police officers led Ferguson to identify defendant as the p erpetrator of the crimes. Because there was no state action involved in Ferguson’s identification of defendant from a picture in the newspaper, due process does notrequire suppression of the subs equent identifications. Id

.

Even if we were to assume that the pretrial identification pro cedure was impermissibly suggestive, an independent basis for Ferguson’s identification of defendant existed, thus removing the taint of the alleged impermissibly suggestive proc edure. See Williams , 244 Mich App at 542-543. (“If the trial court finds the procedure was im permissibly suggestive, evidence concerning the identification is i nadmissible at trial unless a n independent basis for in-court identification can be established that is untainted by the sugg estive pretrial procedure.” (quotation marks and citation om itted)). With respect to wheth er there was an independent basis to identify the defendant at tria l, there are “eight factors th at a court should use in determining if an independent basis exists:” (1) “Prior relationship with or k nowledge of the defendant;” (2) “The opportunity to observe the offense. This includes such fa ctors as length of time of the observation, lighting, noise or o ther factor[s] affecting senso ry perception and proximity to the-3- alleged criminal act;” (3) “Length of time between the offense and the disputed identification;” (4) “Accuracy or discrepancies in the pre-lineup or showup desc ription and defendant’s actual description;” (5) “Any previous p roper identification or failur e to identify the defendant;” (6) “Any identification prior to lin eup or showup of another personas defendant;” (7) “[T]he nature of the alleged offense and the physical and psychological state of the victim;” and (8) “Any idiosyncratic or special features of defendant.” People v Gray , 457 Mich 107, 115-116; 577 NW2d 92 (1998). However, these fact ors are not exhaustive. Id . at 117 n 12.

In the present case, Ferguson te stified that he looked directly at defendant and that there was adequate lighting coming from the house where he was delive ring food. Additionally, the preliminary examination was slightly longer than a month after the incident, which is considered a “relatively short period of time.” Id . at 120. Ferguson was asked to i dentify the perpetrator in a photographic lineup (which did not include a photograph of de fendant) and Ferguson did not erroneously select anyone in the photographic lineup. Addition ally, Ferguson’s description of defendant—5’ 9” with a medium build—was generally accurate. Wh ile Ferguson testified that he was nervous during the offense because of the gun, he also t estified that he had “a good look” at defendant and that he made a point to remember what defendan t looked like in the event he needed to tell his employer or the police. Ferguson also testi fied that he identified defendant based on what he saw on the night of the incident and that he w as sure that defendant was the
individual. These factors all we igh in favor of concluding tha t Ferguson had an independent
basis for his identification of d efendant. In contrast, only t wo factors weigh against such a conclusion. First, Ferguson and defendant did not have a prior relationship, nor did Ferguson know defendant before the offense. Second, defendant did not i dentify any idiosyncratic or special features of defendant. Nevertheless, after a review of the relevant factors, the totality of the circumstances supported the admission of Ferguson’s identif ication as an independent basis existed to remove any alleged taint of an unnecessarily suggest ive pretrial identification.

Williams , 244 Mich App at 542-543. Thus, defendant has not demonstrate d that a plain error
occurred. Carines , 460 Mich at 763.

B. INEFFECTIVE ASSISTANCE OF COUNSEL

Next, defendant argues that trial counsel was ineffective for failing to bring a motion to suppress the pretrial identific ation, failing to bring a motion to suppress defendant’s confession, and failing to ask certain questions and call alibi witnesses. Because no Ginther 1 hearing was conducted, this Court’s review is limited to mistakes apparent on the record. People v Wilson

, 242 Mich App 350, 352; 619 NW2d 413 (2000). The questions pres ented by a claim of ineffective assistance of counsel are mixed questions of law an d fact; findings of fact by the trial court, if any, are reviewed for clear error, and questions of c onstitutional law are reviewed de

novo. People v LeBlanc , 465 Mich 575, 579; 640 NW2d 246 (2002). “Clear error exists if the reviewing court is left with a definite and firm conviction tha t the trial court made a mistake.” People v Armstrong , 490 Mich 281, 289; 806 NW2d 676 (2011).

1 People v Ginther , 390 Mich 436; 212 NW2d 922 (1973).-4- To establish ineffective assistance of counsel, a defendant mu st show that “his attorney’s performance fell below an objective standard of reasonableness, ” and “this performance so prejudiced him that he was deprived of a fair trial.” People v Grant , 470 Mich 477, 485-486; 684 NW2d 686 (2004). In order to establish prejudice, the defe ndant must establish that there is “a reasonable probability that the outcome would have been diff erent but for counsel’s errors.”

Id . at 486. “Effective assistance of counsel is presumed, and th e defendant bears a heavy burden of proving otherwise.” People v Lockett , 295 Mich App 165, 187; 814 NW2d 295 (2012).

1. MOTION TO SUPPRESS FER GUSON’S IDENTIFICATION

First, defendant argues that defense counsel was ineffective f or failing to file a motion to suppress Ferguson’s identification before trial because it viol ated his due process rights. As explained above, because law enforcement was not involved in Fe rguson’s identification of defendant in the newspaper, and because there was an independen t basis for the in-court identification that was untainted by any suggestive pretrial pr ocedures, defense counsel’s objection to Ferguson’s trial iden tification would not have had merit, and counsel cannot be ineffective for failing to make this meritless argument. People v Collins , 298 Mich App 458, 470; 828 NW2d 392 (2012).

2. MOTION TO SUPPRESS DE FENDANT’S CONFESSION

Second, defendant argues that defense counsel was ineffective for failing to file a motion to suppress defendant’s confession because the confession was i nvoluntary. “Statements of an accused made during custodial interrogation are inadmissible un less the accused voluntarily, knowingly, and intelligently waive d his or her Fifth Amendment rights.” People v Gipson , 287 Mich App 261, 264; 787 NW2d 126 (2010). Voluntariness is a tot ality of the circumstances analysis, which “consider[s] fact ors such as: the duration of t he defendant’s detention and questioning; the age, education, intelligence, and experience o f the defendant; whether there was unnecessary delay of the arraignment; the defendant’s mental an d physical state; whether the
defendant was threatened or abused ; and any promises of lenienc y.” Id . at 264-265. Ultimately,
“whether a waiver of Miranda [2] rights is voluntary depends on the absence of police coercion. ” People v Daoud , 462 Mich 621, 635; 614 NW2d 152 (2000). “In contrast to the voluntary prong, determining whether a suspect’s waiver was knowing and i ntelligent requires an inquiry into the suspect’s level of understanding, irrespective of poli ce behavior.” Id . at 636. “A very basic understanding of those right s is all that is necessary,” and “[i]ntoxicati on from alcohol or
other substances can affect the v alidity of a waiver, but is no t dispositive.” Gipson , 287 Mich App at 265.

Here, the interview lasted approximately two hours, defendant was 17 years old with an 11th grade education, and he had a prior juvenile record with a n adult conviction for unlawfully driving away a motor vehicle. O n appeal, defendant argues that his statements were involuntary because (1) he was under the influence of various substances, ( 2) he was 17 years old, and (3) the interviewing officers “moved cl oser to him, suggesting threaten ing or coercive behavior.”

2 Miranda v Arizona , 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).-5- Defendant’s contention that the i nterviewing officers moved clo ser to defendant in a threatening or coercive manner is refuted by the record. Our review of the interview video indicates that the officers did not make any movements toward defendant in a threa tening or coercive manner. In fact, the video of the interviewdemonstrates the opposite of acoercive or threatening environment: the officers spoke in a friendly tone, laughed, an d did not question defendant in an intimidating manner. Further, defendant was offered water or p op during the interview, he was informed multiple times that he did not have to answer the ques tions, and he was not threatened. And, while defendant was 17 years old at the time of the interv iew, his age is only one of the relevant factors to be considered within the totality of the ci rcumstances. See id . Defendant’s age is outweighed by other factors such as his experience with the police and the lack of threats from the police.

With respect to defendant’s claim that he was under the influe nce of various substances,
Detective Peter Boterenbrood tes tified that defendant did not a ppear to be high in any way during the interview, that defendant did not have a glassy appe arance in his eyes, and that defendant did not appear tired, exhausted, or “anything like th at.” Similarly, Detective Kory Luker testified that, as a polic e officer, he observed people u nder the influence of narcotics numerous times, that one can often tell when someone is under t he influence, and that defendant did not appear under the influence of narcotics in any way duri ng the interview. Luker further testified that defendant’s eyes were not bloodshot or red, that defendant was not struggling to speak, that defendant did not appear to be lethargic, that defe ndant did not have difficulty walking in or out of the room, that defendant did not fall asle ep, that defendant did not fall out of his chair, and that defendant was able to answer the questions coherently. Notably, near the end of the interview, defendant was asked whether he was under the influence of drugs or alcohol, and he responded, “No.”

Considering the totality of the circumstances based on the fac ts apparent from the record, there is nothing to suggest that defendant’s statements were th e product of police coercion. Id . at 264-265. Rather the record demonstrates that they were “the pr oduct of a free and deliberate choice rather than intimidation, coercion, or deception.” Id . Moreover, defendant was read his

Miranda warnings, and he stated that he understood his Fifth Amendment rights. Therefore, defendant voluntarily, knowingly, and intelligently waived his Fifth Amendment rights and a motion to suppress would have been meritless. Because counsel will not be rendered ineffective for failure to file a meritless motion, defendant was not denie d the effective assistance of
counsel. Collins , 298 Mich App at 470.

3. COUNSEL’S FAILURE TO A SK CERTAIN QUESTIONS

Third, defendant “asserts that he asked counsel to ask certain questions during trial.” This argument invokes an issue of trial strategy as “[d]ecision s regarding what evidence to present and whether to call or question witnesses are presumed to be matters of t rial strategy, and
this Court will not substitute its judgment for that of counsel regarding matters of trial strategy.” People v Davis , 250 Mich App 357, 368; 649 NW2d 94 (2002). “[W]ith regard to trial strategy and tactics,” trial counsel has “ great discretion in the trying of a case.” People v Pickens , 446 Mich 298, 330; 521 NW2d 797 (1994). Further, defendant has notexplained or indicated on appeal what questions he wanted defense counsel to ask. Accord ingly, defendant has not overcome the presumption that def ense counsel’s decisions regar ding the questioning of-6- witnesses was sound trial strategy. Id . Counsel’s performance did not fall below an objective standard of reasonableness in this regard.

4. COUNSEL’S FAILURE TO C ALL ALIBI WITNESSES

Defendant lastly argues that c ounsel was ineffective for faili ng to call two alibi witnesses. With respect to this alleged d eficiency, defendant’s affidavit attached to his brie f on appeal states that he “asked [his] attorney to call [his] sister, Lynitra Qui nn, as [his] alibi witness, but he did not” and that he “told [his] attorney James Marek that [he] had an alibi: Keith Washington and Lynitra Quinn.” As mentioned abo ve, the decision to call a wit ness is presumed to be a matter of trial strategy. People v Dixon , 263 Mich App 393, 398; 688 NW2d 308 (2004). The failure to call a witness only constitutes ineffective assistance of couns el if it deprives the defendant of a
substantial defense. Id . A substantial defense is one that might have made a differen ce in the
outcome of trial. In re Ayres , 239 Mich App 8, 22; 608 NW2d 132 (1999). Assuming that defendant’s alibi witnesses exist and were willing to testify, defendant has not provided any affidavits from these proposed alibi witnesses regarding their proposed testimony. Because “[t]here is no evidence that the alibi witness[es] would have t estified favorably,” Pickens , 446 Mich at 371, defendant has not demonstrated he was denied a def ense that might have made a difference in the outcome of trial. As such, defendant has not established ineffective assistance
of counsel. Grant , 470 Mich at 485-486. 3

C. SENTENCING

Finally, defendant argues that he is entitled to resentencing under Lockridge because the trial court engaged in impermissi ble judicial fact-finding in s coring OVs 3, 4, 7, and 13. 4 Unlike
in Lockridge , defendant preserved this issue through a motion to remand, se e People v Terrell

, 312 Mich App 450, 464; 879 NW2d 294 (2015), thus we review his claims for harmless error. People v Stokes , 312 Mich App 181, 198; 877 NW2d 752 (2015).

The core holding of Lockridge is that the sentencing guidelines are unconstitutional to the extent that they “ require judicial fact-finding beyond facts admitte d by the defendant o r found by the jury to score offense variables . . . that mandatorily increase the floor of the guidelines minimum sentence range[.]” Lockridge , 498 Mich at 364. To remedy this constitutional violation, the Court severed MC L 769.34(2) to the extent that i t makes the guidelines mandatory.

Id . at 391. Although the guidelines are no longer mandatory, “the y remain a highly relevant
consideration in a tri al court’s exercise of sentencing discret ion” and thus the trial court must still score the guidelines and “consu lt the applicable guidelines ran ge and take it into account when imposing a sentence.” Id . at 391.

3 We reject defendant’s alternative argument requesting a remand for a Ginther hearing because we previously denied defendant’s request for a remand. See People v Horn , 279 Mich App 31, 38; 755 NW2d 212 (2008).

4 Defendant also argues that OVs 10 and 16 were also impermissib ly scored by the use of judicial fact-finding. Howev er, OVs 10 and 16 were assessed 0 points.-7- With regard to OV 3, the trial court scored 10 points because it found that “[b]odily injury requiring medical treatment occurred to a victim.” MCL 777.33(1)(d). Here, no portion of the jury’s verdict necessarily found that bodily injury requ iring medical treatment occurred to a victim. Indeed, none of the elements needed to convict defen dant of armed robbery, unlawful imprisonment, or felony-firearm e stablished the scoring of OV 3 . In addition, defendant did not admit that bodily injury requiring medical treatment occurred t o a victim. While defendant admitted in the police interview and apology letter to beating Ferguson, defendant denied committing the offense and testified that his statements to the police and in the apology letter were false. Accordingly, the tria l court’s score of OV 3 was b ased on facts that were neither found by the jury nor admitted by defendant.

Next, defendant argues, and the prosecution concedes, that OV 4 and OV 7 were improperly assessed 10 and 50 points respectively. OV 4 requir es a finding that serious psychological injury requiring professional treatment occurred to a victim to support a score of 10 points. MCL 777.34(1)(a). OV 7 is properly scored 50 point s when a victim wa s treated with sadism, torture, excessive brutality or similarly egregious con duct designed to substantially increase the fear and anxiety a victim suffered during the offe nse. MCL 777.37(1)(a). The jury’s verdict is silent regarding whether psychological injury requiring professional treatment
occurred to the victim or whether the victim was treated with s adism, torture, excessive brutality or similarly egregious conduct designed to substantially increa se the fear and anxiety a victim suffered during the offense. In addition, defendant did not ad mit the facts necessary to support a scoring of OVs 4 and 7. Therefore, OVs 4 and 7 were scored bas ed on judicially found facts.

Defendant also challenges the scoring of OV 13. The trial cou rt assessed 25 points for OV 13, which requires a finding th at “[t]he offense was part of a pattern of felonious criminal activity involving three or more crimes against a person.” MCL 777.43(1)(c). While armed robbery and unlawful imprisonment are crimes against a person, see MCL 777.16y and MCL 777.16q, felony-firearm is not. T hus, three crimes against aperson were not found by the jury. In addition, defendant did not admit to a third crime that cons titutes a crime against a person. While defendant admitted to police officers that he committed a n additional armed robbery that occurred at McCrea Park, defendant subsequently testified at tr ial that his statements to police officers were not true. Therefore, defendant did not admit to having committed a third crime against a person. Thus, the fact s used to support the scoring of OV 13 were not admitted by defendant or found by the jury beyond a reasonable doubt.

It is clear that 95 out of the 130 points assessed for defenda nt’s OV score were assessed solely based on judicially found facts. Without judicial fact- finding, defendant’s OV score would have been 35 points, and the minimum range calculated und er the sentencing guidelines range would have been 81 to 135 months instead of 171 to 285 mo nths. See MCL 777.62; MCL 777.68. Clearly, defendant’s minimum sentence range was altere d by the Sixth Amendment violation, and defendant is entitled to a Crosby 5 remand. Lockridge , 498 Mich at 395-399;

Stokes , 312 Mich App at 198-199.

5 United States v Crosby , 397 F3d 103 (CA 2, 2005).-8- [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 d efendant present, as required by [MCR 6.425], if it decides to resentence the defendant. Further, in determi ning whether the court would have imposed a materially different sentence but fo r the unconstitutional constraint, the court should consider only the circumstances existing at the time of the original sentence. [ Lockridge , 498 Mich at 398 (quotation marks and citation omitted).]

We affirm defendant’s convictions and remand solely for furthe r inquiry as to whether resentencing is re quired. We do not ret ain jurisdiction.

/s/ Christopher M. Murray /s/ David H. Sawyer
/s/ Patrick M. Meter