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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UNPUBLISHED

November 21, 2017

v No. 333317

Wayne Circuit Court

LAKEISHA NICOLE GUNN, LC No. 13-004566-01-FH

Defendant-Appellant.

Before: MURRAY, P.J., and FORT HOOD and GLEICHER, JJ.

PER CURIAM.

Defendant appeals as of right, following resentencing,1 her sentence of 15 to 30 years’ 

imprisonment for her jury-trial conviction of second-degree arson, MCL 750.73(1).

2

 We affirm. 

This case has a somewhat complicated and protracted procedural history. Following a 

jury trial, defendant was convicted of second-degree arson, MCL 750.73(1) (“Count I”), and 

placing an offensive or injurious substance in or near real property with intent to injure or 

damage property, MCL 750.209(1)(b) (“Count II”). The trial court originally sentenced 

defendant, as a third habitual offender, MCL 769.11, to 15 to 30 years’ imprisonment for each 

conviction, to be served concurrently. On appeal, this Court affirmed defendant’s convictions, 

but vacated her sentence on Count II, and remanded for resentencing on that count only. People 

v Lakeisha Nicole Gunn, unpublished opinion per curiam of the Court of Appeals, issued 

February 17, 2015 (Docket No. 318065), pp 1-2. In the context of considering defendant’s 

sufficiency of the evidence challenge, this Court stated its reasoning for ordering resentencing of 

Count II in pertinent part, as follows:

 1 For reasons set forth in more detail subsequently in this opinion, defendant was only 

resentenced on a count of placing an offensive or injurious substance in or near real property 

with intent to injure or damage property, MCL 750.209(1)(b). 

2 Defendant was sentenced as a third habitual offender, MCL 769.11. As will be detailed 

subsequently in this opinion, the trial court also sentenced defendant to 10 to 30 years’ 

imprisonment for her jury-trial conviction of placing an offensive or injurious substance in or 

near real property with intent to injure or damage property, MCL 750.209(1)(b).
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[The judgment of sentence] . . . identifies the conviction offense on Count 

II as placing an explosive substance in or near real property, citing MCL 

750.207(2)(b). The record indicates, however, that defendant was charged with 

and convicted of placing an offensive or injurious substance in or near real 

property, contrary to MCL 750.209(1)(b). 

At sentencing however, defendant’s conviction for Count II was 

inaccurately listed on the sentencing information report as placing explosives on 

or near property, contrary to MCL 750.207(2)(b), and the parties and the trial 

court proceeded as if defendant had been convicted of that offense, which is the 

offense identified on defendant’s judgment of sentence. Because the trial court 

sentenced defendant under the mistaken belief that [she] had been convicted of 

placing explosives on or near property, pursuant to MCR 2.617(A)(7), we vacate 

defendant’s sentence for Count II and remand for resentencing on the correct 

conviction of placing an offensive or injurious substance in or near real property, 

contrary to MCL 750.209(1)(b). [Gunn, unpub op at 1-2 (emphasis added).] 

With respect to defendant’s challenge that the trial court engaged in impermissible 

judicial fact-finding in scoring the sentencing guidelines variables, this Court stated, in pertinent 

part, as follows:

Defendant lastly argues that judicial fact-finding by the trial court when 

scoring the sentencing guidelines variables entitles [her] to resentencing under 

Alleyne v United States, 570 US ___; 133 S Ct 2151; 186 L Ed 2d 314 (2013). As 

defendant acknowledges, this Court rejected this same argument in People v 

Herron, 303 Mich App 392, 405; 845 NW2d 533 (2013) appeal held in abeyance 

___ Mich ___; 846 NW2d 924 (2014). Because we are required to follow 

Herron, see MCR 7.215(J)(1), we reject this claim of error. [Gunn, unpub op at 

13.] 

Defendant subsequently applied for leave to appeal to the Michigan Supreme Court. In 

lieu of granting leave to appeal, the Michigan Supreme Court remanded for a Crosby3 hearing 

pursuant to People v Lockridge, 498 Mich 358; 870 NW2d 502 (2015) on Count I, but denied 

leave on the remaining issues. People v Gunn, 498 Mich 903; 870 NW2d 894 (2015). 

Specifically, the Michigan Supreme Court’s order provided, in pertinent part, as follows:

[W]e REVERSE in part the judgment of the Court of Appeals, and we REMAND 

this case to the Wayne Circuit Court to determine whether the court would have 

imposed a materially different sentence under the sentencing procedure described 

in People v Lockridge, 498 Mich 358; 870 NW2d 502 (2015). On remand, the 

trial court shall follow the procedure described in Part VI of our opinion. If the 

trial court determines that it would have imposed the same sentence absent the 

unconstitutional constraint on its discretion, it may reaffirm the original sentence. 

 3 United States v Crosby, 397 F3d 103 (CA 2, 2005).
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If, however, the trial court determines that it would not have imposed the same 

sentence absent the unconstitutional constraint on its discretion, it shall resentence 

the defendant. In all other respects, leave to appeal is DENIED, because we are 

not persuaded that the remaining questions presented should be reviewed by this 

Court. [Gunn, 498 Mich at 903 (emphasis added).]

The trial court held a Crosby hearing, and concluded, with respect to Count I, that it would have 

imposed the same sentence on Count I had the sentencing guidelines been advisory. The trial 

court also resentenced defendant in accordance with the proper offense on Count II to 10 to 30 

years’ imprisonment. Defendant then filed a motion for resentencing with respect to Count I, 

which the trial court denied, holding that it lacked authority to resentence defendant. 

Defendant now argues on appeal that this Court should remand to the trial court for 

resentencing on Count I. We disagree. 

Where our resolution of the issue presented requires an interpretation of the applicable 

court rule, our review is de novo. People v Comer, 500 Mich 278, 287; 901 NW2d 553 (2017). 

At issue in this case is the trial court’s authority to revisit the sentence it rendered with 

respect to Count I. As an initial matter, MCR 6.429(A) states, “[A] court may correct an invalid 

sentence, but the court may not modify a valid sentence after it has been imposed except as 

provided by law.” In People v Miles, 454 Mich 90, 96; 559 NW2d 299 (1997), the Michigan 

Supreme Court set forth the following legal principles with respect to what constitutes an invalid 

sentence:

A sentence is invalid when it is beyond statutory limits, when it is based upon 

constitutionally impermissible grounds, improper assumptions of guilt, a 

misconception of law, or when it conforms to local sentencing policy rather than 

individualized facts. This Court has also repeatedly held that a sentence is invalid 

if it is based on inaccurate information. [Citations omitted.] 

In the instant case, defendant contends that her sentence on Count I was invalid for 

several reasons, and we will address each in turn. First, defendant contends that her sentence on 

Count I was the product of impermissible judicial fact-finding in violation of the Sixth 

Amendment. However, as noted above, the trial court, in accordance with the Michigan 

Supreme Court’s order that a Crosby hearing be held, clearly noted, with regard to its sentence 

on Count I, that it would not have “imposed a materially different sentence” for defendant but for

the unconstitutional restraint on its discretion. Lockridge, 498 Mich at 397. 

Defendant also argues that her sentence is unreasonable, disproportionate, disparate and 

that unusual circumstances existed warranting a more lenient sentence where defendant’s actions 

in committing second-degree arson were the result of her being in an abusive domestic 
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relationship.4 As an initial matter, we note that a review of her brief on appeal in Docket No. 

318065 confirms that defendant, aside from her Alleyne challenge, did not raise any other 

arguments concerning the validity of her sentence in her initial appeal. Moreover, where 

defendant’s minimum sentence falls within “the appropriate guidelines sentence range,” this 

Court “shall affirm that sentence” absent an error in scoring or an indication that the sentence 

was based on inaccurate information. MCL 769.34(10); People v Schrauben, 314 Mich App 

181, 196; 886 NW2d 173 (2016). 

Defendant also argues that her sentence on Count I was based on inaccurate information 

where the trial court initially rendered a sentence on Count II for the incorrect offense of placing 

explosives on or near real property, contrary to MCL 750.207(2)(b). In support of her argument, 

defendant points to the Michigan Supreme Court’s decision in Miles, 454 Mich at 90. At issue in 

Miles was the authority of the trial court to modify a sentence. Id. at 96. The Michigan Supreme 

Court held that the trial court erred in increasing the defendant’s sentence for felony-firearm and 

reaffirming its sentence for armed robbery “without affording [the] defendant an opportunity to 

challenge [subsequent] new information at a resentencing hearing.” Id. at 98.5 Where the 

defendant conceded the accuracy of a prior felony-firearm conviction, the Michigan Supreme 

Court concluded that the trial court’s failure to conduct a resentencing hearing before amending 

the judgment of sentence as a result of that new information was harmless error. Id. at 100-101. 

However, with respect to the defendant’s sentence of armed robbery, the Michigan Supreme 

Court remanded for resentencing where that sentence was “based on . . . inaccurate information 

in the presentence report[.]” Id. at 101. 

In our view, Miles is factually dissimilar, in that the defendant’s presentence investigation 

report (PSIR) in that case omitted information that directly affected both his sentence for felonyfirearm and armed robbery. In the present case, the incorrect citation of the offense in the PSIR 

and in the judgment of sentence did not directly impact defendant’s sentence for second-degree 

arson. In fact, the trial court plainly stated that although the wrong citation had been included in 

the PSIR and judgment of sentence, the trial court was cognizant that it was sentencing defendant 

on the correct charge. Further, while there may have been an inadvertent procedural discrepancy 

that occurred with regard to defendant’s sentence on Count II, we note that the sentencing 

guidelines for both offenses relative to Count II were the same, given that placing explosives on 

or near real property, MCL 750.207(2)(b), and placing an offensive or injurious substance in or 

near real property with intent to injure or damage property, MCL 750.209(1)(b), are both Class B 

offenses. MCL 777.16k.6 Therefore, because defendant’s sentence of 15 to 30 years’ 

 4 Aside from arguing for a lesser sentence where defendant had been involved in an abusive 

relationship, defendant did not raise any of these claims with respect to Count I at the 

resentencing for Count II. 

5

 Specifically, the report did not correctly include information that the defendant had a previous 

felony-firearm conviction. Id. at 92. 

6 Notably, at the resentencing hearing on May 3, 2016, defense counsel conceded that the 

sentencing guidelines range remained the same. 
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imprisonment for Count I is a valid sentence, the trial court correctly recognized that it did not 

have the authority to modify it. See MCR 6.429(A).

Affirmed.

/s/ Christopher M. Murray 

/s/ Karen M. Fort Hood