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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED January 26, 2017

v Nos. 328711; 329070 Wayne Circuit Court JUSTIN MILTON BELL, LC No. 15-002172-01-FH;

15-002170-01-FC Defendant-Appellant.

Before: B ECKERING , P.J., and S AWYER and S AAD , JJ.

P ER C URIAM

.

A jury convicted defendant, Justin Milton Bell, for armed robb ery, MCL 750.529, possession of a short-barreled shot gun, MCL 750.224b(1), and p ossession of a firearm while committing a felony (felony-fire arm), MCL 750.227b(1). The tri al court sentenced him to prison terms of 18 to 40 years for the armed-robbery, 3 to 5 years for possession of a short-barreled shotgun, and two years for felony -firearm. Defendant appeals b y right these convictions and sentences in Docket No. 329070. In Docket No. 328711, defendan t appeals by right his jury conviction for a second, separate charge of possessing a short- barreled shotgun, for which the trial court also sentenced him to 3 to 5 years’ imprisonment. We consolidated these appeals for administrative purposes. People v Bell , unpublished order of the Court of Appeals, issued February 10, 2016 (Docket Nos. 328711, 329070). For the reaso ns set forth below, we remand to the trial court for the issuance of an amended judgment of s entence vacating one of defendant’s sentences for possession of a short-barreled shotgu n and for further proceedings consistent with the process set forth in People v Lockridge , 498 Mich 358, 398; 870 NW2d 502 (2015), United States v Crosby , 397 F3d 103 (CA 2, 2005), and People v Steanhouse , 313 Mich App 1, 46-49; 880 NW2d 297 (2015). We af firm the trial court in all other respects.

I. PERTINENT FACTS

Defendant’s convictions in thes e consolidated appeals arise fr om events that occurred on the night of February 20, 2015. At defendant’s trial, Detroit Police Department (PD) Officer Brian Gibbings testified that he and his partner, Officer Micha el Bridson, were on patrol near Wyoming Street and Grand River Avenue in Detroit when Gibbings observed defendant with “a long metal object in his left sleeve.” When Gibbings turned ar ound his patrol vehicle to investigate further, defendant fled. Gibbings and his partner followed footprints in the fresh snow to a vacant house, where G ibbings found a shotgun behind a n old television stand. Bridson-2- testified that a third officer f ound defendant hiding in a clos et on the first floor of the house, and that a pat down of defendant yielded $16 and a wallet that cont ained a Social Security card and other paperwork bearing the name “Larry Verse.” The officers d id not know at the time who Verse was, but learned shortly after defendant’s arrest that Ve rse had been the victim of a recent, nearby armed robbery involving a shotgun.

Verse testified that on February 20, 2015, at approximately 8: 00 p.m., he was walking on Wyoming Street near Grand River Avenue when he heard footsteps behind him, turned around, and saw a person with a shotgun wearing what appeared to be a s ki mask. Verse said the person pointed the shotgun at him and told him that “this is a robbery , don’t make him shoot.” He further recounted that the assailant ordered him to go into an alley and to lie on the ground, and that the assailant took two of his three wallets, which contain ed his Social Security card, medical cards, and a spare house key, a nd $16 and change out of the thi rd wallet.

Detroit PD Lieutenant Tharadrous White testified that he and D etective Anthony Smith interrogated defendant at approximately 2 a.m. on February 21, 2015, at the Detroit Detention Center. According to White, defendant did not appear to be inj ured or under the influence of narcotics or alcohol. White explained that he wrote down the q uestions he asked defendant and the answers defendant gave, and then had defendant review the d ocument; after making one correction and adding a handwr itten apology, defendant initiale d the statement. White testified that defendant admitted that he had a shotgun while he was walk ing down Wyoming and that he ran from police. The witness said defendant also admitted that , before running from the police, he had seen a man who “looked as if he had a little money,” so he “pulled out a shotgun and told him no one will get hurt if he just did what [defendant] said.” White said that defendant explained that he made the man go to an alley and lie down, and then he took $10 to $15 and a wallet from him. White recounted that, in defendant’s handwrit ten apology, defendant said he was sorry, that he understood he was wrong, that he had a baby on the way and was going through rough times, and that he never meant to hurt anyone. T he information defendant gave in his statement regarding the armed robbery of Verse led White an d Smith to interrogate him subsequently about a similar armed robbery that occurred in the same vicinity on January 24,

2015. 1 White said he assumed the interrogations were being recorded by audiovisual equipment and that the recordings would be stored for at least 30 days, b ut when he went to obtain copies of them approximately 14 days later, he was unable to locate them.

1 The prosecutor charged defendant for the January armed robbery , and defendant’s trial on these charges (first trial) preceded by two weeks his trial for the c harges stemming from the armed robbery of Verse (second trial). A jury convicted defendant fo r armed robbery and felonyfirearm for the January armed robbery, and the trial court sent enced him to terms of imprisonment of 18 to 40 years for the armed robbery, and two y ears for felony-firearm. Defendant appeals by right these convictions and sentences in D ocket No. 328710. All three appeals were submitted together.-3- During his testimony, defendant admitted that he had a drug pr oblem and acknowledged possessing a shotgun, 2 but denied robbing Verse. He said that he ran from the police because he was “paranoid” and did not know why they were “casing” him, and because he was scared of “police brutality or being shot for having a weapon.” Regardin g the money and wallet containing Verse’s documents that police found on him, defendan t explained that he had loaned his shotgun to a fellow crack addict earlier that evening, and that the addict had returned the gun to him around 9:00 p.m., at which time the addict gave him $15 and a wallet. Defendant said he was walking home from this exchange when he saw the police and ran. He further stated that he was injured and under the influence of cocaine and marijuana at the time of his arrest, and that he had no memory of his interrogation. He stated on cross-examina tion that he did not dispute that a portion of his “alleged” statement was written in his hand, b ut insisted that he did not recall writing it or making any of the com ments about the robbery attr ibuted to him in the statement.

Defendant offered a closing statement on his own behalf in whi ch he sought to undermine the credibility of the police witnesses by arguing that, withou t a video recording of his interrogation, there was no proof that he had made the confessi on police attributed to him. He also sought to undermine the victim’s credibility by drawing th e jury’s attention to how neither he nor his shotgun matched the victim’s description of the assa ilant or his weapon. He attempted to undermine the credibility of witnesses further by pointing o ut the lapse of time between when

Verse was robbed and defendant w as arrested (which he said was approximately ninety minutes), and by stressing that police found only one wallet on him, when Verse testified that he usually

carried three.

II. ANALYSIS

A. JURY INSTRUCTION PURSUANT TO MCL 763.9

Defendant first argues that trial counsel was constitutionally ineffective for failing to ask the trial court to instruct the jury that interrogations for ma jor felonies must be recorded, MCL 763.8, and that jurors could consider the absence of such recor ding when evaluating the evidence in this case, MCL 763.9. Defendant raised the same issue in Do cket No. 328710, for which the facts and the parties’ arguments were the same as those present ed in this case. Accordingly, we adopt for purposes of the present appeal the following analysis and conclusion that we set forth

in our decision in Docket No. 328710:

Whether defendant was entitled to a jury instruction is a ques tion of law

that we review de novo. See People v Dobek , 274 Mich App 58, 82; 732 NW2d 546 (2007). MCL 763.8 states that a “law enforcement official interrogating an

individual in custodial detention regarding the individual’s in volvement in the commission of a major felony shall make a time-stamped, audiovi sual recording

2 The parties stipulated that th e shotgun fulfilled the statutory criteria that make a shotgun “shortbarreled.” MCL 750.222( l ).-4- of the entire interrogation.” 3 Major felonies include felonies that are punishable by imprisonment for life or any term of years. MCL 763.7(d). Failure to record a major-felony interrogation does notpreclude a police officer f rom testifying about the interrogation or the content of a statement. MCL 763.9. H owever, if the statutorily required recording is not available, “the jury shal l be instructed that it

is the law of this state to record statements of an individual in custodial detention who is under interrogation for a major felony and that the jury may consider the absence of a recording in evaluating the evidence relating to t he individual’s

statement.” Id

.

It is undisputed that police interrogated defendant regarding his involvement in the commission of an armed robbery, that armed r obbery is a major felony, and that they interrogated defendant in a room pr operly equipped with the necessary recording system. Consequently, MCL 763.8 w as applicable. Therefore, because no recording was available for trial, the tr ial court should have instructed the jury pursuant to MCL 763.9 that a recording was mandatory and that it may consider the absence of a recording in evaluating t he nature of

defendant’s statement.

Plaintiff argues that, because police testimony established th at the recording equipment was not properly storing videos and that th e recording of defendant’s interrogation could not be accessed, the recording equipment was not “operational or accessible” as p rovided in MCL 763.11(3) or (4)

, 4 and that,

3 An exception to this requirement occurs when the individual po lice are interrogating has objected to having the interrogation recorded, and the individu al’s objection is properly noted. MCL 763.9. This exception does not a pply in the instant case.

4 MCL 763.11(3) and (4) directs that MCL 763.8 and 763.9, as wel l as other provisions of the statutory scheme, must be adhered to once the law enforcement a gency acquires access to recording equipment, or within certain time periods after recei ving funds for recording equipment. Specifically, the provisions read as follows:

(3) Except as otherwise provided in subsection (4), law enforc ement agencies shall implement [MCL 763.7 through MCL 763.10] and thi s section within 120 days after receiving funds under this section from t he Michigan commission on law enforcement standards or acquiring access to audiovisual recording equipment as direct ed by the standards set forth by that commission.

(4) Notwithstanding subsection (3), a law enforcement agency s hall comply with the provisions of the amendatory act that added thi s subsection within 60 days after the date the commission adopts the standar ds for audiovisual recording equipment required by this section if the law enforce ment agency has audiovisual recording equipment that complies with those standa rds on that date, or within 60 days after the date the law enforcement agency sub sequently obtains audiovisual recording equipment t hat complies with the adopted standards.-5- consequently, MCL 763.9 did not apply. 5 We find this argument unpersuasive because it fails to consider the statutory scheme as a whole. See Mayor of the City of Lansing v Mich Pub Serv Comm , 470 Mich 154, 168; 680 NW2d 840 (2004) (noting that a “law is not properly read as a whole when its words and provisions are isolated and given meanings that are independent of the rest of its provisions.”). Read in the context of the statutory scheme as a whole, the reference in MCL 763.8(1) to equipm ent that is “operational or accessible” clearly indicates equipment procured or possessed within the relevant t imeframes, according to the cited conditions. Once the agency has the man dated equipment, the equipment is operational and accessible for purposes of the statutory scheme, and the agency must follow the relevant provisions. An agency is not exempt from the requirements of MCL 763.8 simply because its installed equipment later becomes inoperable or the recordings inaccessible.

Because the necessary recording equipment was operational and accessible for purposes of MCL 763.8, the police should have re corded and made available their interrogation of d efendant. In the absence of such a recording, defendant was entitled to the jury instruction mandated by MCL 763.9. The trial court did not give this instruc tion, and trial counsel waived the court’s error by expressly agreeing to the jury instructions as given. See People v Kowalski , 489 Mich 488, 503; 803 NW2d 200 (2011) (noting, “[w]hen defense cou nsel clearly expresses satisfaction with a t rial court’s decision, counsel’s action will be deemed to constitute a waiver.”). Defendant claims on appeal that his counsel was ineffective for failing to h andle properly the issue of the required jury

instruction.

Because defendant did not raise this issue in the trial court, this Court’s review is limited to errors apparent on the record. People v Matuszak , 263 Mich App 42, 48; 687 NW2d 342 (2004). To prevail in his claim of in effective assistance of counsel, defendant must establish (1) that counse l’s performance fell below an objective standard of r easonableness and (2) that the defendant was prejudiced because of counsel’s performance. People v Vaughn , 491 Mich 642, 669; 821 NW2d 288 (2012). A prejudice showing means that “ ‘th ere is a reasonable probability that, but for counsel’s unprofessional e rrors, the result of the proceeding would have been different.’ ” Id ., quoting Strickland v Washington , 466 US 668, 694; 104 S Ct 2052, 2068; 80 L Ed 2d 674 (1984).

By waiving the trial court’s error in failing to give the jury instruction to which defendant was entitled under MCL 763.9, and by failing to request an applicable jury instruction that would have allowed the jury to draw a negative

5 MCL 763.8 applies only where “the law enforcement agency has a udiovisual equipment that is operational or accessible as pro vided in section 11(3) or (4) o r upon the expiration of the relevant time periods set forth in sect ion 11(3) or (4), whichever occur s first.” MCL 763.8(1).-6- inference regarding the police’s testimony about defendant’s co nfession, defendant’s trial counsel arguabl y performed below an objective standard of

reasonableness. Vaughn , 491 Mich at 669. Nevertheless, defendant has not shown that he was prejudiced by this deficiency. Id . The record shows that

defendant’s trial counsel cross-ex amined several police witness es extensively regarding their failure to secure a recording of the interrogat ion, and argued during his closing statement that jurors should view the police account of defendant’s alleged confessions skeptically, given the absence of the mandated recording. Further, defendant testified at length to his inabi lity to remember anything about his interrogation other than the means officers used to coerce a confession out of him. Between defendant’s testimony and trial counsel’s thorough cross-examination of po lice witnesses, defendant prese nted the jury with a coherent theory that evidence regarding the statement was unr eliable, and that

defendant’s account of the interr ogation was more credible than that of the police officers. Because the issue of the credibility of police accou nts of defendant’s confession was squarely before the jury, we cannot say that the re is a reasonable probability of a different outcome had defendant’s trial counse l requested an instruction pur suant to MCL 763.9. Vaughn , 491 Mich at 669.

B. ADJOURNMENT

Defendant next argues that the trial court erred by denying hi s request to adjourn the trial. We disagree. We review a trial court’s decision on a request t o adjourn for an abuse of

discretion. People v Snider , 239 Mich App 393, 421; 608 NW2d 502 (2000). A trial court abuses its discretion “when its decision falls outside the rang e of principled outcomes or when it erroneously interprets or applies the law.” People v Lane , 308 Mich App 38, 51; 862 NW2d 446 (2014).

As we explained in our decision in Docket No. 328710:

“[T]o invoke the trial court’s di scretion to grant a continuanc e or adjournment, a defendant must show both good cause and diligence.” People v Coy , 258 Mich App 1, 18; 669 NW2d 831 (2003). “ ‘Good cause’ factors include ‘whether defendant (1) asserted a constitutional right, (2) had a legiti mate reason for asserting the right, (3) had b een negligent, and (4) had reques ted previous adjournments.’ ” Id , quoting People v Lawton , 196 Mich App 341, 348; 492 NW2d 810 (1992); see also People v Wilson , 397 Mich 76, 81; 243 NW2d 257 (1976). In addition, the defendant must demonstrate prejudice because of the trial

court’s decision. Coy , 258 Mich App at 18-19.

On the first day of trial, defendant informed the court that h e was not prepared for trial because he did not have the transcripts from his first trial, 6 his “discovery packet,” his “paperwork,” or Verse’s testimony from the preliminary examinat ion. Defense counsel gave

6 I.e., the trial on charges ste mming from the January 24, 2015 armed robbery.-7- defendant a copy of the charging document, stating that it had “all of the information,” and said he would provide defendant with a copy of Verse’s preliminary e xamination testimony prior to the start of testimony in this trial. The trial court explaine d to defendant that discovery for this trial was essentially the same as that for his first trial. Co nsequently, the only item remaining

that defendant insisted he neede d were the transcripts from the first trial. The trial court informed defendant that no one had ordered or prepared the tran scripts, and that it would not adjourn the trial to wait for them.

Assuming for the sake of argument that defendant’s request for the transcripts from his first trial constitutes good cause, and that waiting until the first day of his second trial to make that request is consistent with diligence, defendant has not de monstrated the prejudice necessary

for us to conclude that the tria l court abused its discretion b y denying an adjournment.

Defendant implied that the transcripts contained “[a]ll the ev idence that’s been falsified and brought up in [the] courtroom,” thus suggesting that he wan ted to use the transcripts for impeachment purposes to undermine the credibility of the police witnesses and the victim. However, even without the transcripts, defendant placed the cre dibility of the prosecution’s witnesses squarely at issue when his trial counsel cross-examin ed White regarding the unavailability of the statutorily required audiovisual recordin g of defendant’s interrogation, and when defendant himself gave a closing argument attempting to pe rsuade the jury of various presumed inconsistencies and incongruities in the prosecution’s case. In his brief to this Court, defendant fails to demonstrate how he would have prepared diffe rently for his defense had he had the transcripts. In sum, def endant provides neither eviden ce nor argument in support of his contention that he was prejudiced by the trial court’s decision to move forward with the trial

before he had obtained the transc ripts from his first trial. A bsent such showing, defendant cannot prevail on his claim that the trial court abused its dis cretion by failing to adjourn his trial. Coy , 258 Mich App at 18.

C. USE OF JUDICIAL FACT-FINDI NG TO SCORE OFFENSE VARIABLES

Finally, defendant asserts that the trial court violated his S ixth Amendment rights by using judicial fact-finding to s core offense variables (OVs) 1, 8, and 10 at the tim e of his July 17, 2015 sentencing, which mandatorily increased his guidelines min imum range, and that he is

therefore entitled to a Crosby remand. The prosecution agrees, as do we. Defendant did not preserve this claim of error by raising it in the trial court, see People v Stokes , 312 Mich App 181, 198; 877 NW2d 752 (2015), or by filing a motion with this Court seeking a Crosby remand, MCR 6.429(C). Therefore, our revie w is for plain error affecti ng substantial rights. See Lockridge , 498 Mich at 392. “To establish entitlement to relief under p lain-error review, the defendant must establish that an error occurred, that the error was plain, i.e., clear or obvious, and that the plain e rror affected substa ntial rights.” Id. at 392-393.

Defendant raised the same issue on the same facts in Docket No . 328710, and we provided the following analysis , which we now adopt for resolut ion of the issue in this appeal:

The Lockridge Court held that Michigan’s sentencing guidelines are “constitutionally deficient” to “the extent [that they] require judicial fact-finding beyond the facts admitted by the defendant or found by the jury to score offense-8- variables that mandatorily increase the floor of the guidelines minimum sentence range . . . .” Id . at 364. Any fact that, by law, increases the penalty for a s erious crime is an “element” that must be submitted to the jury and fo und beyond a

reasonable doubt. Alleyne v United States , 570 US ___; 133 S Ct 2151, 2159- 2163; 186 L Ed 2d 314 (2013).

In order to determine whether d efendant is entitled to relief under Lockridge , we must determine whether facts admitted by defendant or foun d by the jury were sufficient to access the minimum number of OV poi nts necessary for “defendant’s score to fall in the cell of the sentencing gr id under which he . . .

was sentenced.” Lockridge , 498 Mich at 394. If they were not, then an

“unconstitutional constraint act ually impaired the defendant’s Sixth Amendment right[,]” id . at 395, and the defendant is entitled to have the case “reman ded to the trial court to determine whether that court would have imposed a materially different sentence but for the constitutional error[,]” id . at 395-397.

In this case, defendant argues that the trial court incorrectl y used judicial fact-finding to score OVs 1, 8, and 10. OV 1 refers to the “ag gravated use of a weapon.” MCL 777.31. Fifteen points are scored where a “firea rm was pointed

at or toward a victim or the vic tim had a reasonable apprehensi on of an immediate battery when threatened with a knife or other cutting or stabbi ng weapon.” MCL 777.31(1)(c). A jury found defendant guilty of armed robbery, MCL 750.529, the essential elements of which are “(1) an assault, and (2) a felo nious taking of property from the victim’s person or presence, while (3) the de fendant is armed with a weapon described in the statute[,]” People v Allen , 201 Mich App 98, 100; 505 NW2d 869 (1993). The elements of armed robbery do not requ ire the jury to find that defendant pointed a firearm at the victim, nor did de fendant admit to so doing. 7 See MCL 750.529. Accordingly, OV 1 was scored using judicial factfinding.

The trial court also scored OV 8 and OV 10 at 15 points each. OV 8 is scored where the victim of a crime was asported, i.e., carried away, or taken captive, MCL 777.38, and is scored at 15 points where a “victim was asported to another place of greater danger or to a situation of greater da nger or was held captive beyond the time necessary to commit the offense.” MCL 777.38(1)(a). OV 10 addresses the “exploitation of a vulnerable victim,” MCL 777.40, and is scored at 15 points where predatory conduct is involved. The j ury did not make either finding.

7 OV 1 also allows a 5-point score if a “weapon was displayed or implied,” MCL 777.31(1)(e), but that score is not to be imposed if the offender was convict ed of armed robbery, MCL 777.31(2)(e).-9- If these OVs had not been score d, defendant would have had a t otal OV score of 35, not 80. The guideline minimum sentencing range for a defendant who is a Class A offender with a

total PRV score of 47 and a total OV score of 35 is 81 to 135 m onths. MCL 777.62. This range is lower than the guideline minimum sentencing range of 135 to 225 months calculated by the trial court using judicial fact-finding. Hence, defendant is e ntitled to a Crosby remand. See Lockridge , 498 Mich at 395-399.

Lastly, the prosecution charged defendant with one count of po ssession of a shortbarreled shotgun in each of two se parate charging documents tha t initiated the two lower-court cases at issue here (Case Nos. 15-002170-01-FC and 15-002172-01 -FH). One of the charges arose from the armed robbery of Verse (Case No. 15-002170-01-FC ), while the other arose from defendant’s possession of a shor t-barreled shotgun when police arrested him in a vacant house on the night of February 20, 2015 (Case No. 15-002172-01 FC). The trial court “merged” these cases for purposes of trial. At trial, however, defendant was charged with only three counts: armed robbery (Count I), possession of a short-barreled shotgun (Count II), and felony-firearm (Count III). Further, the court instructed the jury only on on e count of possession of a shortbarreled shotgun, the verdict fo rm contained only one count of possession of a short-barreled shotgun, and the jury foreperson referred only to one count of possession of a short-barreled shotgun when delivering the jury’s verdict orally, in the court room. Although the verdict form listed both of the aforementioned case numbers in its caption, the form provided guilty or not guilty options only for the three counts listed above. 8 Nothing expressly indicated to the jury that, by finding defendant guilty of Count II, it would actuall y be finding him guilty of two counts of possession of a short-ba rreled shotgun. The jury con victed defendant of one count of possession of a short-barreled s hotgun. Thus, when the trial c ourt sentenced defendant on two counts of possession of a short- barreled shotgun, it sentenced defendant on one count more than had been presented to the jury, and for which the jury had rend ered a verdict. Accordingly, we instruct the trial court on remand to issue an amended judgment of sentence by vacating the second count and accompanying sentence for possession of a shor t-barreled shotgun. We acknowledge that vacating one of defendant’s convictions for po ssession of a short-barreled shotgun will not affect the length of his sentence, given that his sentences on the two possession charges were to run currently. We also acknowledge that neith er party raised this issue on appeal. Nevertheless, this Court may, in its discretion and on terms that are just, enter any order that a case may require, MCR 7.216(A)(7), and we believe this c orrection is necessary to ensure the integrity of the jury’s verdict and the trial court’s proce edings.

III. CONCLUSION

We remand the matter so the trial court can vacate one of defe ndant’s convictions for possession of a short-barreled shotgun and issue a correspondin g amended judgment of sentence.

8 We also note that what appears to be a copy of the jury’s comp leted and signed verdict form from Case No. 15-002170-01-FC (armed robbery, possession of a s hort-barreled shotgun, felonyfirearm) was placed in the cas e file for Case No. 17-002172-01- FC (possession of a shortbarreled shotgun and felony firearm).-10- In addition, because defendant has established that his guideli nes minimum sentencing range was actually constrained by a violati on of the Sixth Amendment and the trial court sentenced him within those guidelines, we order a Crosby remand. We affirm i n all other respects.

We do not retain jurisdiction.

/s/ Jane M. Beckering /s/ David H. Sawyer /s/ Henry William Saad