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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED December 15, 2015

v No. 322058 Wayne Circuit Court SHERMAN LAMONT WAGNER, LC No. 13-000131-FC

Defendant-Appellant.

Before: J ANSEN , P.J., and C AVANAGH and G LEICHER , JJ.

P ER C URIAM

. A jury convicted defendant of assault with intent to commit murder, MCL 750.83, and possession of a firearm during th e commission of a felony (felo ny-firearm), MCL 750.227b, for shooting Yamani Moultrie outside a Detroit bar. The trial court sentenced defendant to a 15-to30-year term of imprisonment for his assault conviction and a c onsecutive two-year term for the felony-firearm offense.

Defendant contends that the pros ecution presented insufficient evidence to support his convictions and permitted the vict im’s false testimony to go un corrected at trial. He challenges the performance of his appointed trial attorney. Defendant further contends that his withinguideline sentences amount to cruel and unusual punishment. Th ose challenges all lack merit and we affirm defendant’s convictions.

However, defendant has establishe d that he is entitled to a re mand pursuant to People v Lockridge , 498 Mich 358; ___NW2d ___ (2015), and United States v Crosby , 397 F3d 103, 117- 118 (CA 2, 2005), to determine wheth er resentencing is required as the court imposed sentence based on several judicially determined facts.

I. BACKGROUND

Defendant and Moultrie were roommates. Moultrie allegedly sol d $900 worth of oxycodone to defendant’s friend, “AD.” AD unwisely left his pu rchase at the house while he and defendant went out. Moultrie repossessed the drugs and sol d them to someone else, but retained AD’s funds. Defendant a nd AD tried to reclaim the dru gs or the money, but Moultrie avoided them for several days. Defendant and AD eventually enc ountered Moultrie at a Detroit bar. The victim attempted to return AD’s money, but defendant was unwilling to accept it. Instead, defendant instructed Mo ultrie to follow him outside. When Moultrie exited the bar,-2- defendant began shooting at him. As Moultrie attempted to esca pe, he was hit by four bullets and fell to the ground. He later identified defendant as his s hooter.

II. SUFFICIENCY OF THE EVIDENCE

Defendant first contends that the prosecution presented insuff icient evidence to prove his identity as the shooter. We review de novo challenges to the s ufficiency of the evidence, viewing the evidence “in the light most favorable to the prosec ution” to determine whether a rational trier of fact “could ha ve found that the essential ele ments of the crime were proven beyond a reasonable doubt.” People v Odom , 276 Mich App 407, 418; 740 NW2d 557 (2007). Our review is deferential to the jury’s verdict. We will not i nterfere with the jury’s role of determining the weight of the evidence or assessing the witness es’ credibility. Id. at 419. “Conflicts in the evidence must be resolved in favor of the pro secution,” and “[c]ircumstantial evidence and reasonable inferences arising therefrom may consti tute proof of the elements of the crime.” People v Bennett , 290 Mich App 465, 472; 802 NW2d 627 (2010).

Identity is an essential element in every criminal prosecution

. People v Yost , 278 Mich App 341, 356; 749 NW2d 753 (2008). “[P]ositive identification by witnesses may be sufficient to support a conviction. . . .” People v Davis , 241 Mich App 697, 700; 617 NW2d 381 (2000). The credibility of that identif ication testimony “is a questionfor the trier of fact that we do not resolve anew.” Id.

Eyewitness testimony linked defendant to the crime. Moultrie t estified that he was well acquainted with defendant as they were roommates. Moultrie ind icated that defendant and AD came into the bar on the night in question and defendant ordere d him outside. Once outside, someone started shooting at him, and Moultrie positively identi fied his shooter as defendant, not AD. The prosecution also presented the testimony of Jeffrey Sm ith, Moultrie’s friend who was at the bar. Smith asserted tha t he saw Moultrie leave the bar with defendant, heard gunshots, and ran outside where he found Moultrie lying on the ground. Smith recounted that Moultrie had identified defendant as his shooter.

Defendant attempted to impeach Moultrie’s identification testi mony. On crossexamination, defense counsel emphasized that Moultrie testified on direct that he was unaware that defendant was armed until he began shooting. In the victi m’s statement to the police, however, he indicated that he noticed that defendant possessed a handgun while they were still inside the bar. Defense counsel further highlighted that Moultrie told the police he immediately ran away from defendant, while at trial, he claimed that he and defendant “tussled” over the gun.

Defendant asks this Court to overrule the jury’s assessment of Moultrie’s credibility, a request that we may not honor. The jury accepted Moultrie’s ide ntification of defendant as his shooter, and that evidence sta nding alone sufficed to support d efendant’s conviction.

III. PRESENTATION OF FALSE TESTIMONY

In a brief filed in propria persona pursuant to Supreme Court Administrative Order 2004- 6, Standard 4, defendant argues that the prosecution violated h is right to due process by knowingly using false testimony to obtain his conviction. Spec ifically, defendant argues that Moultrie falsely testified that defendant shot him in the heart . The bullets actually struck-3- Moultrie in the upper chest, butthe prosecution did not correc t this misstatement. Defendant failed to preserve his challenge by raising an objection in the trial court. People v Dupree , 486 Mich 693, 703; 788 NW2d 399 (2010). Our review is therefore li mited to plain error affecting defendant’s substantial rights. People v Carines , 460 Mich 750, 763; 597 NW2d 130 (1999).

The state violates a defendant’s due process rights when it se cures a conviction “through the knowing use of perjured testimony.” People v Aceval , 282 Mich App 379, 389; 764 NW2d 285 (2009). A prosecutor has a c onstitutional obligation to re port whenever a government witness lies under oath, People v Lester , 232 Mich App 262, 276; 591 NW2d 267 (1998), and a duty to correct false evidence, People v Gratsch , 299 Mich App 604, 619-620; 831 NW2d 462 (2013), vacated in part on other grounds 495 Mich 876 (2013). “Failure to correct false testimony requires reversal if the false testimony could in any reasonable likelihood have affected the judgment of the jury.” People v Canter , 197 Mich App 550, 568; 496 NW2d 336 (1992). “Stated differently, a conviction will be reversed and a new trial will be ordered, but only if the tainted evidence is material to the defendant’s gui lt or punishment.” Aceval , 282 Mich App at 389.

On direct examination, Moultrie testified, “I was shot four ti mes. . . . It pierced my heart and everything else.” Moultrie’s medical records were presente d into evidence. Those records revealed that Moultrie had gunshot wounds “to the left thigh an d left upper chest” and described a “wound to posterior left chest with active bleeding.” There was no indication in the medical records that Moultrie ha d been shot in the heart.

Assuming that Moultrie’s statement was false and the prosecuto r was aware of its falsity, we discern no plain error requiring reversal or a new trial. T he jury had the opportunity to review the medical records, which revealed no gunshot wound to Moultrie’s heart. The prosecutor never focused on Moultr ie’s possibly exaggerated tes timony or argued that defendant shot Moultrie in the heart. Rather, the prosecutor relied on t he medical records when describing the gunshot wounds during closing argument. Evidence that defe ndant’s bullets struck Moultrie four times in the thigh and uppe r chest adequately substantiate d that defendant harbored the intent to kill. Accordingly, Moultrie’s allegedly false statem ent on the stand did not result in the conviction of an innocent defendant. Carines , 460 Mich at 763.

IV. ASSISTANCE OF COUNSEL

Defendant also raises in pro per challenges to the performance of his appointed trial counsel. Defendant contends tha t counsel should have presented Adam Thomas, the individual known as “AD,” as a witness as trial. Defendant also contends that counsel should have impeached Moultrie’s credibility with evidence of his prior cri minal record.-4- Defendant failed to preserve hi s challenges by requesting a ne w trial or a Ginther 1 hearing, and our review is limited to mistakes apparent on the existing record. People v Rodgers
, 248 Mich App 702, 713-714; 645 NW2d 294 (2001).

“ ‘[T]he right to counsel is the right to the effective assist ance of counsel.’ ” United States v Cronic , 466 US 648, 654; 104 S Ct 2039; 80 L Ed 2d 657 (1984), quoting McMann v Richardson , 397 US 759, 771 n 14; 90 S Ct 1441; 25 L Ed 2d 763 (1970). An ineffective assistance claim includes t wo components: “First, the defendant must show that counsel’s performance was deficient. . . . Second, the defendant must show that the deficient performance prejudiced the defense.” Strickland v Washington , 466 US 668, 687; 104 S Ct 2052; 80 L Ed 2d 674 (1984). To establish the deficiency component, a defendant must show that counsel’s performance fell below “an objective standard of reas onableness” under “prevailing professional norms.” People v Solmonson , 261 Mich App 657, 663; 683 NW2d 761 (2004). With respect to the prejudice aspect, the defendant must demonstrate a reasonable probability that but for counsel’s err ors, the result of the proceedings would have been different. Id. at 663-664. The defendant also must overcome the strong presumpti ons that “counsel’s conduct [fell] within the wide range of reasonable professional assistance” and that counsel’s actions were sound trial strategy. Strickland , 466 US at 689. [ People v Galloway , 307 Mich App 151, 157-158; 858 NW2d 520 (2014), rev’d in part on other g rounds ___ Mich ___ (Docket No. 150454, entered October 28, 2015).]

Defendant has not met his burden of establishing counsel’s ine ffectiveness in failing to present Thomas as a witness. Decisions regarding whether to ca ll or question witnesses are presumed to be matters of trial strategy. People v Rockey , 237 Mich App 74, 76; 601 NW2d 887, 890 (1999). There is no “unconditional obligation to call or interview every possible witness suggested by a defendant.” People v Beard , 459 Mich 918, 919; 589 NW2d 774 (1998). “[T]he failure to call witnesses only constitutes ineffective a ssistance of counsel if it deprives the defendant of a substantial defense,” People v Dixon , 263 Mich App 393, 398; 688 NW2d 308 (2004), i.e. “one that might have made a difference in the outc ome of the trial,” People v Kelly
, 186 Mich App 524, 526; 465 NW2d 569 (1990). “A failed strategy does not constitute deficient performance.” People v Petri , 279 Mich App 407, 412; 760 NW2d 882 (2008).

Defendant wrote a letter to the trial court asserting that Tho mas would have testified on his behalf. According to defendant, Thomas would have testifie d that Moultrie “had a gun and chased us that night.” With his Standard 4 brief, defendant pr esented for the first time a statement signed by Thomas describing the testimony he would ha ve provided at defendant’s trial. Thomas described that M oultrie invited them to the bar on the night in question so he could return Thomas’s money. When defendant and Thomas arrived, howe ver, Moultrie “was drunk and acting crazy” and accused the men of coming to the bar “to fight” him. Thomas stated that Moultrie incited his friends to surround and threaten him and d efendant. At that point, Thomas

1 People v Ginther , 390 Mich 436; 212 NW2d 922 (1973).-5- and defendant fled the bar with Moultrie in pursuit. Thomas sa w Moultrie holding a handgun. Moultrie and defendant wrestled for the gun and the weapon fire d in the process. Thomas only realized that Moultrie rather th an defendant was shot when defe ndant jumped into his car to
escape.
Based on the existing record, defendant has not overcome the p resumption that counsel employed sound trial strategy at the time he elected not to pre sent Thomas as a witness. In his letter to the trial court, defendant indicated that the defense had originally included Thomas on his witness list. However, defendant admitted that he was faci ng charges related to a separate offense and that Thomas was scheduled to testify against him inthat matter. Defense counsel could have reasonably decided against opening the door to cross -examination that likely would have inculpated defendant in th e case awaiting trial. According ly, we cannot proclaim as requested by defendant that couns el should have presented Thoma s and pursued a self-defense theory, rather than focusing on the inconsistencies in Moultrie ’s testimony to challenge the credibility of his identifica tion of defendant as his shooter.

We also discern no prejudicial error in counsel’s failure to i mpeach Moultrie with his prior criminal history. MRE 609 governs impeachment of a witne ss by evidence of conviction of a crime. The rule does not provide for wholesale admissibility of any past criminal conviction. Rather, only criminal convictions involving an element of disho nesty or false statement, or involving theft punishable by more than one year’s imprisonment are potentially admissible under the rule. MRE 609(a)(1)-(2).

Defendant contends that Moultrie has a past conviction for a theft offense, which could have been used against him at trial. Although defense counsel did not present evidence of this conviction, there was ample evidence that Moultrie did not have a clean record. Moultrie admitted on the stand that he was a drug dealer and had wrongfu lly taken $900 from AD for drugs that he then resold to another. On cross-examination, de fense counsel elicited significant testimony regarding additional drug sales involving Moultrie. D efense counsel also elicited testimony that Moultrie had been “incarcerated for three months .” Given the evidence that was placed on the record, we cannot determine that presentation of an additional theft offense would have impacted the outcome of the trial.

V. SENTENCING

Defendant raises several challe nges to the sentences imposed a gainst him after trial. Defendant contends that the sentences amount to cruel and unusu al punishment. He argues that the scoring of various offense va riables (OVs) based on judicia lly found facts was unconstitutional, and that counsel was ineffective in failing t o object to the scoring of OV 6 at the sentencing hearing.

A. CRUEL AND UNUSUAL PUNISHMENT

Defendant contends that his with in-guideline sentence for his assault conviction, which is to be served consecutive to his felony-firearm sentence, is dis proportionate, cruel and unusual punishment given his disadvantaged and difficult upbringing, yo ung age, and minimal prior criminal history. Defendant failed to preserve this challenge by raising it in the trial court.-6- People v Bowling , 299 Mich App 552, 557; 830 NW2d 800 (2013). Accordingly, our review of this constitutional issue is limited to plain error affecting d efendant’s substantial rights. Carines
, 460 Mich at 763.

US Const, Am VIII provides that “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Th e Michigan Constitution similarly provides, “cruel or unu sual punishment shall not be i nflicted . . . .” Const 1963, art 1, § 16. “In determining whether a sentence is cruel or unusual [th is Court] look[s] to the gravity of the offense and the harshness of the penalty, comparing the pen alty to those imposed for other crimes in this state as well as the penalty imposed for the sam e offense by other states and considering the goal of rehabilitation.” People v Poole , 218 Mich App 702, 715; 555 NW2d 485 (1996). Sentences that are proportionate to the seriousness of the offense and the offender are not cruel and unusual punishment. People v Drohan , 264 Mich App 77, 92; 689 NW2d 750 (2004); People v Colon , 250 Mich App 59, 66; 644 NW2d 790 (2002). And a sentence wit hin the guidelines range, like defenda nt’s sentences, is presumptiv ely proportionate. People v Broden , 428 Mich 343, 354-355; 408 NW2d 789 (1987); People v Powell , 278 Mich App 318, 323; 750 NW2d 607 (2008). “In order to overcome the presumptio n that the sentence is proportionate, a defendant must present unusual circumstances t hat would render the presumptively proportionate s entence disproportionate.” Bowling , 299 Mich App at 558; People v Lee , 243 Mich App 163, 187; 622 NW2d 71 (2000).

Defendant’s disadvantaged upbringing, young age, and limited criminal history do not amount to unusual circumstances that render his presumptively p roportionate sentence disproportionate. A court is notrequired to consider a defend ant’s age in determining whether a sentence is disproportionate. People v Lemons , 454 Mich 234, 258-259; 562 NW2d 447 (1997). “Furthermore, defendant’s age is insufficient to overcome the p resumptive proportionality of his sentences.” Bowling , 299 Mich App at 558. Defendant cites no caselaw to support t hat his disadvantaged and difficult upbringing are unusual circumstance s requiring mitigation of his sentence. In fact, this Court has held that a defendant’s “tr auma of attending seven or ten different schools, and [growing] up in an economically deprived environment” were not reasons for departing from the mandatory minimum. People v Williams , 189 Mich App 400, 401-402; 473 NW2d 727 (1991). A defendant’s criminal history, or lack t hereof, is taken into account when scoring a defendant’s prior record variables. Accordingly , the lack of a criminal history cannot be deemed an unusual circumstance that renders a within- guideline sentence cruel or unusual. We also reject defendant’s contention that imposing co nsecutive sentences is cruel and unusual. See People v Miles , 454 Mich 90, 95; 559 NW2d 299 (1997) (finding that the “sentencing court did not have to consider [the] length of cons ecutive or concurrent mandatory sentence[s] when setting [an] indeterminate sentence”); People v Ryan , 295 Mich App 388, 401; 819 NW2d 55 (2012) (finding that “ where a defendant receives co nsecutive sentences and neither sentence exceeds the ma ximum punishment allowed, the ag gregate of the sentences will not be disproportionate”). Moreover, defendant made no attempt to establish that his penalty is out of proportion to the statutory sentences for other offenses in this state or similar offenses around the nation.-7- B. OV 6

Defendant contends that defense counsel was ineffective by fai ling to object to the trial court’s decision to sco re OV 6 at 50 points. 2 To establish that counsel w as ineffective, defendant must show that the guidelines were improperly scored and that h e would have been placed in a lower minimum sentence range had defense counsel objected to th e scoring. People v Wilson
, 252 Mich App 390, 394-397; 652 NW2d 488 (2002).

Where a defendant is convicted o f assault with intent to commi t murder, as in this case, the sentencing court must score OV 6 when calculating his sente ncing guidelines range. MCL 777.22(1). MCL 777.36 governs the sc oring of OV 6 as follows:

(1) [OV] 6 is the offender’s intent to kill or injure another i ndividual. Score [OV] 6 by determining which of the following apply and by assigning the number of points attributable to the one tha t has the highest number of p oints:

(a) the offender had a preme ditated intent to kill . . . .... ...............50 points

(b) the offender had [an] unprem editated intent to kill, the i ntent to do great bodily harm, or created a v ery high risk of death or grea t bodily harm knowing that death or great bodily h arm was the probable result ............25 points

(c) the offender had intent to injure or the killing was commi tted in an extreme emotional state caused by an adequate provocation and b efore a reasonable amount of time elapsed for the offender to calm or there was gross negligence amounting to an unreas onable disregard for life .... ................10 points

(d) the offender had no inten t to kill or injure ............. ....................0 points

(2) All of the following appl y to scoring offense variable 6.

(a) The sentencing judge shall score this variable consistent with a jury verdict unless the judge has in formation that was not presented to the jury.

(b) Score 10 points if a killing is intentional within th e definition of second degree murder or voluntary manslaughter, but the death o ccurred in a combative situation or in response to victimization of the offe nder by the decedent.

The jury convicted defendant of assault with intent to commit murder and pursuant to MCL 777.36(2)(a), the court was required to score OV 6 consiste nt with that verdict. To support

2 Defendant cursorily states in his Standard 4 brief that counse l also should have objected to the scoring of OV 8 and OV 12. However, the Court amended the scor ing sheet prepared by the Department of Corrections and dec lined to score those variables

.-8- the 50-point score imposed by the court, the court had to find that defendant “had a premeditated intent to kill.” MCL 777.36(1)(a). Premeditation requires “su fficient time to permit the defendant to take a second look” and like other mental states, may be inferred from the surrounding circumstances. People v Coy , 243 Mich App 283, 315; 620 NW2d 888 (2000).

However, premeditation is not an element of an assault with in tent to murder charge. To convict a defendant of that offense, the prosecution need only prove that the defendant committed “(1) an assault, (2) with an actual intent to kill, ( 3) which, if successful, would make the killing murder.” People v Brown , 267 Mich App 141, 147-148; 703 NW2d 230 (2005) (quotation marks and citations omitted). The prosecution need not establish premeditation in every case; killing with premeditation is one form of first-deg ree murder, but not the only method by which murder is committed. Accordingly, the jury did not necessarily determine that defendant “had a premeditated inte nt to kill” and in scoring OV 6 at 50 points, the court had to find that fact of its own volition.

Although defendant challenges c ounsel’s failure to object to t he scoring of this variable based on the adequacy of the evidence, we find further review o f this score by the trial court in order. As discussed in the nex t section, where a sentence is c alculated under the sentencing guidelines based on judicially found facts, remand is necessary to determine if a defendant is entitled to resentencing.

C. REMAND FOR CROSBY ANALYSIS

Finally, defendant contends that he is entitled to resentencin g under Alleyne v United States , 570 US __, 133 S Ct 2151; 186 L Ed 2d 314 (2013), because the trial court relied on facts not admitted by defendant or found by the jury to score the OVs of the sentencing guidelines.

Because defendant failed to object to the scoring of his OVs a t sentencing based on Apprendi v New Jersey , 530 US 466, 477; 120 S Ct 2348; 147 L Ed 2d 435 (2000), or Alleyne
, review is limited to plain error affecting defendant’s substant ial rights. Lockridge , 498 Mich at 392-393.

Recently, our Supreme Court relied on Alleyne in holding that Michigan’s sentencing scheme, which permits judicial fact-finding in scori ng the offense and prior record variables, violates the Sixth Amendment. Lockridge , [498 Mich at 364-365]. The Michigan Supreme Court remedied that defect by r endering Michigan’s sentencing guidelines advisory, just as the United S tates Supreme Court had done with regard to the federal sentencing guidelines in United States v Booker , 543 US 220, 233; 125 S Ct 738; 160 L Ed 2d 621 (2005). Lockridge
, [498 Mich at 365].

Although Michigan’s sentencing guidelines are “constitutionall y deficient,” our Supreme Court decreed in Lockridge that trial courts must still score the offense and prior record variables and assess the “hi ghest number of points possible” for each one. Lockridge , [498 Mich at 392 n 28]. A sentencing court is obligated to “consult th e applicable guidelines range and take it into-9- account when imposing a sentence.” Id . at [392]. [ People v Masroor , ___ Mich App ___; ___ NW2d ___ (Docket No. 322280, issued ______), slip op at 6.]

In People v Stokes , ___ Mich App ___; ___ NW2d ___ (Docket No. 321303, issued September 8, 2015), slip op at 8-9, this Court distilled the pr ocedure set forth in Lockridge for trial courts to reconsider sen tences when faced with an unprese rved challenge:

Noting that “virtually all” of these cases involve unpreserved challenges, our Supreme Court describe d a procedure, the goa l of which is to de termine whether a Lockridge error resulted in prejudice to any given defendant. Such an i nquiry is necessary because unpreserved constitutional errors are subject to plain-error review, which requires a defenda nt to demonstrate not only that an error occurred, but that “the error affected the outcome of the lower court pro ceedings.” Our Supreme Court held that if a de fendant is able to “establish a threshold showing of the potential for plain error,” the case must “be remanded to t he trial court to determine whether that court would have imposed a materially di fferent sentence but for the constitutional error. If the trial court determines that the answer to that question is yes, the court shall order resentencing.” The prec ise procedure to be followed, modeled on that adopted in United States v Crosby , [397 F3d 103 (CA 2, 2005),] is as follows:

[O]n a Crosby remand, a trial court should first allow a defendant an opportunity to inform the court th at he or she will not seek re sentencing. If notification is not received in a timely manner, the court (1) should obtain the views 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 pres ent when it decides whether to resentence the defendant, but (4) must have the defendant present, as require d by [MCR 6.425], if it decides to resentence the defendant. Further, in determining whether the court would have imposed a materially different sentence but for the unconstitut ional constraint, the court should consider only the circumstances ex isting at the time of the original sentence. [Citations omitted.]

In calculating defendant’s total OV score of 105, the court re lied on factors that were not elements of the charged offense and were therefore not decided by the jury. As noted, the court found that defendant acted with p remeditated intent and scored 50 points for OV 6. The court also determined that Moultrie sus tained “life threatening or pe rmanent incapacitating injury” and thereby scored 25 points for OV 3. Actual injury is not an ele ment of defendant’s assault conviction. People v Harrington , 194 Mich App 424, 430; 487 NW2d 479 (1992). 3 Absent these scores (or even just the s core for OV 6), defendant would have fallen into a lower cell on the sentencing grid and his recommended minimum sentence would have been lower.

3 Defendant contends that the court improperly assessed points f or OV 8 and OV 12 based on judicially found facts. However, the court reduced the scores for those variables to zero at the sentencing hearing.-10- Accordingly, we must remand this case “to the trial court to de termine whether that court would have imposed a materially different sentence but for the consti tutional error. If the trial court determines that the answer to that question is yes, the court s hall order resentencing.” Stokes
, slip op at 9.

We affirm defendant’s convictions but remand to determine if r esentencing is required. We do not retain jurisdiction.

/s/ Kathleen Jansen /s/ Mark J. Cavanagh /s/ Elizabeth L. Gleicher