People of Michigan v. David Lamont Croskey ( 2016 )

STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
October 18, 2016
Plaintiff-Appellee,
v No. 327724
Oakland Circuit Court
DAVID LAMONT CROSKEY, LC No. 2014-252611-FC
Defendant-Appellant.
Before: SAAD, P.J., and JANSEN and M. J. KELLY, JJ.
PER CURIAM.
The jury convicted defendant of three counts of first-degree criminal sexual conduct
(“CSC-I”), MCL 750.520b(1)(f), and one count of assault by strangulation, MCL 750.84(1)(b).
The court sentenced defendant as a fourth-habitual offender, MCL 769.12, to serve 50 to 75
years’ imprisonment for his CSC-I convictions and 25 to 37½ years’ imprisonment for his
assault by strangulation conviction. We affirm his convictions but remand for further
proceedings related to sentencing.
Defendant’s convictions arise from a sexual assault of the complainant in the city of
Pontiac on the morning of October 7, 2014. At the time of trial, defendant attempted to establish
that the sexual contact between him and the complainant was a consensual transaction. In his
Standard 4 brief, defendant raises several issues related to his convictions; in his brief on appeal,
defendant challenges his sentences. We will initially consider the issues related to defendant’s
convictions because if any of these challenges prove meritorious and he were entitled to relief,
the challenges to his sentences likely become moot.
I. STANDARD 4 BRIEF
A. DOUBLE JEOPARDY
Defendant argues that the three CSC-I convictions violate his double jeopardy
protections. Defendant never raised this issue at the trial court. Thus, our review of this
unpreserved constitutional issue is for plain error affecting substantial rights. People v
Vandenberg, 307 Mich. App. 57, 61; 859 NW2d 229 (2014).
“The double jeopardy clauses of the United States and Michigan Constitutions protect
against governmental abuses for both (1) multiple prosecutions for the same offense after a
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conviction or acquittal and (2) multiple punishments for the same offense.” People v Calloway,
469 Mich. 448, 450; 671 NW2d 733 (2003). It is the latter protection, multiple punishments for
the same offense, that defendant asserts was violated. We disagree.
A person is guilty of criminal sexual conduct pursuant MCL 750.520b(1)(f) if he engages
in sexual penetration with another person and “the actor causes personal injury to the victim and
force or coercion is used to accomplish the sexual penetration.” Defendant admitted to three
separate penetrations. However, he contends that because complainant’s mental anguish was the
only personal injury suffered, and there is no evidence that the mental anguish was attributable to
any one of the three penetrations, he is being punished multiple times for the same personal
injury in violation of his double jeopardy protections. Despite defendant’s representation to the
contrary, mental anguish was not the only personal injury suffered by complainant. Testimony
established that complainant had bruising on her neck and back, and there were small lacerations
in the vulva area that were noted during the forensic examination. Also, prior to the
penetrations, defendant struck complainant three times in the face, causing pain and a bloody
nose. Moreover, assuming there was only one identifiable personal injury, in light of the three
separate penetrations, this would still be enough to support the three separate CSC-I convictions.
See People v Martinez, 190 Mich. App. 442, 443-445; 476 NW2d 641 (1991) (holding that an
initial physical assault before two separate acts of penetration may satisfy the personal injury
element of both penetrations). Thus, defendant’s double jeopardy challenge must fail as he
cannot demonstrate that he was subject to multiple punishments for the same offense.
B. EVIDENTIARY CHALLENGES
Defendant says that the trial court erred in admitting the testimony of registered nurse
Diane Zalecki-Bertalan. We review this unpreserved evidentiary issue for plain error affecting
defendant’s substantial rights. People v Carines, 460 Mich. 750, 763-764; 597 NW2d 130
(1999). Although defendant spends considerable time citing to legal platitudes relating to the
admission of expert testimony and scientific evidence, the crux of his argument is that Zalecki-
Bertalan was not qualified to testify regarding the mechanics of strangulation. Defendant
contends that “[t]o properly assess strangulation an expert should have education in forensic
pathology or forensic medicine for the testimony to be based on reliable principles.” Defendant
further contends that the witness was improperly permitted to give an opinion that the assaults
occurred in the manner described by complainant. After reviewing the record, we find that nurse
Zalecki-Bertalan was properly qualified to testify regarding the mechanics of strangulation and,
contrary to defendant’s assertions, the witness never testified that complainant was strangled.
MRE 702, which addresses the admissibility of expert testimony, provides that an expert
may be qualified “by knowledge, skill, experience, training, or education.” Here, Zalecki-
Bertalan testified that she was a registered nurse and the program director of Haven START1
facilities. In this role, Zalecki-Bertalan functioned as a forensic nurse for domestic violence and
sexual assault cases in Oakland County. With respect to specialized training, Zalecki-Bertalan
testified that she took courses in forensics that specialized in sexual assault. She was also
1
START is the acronym for Safe Therapeutic Assault Response Team.
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certified by the International Forensics Association after passing a certification examination.
Regarding strangulation issues in particular, the witness testified that she was certified by the
National Strangulation Institute. Zalecki-Bertalan also completed a course in advanced
strangulation given by the Family Justice Center in San Diego. Based on the foregoing, the
witness was qualified to provide expert testimony related to the mechanics of strangulation in
light of her testimony regarding her experience, knowledge, and training in the area of forensic
science, and strangulation, in particular.
Further, we find no record support for defendant’s assertion that the witness opined that
the strangulation occurred in the manner described by complainant. In general, Zalecki-Bertalan
testified to the actions she took in collecting evidence for a rape kit and to her physical
examination of complainant. In addition, Zalecki-Bertalan testified to the physical elements that
are typically present and consistent with the act of strangulation. Zalecki-Bertalan did not give
an ultimate opinion on whether complainant was strangled. She simply testified that there
appeared to be light bruising around complainant’s jawline. She did not opine that the bruising
was caused by strangulation. Indeed, Zalecki-Bertalan explained that bruising or redness is seen
in fewer than 50% of reported strangulation cases. Moreover, if the witness had testified to this
ultimate conclusion, such testimony would not have been objectionable. See MRE 704.
Considering the foregoing, we conclude that the admission of Zalecki-Bertalan’s testimony did
not constitute plain error.
Defendant also contends that the trial court erred when it admitted the testimony of
Deputy Michael Richardson because the testimony was not reliable. Again, after citing to
various legal platitudes related to the admissibility of tracking dog evidence, defendant
essentially argues that the necessary foundation was not laid for the admission of Deputy
Richardson’s testimony. Defendant contends that the prosecution was required to establish the
officer’s training and his qualifications as an expert in the use of tracking dogs. Again,
defendant has failed to establish that this unpreserved evidentiary issue constituted plain error.
At the time of trial, Deputy Richardson testified that he was employed with the Sheriff’s
Department as a K-9 deputy. He explained that his K-9 partner, Blitz, had been certified by a
national organization for four years. Blitz’s specialty was tracking humans. Then, in general,
Deputy Richardson testified to the events occurring on October 7, 2014, when he brought Blitz
to the scene of the alleged attack and set Blitz to tracking. Sgt. Richardson did not testify to his
training or experience in the use of tracking dogs. Nonetheless, the admission of Deputy
Richardson’s testimony did not constitute plain error. In People v Hill, unpublished opinion per
curiam of the Court of Appeals, issued May 11, 2011 (Docket No. 290031), this Court held that
it was not error to admit the testimony of a K-9 officer under circumstances nearly identical to
the present case. Then, in a published order of the Supreme Court, in lieu of granting leave to
appeal, the Court affirmed that part of the Court of Appeal’s opinion. People v Hill, 489 Mich.
881 (2011). In doing so, the Supreme Court stated,
Trooper Escort was not required to be qualified pursuant to MRE 702 because he
was not testifying as an expert witness. Rather, he simply testified to the
underlying facts and his personal observations concerning his use of a trained dog
in the course of a criminal investigation. He did not interpret or extrapolate from
those facts or personal observations. [Id. at 881-882.]
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In this case, Deputy Richardson simply testified to what his trained tracking dog did and the
route he pursued. The witness did not extrapolate from these facts or personal observations.
Deputy Richardson did not testify as an expert witness; consequently, it was not necessary to
qualify him as an expert witness in the use of tracking dogs. Accordingly, permitting Deputy
Richardson to testify in the manner described did not constitute plain error.
Moreover, we hold that any error would have been harmless, as Deputy Richardson’s
testimony related to the tracking of defendant’s scent from the scene of the assault. Defendant
did not dispute that he was with the complainant and had sexual contact with her. Instead, he
argued that any sexual contact was consensual, which Deputy Richardson’s testimony did not
implicate.
C. SUFFICIENCY OF THE EVIDENCE
Defendant asserts that there was insufficient evidence to support his conviction for
assault by strangulation because there was no testimony that complainant lost consciousness or
that her breathing was impeded. Defendant further contends that the jury concluded that
strangulation occurred solely based on the improperly admitted testimony of Zalecki-Bertalan.
After reviewing the record, we find that, regardless of the testimony of Zalecki-Bertalan, the
evidence was sufficient for the jury to find that the essential elements of the crime were proven
beyond a reasonable doubt.
We review challenges to the sufficiency of the evidence de novo. People v Lockett, 295
Mich. App. 165, 180; 814 NW2d 295 (2012). In doing so, we view the evidence in the light most
favorable to the prosecution to determine if any rational trier of fact could have found that the
essential elements of the crime were proven beyond a reasonable doubt. People v Reese, 491
Mich. 127, 139; 815 NW2d 85 (2012).
A defendant is guilty of assault by strangulation when he “assaults another by
strangulation or suffocation.” MCL 750.84(1)(b). An “assault” is “an attempt to commit a
battery or an unlawful act that places another in reasonable apprehension of receiving an
immediate battery.” People v Starks, 473 Mich. 227, 234; 701 NW2d 136 (2005). And a
“battery” is defined as “an intentional, unconsented and harmful or offensive touching of the
person of another, or of something closely connected with the person.” People v Reeves, 458
Mich. 236, 240 n 4; 580 NW2d 433 (1998). “‘[S]trangulation or suffocation’ means intentionally
impeding normal breathing or circulation of the blood by applying pressure on the throat or neck
or by blocking the nose or mouth of another person.” MCL 750.84(2).
The complainant testified that when she struggled to free herself from defendant’s hold,
defendant “put his hands around [her] neck and started choking [her].” She testified that his
hands were so tight around her neck, she could not breathe normally, and that she “lost breath”
and “couldn’t see.” She “thought she was dead” and she “thought [she] was going to die.”
Viewing complainant’s testimony in the light most favorable to the prosecution, there was ample
evidence for the jury to find defendant guilty of assault by strangulation as the evidence
established that defendant intentionally impeded complainant’s normal breathing by applying
pressure to her throat or neck. Accordingly, there is no merit to defendant’s argument that there
was insufficient evidence to support his conviction of assault by strangulation.
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D. JURY INSTRUCTIONS
Defendant raises two instructional errors in his Standard 4 Brief. The first is related to
the instructions regarding the use of a tracking dog. The other is related to the order in which the
instructions were given. After the jury was charged, defense counsel expressed satisfaction with
the instructions as read. Consequently, defendant has waived any claimed instructional error.
People v Kowalski, 489 Mich. 488, 504; 803 NW2d 200 (2011). Moreover, assuming that the
errors were not waived, defendant has failed to establish that the alleged unpreserved errors
constitute plain error that affected his substantial rights.
According to the available transcript, at the time of trial, the jury was instructed as
follows on the weight to be given evidence related to the use of a tracking dog:
You have heard testimony about the use of a tracking dog. You must consider—
excuse me. You must consider tracking dog evidence with great care and
remember that it has little value as proof. Even if you decide it is reliable, you
must convict the defendant based only on tracking dog evidence. There must also
be other evidence that the defendant is guilty. [Emphasis added.]
The foregoing instruction, if it was actually given as the transcript represents, has omitted the
word “not” before the word “convict.” See M Crim 4.14.2 Defendant argues that the omission
of the critical word “not” denied him a fair trial. We disagree.
This Court reviews jury instructions in their entirety to determine if error requiring
reversal occurred. People v Brown, 239 Mich. App. 735, 746; 610 NW2d 234 (2000). “The
instructions must not be ‘extracted piecemeal to establish error.’” Id., quoting People v Caulley,
197 Mich. App. 177, 184; 494 NW2d 853 (1992). “Even if the instructions are somewhat
imperfect, reversal is not required as long as they fairly presented the issues to be tried and
sufficiently protected the defendant’s rights.” Brown, 239 Mich. App. at 746.
It is possible that the court reporter erred in transcribing this instruction. In fact, after
reading the jury charge, nobody caught the alleged misreading, and at the conclusion of the
instruction, the court asked if the attorneys were satisfied with the instructions. Neither defense
counsel nor the prosecutor objected, and both parties voiced their satisfaction with the
instructions as read. Thus, it is questionable whether the court misread the phrase. In any event,
even if the court misread the sentence as it appears in the trial transcripts, when read in context,
any deficiency in meaning was cured. Indeed, the sentence immediately preceding the omission
2
M Crim JI 4.14 provides:
You have heard testimony about the use of a tracking-dog. You must consider
tracking-dog evidence with great care and remember that it has little value as
proof. Even if you decide that it is reliable, you must not convict the defendant
based solely on tracking-dog evidence. There must be other evidence that the
defendant is guilty.
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states that such evidence “has little value.” And the sentence following the omission at issue
makes it clear that “[t]here must also be other evidence that the defendant is guilty.” Thus, when
read as a whole, the clear meaning of the instruction to the jury would have been that tracking
dog evidence is of questionable value and that any conviction cannot be based solely on such
evidence.
Defendant also challenges the sequential order in which certain instructions were given.
Specifically, defendant argues that instructing the jury on the definition of “mental anguish,”
which is part of the definition of “personal injury,” following the instruction on the elements of
assault by strangulation misled the jury. Defendant contends that the jury was misled because
considering the order in which the instructions were given, the jury would conclude that mental
anguish was an element of assault by strangulation when, in fact, it is only relevant to the charge
of CSC-I. Jury instructions are to be reviewed in their entirety. Id. Viewing the instructions as a
whole, the jury would not have been misled. The trial court instructed the jury on the elements
of each of the four charged offenses. It then naturally transitioned to an instruction related to the
finding of mental anguish. At no time did the court indicate that the jury should consider the
issue of mental anguish in the context of the assault by strangulation charge. There is nothing to
suggest that the jury would have assumed that a finding of “mental anguish” was in any way
related to the charge of assault by strangulation. There is no support for defendant’s argument
that the order in which the instructions were given influenced the jury’s verdict.
II. OFFENSE VARIABLE SCORING
Defendant argues that the evidence was insufficient to support the court’s scoring of
offense variables (OVs) 3, 7, 10, and 19. With respect to defendant’s preserved challenge to the
scoring of OV 7, under the sentencing guidelines, a court’s findings of fact are reviewed for clear
error and must be supported by a preponderance of the evidence. People v Hardy, 494 Mich.
430, 438; 835 NW2d 340 (2013). The Court reviews de novo the trial court’s determination
whether the facts as found satisfy the scoring conditions articulated in the statute. Id. With
respect to the defendant’s unpreserved evidentiary challenges to OVs 3, 10, and 19, this Court
will review the scoring of these variables for plain error affecting defendant’s substantial rights.
People v Kimble, 470 Mich. 305, 312; 684 NW2d 669 (2004).
A. OV 3
Defendant argues that the trial court erred when it assessed 10 points for OV 3. The
statute directs a sentencing court to assess 10 points for OV 3 where the victim sustains “bodily
injury requiring medical treatment.” MCL 777.33(1)(d). The phrase “requiring medical
treatment” refers to the necessity for treatment and not the victim’s success in obtaining
treatment. MCL 777.33(3). Defendant contends that there was no evidence that complainant
required or received medical treatment. However, complainant testified that she was punched
three times in the face, that she had a nose bleed, and that she was swallowing blood.
Complainant reported that her pain was a 7 on a 10-point scale. She further testified that
defendant strangled her, she could not breath, she could not see, and she thought she was dying.
The testimony further established that complainant was taken to McLaren Hospital prior to being
transported to the SMART facility for the processing of a rape kit. Nurse Zalecki-Bertalan
testified that during all of her forensic evaluations, a medical history is taken, a physical
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examination is performed, and there is medication that is offered to patients. The foregoing
evidence provided support for the trial court’s finding that complainant sustained bodily injury
requiring medical treatment. Thus, with respect to OV 3, defendant has failed to establish plain
error.
B. OV 7
Defendant challenges the trial court’s assessment of 50 points for OV 7. MCL 777.37
governs OV 7 and provides a score of 50 points is appropriate when “[a] victim was treated with
sadism, torture, or excessive brutality or conduct designed to substantially increase the fear and
anxiety suffered during the offense.” MCL 777.37(1)(a). It is not argued that any of the first
three categories (sadism, torture, or excessive brutality) apply in this case. Instead, the
prosecution sought an assessment of 50 points for OV 7 because defendant’s conduct was
designed to increase the fear and anxiety experienced during the assault.
In Hardy, the Supreme Court explained that “it is proper to assess points under OV 7 for
conduct that was intended to make a victim’s fear or anxiety greater by a considerable amount.”
Hardy, 440 Mich. at 441. The Court then recognized that all crimes involve the infliction of a
certain amount of fear and anxiety; therefore, a “baseline” must be determined in order to assess
if the conduct was intended to increase that level of fear and anxiety. Id. at 442-443. Ultimately,
“all relevant evidence should be closely examined to determine whether the defendant engaged
in conduct beyond the minimum necessary to commit the crime, and whether it is more probable
than not that such conduct was intended to make the victim’s fear or anxiety increase by a
considerable amount.” Id. at 443. The evidence established that defendant approached the
victim from behind and held her in a “bear hug.” Defendant punched the victim in the face three
times, held her around the throat, and then threatened, “Do you give up,” in an effort to thwart
any resistance. Defendant then dragged the victim off the public sidewalk to a secluded garage,
where he then sexually assaulted her. Prior to demanding oral sex, defendant cautioned the
victim not to do anything crazy or he would “fuck [her] up again.” We conclude that the
evidence established that defendant engaged in conduct beyond the minimum required to commit
the crime. Defendant’s conduct was designed to substantially increase the fear and anxiety of the
victim to elicit her cooperation and deter resistance. Contrary to defendant’s assertion, it was not
necessary that defendant’s conduct be similarly egregious to that of sadism, torture, or excessive
brutality, nor was the court prohibited from considering the circumstances inherently present in
the crime. Id. at 441-442, 443. Based upon this evidence, the trial court properly assessed 50
points for OV 7.
C. OV 10
Defendant claims that the trial court erred when it assessed five points for OV 10. We
disagree. Offense variable 10 considers the exploitation of a vulnerable victim and the
assessment of five points is appropriate when “[t]he offender exploited a victim by his or her
difference in size or strength, or both, or exploited a victim who was intoxicated, under the
influence of drugs, asleep, or unconscious.” MCL 777.40(1)(c).
Here, the prosecution represented in its sentencing memorandum that the victim was
skinny and petite and defendant was much larger. Indeed, the victim testified at trial that she
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was wearing her backpack strapped over both shoulders and defendant was still able, from
behind, to completely encircle her and hold her in a “bear hug.” At this point, complainant was
completely vulnerable, not being able to see or escape her assailant. Based on this evidence,
there was factual support for the trial court’s assessment of five points; defendant used the size
differential to exploit his victim. With respect to OV 10, defendant has failed to establish plain
error.
D. OV 19
Defendant also argues that the trial court erred when it assessed 10 points for OV 19. We
disagree. When considering OV 19, it is appropriate to assess 10 points when “the offender
otherwise interfered with or attempted to interfere with the administration of justice.” MCL
777.49(c). Fleeing from the police contrary to an order to stop can constitute interference with
the administration of justice and is sufficient to support a 10-point assessment for OV 19.
People v Hershey, 303 Mich. App. 330, 344; 844 NW2d 127 (2013). At the time of trial, law
enforcement officers testified that when defendant was approached, he jumped on his bicycle and
attempted to flee in the opposite direction of the officers. Defendant further destroyed evidence
when he ripped off the distinctive/identifying sleeves of his shirt and attempted to flush them
down the toilet. Based upon this evidence, defendant has failed to establish plain error in the
scoring of OV 19.
E. OV SUMMARY
Therefore, defendant has failed to establish that he is entitled to resentencing based on
evidentiary challenges to the scoring of his offense variables.
III. JUDICIAL FACT-FINDING CHALLENGE
Defendant argues that the trial court engaged in impermissible judicial fact-finding in
regard to the scoring of the OVs. Unpreserved claims of error involving judicial fact-finding are
subject to the plain error analysis, and plain error cannot be established when “(1) facts admitted
by the defendant and (2) facts found by the jury were sufficient to assess the minimum number
of OV points necessary for the defendant’s score to fall in the cell of the sentencing grid under
which he or she was sentenced.” People v Lockridge, 498 Mich. 358, 394-395; 870 NW2d 502
(2015).
Defendant claims, and the prosecution agrees (in part), that the scoring of OVs 4
(psychological injury), 7 (aggravated physical abuse), 10 (exploitation of vulnerable victim), and
19 (interference with administration of justice) was based on judicial fact-finding.3 Defendant
thus contends that he is entitled to the remand procedures as set forth in Lockridge. Again, the
prosecution agrees.
3
The prosecution asserts that the scoring of OV 19 was not based on judicial fact-finding, but
rather defendant’s own admission that when he was approached by the police, he mounted his
bicycle and rode in the opposite direction.
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In Lockridge, the Michigan Supreme Court held that “the rule from Apprendi v New
Jersey, 530 U.S. 466; 120 S CT 2348; 147 L. Ed. 2d 435 (2000), as extended by Alleyne v United
States, 570 US ___; 133 S. Ct. 2151; 186 L. Ed. 2d 314 (2013), applies to Michigan’s sentencing
guidelines and renders them constitutionally deficient.” Lockridge, 498 Mich. at 364.
Specifically, “to the extent that the OVs scored on the basis of facts not admitted by the
defendant or necessarily found by the jury verdict increase the floor of the guidelines range, i.e.,
the defendant’s ‘mandatory minimum’ sentence, that procedure violates the Sixth Amendment.”
Id. at 373-374. In fashioning a remedy for the constitutional infirmity, the Court severed MCL
769.34(2) to the extent it made the sentencing guidelines mandatory, and it held that the
recommended minimum guidelines range would be merely advisory. Id. at 364-365.
Defendant argues and the prosecutor agrees that OVs 4, 7, 10, were based on judicially
found facts, and, more importantly, defendant’s minimum sentence range under the sentencing
guidelines would have changed without that scoring. Indeed, the facts supporting the scoring of
these OVs were not necessarily encompassed in the jury’s verdict nor were they admitted to by
defendant. Consequently, judicial fact-finding mandatorily increased defendant’s guidelines
minimum sentence range, and defendant has thereby established “a threshold showing of the
potential for plain error.” Id. at 395.
Therefore, we remand to the trial court to determine whether that court would have
imposed a materially different sentence but for the constitutional error. Id. at 397. On remand,
as explained in Lockridge, the trial court must adhere to the Crosby4 remand procedure.
Specifically, the trial court must first allow defendant the opportunity to inform the court that he
will not seek resentencing. If defendant does not advise the court in a timely manner, then “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 present when it decides whether to
resentence the defendant, but (4) must have the defendant present, as required by law, if it
decides to resentence the defendant.” Id. at 398. Further, “in determining whether the court
would have imposed a materially different sentence but for the unconstitutional constraint, the
court should consider only the circumstances existing at the time of the original sentence.” Id. at
398.
IV. ASSAULT SENTENCE
Defendant also claims that the trial court erred when it failed to score the sentencing
guidelines for his assault by strangulation conviction separately, and therefore, his sentence for
that conviction constitutes an unlawful departure. We disagree. Pursuant to People v Lopez, 305
Mich. App. 686, 690; 854 NW2d 205 (2014), a trial court is “not required to independently score
the guidelines for and sentence defendant on each of his concurrent convictions if the court
properly scored and sentenced the defendant on the conviction with the highest crime
classifications.” This Court reasoned that because the sentences were to be served concurrently,
the guidelines range for the highest-crime class offense would subsume the guidelines range for
4
United States v Crosby, 397 F3d 103 (CA 2, 2005).
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the lower-crime-class offense. Id. at 691-692. Consequently, there would be no reason or
benefit for establishing guidelines ranges for the lower-crime class offense. Id. at 692.
Here, the trial court was not required to score the sentencing guidelines for any offenses
other than CSC-I because it was the highest crime classification and was to be served
concurrently with the assault sentence. Id. Moreover, because defendant was sentenced as a
fourth-habitual offender, the trial court was required, pursuant to MCL 769.12, to sentence
defendant to a minimum of 25 years’ imprisonment.
V. PSIR
Defendant avers that he is entitled to a remand to the trial court to have inaccuracies in
his PSIR corrected. Defendant acknowledges that the inaccuracy has no bearing on his current
length of sentence but nonetheless contends that he is entitled to an accurate sentencing report.
Specifically, defendant asserts that the PSIR currently indicates that he was previously convicted
of “delivery of marijuana” when it should read “delivery of a controlled substance less than 50
grams.” Although the corrected PSIR indicates that defendant was charged at the time of his
arrest with “delivery of marijuana less than 50 grams,” it further indicates that his “final charge”
was “delivery of controlled substances less [sic] 50 grams” and that he pleaded to “controlled
substance.” Because the record does not demonstrate any inaccuracy in the PSIR that requires
correction, defendant is not entitled to a remand.
We affirm defendant’s convictions but remand for further proceedings as described in
Part III of our opinion related to the Lockridge issue. We do not retain jurisdiction.
/s/ Henry William Saad
/s/ Kathleen Jansen
/s/ Michael J. Kelly
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