People of Michigan v. Jamar Deshawn Alexander ( 2017 )

STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
November 28, 2017
Plaintiff-Appellee,
v No. 333896
Wayne Circuit Court
JAMAR DESHAWN ALEXANDER, LC Nos. 16-002345-01-FC
Defendant-Appellant.
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v No. 334949
Wayne Circuit Court
JAMAR DESHAWN ALEXANDER, LC No. 16-002346-01-FC
Defendant-Appellant.
Before: METER, P.J., and BORRELLO and RIORDAN, JJ.
PER CURIAM.
A jury convicted defendant of five total charges, arising from two cases that were
consolidated for trial. In LC No. 16-002345-01-FC, the jury convicted defendant of armed
robbery, MCL 750.529, larceny from a motor vehicle, MCL 750.356a(1), and possession of a
firearm during the commission of a felony, MCL 750.227b. In LC No. 16-002346-01-FC, the
jury convicted defendant of armed robbery and felony-firearm. The trial court sentenced
defendant to prison terms of 96 to 240 months for each robbery conviction, and 40 to 60 months
for the larceny conviction, to be served concurrently, but consecutive to concurrent two-year
terms of imprisonment for the felony-firearm convictions. Defendant appeals as of right in each
case. We affirm defendant’s convictions, but vacate and remand for resentencing.
Defendant was convicted of offenses related to two separate robberies that occurred at
two different houses on the same block in Harper Woods, Michigan, on February 26, 2016. The
prosecutor’s theory was that shortly after midnight on February 26, defendant, acting in concert
with codefendant Robert Gaines, robbed a Domino’s pizza deliveryman, after defendant called in
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a pizza order with his own cell phone. As Gaines interacted with the victim, defendant
approached, brandished a gun, and demanded the victim’s money. The victim turned over $160,
and defendant removed the victim’s iPhone from his car. Later, in the early evening of February
26, defendant’s cell phone was used to order pizza from Hungry Howie’s, and another victim
made the delivery. After Gaines met the second victim in the front yard, defendant approached
and robbed the victim of $130 at gunpoint. At the location of the first robbery, a “flop house”
where defendant and others stayed, the police recovered defendant’s cell phone, the first victim’s
iPhone, a BB pistol, two Hungry Howie’s pizza boxes, and a Domino’s pizza box. In a recorded
interview, defendant confessed to participating in the robberies with Gaines, but testified at trial
that he “made up a false confession” based on assurances made to him by the police. At trial, the
defense denied that defendant participated in either robbery.
I. EFFECTIVE ASSISTANCE OF COUNSEL
Defendant argues that he was denied the effective assistance of counsel at sentencing
because defense counsel agreed that 25 points was an appropriate score for offense variable (OV)
13 of the sentencing guidelines. Because defendant did not raise an ineffective assistance of
counsel claim in the trial court, our review of this issue is limited to mistakes apparent on the
record. People v Heft, 299 Mich. App. 69, 80; 829 NW2d 266 (2012). “To demonstrate
ineffective assistance of counsel, a defendant must show that his or her attorney’s performance
fell below an objective standard of reasonableness under prevailing professional norms and that
this performance caused him or her prejudice.” People v Nix, 301 Mich. App. 195, 207; 836
NW2d 224 (2013) (citation omitted). “To demonstrate prejudice, a defendant must show the
probability that, but for counsel’s errors, the result of the proceedings would have been
different.” Id.
Plaintiff correctly concedes that defense counsel’s performance was deficient in failing to
object to the 25-point score for OV 13, and that defendant was prejudiced by counsel’s error.
OV 13 “is continuing pattern of criminal behavior.” The trial court must score 25 points for OV
13 if “[t]he offense was part of a pattern of felonious criminal activity involving three or more
crimes against a person[.]” MCL 777.43(1)(c). Ten points must be scored if “[t]he offense was
part of a pattern of felonious criminal activity involving a combination of 3 or more crimes
against a person or property[,]” MCL 777.43(1)(d), and zero points is appropriate if [n]o pattern
of felonious criminal activity existed[.]” MCL 777.43(1)(g). All crimes within a five-year
period, including the sentencing offense, must be counted, MCL 777.43(2)(a), and a pattern of
criminal activity may be based on multiple offenses arising from the same event. See People v
Harmon, 248 Mich. App. 522, 532; 640 NW2d 314 (2001).
As defendant correctly observes, he has two offenses that qualify as “crimes against a
person.” Defendant was convicted of two counts of armed robbery, two counts of felony-
firearm, and one count of larceny from a motor vehicle. Armed robbery qualifies as a crime
against a person, MCL 777.16y. However, felony-firearm is not considered a crime against a
person, People v Bonilla-Machado, 489 Mich. 412, 416; 803 NW2d 217 (2011), and larceny from
a motor vehicle is designated as a crime against property, MCL 777.16r. Contrary to defendant’s
assertion, however, a score of 10 points, instead of zero points, for OV 13 would be appropriate
based on the combination of his two qualifying offenses against a person and one qualifying
offense against property. See MCL 777.43(1)(d).
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Defendant is entitled to resentencing because the score for OV 13 affects defendant’s
placement in the particular cell of the sentencing grid under which he was sentenced. In both LC
Nos. 16-002345-01-FC and 16-002346-01-FC, the trial court scored the guidelines for
defendant’s conviction of armed robbery, which is a class A offense. MCL 777.16y. In both
cases, defendant received a total OV score of 50 points, which combined with his 20 prior record
variable points, placed him in the C-III cell of the applicable sentencing grid, for which the
minimum sentence range is 81 to 135 months. MCL 777.62. The additional 15 points for OV 13
increased defendant’s total OV score from 35 points to 50 points, which changed his placement
in OV Level II (20-39 points) to OV Level III (40-59 points), resulting in a higher guidelines
range. The guidelines range for the C-II cell of the applicable sentencing grid is 51 to 85
months. Because a defendant is entitled to be sentenced on the basis of accurate information and
a scoring error that affects the appropriate guidelines range entitles a defendant to resentencing,
People v Francisco, 474 Mich. 82, 89 n 8; 711 NW2d 44 (2006); People v Biddles, 316 Mich
App 148, 156; 896 NW2d 461 (2016), defendant was prejudiced by defense counsel’s failure to
object. Accordingly, we vacate defendant’s sentences and remand for resentencing.
II. JUDICIAL FACT-FINDING
We reject, however, defendant’s additional argument that the trial court erred by
engaging in judicial fact-finding to score OVs 10 and 12. Because defendant did not object on
this basis at sentencing, this claim is unpreserved and review is limited to plain error affecting
defendant’s substantial rights. People v Lockridge, 498 Mich. 358, 392; 870 NW2d 502 (2015).
In Lockridge, our Supreme Court held that Michigan’s sentencing guidelines are
constitutionally deficient, in violation of the Sixth Amendment, to the extent that they “require
judicial fact-finding beyond facts admitted by the defendant or found by the jury to score offense
variables (OVs) that mandatorily increase the floor of the guidelines minimum sentence range . .
. .” Id. at 364. To remedy this deficiency, the Court held that the guidelines are advisory only.
Id. at 365. Under Lockridge, however, trial courts are still required to “continue to consult the
applicable guidelines range and take it into account when imposing a sentence,” and are
permitted to score the OVs using judicially-found facts. Id. at 392 n 28. As this Court explained
in Biddles, 316 Mich. App. at 158,
[t]he constitutional evil addressed by the Lockridge Court was not judicial fact-
finding in and of itself, it was judicial fact-finding in conjunction with required
application of those found facts for purposes of increasing a mandatory minimum
sentence range, which constitutional violation was remedied in Lockridge by
making the guidelines advisory, not by eliminating judicial fact-finding.
Thus, a defendant sentenced after Lockridge is not entitled to resentencing merely because the
trial court engaged in judicial fact-finding to score the OVs. Instead, to be entitled to relief under
Lockridge, a defendant must demonstrate that his minimum sentence was actually constrained by
a violation of the Sixth Amendment. Lockridge, 498 Mich. at 395.
In this case, defendant was sentenced nearly one year after Lockridge was decided. The
trial court is presumed to have been aware of Lockridge when it imposed sentence. See People v
Alexander, 234 Mich. App. 665, 675; 599 NW2d 749 (1999). There is nothing to suggest that the
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trial court failed to recognize that the guidelines were advisory or that the court sentenced
defendant in a manner inconsistent with Lockridge. Because the guidelines were advisory, and
the trial court was permitted to rely on judicially-found facts to score OVs 10 and 12, defendant
has not demonstrated that an “unconstitutional constraint on judicial discretion actually impaired
his Sixth Amendment right.” Lockridge, 498 Mich. at 395. Accordingly, defendant is not
entitled to relief on this basis.
Affirmed in part, vacated in part, and remanded for resentencing. We do not retain
jurisdiction.
/s/ Patrick M. Meter
/s/ Stephen L. Borrello
/s/ Michael J. Riordan
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