People of Michigan v. Marcus Lee Barber ( 2023 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
June 29, 2023
Plaintiff-Appellee,
v No. 359802
Berrien Circuit Court
MARCUS LEE BARBER, LC No. 2020-001496-FC
Defendant-Appellant.
Before: GLEICHER, C.J., and RICK and MALDONADO, JJ.
PER CURIAM.
Defendant appeals by right his concurrent sentence to 162 to 270 months’ imprisonment
for two counts of third-degree criminal sexual conduct (CSC-III), MCL 750.520d (multiple
variables). We vacate defendant’s sentence and remand for resentencing.
I. FACTUAL BACKGROUND
This case arises out of a sexual assault that resulted in a pregnancy. Defendant was a friend
of AV’s family, and he was the father of AV’s cousin’s child. When AV was ten years old,
defendant, who was in his mid-30s, began sexually abusing her. The first incident occurred at the
apartment defendant shared with AV’s cousin in Benton Harbor. AV was watching a movie with
defendant when he began rubbing her genitals. This escalated to penile penetration of her vagina,
and he then took her to the kitchen where he continued to engage in intercourse with her on the
counter. AV pushed defendant off of her, and then defendant took her to a hallway and continued
there.
AV moved to Kalamazoo with her mother for a couple of years and then moved back to
Benton Harbor and lived with defendant, her cousin, and her cousin’s children. At this point, the
sexual abuse resumed, and when AV was asked how many times defendant engaged in sexual
intercourse with her, she said, “Too many to count.” AV realized she was pregnant shortly after
her 15th birthday, and defendant insisted that the child was not his because he “pulled out.”
However, AV testified that defendant was the only person who could have been the father, and
subsequent DNA testing confirmed defendant’s paternity. Defendant continued to abuse AV after
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she became pregnant, and the last incident of sexual abuse occurred five months into her
pregnancy. CPS intervened after AV disclosed her pregnancy to a counselor at her high school.
The jury found defendant guilty of two counts of CSC-III for the conduct that occurred
when the victim was between 13 and 15 years old, including her pregnancy and the intercourse
during her pregnancy. The jury found defendant not guilty of one count of CSC-I, which was a
charge based on alleged penetration that occurred when the victim was 10 years old. The jury was
unable to render a verdict on another count of CSC-I that was based on alleged digital penetration
that occurred when the victim was 10 years old. This appeal followed.
II. SENTENCING GUIDELINES
Defendant argues that zero points should have been assessed for OVs 10 and 13. We
disagree.
Criminal defendants are entitled to a sentence that is based on accurate information and
accurate scoring of the sentencing guidelines. People v McGraw, 484 Mich 120, 131; 771 NW2d
655 (2009). The trial court’s factual findings are reviewed for clear error and must be supported
by a preponderance of the evidence. People v Sours, 315 Mich App 346, 348; 890 NW2d 401(2016). “A sentencing court may consider all record evidence before it when calculating the
guidelines, including, but not limited to, the contents of a presentence investigation report,
admissions made by a defendant during a plea proceeding, or testimony taken at a preliminary
examination or trial.” People v Johnson, 298 Mich App 128, 131; 826 NW2d 170 (2012)
(quotation marks and citation omitted). “Whether the facts, as found, are adequate to satisfy the
scoring conditions prescribed by statute, i.e., the application of the facts to the law, is a question
of statutory interpretation, which an appellate court reviews de novo.” Id. (quotation marks and
citation omitted). A defendant is entitled to resentencing if there is a scoring error that alters the
defendant’s recommended minimum sentence range. People v Francisco, 474 Mich 82, 89; 711
NW2d 44 (2006).
A. OV 10
Defendant argues that the trial court erred by assessing 15 points for OV 10 and that it
should have assessed zero points. We disagree.
OV 10 “is exploitation of a vulnerable victim.” MCL 777.40. In this case, 15 points were
assessed for OV 10. It is appropriate to assess 15 points for OV 10 when “[p]redatory conduct
was involved.” MCL 777.40(1)(a). “Predatory conduct means preoffense conduct directed at a
victim . . . for the primary purpose of victimization.” MCL 777.40(3)(a). This term does not refer
to “any manner of ‘preoffense conduct’ ” because almost all crimes involve some sort of
preoffense conduct. People v Huston, 489 Mich 451, 462; 802 NW2d 261 (2011). Rather, the
term refers to “only those forms of ‘preoffense conduct’ that are commonly understood as being
‘predatory’ in nature, e.g., lying in wait and stalking, as opposed to purely opportunistic criminal
conduct or preoffense conduct involving nothing more than run-of-the-mill planning to effect a
crime or subsequent escape without detection.” Id. (quotation marks and citation omitted).
In this case, defendant isolated AV to assault her; this supported the court’s finding that
defendant engaged in predatory conduct. “The timing of an offense, including watching the victim
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and waiting until the victim is alone before victimizing him or her, may be evidence of predatory
conduct.” People v Kosik, 303 Mich App 146, 160; 841 NW2d 906 (2013). Defendant only
molested AV when he was alone with her at the home, and he would often take her into a bedroom.
See People v Witherspoon, 257 Mich App 329, 336; 670 NW2d 434 (2003) (affirming finding of
predatory conduct when defendant waited until the child victim was alone and assaulted her in the
basement). There was also evidence that defendant engaged in grooming behavior to assist him
in carrying out the crimes. For example, AV testified that, immediately prior to the first incident,
defendant was watching a movie with AV and then had her lay her head down on his lap. The
court could reasonably have inferred that defendant was intentionally trying to get AV to put her
guard down so that he could victimize her.
Therefore, the court’s decision to assess 15 points for OV 10 was supported by the record.
B. OV 13
Defendant argues that the trial court erred by assessing 25 points for OV 13 and that it
should have assessed zero points. We disagree.
OV 13 is “continuing pattern of criminal behavior.” MCL 777.43. In this case, 25 points
were assessed for OV 13, and it is appropriate to assess 25 points for OV 13 if “[t]he offense was
part of a pattern of felonious criminal activity involving 3 or more crimes against a person.” MCL
777.43(1)(c). “[A]ll crimes within a 5-year period, including the sentencing offense, shall be
counted regardless of whether the offense resulted in a conviction.” MCL 777.43(2)(a). AV
testified that she was molested by defendant more times than she could count. Therefore, the
record supported the trial court’s finding that defendant committed three or more crimes against a
person.
Defendant was found not guilty of one count of CSC-I, and as defendant noted, the
sentencing court cannot consider “acquitted conduct.” See People v Beck, 504 Mich 605, 629; 939
NW2d 213 (2019). However, it is still permissible for sentencing courts to consider uncharged
conduct. See Id. at 626 (“When a jury has made no findings (as with uncharged conduct, for
example), no constitutional impediment prevents a sentencing court from punishing the defendant
as if he engaged in that conduct using a preponderance-of-the-evidence standard.”). It would be
inappropriate for the court to consider the specific incident for which defendant was acquitted, but
AV’s testimony that she was abused more times than she could count suggests that there were
several other incidents that were never charged. Because the court found AV credible and because
the lower preponderance of the evidence standard applies, the record supported the court’s decision
to assess 25 points for OV 13. Therefore, defendant’s arguments regarding OV 13 are without
merit.
In conclusion, the variables comprising defendant’s guidelines range were properly
calculated.
III. DISPROPORTIONATE SENTENCE
Defendant argues that his within-the-guidelines sentence is disproportionate and
unreasonable and that MCL 769.34(10) is unconstitutional because it forecloses this Court’s
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review of the sentence. “According to People v Lockridge, 498 Mich 358, 365; 870 NW2d 502(2015), this Court is required to review for reasonableness only those sentences that depart from
the range recommended by the statutory guidelines.” People v Anderson, 322 Mich App 622, 636;
912 NW2d 607 (2018). Defendant does not dispute that he was sentenced within the guidelines.
Therefore, pursuant to Anderson, we need not evaluate defendant’s sentence for reasonableness.
MCL 769.34(10) requires that we affirm a sentence that is within the minimum sentencing
guidelines range, and defendant’s argument that the statute is unconstitutional because it forecloses
our review of a within-guidelines sentence has been repeatedly rejected. See, e.g., People v
Schrauben, 314 Mich App 181, 196 n 1; 886 NW2d 173 (2016) (observing that “Lockridge did
not alter or diminish MCL 769.34(10).”). Unless MCL 769.34(10) is amended or deemed
unconstitutional by our Supreme Court, we are bound to follow its dictates.
IV. TWO-THIRDS RULE
Defendant argues that his sentence violates the “two-thirds” rule because his minimum
sentence is more than two-thirds of his maximum sentence. We disagree.
When imposing an indeterminate sentence, a court may not impose a minimum that
exceeds two-thirds of the statutory maximum under the sentencing guidelines. MCL 769.34(2)(b).
Any sentence that provides a minimum term exceeding two-thirds of the maximum term fails to
comply with the indeterminate sentencing act. People v Tanner, 387 Mich 683, 690; 199 NW2d
202 (1972). The proper remedy for violation of the two-thirds rule is to reduce the minimum
sentence. People v Thomas, 447 Mich 390, 392-394; 523 NW2d 215 (1994). The two-thirds rule
applies to sentences imposed under the habitual-offender statute. Id. at 392.
Both parties agree that remand was required because the trial court violated the Tanner rule
when it set defendant’s minimum sentence at 162 months and the maximum at 230 months. The
trial court did initially impose a sentence of 162 to 230 months’ imprisonment; however, both
parties have overlooked the fact that a new sentencing hearing was conducted the day after
defendant was initially sentenced. The court explained that its “multiplication was not very good.”
It had intended to impose the statutory maximum of “twenty-two and a half” years; twenty-two
and a half years is 270 months. However, a multiplication error resulted in the accidental
imposition of a 230-month maximum. Accordingly, the trial court corrected defendant’s sentence
and imposed a new maximum term of 270 months.
“[I]t is clear that an inadvertently stated sentence cannot be set aside merely on the ground
that the court misspoke.” Thomas, 447 Mich at 393. Regardless of the reasons and whether it
happened incidentally, a court cannot sentence a defendant, retract the sentence, and then impose
a harsher sentence. See id.; see also People v Miller, 498 Mich 13, 17-18; 869 NW2d 204 (2015)
(“The multiple punishments strand of double jeopardy is designed to ensure that courts confine
their sentences to the limits established by the Legislature . . . .” (Quotation marks and citation
omitted.)). Therefore, the court’s second sentence of 162 to 270 months is invalid. As the parties
agree, the initial sentence of 162 to 230 months is likewise invalid because it violates the two-
thirds rule. See Tanner, 387 Mich at 690.
Therefore, defendant is entitled to resentencing.
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V. CONCLUSION
We affirm the scoring of defendant’s sentencing guidelines and reject defendant’s
contention that his sentence was disproportionate. Nevertheless, we must vacate defendant’s
sentence and remand this case for resentencing. On remand, the trial court cannot impose a
maximum sentence that exceeds 230 months, see Thomas, 447 Mich at 392-394, nor a minimum
sentence that exceeds 153 months. We do not retain jurisdiction.
/s/ Elizabeth L. Gleicher
/s/ Michelle M. Rick
/s/ Allie Greenleaf Maldonado
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