PEOPLE OF MI V JAMES ANTHONY TERRELL (Authored Opinion)

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STATE OF MICHIGAN COURT OF APPEALS PEOPLE OF THE STATE OF MICHIGAN, FOR PUBLICATION September 29, 2015 9:05 a.m. Plaintiff-Appellee, v No. 321573 Wayne Circuit Court LC No. 10-006933-FC JAMES ANTHONY TERRELL, Defendant-Appellant. Before: TALBOT, P.J., and WILDER and FORT HOOD, JJ. WILDER, J. A jury convicted defendant of three counts of assault with intent to do great bodily harm less than murder,1 resisting or obstructing a police officer,2 felon in possession of a firearm,3 and possession of a firearm during the commission of a felony.4 The trial court originally sentenced defendant as a fourth habitual offender,5 to prison terms of 30 to 50 years for each assault conviction, 5 to 15 years for the resisting or obstructing conviction, two to five years for the felon-in-possession conviction, and a two-year term of imprisonment for the felony-firearm conviction. The judgment of sentence indicated that the sentence for one of the assault convictions was consecutive to the sentence for the felony-firearm conviction, which was concurrent with the remaining sentences. In a prior appeal, this Court affirmed defendant’s convictions, but vacated his sentences and remanded for resentencing because of “issues regarding defendant’s habitual offender status that need resolution” and because of “errors associated with the sentencing departure[.]”6 On remand, the trial court resentenced defendant as 1 MCL 750.84. 2 MCL 750.81d(1). 3 MCL 750.224f. 4 MCL 750.227b. 5 MCL 769.12. 6 People v Terrell, unpublished opinion per curiam of the Court of Appeals, issued September 24, 2013 (Docket No. 302135), p 17. -1- a second habitual offender,7 to prison terms of 95 months to 15 years for each assault conviction, one to two years for the resisting or obstructing conviction, 5 to 7½ years for the felon-inpossession conviction, and a two-year term of imprisonment for the felony-firearm conviction. The amended judgment of sentence, again, reflects that defendant’s sentence for one of the assault convictions is consecutive to the sentence for the felony-firearm conviction, which is itself concurrent with the remaining sentences. Defendant again appeals as of right, challenging the sentences imposed on remand. We remand for proceedings consistent with this opinion and for correction of the judgment of sentence to reflect the waiver of fees and costs. Defendant’s convictions arise from a shootout with the Detroit police. delineated the following relevant facts in its prior opinion: This Court The shootout occurred after a minivan carrying defendant and his friend, Devon Gary, pulled over to the side of the road while being followed by a marked police cruiser, although the cruiser’s emergency lights and siren had not been activated. The police had been following the minivan based on suspicious behavior by its occupants and suspected drunk driving. A second police vehicle, unmarked, pulled up behind the marked police cruiser. Defendant was a passenger in the minivan and, according to police testimony, defendant leaped out of the minivan’s passenger-side sliding door and opened fire on police with an AK-47 assault rifle. The police officers returned fire, discharging their .40 caliber weapons 40 times based on the number of shell casings found at the scene. Gary, who was unarmed and had also exited the minivan, was shot dead and defendant was struck in the leg by a bullet, but he managed to escape. Defendant first stopped briefly at a friend’s house, then stayed a few days with his girlfriend, who helped treat the wound, and defendant eventually went down to Memphis, Tennessee, where he had friends and family, and where he sought medical assistance in a hospital emergency room for the bullet wound. A month later, defendant went to Des Moines, Iowa, where he had resided off and on in past years. He was arrested in Iowa. Defendant took the stand in his own defense and admitted that he was in the minivan with Gary, who went by the name Kano, but defendant denied displaying, pointing, or firing any weapon at the police before the police started shooting. An AK-47 was found a short distance from the scene of the shootout, but well beyond the spot that Kano fell dead. Five shell casings that were not discharged from the officers’ guns were found at the scene, although the expert on ballistics could not definitively connect the casings to the AK-47. DNA evidence placed defendant in the minivan, and a video captured by the marked police cruiser’s camera showed someone exiting the minivan’s sliding door carrying a weapon. The minivan involved in the incident belonged to a married couple. The husband had been at a gas pump filling the minivan’s tank at a Marathon station a 7 MCL 769.10. -2- few hours before the shootout, while his wife was inside paying, when he was approached by two young males. The taller of the two men was wielding an AK47 assault rifle. The husband bolted toward the gas station’s entrance, yelling at the men to just take the vehicle. The rifleman then chased the husband in the direction of the gas station’s front door. As the husband was entering the front door of the station in his attempt to escape the rifleman, his wife was exiting the station, and a female bystander, who had been waiting to catch a bus, was stationed near the Marathon’s front door. At that moment, a gunshot was heard. The husband testified that he felt a bullet graze his jacket, and a bullet struck the female bystander, causing a minor injury. The wife escaped by running down the block. The two perpetrators then drove off in the minivan. Kano was identified by defendant’s uncle as the gun-toting man seen in a video still captured by a gas station camera. The couple could not identify defendant in a lineup, nor at trial, as having participated in the crime. The bystander had also failed to identify defendant in a lineup and at the preliminary examination, although she claimed at trial that defendant, while not wielding a weapon, was the shorter man at the gas station who had been involved in the crime. Defendant denied being at the Marathon station that night and claimed that Kano gave him a ride in the minivan shortly before the shootout occurred. Defendant was acquitted of all charges arising out of the events at the gas station, either by jury verdict or directed verdict.[8] Defendant was originally charged with three counts of assault with intent to commit murder,9 but convicted of the lesser offenses of assault with intent to do great bodily harm less than murder.10 At sentencing, the prosecutor argued that the trial court should impose a sentence that exceeded the sentencing guidelines range. When imposing the sentence, the trial court, without stating that it was departing from the guidelines range, noted the “highly assaultive nature” of the offense, defendant’s lack of remorse, and defendant’s inability to be rehabilitated. Thereafter, the trial court completed a guidelines departure form in which it cited defendant’s lack of remorse and inability to be rehabilitated as reasons to exceed the guidelines range, which was 38 to 152 months for defendant’s assault with intent to do great bodily harm conviction, as enhanced for a fourth habitual offender. The trial court sentenced defendant as a fourth habitual offender,11 to 30 to 50 years’ imprisonment for each assault conviction, 5 to 15 years’ imprisonment for the resisting or obstructing conviction, two to five years’ imprisonment for the felon-in-possession conviction, and a consecutive two-year term of imprisonment for the felony- 8 Terrell, unpub op at 1-3. 9 MCL 750.83. 10 Terrell, unpub op at 1. 11 MCL 769.12. -3- firearm conviction.12 The trial court expressly declined to impose any costs or fees, mentioning defendant’s indigent status. On September 24, 2013, this Court affirmed defendant’s convictions, but vacated his sentences and remanded for resentencing.13 It concluded that the habitual fourth notice erroneously counted the same conviction twice, and it remanded for a determination of whether an Iowa conviction constituted a felony in Michigan.14 Finally, this Court concluded that the trial court failed to meet the articulation requirement for a departure sentence by failing to justify the particular sentence departure with objective and verifiable reasons.15 On April 11, 2014, the parties appeared for resentencing. The parties agreed to reduce the scoring of prior record variable (PRV) 2 (prior low severity felony convictions) from 30 to 20 points because the Iowa conviction was actually for a misdemeanor offense. The attorneys agreed to the scoring of PRV 5 (prior misdemeanor convictions) at two points, PRV 6 (relationship to criminal justice system) at 10 points, and PRV 7 (subsequent or concurrent felony convictions) at 20 points. However, defendant himself objected to the score for PRV 7, alleging that it did not apply because he was subject to a mandatory consecutive sentence for his felony-firearm conviction. The trial court questioned the attorneys about defendant’s position, but they agreed that defendant’s convictions for other felonies still supported a 20-point score for PRV 7. Thus, defendant’s total PRV score was 52 points, placing him in PRV Level E (50-74 points) on the applicable sentencing grid.16 With regard to the scoring of the offense variables (OVs), the parties agreed that OV 1 (aggravated use of a weapon) was appropriately scored at 25 points. The parties agreed to reduce the scoring of OV 2 (lethal potential of weapon possessed or used) from 15 to 5 points because the weapon was not fully automatic. The parties agreed that OV 3 (physical injury to victim) was appropriately scored at 100 points, that OV 4 (psychological injury to victim) was appropriately scored at 10 points, and that OV 9 (number of victims) was appropriately scored at 10 points. As to OV 12 (contemporaneous felonious criminal acts) and OV 13 (continuing pattern of criminal behavior), the parties agreed that while either offense variable could be scored at 25 points, one but not both should be scored. The parties also agreed that the scoring of either variable did not impact the outcome. The trial court scored OV 12 at zero points and OV 13 at 25 points. The parties agreed that OV 19 (threat to security of penal institution or court or interference with administration of justice or rendering of emergency services) was properly scored at 15 points. Thus, defendant received a total OV score of 190 points, placing him in OV 12 The trial court also erroneously sentenced defendant for a felonious assault conviction, which, as discussed infra, was subsequently corrected. 13 Terrell, unpub op at 1. 14 Id. at 11-12. 15 Id. at 13-17. 16 MCL 777.65. -4- Level VI (75+ points) on the applicable sentencing grid.17 The defendant’s habitual offender status was reduced to habitual second because after remand the prosecutor was precluded from adding other crimes to the habitual enhancement, and could only correct errors, which included the Iowa conviction and the mistake of counting the same conviction twice. Therefore, defendant received a reduced guidelines range of 38 to 95 months for the assault with intent to do great bodily harm conviction, and lesser potential maximum sentences of 15 years for the assault conviction, and 7½ years for the felon-in-possession conviction. The prosecutor argued that the trial court should re-impose the sentences previously imposed by the trial court, citing defendant’s disregard of the law, attitude toward law enforcement, and inability to conform his conduct and be rehabilitated, as evidenced by his 19 major violations while in prison.18 Defense counsel argued to the contrary, contending that the location of the shell casings and the lack of damage to the police cars indicated someone fleeing the scene, not a standoff with the police. Defense counsel further argued that his several prior convictions were not assaultive or violent and noted that it was common for younger inmates to receive misconduct tickets. Defendant himself argued that his prison tickets were for minor, not “monstrous stuff.” Defendant also noted that he had obtained his GED while in prison and participated in substance abuse and other programs. Defendant denied ever shooting at the police and claimed that he was framed. The trial court sentenced defendant to 95 months to 15 years’ imprisonment for each assault with intent to do great bodily harm less than murder conviction, one to two years’ imprisonment for the resisting or obstructing conviction, and 5 to 7½ years’ imprisonment for the felon-in-possession conviction, as well as a two-year term of imprisonment for the felonyfirearm conviction.19 As noted, the amended judgment of sentence indicates that the sentence for one of the assault convictions is consecutive to the sentence for the felony-firearm conviction, and that the felony-firearm conviction is concurrent with the remaining sentences. The trial court also ordered $408 in state fees, $130 for the crime victim’s rights fee, and $600 in court costs. On June 27, 2014, defendant filed an amended motion for resentencing and to correct the presentence investigation report (PSIR). Defendant alleged that he was entitled to resentencing because: (1) the OV 3, OV 4, and OV 9 scores were derived, at least in part, from facts not found by a jury beyond a reasonable doubt; (2) that although current Michigan law did not support defendant’s claim that the OVs should not be scored, the Michigan Supreme Court had 17 MCL 777.65. 18 Defendant received violations for incidents including an assault resulting in serious physical injury, and a charge of disobeying orders. 19 The trial court also sentenced defendant to four to six years’ imprisonment for a felonious assault conviction. The Michigan Department of Corrections sent correspondence indicating that the judgment of sentence appeared to contain an erroneous conviction for felonious assault. On April 24, 2014, the judgment of sentence was amended to remove the conviction and sentence for felonious assault. -5- recently granted leave to address this issue in People v Lockridge20; (3) on resentencing, the trial court had increased the felon-in-possession sentence from two to five years’ imprisonment to 5 to 7½ years’ imprisonment without explanation, giving rise to a presumption of vindictiveness; (4) fees and costs had previously been waived because of defendant’s indigent status, and it was error to include costs on resentencing pursuant to People v Cunningham21; (5) alternatively, if costs were deemed correctly imposed, they should be deferred until defendant was paroled; and (6) if the scoring errors were deemed waived, defendant was deprived of the effective assistance of counsel. Defendant also claimed that he was entitled to correction of the PSIR to remove any references to a felonious assault because he was not convicted of that offense. On July 11, 2014, the trial court heard oral arguments regarding the motion for resentencing. When the defense raised the issue of the scoring of the OVs, the trial court noted that defendant had preserved his Lockridge challenge by raising it in the motion, but concluded that it was premature to change the scoring in the absence of a decision from our Supreme Court. The defense had amended the motion for resentencing because of the recent Cunningham decision, and the trial court agreed to waive costs. The trial court also agreed to remove references to carjacking and felonious assault by striking the pertinent content from the PSIR. Regarding the increased felon-in-possession sentence, from two to five years to 5 to 7½ years, the trial court expressed surprise that defendant’s sentence had been increased, given that the five-year minimum sentence was appropriate when considering the guidelines range for defendant’s assault conviction. Although the prosecutor did not object to defendant being resentenced to two to five years’ imprisonment for the felon-in-possession conviction, in order to foreclose the possibility of an additional resentencing, the trial court surmised that a clerical error was responsible for the lower initial sentence reflected in the judgment, and denied defendant’s motion to reinstate the lower sentence. On July 15, 2014, the trial court signed an order reflecting the rulings on the motion for resentencing. Defendant first argues that the trial court engaged in judicial fact-finding when scoring OVs 3, 4, and 9 of the sentencing guidelines, and that therefore, he is entitled to resentencing under Alleyne v United States.22 We disagree that resentencing is necessarily required. As this Court recently explained in People v Stokes,23 our Supreme Court in People v Lockridge,24 held that our sentencing scheme “violates the Sixth Amendment right to a jury trial because it requires ‘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 20 304 Mich App 278; 849 NW2d 388 (2014), lv granted 496 Mich 852 (2014). 21 496 Mich 145; 852 NW2d 118 (2014). Defendant previously filed a motion for resentencing on June 9, 2014. The amended motion for resentencing was filed to address the Cunningham decision. 22 570 US ___; 133 S Ct 2151; 186 L Ed 2d 314 (2013). 23 ___ Mich App ___; ___ NW2d ___ (2015). 24 ___ Mich ___; ___ NW2d ___ (2015). -6- minimum sentence range, i.e., the “mandatory minimum” sentence under Alleyne.’ ”25 Our Supreme Court “concluded that the appropriate remedy was to render Michigan’s sentencing guidelines merely advisory.”26 Accordingly, our Supreme Court “sever[ed] MCL 769.34(2) to the extent that it is mandatory and [struck] down the requirement of a ‘substantial and compelling reason’ to depart from the guidelines range in MCL 769.34(3).”27 “A sentence that departs from the applicable guidelines range will be reviewed by an appellate court for reasonableness.”28 However, sentencing courts must “continue to consult the applicable guidelines range and take it into account when imposing a sentence.”29 As explained in Stokes,30 the Lockridge Court described the procedure to be used when considering unpreserved Alleyne-based challenges, which are subject to plain-error review. Regarding unpreserved Alleyne claims, our Supreme Court ruled that in cases “in which (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[,] . . . because the defendant suffered no prejudice from any error, there is no plain error and no further inquiry is required.”31 Our Supreme Court further held that all defendants (1) who can demonstrate that their guidelines minimum sentence range was actually constrained by the violation of the Sixth Amendment and (2) whose sentences were not subject to an upward departure can establish a threshold showing of the potential for plain error sufficient to warrant a remand to the trial court for further inquiry.[32] Relying on United Stated v Crosby,33 our Supreme Court held that in cases in which a defendant’s minimum sentence was established by application of the sentencing guidelines in a manner that violated the Sixth Amendment, the case should be remanded to the trial court to determine whether that court would have imposed a materially different sentence but for the constitutional error. If 25 Stokes, ___ Mich App at ___; slip op at 6, quoting Lockridge, __ Mich at ___; slip op at 1-2. 26 Stokes, ___ Mich App at ___; slip op at 7, citing Lockridge, ___ Mich at ___; slip op at 36. 27 Lockridge, ___ Mich at ___; slip op at 29. 28 Id. at ___; slip op at 29. 29 Id. at ___; slip op at 29. 30 ___ Mich App at ___; slip op at 8-9. 31 Lockridge, ___ Mich at ___; slip op at 32. 32 Id. at ___; slip op at 32-33. 33 397 F3d 103, 117-118 (CA 2, 2005). -7- the trial court determines that the answer to that question is yes, the court shall order resentencing.[34] Our Supreme Court articulated the precise procedure to be followed, based on the procedure adopted in Crosby, which includes providing the defendant an opportunity to inform the court that he or she will not seek resentencing.35 Unlike Lockridge, Stokes involved a preserved claim of error.36 The Court in Stokes held that a preserved, non-structural error is subject to the harmless beyond a reasonable doubt test.37 Similarly, in the instant case, if we were to apply pre-Lockridge precedent, because defendant raised the Alleyne issue in his motion for resentencing, his claim would be considered preserved.38 We find that nothing in Lockridge compels a different conclusion. Accordingly, we review defendant’s claim for harmless error beyond a reasonable doubt. While defendant conceded at his sentencing hearing that OVs 3, 4, and 9 were properly scored, and also does not dispute on appeal that the guidelines were properly scored under preLockridge caselaw, on appeal, defendant now claims, based on Lockridge, that the scoring of these OVs was not supported by jury’s verdict. Defendant’s OV score totaled 190 points, placing him in OV Level VI (75+ points) on the applicable sentencing grid.39 Excluding the challenged OVs, defendant’s total OV score would have been 70 points. Therefore, if any one of the challenged OVs was admitted by defendant or supported by the jury’s verdict, then any judicial fact-finding regarding the other two OVs did not affect the range of defendant’s minimum sentence. Regardless of whether defendant admitted the facts necessary to support the scoring of OVs 3, 4, and 9,40 the jury’s verdict nonetheless supported the scoring of OV 9.41 Under OV 9, 34 Lockridge, ___ Mich at ___; slip op at 34 (citation omitted). 35 Stokes, ___ Mich App at ___; slip op at 9, quoting Lockridge, ___ Mich at ___; slip op at 3536. 36 Stokes, ___ Mich App at ___; slip op at 9. 37 Id. at ___; slip op at 10. 38 See People v Kimble, 470 Mich 305, 310-311; 684 NW2d 669 (2004) (“[I]f the sentence is within the appropriate guidelines sentence range, it is only appealable if there was a scoring error or inaccurate information was relied upon in determining the sentence and the issue was raised at sentencing, in a motion for resentencing, or in a motion to remand.”). 39 MCL 777.65. 40 For the same reason that we concluded defendant did not waive the issue, we conclude that his agreement to the scoring was not an admission for Lockridge purposes. Rather, it could reasonably be interpreted as only an admission that the OVs were supported by a preponderance of the evidence. -8- 10 points are assigned if “[t]here were 2 to 9 victims who were placed in danger of physical injury or death.”42 MCL 777.39(2)(a) provides: “Count each person who was placed in danger of physical injury or loss of life or property as a victim.” The jury found defendant guilty of assaulting three different officers. Therefore, the scoring of OV 9 for two to nine victims was supported by the jury’s verdict. Defendant’s argument that there was only one victim for each assault is unpersuasive. The jury clearly found that three officers were placed in danger when defendant open fired.43 Accordingly, with these 10 points, defendant’s total OV score was 80 points, keeping him in OV Level VI (75+ points) on the applicable sentencing grid.44 As a result, any judicial fact-finding regarding OVs 3 and 4 did not affect defendant’s minimum sentence guidelines range. In Stokes,45 this Court concluded that where judicially-found facts increased the minimum sentence guidelines range, the proper remedy was to remand for the Crosby procedure to be followed to determine whether the error was harmless. In this case, however, any judicial fact-finding did not increase the minimum sentence guidelines because the scoring was supported by the jury verdict. Nonetheless, we adopt the remedy crafted in Stokes as the appropriate remedy here, because regardless of the fact that judicial fact-finding did not increase defendant’s minimum sentence guidelines range, the trial court’s compulsory use of the guidelines was erroneous in light of Lockridge.46 Here, the trial court was not obligated to sentence defendant within the minimum sentence guidelines range and, instead, was permitted to depart from the guidelines range without articulating a substantial and compelling reason, so long as the resulting sentence was itself reasonable.47 Therefore, we conclude that a remand for the Crosby procedure is necessary to determine whether the error resulting from the compulsory use of the guidelines was harmless.48 As discussed in Stokes, our Supreme Court’s agreement with the quoted section of Crosby indicates that the Crosby procedure would apply to both 41 The prosecution conceded at oral argument that the facts necessary to score OVs 3 and 4 were not found by the jury. 42 MCL 777.39(1)(c). 43 See People v Morson, 471 Mich 248, 262; 685 NW2d 203 (2004) (concluding that 10 points were properly assessed under OV 9 where, although only one person was actually robbed, the person who was standing nearby and responded to the calls for help was also “placed in danger of injury or loss of life” by the armed robbery). 44 MCL 777.65. 45 ___ Mich App at ___; slip op at 7, 10. 46 See United States v Fagans, 406 F3d 138, 141-142 (CA 2, 2005) (remanding for resentencing, even though judicial fact-finding did not increase the guidelines range, because the compulsory use of the guidelines was erroneous). 47 Lockridge, ___ Mich at ___; slip op at 29, 36. 48 See Stokes, ___ Mich App at ___; slip op at 10. We decline the prosecution’s invitation to review the sentencing hearing in order to determine whether there was any indication that the trial court felt constrained by the guidelines because, at the time of sentencing, the guidelines were mandatory. -9- preserved and unpreserved errors.49 In addition, there is no logical reason why the Crosby procedure would apply to unpreserved errors, but not to preserved errors.50 A defendant who preserves his or her claim of error should be entitled to at least as much constitutional protection as a defendant who does not preserve his or her claim.51 Accordingly, we remand for the trial court to follow the Crosby procedure outlined in Lockridge. Defendant is entitled to avoid resentencing by promptly notifying the trial court of his intent to do so.52 “If notification is not received in a timely manner,” the trial court should continue with the Crosby procedure articulated in Lockridge.53 Defendant next seeks reinstatement of his original sentence of two to five years’ imprisonment for felon in possession of a firearm, arguing that the increased sentence of 5 to 7½ years that was imposed on remand is impermissibly vindictive. Defendant does not challenge the propriety of this sentence on any other grounds, apart from vindictiveness. A presumption of vindictiveness occurs when a defendant is resentenced by the same judge and the second sentence is longer than the first.54 If the trial court states the reasons for the increase at the resentencing, the presumption may be overcome.55 The record does not support defendant’s argument that the increased sentence was motivated by vindictiveness. Contrary to what defendant asserts, the trial court explained its reasons for imposing the higher sentence by expressing surprise that it had imposed a lesser sentence originally, explaining that it considered the five-year minimum sentence in relation to the guidelines range for defendant’s assault conviction, and determining that a five-year minimum sentence was appropriate in consideration of that range. Because defendant does not dispute that computation, because the trial court’s reasons for imposing the enhanced sentence at resentencing establish that the sentence was not motivated by vindictiveness, and because defendant does not otherwise challenge the propriety of the enhanced sentence in light of his habitual offender status, defendant has failed to demonstrate that resentencing is required on this ground. Defendant also challenges the trial court’s assessment of fees and costs, as reflected in the amended judgment of sentence, dated April 24, 2014. At defendant’s original sentencing, the trial court agreed to waive all fees and costs in light of defendant’s indigent status. However, the amended judgment of sentence issued on remand contained assessments for fees and costs. 49 Id. at ___; slip op at 11. 50 Id. at ___; slip op at 11. 51 See id. at ___; slip op at 11-12. 52 Lockridge, ___ Mich at ___; slip op at 35. 53 Id. at ___; slip op at 35-36. See also Stokes, ___ Mich App at ___; slip op at 12. 54 People v Colon, 250 Mich App 59, 66; 644 NW2d 790 (2002). 55 Id. -10- Defendant thereafter filed a motion to correct the amended judgment of sentence. The trial court issued an order, dated July 15, 2014, in which it agreed to waive all fees and costs, in accordance with its decision at the original sentencing. However, there is no indication that a corrected judgment of sentence was issued. Accordingly, we remand for the ministerial task of correcting the judgment of sentence to reflect the waiver of fees and costs. Lastly, in a pro se supplemental brief filed pursuant to Supreme Court Administrative Order No. 2004-6, Standard 4, defendant argues that he is entitled to resentencing because the trial court erred in scoring 20 points for prior record variable (PRV) 7. There is no merit to this issue. MCL 777.57(2)(a) directs a score of 20 points for PRV 7 if a defendant has two or more subsequent or concurrent felony convictions, but MCL 777.57(2)(b) and (c) precludes the court from scoring “a felony-firearm conviction,” or “a concurrent felony conviction if a mandatory consecutive sentence or a consecutive sentence imposed under section 7401(3) of the public health code, 1978 PA 368, MCL 333.7401, will result from that conviction.” Defendant argues that because he had a concurrent felony-firearm conviction, the trial court was not permitted to score PRV 7. We disagree. Defendant’s argument is directed at the interpretation and application of the legislative sentencing guidelines, which present legal questions that we review de novo.56 The instructions for PRV 7 only precluded the trial court from relying on the felony-firearm conviction for purposes of scoring PRV 7. The instructions did not preclude the court from relying on defendant’s remaining felony convictions. In addition to his felony-firearm conviction, defendant stood convicted of three counts of assault with intent to do great bodily harm less than murder, resisting and obstructing a police officer, and felon in possession of a firearm, all of which are felonies and a consecutive sentence did not result from any of these convictions.57 Thus, defendant had at least two concurrent felony convictions that could be considered for purposes of PRV 7. Therefore, the trial court properly assigned 20 points for PRV 7.58 56 People v Hardy, 494 Mich 430, 438; 835 NW2d 340 (2013). 57 We note that the amended judgment sentence appears to incorrectly indicate that the sentence for one of the assault convictions is consecutive to the sentence for the felony-firearm conviction, which is itself concurrent with the other sentences. Generally, a sentence for a felony-firearm conviction is to be consecutive with and precede the sentence for the felony conviction. MCL 750.227b(3). Defendant may raise this issue on remand. 58 Having found no error in the scoring of PRV 7, we similarly reject defendant’s suggestion that counsel was ineffective. See People v Ericksen, 288 Mich App 192, 201; 793 NW2d 120 (2010) (“Failing to advance a meritless argument or raise a futile objection does not constitute ineffective assistance of counsel.”). -11- Remanded for proceedings consistent with this opinion and for the ministerial correction of the judgment of sentence to reflect the waiver of fees and costs in accordance with the trial court’s July 15, 2014 order.59 We do not retain jurisdiction. /s/ Kurtis T. Wilder /s/ Michael J. Kelly /s/ Karen M. Fort Hood 59 Defendant also asserts that this case should be reassigned to a different judge for resentencing based on the trial court’s decision to increase defendant’s sentence for the felon-in-possession conviction and the trial court’s scoring of PRV 7. Having concluded that these do not constitute grounds for resentencing, we reject this argument. Further, given that we are remanding for the trial court to follow the Crosby procedure articulated in Lockridge, it is appropriate for the same judge to determine whether he would have imposed a materially different sentence but for the constitutional error. -12-

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