Opinion
No. 333567
10-10-2017
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v HOWARD DEON WIGGINS, Defendant-Appellant.
UNPUBLISHED Sanilac Circuit Court
LC No. 13-007108-FC Before: SHAPIRO, P.J., and HOEKSTRA and M. J. KELLY, JJ. PER CURIAM.
Defendant, Howard Wiggins, was convicted following a jury trial of armed robbery, MCL 750.529, felon in possession of a firearm, MCL 750.224f, and possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b. The trial court sentenced him as a fourth-offense habitual offender, MCL 769.12, to serve terms of 28 to 50 years' imprisonment for armed robbery, 4 to 20 years' imprisonment for felon in possession, and 2 years' imprisonment for felony-firearm. In an earlier appeal, we affirmed his convictions and sentences. People v Wiggins, unpublished opinion per curiam of the Court of Appeals, issued August 26, 2014 (Docket No. 316049). Wiggins applied for leave to appeal to our Supreme Court, which held the appeal in abeyance pending its decision in People v Lockridge, 498 Mich 358; 870 NW2d 502 (2015). People v Wiggins, 863 NW2d 307 (2015). Thereafter, our Supreme Court remanded the case to the trial court, stating that:
On remand, the trial court shall follow the procedure described in Part VI of our opinion [in Lockridge]. If the trial court determines that it would have imposed the same sentence absent the unconstitutional constraint on its discretion, it may reaffirm the original sentence. If, however, the trial court determines that it would not have imposed the same sentence absent the unconstitutional constraint on its discretion, it shall resentence the defendant. [People v Wiggins, 498 Mich 902 (2015).]On remand, the trial court stated that it would have imposed the same sentence absent the unconstitutional constraint on its discretion. Therefore, the court denied Wiggins's motion for resentencing. Wiggins appeals that order as of right. Because the trial court did not err, we affirm.
On appeal, Wiggins contends that the trial court erred by denying his motion for resentencing because the trial court was constitutionally prohibited from scoring offense variables (OVs) 1, 4, and 10 because they required judicial fact-finding. However, following our Supreme Court's decision in Lockridge, the sentencing guidelines were rendered advisory. Lockridge, 498 Mich at 365; People v Steanhouse, ___ Mich ___, ___; ___ NW2d ___ (2017) (Docket No. 152671); slip op 2 (reaffirming "that the legislative sentencing guidelines are advisory in all applications"). Further, the Lockridge Court held and the Steanhouse Court reaffirmed that a sentencing court must still score the relevant OVs and take them into consideration before making a sentencing decision. Lockridge, 498 Mich at 365, 391-392; Steanhouse, ___ Mich at ___; slip op 14. It is, therefore, well-established that post-Lockridge a trial court is still statutorily required to score relevant OVs, even if that court must use judicial fact-finding to do so. Accordingly, contrary to Wiggins's argument on appeal, the trial court was required to score OVs 1, 4, and 10 even though they ostensibly required judicial fact-finding. Moreover, after scoring those OVs, the trial court had the discretion to either affirm the original sentence or resentence Wiggins. See Lockridge, 498 Mich at 391-392, 399. In this case—consistent with the Crosby remand procedure set forth in Lockridge, 498 Mich at 398, and consistent with the remand order from our Supreme Court—the trial court held that it would have imposed the same sentence absent the unconstitutional constraint on its discretion. Given that the court's ruling is fully compliant with Lockridge and the remand order, there is no error warranting reversal.
When scoring OVs, the trial court's factual findings must be supported by a preponderance of the evidence. People v Hardy, 494 Mich 430, 438; 835 NW2d 340 (2013).
United States v Crosby, 397 F3d 103 (CA 2, 2005). --------
Affirmed.
/s/ Douglas B. Shapiro
/s/ Joel P. Hoekstra
/s/ Michael J. Kelly