                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   January 12, 2016
               Plaintiff-Appellee,

v                                                                  No. 323187
                                                                   Wayne Circuit Court
IVAN C. GOLLMAN,                                                   LC No. 02-011287-FC

               Defendant-Appellant.


Before: RONAYNE KRAUSE, P.J., and GADOLA and O’BRIEN, JJ.

PER CURIAM.

       Defendant appeals as of right his jury trial convictions of assault with intent to commit
murder, MCL 750.83, and possession of a firearm during the commission of a felony (felony-
firearm), MCL 750.227b. After several resentencings, the trial court sentenced defendant to 15
to 25 years’ imprisonment for the assault conviction and two years’ imprisonment for the felony-
firearm conviction. We affirm defendant’s convictions, but remand the case to the trial court for
a determination of whether resentencing is required pursuant to People v Lockridge, 498 Mich
358; 870 NW2d 502 (2015), and United States v Crosby, 397 F3d 103, 117-118 (CA 2, 2005).

                             I. OFFENSE VARIABLES 3 AND 10

        Defendant first argues that the trial court improperly assessed points under offense
variables (OVs) 3 and 10. We disagree. Under the sentencing guidelines, a circuit court’s
factual determinations 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). Whether the facts
are adequate to satisfy the scoring conditions prescribed by statute is a question of statutory
interpretation, which we review de novo. Id.

        Defendant argues that the trial court erred by assessing 25 points under OV 3 for physical
injury to a victim. A court may assess 25 points under OV 3 if “[l]ife threatening or permanent
incapacitating injury occurred to a victim.” MCL 777.33(1)(c). At defendant’s original
sentencing, the court stated that it assessed 25 points under OV 3 because a “bullet permanently
in the body that cannot be removed is a permanent injury, potentially incapacitating, and being
shot in the mouth obviously is life threatening.” At defendant’s second resentencing, the court
reiterated its decision to assess 25 points under OV 3 because a bullet remained in the victim’s
body, “[w]hich potentially could result in his death.” Defendant appealed his sentence, and this
Court affirmed the trial court’s assessment of 25 points under OV 3, stating the following:
                                               -1-
       [D]efendant stuck a gun in the victim’s mouth and shot him. The bullet remains
       lodged in the victim’s body, close to his spine, because removal could have
       resulted in paralysis. While the prosecution did not present medical evidence
       regarding the victim’s injuries, such evidence is not necessary to prove a life
       threatening or permanently incapacitating injury. . . . On the facts in this case, it
       is clear that the victim suffered life threatening injuries; thus, the court’s scoring
       of OV 3 is affirmed. [People v Gollman, unpublished opinion of the Court of
       Appeals, issued May 27, 2014 (Docket No. 312016).]

Under the law of the case doctrine, we are bound by this Court’s earlier decision. See People v
Herrera (On Remand), 204 Mich App 333, 340; 514 NW2d 543 (1994) (“[The law of the case]
doctrine provides that an appellate court’s decision regarding a particular issue is binding on
courts of equal or subordinate jurisdiction during subsequent proceedings in the same case.”).
Accordingly, the trial court did not clearly err by assessing 25 points for OV 3.

        Defendant also argues that the trial court improperly assessed 15 points under OV 10
because he did not exploit any particular vulnerability of the victim or exhibit predatory
behavior. In defendant’s earlier appeal, this Court affirmed the trial court’s assessment of 15
points under OV 10, stating the following:

       In this case, the PSIR indicates that defendant had threatened the victim “just
       weeks prior to the incident. [Defendant] indicated that he was going to do
       something to him if his friend (Deon) did not give him the money Deon stole
       from the defendant, while he sold drugs for him.” Further, the victim testified at
       trial that he saw defendant earlier in the evening, before defendant shot him, when
       defendant walked past him and said: “You’re a nasty mother fucker.” Then, later
       in the evening, as the victim was walking down the street, he turned around and,
       as soon as he turned around, a gun was stuck in his mouth and immediately fired.
       In light of this evidence, we affirm the scoring of OV 10 at 15 points. [Gollman,
       unpub op at 2.]

Again, we are bound by this previous decision. Herrera, 204 Mich App at 340. Therefore, the
trial court did not clearly err by assessing 15 points under OV 10.

                       II. PRESENTENCE INVESTIGATION REPORT

        Defendant next argues that he is entitled to a remand for correction of his presentence
investigation report (PSIR) because it included inaccurate details regarding threats he allegedly
made to the victim in the weeks before the shooting. On appeal, a defendant may not challenge
the accuracy of information relied upon in determining a sentence that was within the appropriate
guidelines range unless he raised the issue at sentencing, in a motion for resentencing, or in a
motion to remand filed in this Court. People v Lloyd, 284 Mich App 703, 706; 774 NW2d 347
(2009). Because defendant failed to raise any appropriate challenge, this issue is unpreserved.
Moreover, this issue is waived because defense counsel expressly agreed to the accuracy of
defendant’s PSIR on two occasions. See People v Carter, 462 Mich 206, 213-214; 612 NW2d
144 (2000). Therefore, we decline to address defendant’s arguments on this issue.


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                        III. INEFFECTIVE ASSISTANCE OF COUNSEL

        Defendant contends that he was denied the effective assistance of counsel. Specifically,
he claims that defense counsel’s performance fell below an objective standard of reasonableness
when counsel failed to object (1) to the inaccurate information in the PSIR and (2) to the scoring
of OVs 1, 3, and 10 on Alleyne1 grounds. “Whether a person has been denied effective
assistance of counsel is a mixed question of fact and constitutional law.” People v LeBlanc, 465
Mich 575, 579; 640 NW2d 246 (2002). We review a trial court’s findings of fact for clear error
and constitutional questions de novo. Id. Because defendant did not move for a new trial or a
Ginther2 hearing, our review is limited to errors apparent on the record. People v Matuszak, 263
Mich App 42, 48; 687 NW2d 342 (2004).

        The United States and Michigan Constitutions guarantee a defendant the right to the
effective assistance of counsel. US Const, Am VI; Const 1963, art 1, § 20. To establish an
ineffective assistance claim, a defendant must show that (1) counsel’s performance fell below an
objective standard of reasonableness under prevailing professional norms, and (2) there is a
reasonable probability that, but for counsel’s deficient performance, the result of the proceedings
would have been different. Strickland v Washington, 466 US 668, 694; 104 S Ct 2052; 80 L Ed
2d 674 (1984). “A reasonable probability is a probability sufficient to undermine confidence in
the outcome.” Id. Effective assistance is presumed, and the defendant bears a substantial burden
of proving otherwise. People v Vaughn, 491 Mich 642, 670; 821 NW2d 288 (2012).

        Defendant contends that defense counsel’s performance was objectively unreasonable
when he failed to object to the inaccurate information in the PSIR. The information in a PSIR is
presumed to be accurate, and the defendant bears the burden of proving otherwise. People v
Grant, 455 Mich 221, 233-234; 565 NW2d 389 (1997). It is unclear from the record whether the
description of events in the PSIR regarding defendant’s threats was actually inaccurate. The
victim’s testimony at trial seemed to indicate that although there was some disagreement
between the victim and defendant, defendant never made actual threats before the night of the
shooting. However, aside from pointing out the inconsistencies in the victim’s testimony at trial
and the description of events in the PSIR, defendant offers no proof that the allegations of
preoffense threats are false. As a result, defendant has not shown that defense counsel knew the
PSIR contained inaccurate information that necessitated an objection. Because defendant did not
provide any evidence to support that the information in his PSIR was inaccurate, counsel’s
failure to object cannot be deemed objectively unreasonable. See People v Hoag, 460 Mich 1, 6;
594 Mich NW2d 57 (1999) (stating that a defendant carries the burden to factually support an
ineffective assistance of counsel claim).

      Even assuming that counsel’s failure to object was unreasonable, defendant cannot
demonstrate prejudice. See People v Pickens, 446 Mich 298, 309; 521 NW2d 797 (1994).
Defendant received a total of 95 OV points, placing him in OV Level V (80 to 99 points) on the


1
    Alleyne v United States, 570 US ___; 133 S Ct 2151; 186 L Ed 2d 314 (2013).
2
    People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).


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applicable sentencing grid with a guidelines range of 108 to 180 months. MCL 777.62. Only
OV 10 was scored on the contested information in the PSIR. Had defense counsel successfully
objected to that information, deducting 15 points for OV 10 would not change the applicable
guidelines range. Therefore, defendant is not entitled to relief on his ineffective assistance claim.

        Defendant contends that defense counsel’s performance fell below an objective standard
of reasonableness when counsel failed to object to the scoring of OVs 1, 3, and 10 on Alleyne
grounds. Defendant was most recently resentenced on July 21, 2014. Not until almost a year
later, on July 29, 2015, did our Supreme Court in Lockridge hold that Alleyne applies to
Michigan’s sentencing guidelines and renders them unconstitutional 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, i.e., the ‘mandatory minimum’ sentence under Alleyne.” Lockridge, 498 Mich at
364. Before Lockridge, People v Herron, 303 Mich App 392; 845 NW2d 533 (2013), rev’d in
part 498 Mich 901 (2015), was controlling law. Herron held that Alleyne did not apply to
Michigan’s sentencing guidelines. Herron, 303 Mich App at 404. Accordingly, at the time of
defendant’s sentence, any objection to the court’s judicial fact-finding at sentencing would have
been unsuccessful. See People v Hawkins, 245 Mich App 439, 457; 628 NW2d 105 (2001)
(stating that counsel is not ineffective for failing to raise a futile objection).

                                       IV. RESENTENCING

        Finally, defendant argues that he is entitled to resentencing because the trial court relied
on facts not admitted by defendant or found by the jury to score OVs 1, 3, and 10. Defendant did
not object to the scoring of these OVs at sentencing on Apprendi3/Alleyne grounds, so our review
is limited to plain error affecting substantial rights. Lockridge, 498 Mich at 392.

        Again, in Lockridge, 498 Mich at 364, our Supreme Court held that Michigan’s
sentencing guidelines were unconstitutional under Alleyne to the extent that the guidelines
required judicial fact-finding to score OVs that “mandatorily increase the floor of the guidelines
minimum sentence range.” To remedy this violation, the Court held that a guidelines range
calculated in violation of Alleyne is advisory only. Id. at 365. The Lockridge Court held 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.” Id. at 394-395. The Lockridge 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. [Lockridge, 498 Mich at 395 (footnote omitted).]


3
    Apprendi v New Jersey, 530 US 466; 120 S Ct 2348; 147 L Ed 2d 435 (2000).


                                                 -4-
        Below, the trial court assessed 25 points for OV 1, which is appropriate if “[a] firearm
was discharged at or toward a human being.” MCL 777.31(1)(a). Defendant was convicted of
assault with intent to commit murder and felony-firearm. The elements of assault with intent to
commit murder are “(1) an assault, (2) with an actual intent to kill, (3) which, if successful,
would make the killing murder.” People v Brown, 267 Mich App 141, 147; 703 NW2d 230
(2005) (quotation marks and citations omitted). The elements of felony-firearm are “that the
defendant possessed a firearm during the commission of, or the attempt to commit, a felony.”
People v Avant, 235 Mich App 499, 505; 597 NW2d 864 (1999).

        Defendant’s felony-firearm conviction reflects that the jury found beyond a reasonable
doubt that defendant possessed a firearm. At trial, the only testimony regarding assaultive
conduct by defendant was that defendant shot the victim in the mouth. Because the jury found
defendant guilty of assault, and the only assaultive act was defendant’s shooting of the victim,
the jury necessarily found beyond a reasonable doubt that defendant discharged his firearm “at or
toward a human being.” MCL 777.31(1)(a). Therefore, OV 1 was not calculated using judicial
fact-finding in violation of the Sixth Amendment.

         The trial court assessed 25 points under OV 3, which is appropriate if “[l]ife threatening
or permanent incapacitating injury occurred to a victim.” MCL 777.33(1)(c). Although facts in
the case supported an assessment of 25 points because the victim was shot in the mouth and the
bullet was lodged permanently near his spine, those facts were not necessarily found by the jury
because life threatening or permanently incapacitating injury to a victim is not an element of
assault with intent to commit murder. Although assault with intent to commit murder is a
specific intent crime, “[n]o actual physical injury is required for the elements of the crime to be
established.” People v Harrington, 194 Mich App 424, 430; 487 NW2d 479 (1992). Therefore,
the trial court relied on judicial fact-finding to assess 25 points under OV 3.

        Lastly, the trial court assessed 15 points for OV 10. As discussed above, OV 10 is
exploitation of vulnerable victim, and 15 points are properly assessed if “[p]redatory conduct
was involved.” MCL 777.40(1)(a). Predatory conduct is not an element of either assault with
intent to commit murder or felony-firearm. As a result, the jury did not necessarily find that
defendant committed predatory conduct, and the 15 points assessed for OV 10 were the result of
judicial fact-finding.

        In sum, the 25 points assessed for OV 1 were found by the jury, but the 25 points under
OV 3 and the 15 points under OV 10 were assessed using judicial fact-finding. Defendant
received a total of 95 OV points, placing him in OV Level V (80 to 99 points) on the applicable
sentencing grid with a guidelines range of 108 to 180 months. MCL 777.62. Deducting the 25
points assessed under OV 3 and the 15 points assessed under OV 10 would “change the
applicable guidelines minimum sentence range,” Lockridge, 498 Mich at 399, and put defendant
in OV Level III (40 to 59 points) with a guidelines range of 51 to 85 months, MCL 777.62.
Therefore, defendant is entitled to a Crosby remand. Lockridge, 498 Mich at 397. “[O]n a
Crosby remand, a trial court should first allow a defendant an opportunity to inform the court
that he or she will not seek resentencing.” Id. at 398.




                                                -5-
Affirmed in part and remanded. We do not retain jurisdiction.



                                                   /s/ Amy Ronayne Krause
                                                   /s/ Michael F. Gadola
                                                   /s/ Colleen A. O'Brien




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