Sentencing; Scoring of OVs 4 & 13; MCL 777.34(1)(a) & (2); People v. White; MCL 777.43(1)(c); People v. Gibbs; Distinguishing People v. Carll; Whether defendant was entitled to resentencing; People v. McChester; Admission of an officer’s testimony about video surveillance footage; MRE 601 & 701; People v. Fomby; Plain error review; People v. Carines; Hearsay; MRE 801(c); Applicability of MRE 801(d)(1)(B); Ineffective assistance of counsel; People v. Armstrong; Failure to argue meritless motions; People v. Gist; Trial strategy; People v. Toma; Effect of the fact a strategy failed; People v. Stewart; Cumulative error; People v. Knapp

While the court concluded that the trial court properly scored OV 13, it held that scoring 10 points for OV 4 was error and that defendant was entitled to resentencing. However, it affirmed his convictions, holding that an officer’s (T) testimony about video surveillance footage and admission of the codefendant’s (C) statement were not grounds for reversal. It also rejected defendant’s ineffective assistance of counsel claims. He was convicted of armed robbery, conspiracy to commit armed robbery, carrying a deadly weapon with unlawful intent, unlawful imprisonment, and felony-firearm. The court upheld the scoring of 25 points for OV 13, noting that with “the two victims and the robbery and unlawful imprisonment, at least three separate acts occurred that were allowed to be scored under MCL 777.43(1)(c). Defendant was a participant in robbing each victim and in restraining their movements.” However, as to OV 4, one of the victims testified that he and the other victim “were in fear during the robbery.” But the record did not otherwise contain “any evidence to suggest that either victim suffered serious psychological injury requiring professional treatment. Because ‘evidence of fear while a crime is being committed, by itself, is insufficient to assess points for OV 4,’” the 10-point score for OV 4 was erroneous. Further, if it had been scored at 0 points, his “minimum guideline range would have decreased from 108 to 180 months to 81 to 135 months.” While some of T’s testimony may have been improper, the court found no basis for reversal in light of “the substantial other testimony and evidence demonstrating that defendant was the person in the video.” It also concluded that while C’s statement was not admissible under MRE 801(d)(1)(B) and was inadmissible hearsay, “defendant was not prejudiced by its admission because it did not affect the outcome of his trial. Most significantly,” the jury heard C’s preliminary exam “testimony in which he clearly and unambiguously implicated defendant.” It also had the victims’ testimony and the exhibits showing “defendant committing the crimes while wearing the distinctive clothing that he was wearing while arrested.” Remanded for resentencing.