Sentencing; Scoring of OV 6; MCL 777.36(1)(b) & (2)(b); Malice; People v Belkin (Unpub); Effect of a no-contest plea; People v Franklin; “Combative situation”; People v Rodriguez; “Victimization”; People v Cannon; Scoring of OV 10; Exploitation of a “vulnerable victim”; MCL 777.40(1)(b); “Exploit”; MCL 777.40(3)(b); “Vulnerability”; MCL 777.40(3)(c); People v Huston; “Domestic relationship”; People v Jamison; Ineffective assistance of counsel; Failure to make a futile objection

The court held that the trial court did not err in scoring OVs 6 and 10, and defendant’s trial counsel was not ineffective for failing to object. She pled guilty to second-degree murder and felony-firearm in the shooting death of her boyfriend. The trial court sentenced her to 20 to 40 years and denied her motion for relief from judgment. On appeal, the court rejected her argument that the trial court erred in scoring OV 6, noting the trial court did not “err when it found by a preponderance of the evidence that the victim’s death did not ‘occur[] in a combative situation or in response to victimization of the offender by the decedent.’” It found “the killing did not arise out of a combative situation because defendant killed the victim with two ‘tightly clustered shots’ in the back of the head, which could not have occurred if the victim had actively been turning toward defendant at the time.” And the fact defendant did not have “any defensive wounds was relevant to whether the situation was combative.” Further, although “there was evidence that defendant had been victimized by the victim,” the court was not “definitely and firmly convinced that the trial court’s finding that the shooting ‘was not in response to any contemporaneous threat of victimization’” was erroneous. The court also rejected her claim that the trial court erred in scoring OV 10, noting that “while there may be circumstances in which the presence of a gun next to an alert victim would not justify the assessment of 10 points under OV 10, the evidence in this case demonstrated that the victim was in a completely vulnerable position when he was shot twice.” Finally, the court rejected her contention that her trial counsel was ineffective for failing to raise a challenge to the trial court’s assessments of OVs 6 and 10, noting that “because ineffective assistance of counsel cannot be predicated on a meritless motion, defendant has not demonstrated that trial counsel’s representation fell below an objective standard of reasonableness.” Affirmed.