Sentencing; Scoring of OVs 4 & 14; MCL 777.34(1)(a); MCL 777.44(1)(a); Whether the trial court exercised its own judgment in resentencing defendant; Presentence investigation report (PSIR)

While the court concluded the trial court’s error in scoring OV 4 did not affect defendant’s guidelines range, it vacated his sentence and remanded “for a second resentencing because the trial court failed to exercise its own discretion when it resentenced” him. He was convicted of torture, unarmed robbery, unlawful imprisonment, AWIGBH, felonious assault, and assault and battery. The court previously affirmed his convictions but remanded for resentencing because mistakes in his PSIR resulted in sentencing errors. On remand, a different judge resentenced him as a fourth-offense habitual offender to concurrent terms of 50 to 75 years for the torture conviction, 15 to 30 years each for unarmed robbery and unlawful imprisonment, 25 to 37 years for AWIGBH, 5 to 15 years for felonious assault, and 93 days in jail for assault and battery. In this appeal, he challenged the scoring of OVs 4 and 14 at 10 points each. The parties agreed that the trial court erred as to OV 4. Its factual finding as to OV 4 was “not supported by a preponderance of the evidence. OV 4 should have been scored at 0 points based on a lack of evidence of a serious psychological injury[.]” But as to OV 14, the court held that the “trial court did not clearly err when it found that defendant played a leadership role in the offenses.” Defendant also asserted the trial court did not exercise its own judgment in resentencing him, and the court found that the record confirmed this. In “responding to several of defendant’s arguments, including the erroneously scored OV 4, the trial court stated that it was respecting the previous judge’s decisions on the issues without referring to any evidence, analyses, or consideration of the arguments.” This included when it “rendered the new sentence for the torture conviction[.]” The court held that by “simply deferring in large part to the prior judge’s sentencing decisions, the trial court did not exercise its own discretion, nor did [it] provide sufficient explanation for” the court’s review on appeal. The court noted that on remand, the prosecution “is free to argue for the same or similar sentences” and that it offered no opinion on their appropriateness.