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People v. Jackson

Court of Appeals of Michigan

July 25, 2017

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee,
v.
ANTJUAN PIERRE JACKSON, Defendant-Appellant.

         Kalamazoo Circuit Court LC No. 2014-000203-FC

          Before: Sawyer, P.J., and Hoekstra and Beckering, JJ.

          Per Curiam.

         Defendant, Antjuan Pierre Jackson, appeals by delayed leave granted[1] the sentence imposed for his conviction pursuant to a guilty plea for unarmed robbery in violation of MCL 750.530. The trial court sentenced defendant as a second-offense habitual offender, MCL 769.10, to 8 to 22 years and 6 months' imprisonment. Defendant contends that he is entitled to resentencing on the ground that the trial court incorrectly scored Offense Variable (OV) 1 (aggravated use of a weapon), OV 2 (lethal potential of weapon possessed or used) and OV 13 (pattern of continuing criminal conduct). We affirm.

         I. PERTINENT FACTS AND PROCEDURAL HISTORY

         Defendant's convictions arise from a robbery that took place on January 20, 2014. The victims of the robbery testified at defendant's initial trial. Alexis Graham testified that, on the night of the robbery, she was in her apartment at the Landings Apartments in Kalamazoo, Michigan, along with her roommate Janyce Mack, and Madeleine Dirette. At 10:30 p.m., someone knocked on the door. Graham looked through the peephole and saw Tyrus Phillips, whom she recognized as someone who visited Mack on occasion to buy marijuana. She opened the door and three gunmen rushed into the apartment. Graham fell backwards and was pulled by her shoulder and hair into Mack's bedroom down the hall. Complying with repeated orders to look only at the floor, she caught just a glimpse of the men. Nevertheless, she saw that the main gunman had a silver gun. When she heard him talking to Mack, she believed he was defendant. Graham stated that she knew the person whose voice and clothes she recognized by the name "Rico, " and she made an in-court identification of defendant as the person she knew as Rico. Graham testified that she was confident that defendant was involved in the robbery. She also said that one of the gunmen held a gun to her head that she believed was real because she could feel its weight and the coldness of the metal.

         Dirette testified that when Graham opened the door on the night of the robbery, she could hear the sound of people barging through the door loudly and Graham being pushed against the wall. A man with a shiny silver gun came into the room and told her to get on the floor. Three men wearing ski masks came into the bedroom. All three carried guns and threatened to shoot. Dirette did not recognize any of the men. On cross-examination, Dirette admitted that she could not be sure if the guns were real, but she assumed they were. On redirect examination, Dirette explained that the man with the silver-looking gun was the leader, and she stated that Mack begged the man not to shoot her. The other men had black guns and pointed them at her and Graham.

         Mack testified that she knew at the time of the incident that the first robber was defendant. Defendant was pointing a silver gun with his finger on the trigger. She recognized defendant by the jeans and boots he was wearing; he had worn them the night before the robbery when he came to the apartment and bought marijuana from her. She also recognized defendant during the robbery by the tone of his voice and his choice of words, by the way he walked, and by his mannerisms. Defendant held his pants up with one hand and held the gun in the other hand. Mack testified that she was quite certain that defendant had a real gun. She observed that the gun was metal, and that defendant pointed it at her and ordered her onto the floor. Defendant ransacked the room and took her lockbox holding her marijuana and money, a prescription painkiller called Norco, her daughter's phone, her phone, and Graham's phone.

         Defendant was arrested, charged with two counts of armed robbery and two counts of carrying a firearm during the commission of a felony (felony-firearm). He was tried by a jury in the summer of 2014, which acquitted him of the two felony-firearm counts, but deadlocked on the armed robbery counts, so the trial court declared a mistrial as to those two counts. Prior to the second trial, scheduled to commence in the fall of 2014, defendant entered into the guilty plea described above. He now challenges the guidelines scoring used in determining his sentence.

         II. ANALYSIS

         A. STANDARDS OF REVIEW

         We review for clear error the trial court's factual determinations used for sentencing purposes, and such facts must be supported by a preponderance of the evidence. People v Hardy, 494 Mich. 430, 438; 835 N.W.2d 340 (2013). We review de novo whether the facts, as found, are adequate to satisfy the statutory scoring conditions. Id. When calculating the sentencing guidelines scores, a trial court may consider all evidence in the record, including but not limited to the PSIR and admissions made by a defendant during a plea proceeding. People v Johnson, 298 Mich.App. 128, 131; 826 N.W.2d 170 (2012). The Michigan Supreme Court recently clarified that sentencing courts must determine the applicable range of sentence under the sentencing guidelines and take such calculations into account when imposing a sentence, but the guidelines are advisory only. People v Lockridge, 498 Mich. 358; 870 N.W.2d 502 (2015).

         B. OV 13

         Defendant first contends that the trial court incorrectly scored OV 13 at 25 points by improperly taking into account as scoreable felonies his two prior convictions for attempted resisting and obstructing a police officer. Defendant argues that the trial court should not have considered them because they were only misdemeanor convictions punishable by less than one year in jail. We disagree.

         A trial court scores OV 13 when a defendant's criminal conduct within five years of the sentencing offense establishes a continuing pattern of criminal behavior. MCL 777.43 governs the scoring of OV 13 and provides in relevant part:

(1) Offense variable 13 is continuing pattern of criminal behavior. Score offense variable 13 by determining which of the following apply and by assigning the number of points attributable to the one that has the highest number of points:
(c) The offense was part of a pattern of felonious criminal activity involving 3 or more crimes against a ...

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