Oakland Circuit Court LC No. 2016-259759-FC
Before: Murray, C.J., and Gadola and Tukel, JJ.
appeals as of right his jury trial convictions for possession
of less than 25 grams of cocaine, MCL
333.7403(2)(a)(v), possession of marihuana, MCL
333.7403(2)(d), and unarmed robbery, MCL 750.530. Defendant
was sentenced, as a fourth-offense habitual offender, MCL
769.12, to 2 to 15 years' imprisonment for the possession
of less than 25 grams of cocaine conviction, 249 days, time
served,  for the possession of marihuana
conviction, and 8 to 20 years' imprisonment for the
unarmed robbery conviction. We affirm defendant's
convictions, vacate his sentence for unarmed robbery, and
remand for resentencing.
case arises out of the unarmed robbery of Adrian Valentin.
Valentin was inside Arnolfo Rojas's truck that was parked
in front of Rojas's apartment. Codefendant Tonya
Tique-Diaz approached the truck and attempted to break the
truck's windows with a tire iron. After she was
unsuccessful, defendant took the tire iron from Tique-Diaz
and broke three of the truck's windows. Defendant then
demanded that Valentin give him everything he had, or else
defendant would take out his knife and stab Valentin.
Valentin threw defendant $200 and his bracelet before
appeal challenges his sentences, as well as to the trial
court's conclusion that he provided police consent to
search the home. We now turn to those challenges.
respect to sentencing, defendant argues that the trial court
erred because offense variables (OVs) 2, 7, 9, and 12 should
all be assessed zero points. We agree with respect to OVs 7
and 12, but conclude that no errors were made with respect to
OVs 2 and 9.
first recognize the always important standards of review.
"Under the sentencing guidelines, the circuit
court's factual determinations are reviewed for clear
error and must be supported by a preponderance of the
evidence. Whether the facts, as found, are adequate to
satisfy the scoring conditions prescribed by statute, i.e.,
the application of the facts to the law, is a question of
statutory interpretation, which an appellate court reviews de
novo." People v Hardy, 494 Mich. 430, 438; 835
N.W.2d 340 (2013) (citations omitted).
A. OV 2
argues that OV 2 should be assessed zero points, instead of
one point, because MCL 777.32 requires that a defendant
possess or use a potentially lethal weapon, and here, there
is no evidence that defendant possessed or used a knife.
Defendant is correct that there was no evidence he used or
possessed a knife. But there was evidence he possessed and
used a tire iron during the robbery, and that clearly
suffices for the scoring of one point under OV 2.
777.32 scores the 'lethal potential of the weapon
possessed or used.'" People v Hutcheson,
308 Mich.App. 10, 16; 865 N.W.2d 44 (2014), quoting MCL
777.32(1). "If [t]he offender possessed or used any
other potentially lethal weapon, besides a harmful biological
substance or device, a harmful chemical substance or device,
an incendiary or explosive device, a fully automatic weapon,
a firearm, or a cutting or stabbing weapon, one point should
be assessed." Hutcheson, 308 Mich.App. at 16.
(quotation marks and citations omitted; alteration in
original). "If '[t]he offender possessed or used no
weapon,' zero points should be assessed."
Id. at 17, quoting MCL 777.32(1)(f) (alteration in
original). This Court has said before that a tire iron is a
potentially lethal weapon, People v Rollins, 33
Mich.App. 1, 10; 189 N.W.2d 716 (1971), so the trial court
did not err by assessing one point under OV 2 based on
defendant's use of a tire iron during the robbery.
B. OV 7
turn to defendant's argument that the trial court erred
in assessing 50 points under OV 7 because his conduct toward
Valentin during the robbery did not rise to the level of