People v. Rhodes, Docket No. 310135.

• Citation: 305 Mich.App. 85,849 N.W.2d 417
• Decision Date: 06 May 2014
• Docket Number: Docket No. 310135.
• Parties: PEOPLE v. RHODES.
• Court: Court of Appeal of Michigan (US)

305 Mich.App. 85
849 N.W.2d 417

PEOPLE
v.
RHODES.

Docket No. 310135.

Court of Appeals of Michigan.

Submitted Feb. 27, 2014, at Lansing.
Decided May 6, 2014, at 9:00 a.m.

Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, Kym Worthy, Prosecuting Attorney, Timothy A. Baughman, Chief of Research, Training, and Appeals, and Jon P. Wojtala, Assistant Prosecuting Attorney, for the people.

Anthony E. Rhodes, in propria persona, and Lee A. Somerville, for defendant.

Before: KIRSTEN FRANK KELLY, P.J., and SHAPIRO and RONAYNE KRAUSE, JJ.

[849 N.W.2d 418]

ON REMAND
PER CURIAM.

Defendant was convicted by a jury of assault with intent to commit great bodily harm, MCL 750.84, and possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b. He was sentenced to 5 1/ 2 years' to 10 years' incarceration for the assault conviction and to a consecutive sentence of 2 years for the felony-firearm conviction. Defendant appealed by right and, in our prior opinion, we affirmed his convictions and sentence. People v. Rhodes, unpublished opinion per curiam of the Court of Appeals, issued August 1, 2013 (Docket No. 310135), 2013 WL 3957706. ¹ In lieu of granting leave to appeal, our Supreme Court vacated the portion of our opinion affirming defendant's sentence and remanded the matter to us for reconsideration in light of People v. Hardy, 494 Mich. 430, 438, 835 N.W.2d 340 (2013). People v. Rhodes, 495 Mich. 938, 843 N.W.2d 214 (2014). In all other respects, our Supreme Court denied leave to appeal. Id. We now vacate defendant's sentence for assault with intent to commit great bodily harm and remand for resentencing.

Defendant's challenge to his sentence is predicated on asserting that the trial court erroneously scored Offense Variable (OV) 14, which is scored at either 10 points or zero points, depending on whether the defendant was “a leader in a multiple offender situation” when considering the “entire criminal transaction.” MCL 777.44. We affirmed the trial court's score of 10 points in reliance on People v. Davis, 300 Mich.App. 502, 508, 834 N.W.2d 897 (2013), wherein this Court held that a trial court's sentencing decision would not be considered clearly erroneous if any evidence in the record would have supported the trial court's finding. We noted that defendant had been the only offender present at the time of the charged offenses who was in possession of a gun, and we concluded that this was at least some evidence of leadership. We were therefore unable to find that the trial court clearly erred in scoring OV 14.

In Hardy, however, our Supreme Court explicitly rejected the “any evidence” standard and held that any decisions from this Court citing the “any evidence” standard were incorrect. Hardy, 494 Mich. at 438, 835 N.W.2d 340. “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.” Id. However, we review de novo whether the facts found by the trial court are adequate to satisfy the trial court's scoring decision. Id. Consequently, we can no longer affirm a trial court's scoring decision merely because any evidence in the record supports that decision.

The testimony indicates that several other people were present at the scene of the assault, but only one other person, Terence Adams, who was initially a codefendant but ultimately pleaded guilty to a reduced charge in exchange for...