If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
March 12, 2020
Plaintiff-Appellee,
v No. 348590
Wayne Circuit Court
HERBERT DEWEY BALDRIDGE, LC No. 15-007271-01-FC
Defendant-Appellant.
Before: STEPHENS, P.J., and CAVANAGH and SERVITTO, JJ.
PER CURIAM.
Defendant appeals as of right his February 25, 2019 judgment of sentence (JOS). On April
26, 2016, defendant was convicted of second-degree murder, MCL 750.317, and thereafter
sentenced, as a second-offense habitual offender, MCL 769.10, to 300 to 600 months’
imprisonment. Defendant appealed as of right his jury conviction and sentence and, in People v
Baldridge, unpublished per curiam opinion of the Court of Appeals, issued October 31, 2017
(Docket No. 333435), p 13, this Court affirmed defendant’s conviction, but remanded the matter
to the trial court to articulate the reasons for assessing 15 points for Offense Variable (OV) 5.
On February 25, 2019, the trial court held a hearing in accordance with this Court’s
instructions on remand, affirmed defendant’s original sentence, and entered a JOS. Because the
trial court did not indicate that defendant was sentenced as a second-offense habitual offender, the
JOS was amended on March 5, 2019 to include this status.
On appeal, defendant argues that he must be resentenced. Specifically, defendant contends
that the trial court failed to refer to defendant’s sentencing guidelines, and consider all scoring
factors, when it affirmed on remand defendant’s original sentence of 300 to 600 months’
imprisonment. Defendant contends the trial court’s alleged error precludes this Court from
determining whether the trial court imposed a proportionate sentence. Defendant also argues that
the trial court’s failure to show that it sentenced defendant as a second-offense habitual offender
on its February 25, 2019 JOS was a substantive mistake that could not be corrected sua sponte.
We disagree with defendant’s arguments.
-1-
I. FACTUAL HISTORY
This matter arises from the death of Jamiall Jameson on June 1, 2013. Defendant was
found guilty of second-degree murder. Baldridge, unpub op at 3. At the May 16, 2016 sentencing
hearing, the trial court noted the victim’s mother testified tearfully at trial, and that she had to listen
to the victim’s telephone call to 911. The trial court assessed 15 points on OV 5. The victim’s
mother also made a victim-impact statement, and said at sentencing that her son’s death affected
her so badly that: (a) she could not spend time with her family because they fear for their own
families; (b) her health has been affected; (c) her family no longer comes to see her; (d) she cannot
sleep or eat; (e) she is numb and like a zombie; (f) she cannot spend time with anyone; and (g) she
cannot be with her husband. Defendant appealed.
On October 31, 2017, this Court affirmed defendant’s conviction, but remanded the matter
to the trial court for articulation of the reasoning for assessment of points on OV 5. Baldridge,
unpub op at 13. This court explained:
We affirm defendant’s conviction, but vacate the trial court’s scoring of OV 5 and
remand to the trial court to make findings relative to the proper scoring of OV 5 in
consideration of our Supreme Court’s ruling in Calloway[1] and the testimony
presented during trial and at the sentencing hearing. We leave it to the sound
judgment of the trial court whether it desires further testimony on the matter. We
do not retain jurisdiction. [Id. (footnote added).]
On remand, the trial court held a hearing on February 25, 2019 and specifically recognized that its
review was limited to OV 5, as instructed by this Court. Id. The trial court focused on statements
by the victim’s mother at the May 16, 2016 sentencing hearing and found the victim’s mother
suffered a serious psychological injury that may require professional treatment, affirming the
propriety of the assessment of 15 points on OV 5, and affirmed defendant’s original sentence of
300 to 600 months’ imprisonment.
II. SENTENCING
Defendant argues that the trial court failed to refer to defendant’s sentencing guidelines
and consider all scoring factors on remand, and therefore, this Court is unable to determine whether
the trial court imposed a proportionate sentence. We disagree.
A. STANDARD OF REVIEW
We review de novo as legal questions issues concerning the proper interpretation and
application of the legislative sentencing guidelines, MCL 777.11 et seq. People v Sours, 315 Mich
App 346, 348; 890 NW2d 401 (2016) (citation omitted). “When calculating the sentencing
guidelines, a court may consider all record evidence, including the contents of a [presentence
investigation report (PSIR)], plea admissions, and testimony presented at a preliminary
examination.” People v McFarlane, 325 Mich App 507, 532; 926 NW2d 339 (2018) (quotation
1
People v Calloway, 500 Mich 180; 895 NW2d 165 (2017).
-2-
marks and citation omitted). “It may also consider a victim impact statement in a PSIR or other
statement or letter submitted to the court for consideration on sentencing.” Id. “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.” People v Rodriguez, 327 Mich App 573,
576; 935 NW2d 51 (2019), quoting People v Hardy, 494 Mich 430, 438; 835 NW2d 340 (2013).
“Clear error exists when the reviewing court is left with the definite and firm conviction that a
mistake has been made.” People v Chaney, 327 Mich App 586, 587-588 n 1; 935 NW2d 66 (2019),
quoting People v Anderson, 284 Mich App 11, 13; 772 NW2d 792 (2009). “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.” Rodriguez, 327 Mich App at 576, quoting Hardy, 494 Mich at 438.
B. ANALYSIS
“When an appellate court remands a case with specific instructions, it is improper for a
lower court to exceed the scope of the order.” People v Russell, 297 Mich App 707, 714; 825
NW2d 623 (2012). This Court affirmed defendant’s conviction, but remanded the matter to the
trial court solely for articulation of the reason for the assessment of 15 points for OV 5. After this
Court’s remand to the trial court, defendant filed a memorandum arguing the demeanor of the
victim’s mother’s at trial did not plainly reveal serious psychological injury, and that OV 5 should
be assessed zero points. Defendant did not address the statements the victim’s mother made at the
May 16, 2016 sentencing hearing, nor did he challenge his sentence as a second-offense habitual
offender. When the trial court held a hearing on February 25, 2019, it recognized its review was
limited to OV 5, as instructed by this Court in Baldridge, unpub op at 13. In compliance with this
Court’s order, the trial court said: “[T]his isn’t a resentencing with regards to, for everything, just
with regards to OV 5.”
“OV 5 is scored [in cases of] ‘homicide, attempted homicide, conspiracy or solicitation to
commit a homicide, or assault with intent to commit murder.’ ” People v Calloway, 500 Mich
180, 184 n 11; 895 NW2d 165 (2017), quoting MCL 777.22(1). MCL 777.35 governs OV 5 and
states:
(1) Offense variable 5 is psychological injury to a member of a victim’s family.
Score offense variable 5 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:
(a) Serious psychological injury requiring professional treatment occurred to a
victim’s family…………………………………………………………….15 points
* * *
(2) Score 15 points if the serious psychological injury to the victim’s family may
require professional treatment. In making this determination, the fact that treatment
has not been sought is not conclusive.
-3-
“[A] family member need not be, at present, seeking or receiving professional treatment or
intending to do so.” People v Wellman, 320 Mich App 603, 610; 910 NW2d 304 (2017), citing
Calloway, 500 Mich at 186.
Although this threshold may seem low, trial courts must bear in mind that OV 5
requires a ‘serious psychological injury.’ In this context, ‘serious’ is defined as
‘having important or dangerous possible consequences.’ Thus, in scoring OV 5, a
trial court should consider the severity of the injury and the consequences that flow
from it, including how the injury has manifested itself before sentencing and is
likely to do so in the future, and whether professional treatment has been sought or
received. However, even when professional treatment has not yet been sought or
received, points are properly assessed for OV 5 when a victim’s family member has
suffered a serious psychological injury that may require professional treatment in
the future. [Calloway, 500 Mich at 186 (footnotes omitted).]
At defendant’s February 29, 2019 hearing, the trial court said there was not a clear
articulation of why OV 5 was assessed 15 points at the original sentencing, other than noting the
victim’s mother being tearful during trial. The trial court focused on the statements of the victim’s
mother, when she explained how her son’s death affected her and found that the statements of the
victim’s mother supported the assessment of 15 points on OV 5, and defendant’s original sentence
of 300 to 600 months’ imprisonment.
The trial court referred to defendant’s sentencing guidelines and considered all scoring
factors when defendant was sentenced on May 16, 2016. The trial court strictly complied with
this Court’s directive on remand, by limiting the February 25, 2019 remand hearing to articulation
of the reasons for the scoring of OV 5. See Russell, 297 Mich App at 714. On remand, considering
the substance of the statements of the victim’s mother, the trial court correctly concluded that the
victim’s mother suffered serious psychological injuries that may require professional treatment in
the future, sufficient to support the trial court’s original assessment of 15 points for OV 5. See
Calloway, 500 Mich at 189 (“After reviewing this evidence, we believe that the trial court correctly
concluded that two members of the victim’s family suffered serious psychological injuries that
may require professional treatment in the future. There was ample evidence of the seriousness of
the injuries and their long-lasting effects to support the trial court’s decision to assess 15 points for
OV 5.”). Therefore, defendant’s contention of error lacks merit.
Next, defendant argues that this Court is unable to determine whether the trial court
imposed a proportionate sentence because trial court failed to refer to defendant’s sentencing
guidelines and consider all scoring factors.
MCL 769.34 governs the sentencing guidelines, and states, in relevant part:
(10) If a minimum sentence is within the appropriate guidelines sentence range, the
court of appeals shall affirm that sentence and shall not remand for resentencing
absent an error in scoring the sentencing guidelines or inaccurate information relied
upon in determining the defendant’s sentence. A party shall not raise on appeal an
issue challenging the scoring of the sentencing guidelines or challenging the
accuracy of information relied upon in determining a sentence that is within the
appropriate guidelines sentence range unless the party has raised the issue at
-4-
sentencing, in a proper motion for resentencing, or in a proper motion to remand
filed in the court of appeals.
While a court must score and consider the sentencing guidelines, the guidelines are
advisory only. See People v Lockridge, 498 Mich 358, 365; 870 NW2d 502 (2015). “Notably,
Lockridge did not alter or diminish MCL 769.34(10)[.]” People v Schrauben, 314 Mich App 181,
196 n 1; 886 NW2d 173 (2016). “Although the Legislature’s [sentencing] guidelines are advisory,
they ‘remain a highly relevant consideration in a trial court’s exercise of [its] sentencing
discretion.’ ” People v Odom, 327 Mich App 297, 314-315; 933 NW2d 719 (2019), quoting
Lockridge, 498 Mich at 391. Because Lockridge did not alter the continued validity of MCL
769.34(10), this Court must affirm a sentence that falls within the recommended sentencing
guidelines range, absent an error in scoring or reliance on inaccurate information. Schrauben, 314
Mich App at 196.
As discussed, the original sentencing court considered the sentencing guidelines and all
scoring factors, and on remand, the trial court complied with this Court’s directive by limiting the
hearing to the scoring of OV 5. See Russell, 297 Mich App at 714. Defendant received a sentence,
as a second-offense habitual offender, of 300 to 600 months’ imprisonment, which was within
defendant’s minimum sentencing guidelines range of 225 to 468 months, and his statutory
maximum of life imprisonment. A sentence within the guidelines range is presumptively
proportionate. People v Powell, 278 Mich App 318, 323; 750 NW2d 607 (2008). Defendant does
not argue that the trial court relied on inaccurate information in determining his sentence, see MCL
769.34(10), or that the trial court incorrectly calculated defendant’s sentencing guidelines range.
Defendant only challenges the assessment of 15 points on OV 5, but defendant’s challenge fails
because the trial court correctly concluded that the victim’s mother suffered serious psychological
injuries that may require professional treatment in the future, sufficient to support the trial court’s
assessment of 15 points. See Calloway, 500 Mich at 189. “If a minimum sentence is within the
appropriate guidelines sentence range, the court of appeals shall affirm that sentence and shall not
remand for resentencing absent an error in scoring the sentencing guidelines or inaccurate
information relied upon in determining the defendant’s sentence.” MCL 769.34(10).
“In order to overcome the presumption that the sentence is proportionate, a defendant must
present unusual circumstances that would render the presumptively proportionate sentence
disproportionate.” People v Bowling, 299 Mich App 552, 558; 830 NW2d 800 (2013), quoting
People v Lee, 243 Mich App 163, 187; 622 NW2d 71 (2000). Defendant fails to assert, or identify,
any “unusual circumstances” that would overcome the presumptive proportionality of his sentence
and necessitating review. Because defendant’s guidelines range was correctly determined, based
on accurate information and presumptively proportionate, defendant’s assertion of error fails.
III. JOS CORRECTION—SUA SPONTE
Defendant contends that the trial court’s failure to indicate that defendant was sentenced
as a second-offense habitual offender on his February 25, 2019 JOS was a substantive mistake that
precludes the trial court’s sua sponte correction of the JOS. We disagree.
-5-
A. PRESERVATION AND STANDARD OF REVIEW
An issue is preserved for appellate review if it is raised, addressed, and decided by the trial
court. People v Metamora Water Serv, Inc, 276 Mich App 376, 382; 741 NW2d 61 (2007). On
May 16, 2016, defendant was sentenced, as a second-offense habitual offender, MCL 769.10, to
300 to 600 months’ imprisonment for his second-degree murder conviction. On February 25,
2019, the trial court held a hearing, affirmed defendant’s May 16, 2016 sentence, and entered a
new JOS. Because the trial court did not indicate that defendant was sentenced as a second-offense
habitual offender when it entered defendant’s February 25, 2019 JOS, the trial court, sua sponte,
amended the JOS on March 5, 2019 to include this status. Defendant argues that the trial court did
not have the authority to enter the amended JOS sua sponte because the omission was a substantive
mistake governed by MCR 6.435(B), and not a clerical mistake governed by MCR 6.435(A).
Defendant failed to address the trial court’s amended JOS in the trial court. Thus, defendant’s
issue is unpreserved.
We review de novo as a question of law the interpretation of court rules. People v Walters,
266 Mich App 341, 346; 700 NW2d 424 (2005). However, because defendant’s challenge to the
amended JOS is unpreserved, this Court’s review is for plain error affecting defendant’s substantial
rights. People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999).
B. ANALYSIS
MCR 6.435 governs mistake corrections. “MCR 6.435(A) details the court’s authority to
correct clerical mistakes[.]” People v Comer, 500 Mich 278, 293; 901 NW2d 553 (2017). MCR
6.435(A) states:
Clerical mistakes in judgments, orders, or other parts of the record and errors arising
from oversight or omission may be corrected by the court at any time on its own
initiative or on motion of a party, and after notice if the court orders it.
“Under this subrule, a court may correct a clerical mistake on its own initiative at any time,
including after a judgment has entered.” Comer, 500 Mich at 293. “MCR 6.435(B) contemplates
the court acting on its own initiative to correct substantive mistakes[.]” Id. at 294. “Yet the court’s
ability to correct substantive mistakes under MCR 6.435(B) ends upon entry of the judgment.” Id.
(footnote omitted).
On February 25, 2019, the trial court held a hearing, affirmed defendant’s May 16, 2016
sentence, and entered a new JOS. Defendant cannot contend that the trial court’s failure to indicate
that it sentenced defendant as a second-offense habitual offender on his February 25, 2019 JOS
was a substantive mistake, particularly when defendant’s May 16, 2016 JOS clearly indicated that
defendant was sentenced as a second-offense habitual offender. See Comer, 500 Mich at 293 (“But
the parties do not contend that the failure to sentence defendant to lifetime electronic monitoring
was a clerical mistake. Nor could they—the original sentencing judge said nothing about lifetime
electronic monitoring at the initial sentencing.”). Further, defendant’s sentencing guidelines range
of 225 to 469 months’ imprisonment evidences that the trial court sentenced defendant as a second-
offense habitual offender, MCL 769.10, for second-degree murder, MCL 750.317. While the
record is devoid of any indication that defendant’s status as a second-offense habitual offender
-6-
was discussed at the February 25, 2019 hearing, it is undisputed that the February 25, 2019 hearing
was limited to review of the assessment of points on OV 5, and did not include a redetermination
of whether defendant should be sentenced as a second-offense habitual offender. See Baldridge,
unpub op at 13. For these reasons, defendant fails to show the trial court erred or exceeded its
authority.
Affirmed.
/s/ Cynthia Diane Stephens
/s/ Mark J. Cavanagh
/s/ Deborah A. Servitto
-7-