STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
October 11, 2016
Plaintiff-Appellee,
v No. 327865
Macomb Circuit Court
COURTNEY D. GILLION, LC No. 2014-004491-FC
Defendant-Appellant.
Before: SAAD, P.J., and JANSEN and M. J. KELLY, JJ.
PER CURIAM.
Defendant, Courtney D. Gillion, appeals by right the trial court’s judgment of sentence
entered after a jury found him guilty of armed robbery. See MCL 750.529. The trial court
sentenced him as a fourth offense habitual offender, see MCL 769.12, to serve 25 to 40 years in
prison. Because we conclude there were no sentencing errors that warrant relief, we affirm.
I. BASIC FACTS
Gillion’s conviction arises from the robbery of a Hungry Howie’s Pizza restaurant in
April 2014. The restaurant owner, Steve Kort, testified that he was alone in the restaurant at
approximately 11:00 a.m., when Gillion entered the restaurant and asked for an employment
application. Gillion wore a gray jogging suit. Kort gave him the application and went to the
back of the store while Gillion remained at the counter to fill out the application. Minutes later
Gillion approached Kort while wearing a black mask and demanded “[w]here’s the money?”
Kort observed “something red or orange” in Gillion’s hand, which Kort perceived to be a knife.
Gillion grabbed Kort’s arm and led him to the front of the store. Kort did not resist because he
“didn’t want to get harmed.”
After Kort opened the cash register, Gillion made Kort sit down and face the wall while
he looked through the register. Gillion took $250. Gillion then either grabbed Kort or told him
to stand up, and asked whether there was a safe with more money in it. When Kort told him that
the store did not have a safe, Gillion led Kort to a bathroom, stating that he was going to search
the store himself. Kort could not see what was happening outside the bathroom, but he soon
heard the door buzzer, indicating that someone had either entered or exited the store. Kort left
the bathroom, found that he was alone in the store, and called the police department.
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Kort later identified Gillion in a photographic lineup. A gray sweatshirt and sweatpants,
an orange pocket knife, and a black mask were found in an apartment across the street from the
Hungry Howie’s restaurant, where Gillion was known to stay. Gillion’s fingerprints were found
on the employment application and the knife.
II. SENTENCING ERRORS
A. OFFENSE VARIABLE 13
Gillion first argues that the trial court erred when it scored 25 points under Offense
Variable (OV) 13. Gillion’s trial lawyer waived this issue, however, by affirmatively agreeing
that it was properly scored. See People v Carter, 462 Mich 206, 215; 612 NW2d 144 (2000).
The waiver extinguished any error and precludes appellate review of this issue. Id.
Gillion nevertheless argues that his trial lawyer’s failure to object to the erroneous score
amounted to ineffective assistance of counsel. In order to establish ineffective assistance of
counsel, Gillion must show that his trial lawyer’s failure to object fell below an objective
standard of reasonableness under prevailing professional norms and that there is a reasonable
probability that but for the error the result of the proceeding would have been different. People v
Gioglio (On Remand), 296 Mich App 12, 22; 815 NW2d 589 (2012), remanded for resentencing
493 Mich 864.
The trial court had to score 25 points under OV 13 if “[t]he offense was part of a pattern
of felonious criminal activity involving 3 or more crimes against a person.” MCL 777.43(1)(c).
When scoring OV 13 “all crimes within a 5-year period, including the sentencing offense, shall
be counted regardless of whether the offense resulted in a conviction.” MCL 777.43(2)(a).
Gillion’s current offense occurred in April 2014. Armed robbery, MCL 750.529, is
classified as a “crime against a person.” MCL 777.16y. The prosecutor argues that OV 13 was
properly scored with 25 points because Gillion was charged with two counts of resisting and
obstructing a police officer for offenses occurring in March 2010, even though the charges were
dropped as part of a plea bargain. Resisting and obstructing a police officer, MCL 750.81d, is a
crime against a person. MCL 777.16d. A sentencing court may consider charges that were
dismissed if there is a preponderance of the evidence that the dismissed offense occurred.
People v Nix, 301 Mich App 195, 205; 836 NW2d 224 (2013). The parties did not discuss or
present evidence that Gillion had in fact committed the resisting offenses. For that reason, the
trial court erred when it scored 25 points under OV 13 without sufficient evidence to find that he
had committed those offenses.
Even though there was insufficient evidence on this record to support a score of 25
points, there was sufficient evidence to support a score of 10 points under OV 13. The trial court
had to score ten points under OV 13 where “[t]he offense was part of a pattern of felonious
criminal activity involving a combination of 3 or more crimes against a person or property” or
certain controlled substance offenses, MCL 777.43(1)(d) (emphasis added). The author of
Gillion’s Presentence Investigation Report indicated that Gillion had been convicted of two
counts of receiving and concealing a stolen motor vehicle for offenses occurring in March 2010.
Receiving and concealing a stolen motor vehicle, MCL 750.535(7), is a crime against property.
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MCL 777.16z. Because the armed robbery offense and the two receiving and concealing a stolen
motor vehicle convictions are “a combination of 3 or more crimes against a person or property,”
that occurred within the five-year period, OV 13 should—at the least—have been scored at ten
points. MCL 777.43(1)(d).
When OV 13 was scored with 25 points, Gillion’s total OV score was 55, which placed
his minimum sentence within the E-III cell; the recommended minimum sentence range for that
cell is 126 to 210 months (10½ to 17½ years) in prison. MCL 777.62. Because he was a fourth
habitual offender, the trial court enhanced his range to 126 to 420 months (10½ to 35 years) in
prison. MCL 777.21(3)(c). If OV 13 had been scored with ten points, Gillion’s total OV score
would have been 40 points. With a total OV score of 40 points, his minimum sentence range
would have remained in the E-III cell, and his recommended minimum sentence would not have
changed. An error in scoring the sentencing guidelines that does not affect the total offense
variable score enough to change the applicable sentencing guidelines range is harmless error.
People v Francisco, 474 Mich 82, 89 n 8; 711 NW2d 44 (2006). Because the scoring error was
harmless, even if his trial lawyer’s failure to object fell below an objective standard of
reasonableness under prevailing professional norms, Gillion cannot show a reasonable
probability that the result of the proceeding would have been different. Gioglio, 296 Mich App
at 22. Gillion has not established a claim of ineffective assistance of counsel on the basis of his
lawyer’s failure to object to the scoring of OV 13.
B. OFFENSE VARIABLES 1 AND 2
Gillion also argues that that the trial court erred when it scored 15 points under OV 1, and
erred when it scored five points under OV 2. This Court reviews de novo the trial court’s
interpretation and application of the sentencing guidelines to the facts. People v Hardy, 494
Mich 430, 438; 835 NW2d 340 (2013). This Court reviews for clear error the trial court’s
factual findings, which must be supported by a preponderance of the evidence. Id.
The trial court assessed 15 points under OV 1, which relates to the aggravated use of a
weapon. MCL 777.31(1). The trial court had to score 15 points under this variable if Gillion
pointed a firearm “at or toward a victim or the victim had a reasonable apprehension of an
immediate battery when threatened with a knife or other cutting or stabbing weapon.” MCL
777.31(1)(c). The trial court scored five points under OV 2, which relates to the lethal potential
of a weapon possessed or used. MCL 777.32(1). The trial court had to score five points under
OV 2 if Gillion “possessed or used a pistol, rifle, shotgun, or knife or other cutting or stabbing
weapon.” MCL 777.32(1)(d).
There was record evidence sufficient to establish by a preponderance of the evidence that
Gillion possessed a knife or other cutting or stabbing instrument during the robbery and that he
placed Kort in apprehension of an immediate battery by threatening Kort with the weapon. Kort
testified that he perceived the object in Gillion’s hand to be a knife. He further testified that he
did not resist Gillion because he “didn’t want to get harmed.” While Gillion apparently did not
orally threaten Kort with the knife, it reasonably can be inferred from Kort’s testimony that,
under the threatening circumstances of an armed robbery, the presence of the knife in Gillion’s
hand was sufficient to create a reasonable apprehension of an immediate battery. Furthermore,
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the knife, with Gillion’s fingerprints, was later found at an apartment where he was known to
stay.
The trial court did not clearly err when it found facts supporting its scores under OV 1
and OV 2.
There were no sentencing errors that warrant resentencing.
Affirmed.
/s/ Henry William Saad
/s/ Kathleen Jansen
/s/ Michael J. Kelly
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