People of Michigan v. Courtney D Gillion, 327865

Defendant Courtney D. Gillion was convicted by a jury of armed robbery for a April 2014 robbery of a Hungry Howie’s; victim Kort identified Gillion and reported being threatened with an object he perceived as a knife.
Evidence included Kort’s photographic lineup ID, Gillion’s fingerprints on an employment application and the recovered knife, and clothing/mask found at an apartment where Gillion stayed.
At sentencing the trial court scored offense variables (OVs) including OV 13 at 25 points, OV 1 at 15 points, and OV 2 at 5 points, producing a total OV score of 55 and placing the guidelines in E-III.
Gillion was sentenced as a fourth habitual offender to 25 to 40 years’ imprisonment; he appealed challenging OV 13 scoring and the OV 1/OV 2 findings.
The prosecutor relied on prior charges and convictions (two resisting charges that were dismissed as part of a plea and two convictions for receiving/concealing a stolen motor vehicle) to justify OV 13 scoring.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether OV 13 was properly scored at 25 points	Prosecutor: defendant had a pattern of 3+ crimes (including two resisting charges) within 5 years, supporting 25 points	Gillion: trial counsel waived objection; contest that dismissed resisting charges lacked evidence so 25 points improper	Trial court erred to the extent it relied on insufficient evidence of dismissed resisting charges, but at least 10 points was supported by two receiving-and-concealing convictions plus the robbery; error was harmless because guideline cell and recommended minimum did not change
Whether counsel’s waiver of OV 13 objection constituted ineffective assistance	N/A	Gillion: counsel’s affirmative agreement waived the issue and was ineffective assistance	Even if counsel was deficient, error was harmless (no reasonable probability of different outcome), so ineffective-assistance claim fails
Whether OV 1 (aggravated use of a weapon) was properly scored at 15 points	Prosecutor: presence of knife and victim’s apprehension justified 15 points	Gillion: argued challenge to scoring	Court: sufficient evidence (victim’s perception and fear; recovered knife with fingerprints) supports 15 points; no clear error
Whether OV 2 (weapon lethal potential) was properly scored at 5 points	Prosecutor: knife qualifies under OV 2	Gillion: challenged scoring	Court: preponderance supports that defendant possessed a knife, so 5 points proper

People v. Carter, 462 Mich. 206 (recognizes that defendant’s counsel can waive sentencing errors by affirmative agreement)
People v. Gioglio (On Remand), 296 Mich. App. 12 (standard for ineffective assistance claims at sentencing)
People v. Nix, 301 Mich. App. 195 (dismissed charges may be considered at sentencing if preponderance shows offense occurred)
People v. Francisco, 474 Mich. 82 (harmless-error rule for sentencing-guidelines scoring that does not change guideline range)
People v. Hardy, 494 Mich. 430 (standards of review for sentencing-guidelines interpretation and factual findings)