People of Michigan v. John Brown, 334498

Defendant attacked and attempted to rob a 72‑year‑old Dairy Queen owner, beating him with fists and a metal object; victim shot defendant and later identified him from a photo lineup.
Defendant was convicted of armed robbery and AWIGBH; acquitted of related firearm charges and felon-in-possession.
On initial appeal, this Court affirmed convictions but remanded to reconsider scoring of Offense Variable (OV) 13 or to make factual findings that defendant used a firearm during the offenses.
The Michigan Supreme Court remanded for the trial court to either resentence or make OV‑13 findings and then determine under People v Lockridge whether the original sentence would have been materially different.
On remand the trial court held a post‑conviction hearing, determined OV 13 scored zero, and conducted resentencing via videoconference; defendant later challenged being sentenced by video, use of hearsay at sentencing, and prosecutorial misconduct.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Right to be physically present at resentencing	Prosecution: remand only for an evidentiary hearing to determine waiver; alternatively no relief if waiver shown	Brown: video resentencing violated constitutional right to be present; record silent on waiver	Remanded for resentencing because record is silent as to a valid waiver; defendant must be physically present unless he expressly waives it
Use of hearsay/stipulation at trial/sentencing	Prosecution: stipulation was admissible and not hearsay; trial evidence supports OV scoring	Brown: trial court relied on hearsay/stipulation to score OVs and sentence	No error: statement was a defense-prosecution stipulation (not hearsay) and OV scores were supported by testimony and reasonable inferences
Prosecutorial misconduct (various trial arguments)	Prosecution: prior appeal rejected these claims	Brown: prosecutorial misconduct deprived him of due process	Barred by law‑of‑the‑case; prior appellate opinion already rejected these claims
Whether resentencing procedure satisfied Lockridge	N/A (court followed Supreme Court remand instruction)	Brown: challenges tied to OV scoring and sentencing fairness	Trial court rescored OV 13 to zero and resentenced; remand required on presence issue but not on OV/hearsay claims

People v Lockridge, 498 Mich. 358 (Michigan Supreme Court) (holding mandatory advisory sentencing guidelines and remand procedure when judicial fact‑finding affects guidelines)
People v Heller, 316 Mich. App. 314 (Mich. Ct. App.) (video sentencing not permitted for felony sentencing absent valid waiver; virtual presence may be fundamentally unfair)
People v Palmerton, 200 Mich. App. 302 (Mich. Ct. App.) (valid waiver of right to be present must appear on the record; silent record cannot establish waiver)
People v Carines, 460 Mich. 750 (Michigan Supreme Court) (plain‑error review standards)
People v Mallory, 421 Mich. 229 (Michigan Supreme Court) (recognizing defendant’s constitutional right to be present at critical stages of criminal proceedings)