People of Michigan v. Rashad Daquay Perez
334031
| Mich. Ct. App. | Oct 19, 2017Background
- In May 2014, 13-year-old Michael Day was fatally shot; defendant Perez was tried and convicted of second-degree murder and felony-firearm (the conspiracy conviction was dismissed).
- On initial appeal, this Court vacated the felony-firearm conviction because it rested on a dismissed offense and remanded for resentencing; the trial court resentenced Perez without the felony-firearm conviction.
- At resentencing the court scored OVs 1, 2, 3, and 9 (firearm discharged, weapon type, life-threatening injury, multiple persons endangered) and calculated a guidelines range of 225–375 months to life.
- The court imposed a consecutive sentence of 360 to 720 months for second-degree murder (within the recalculated range).
- Perez argued on appeal that (1) OVs 1, 2, 3, and 9 should have been scored at zero and (2) the Sixth Amendment was violated because the court used facts not found beyond a reasonable doubt to score the OVs. He also raised ineffective-assistance claims for counsel’s failure to object.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| OV 1 (firearm discharged) | Evidence (eyewitnesses) supports scoring 25 points | Jury acquitted felony-firearm; points should be zero | Court: preponderance supports finding defendant fired a handgun; 25 points proper |
| OV 2 (weapon type) | Evidence supports scoring 5 points for pistol/handgun | Same; points should be zero given acquittal | Court: 5 points proper; multiple-offender rules require same score as co-defendant |
| OV 3 (life‑threatening injury) | Victim died from injuries; 25 points appropriate where homicide is the sentencing offense | Should not score because victim death already accounted for | Court: 25 points proper under OV 3(1)(c); 100/50 points precluded by statute when homicide is sentencing offense or non-vehicle case |
| OV 9 (multiple persons endangered) | Multiple juveniles at scene placed in danger; 10 points for 2–9 victims | Only one injured; should be zero | Court: testimony shows at least three others endangered; 10 points proper |
| Sixth Amendment (use of judge-found facts for scoring) | Not raised by plaintiff; prosecution/State argue guidelines advisory post-Lockridge | Defendant argues facts used to increase minimum not found beyond reasonable doubt | Court: Lockridge made guidelines advisory; judicial factfinding permitted for advisory guidelines; no Sixth Amendment error in scoring; harmless where sentence is within advisory range |
| Ineffective assistance | State: counsel not required to raise futile objections | Perez: counsel failed to object to scoring | Court: no error in sentencing, so failure to object was not ineffective assistance |
Key Cases Cited
- People v. Schrauben, 314 Mich. App. 181 (2016) (standard: trial court factual findings reviewed for clear error; facts must be supported by a preponderance of the evidence)
- People v. Hardy, 494 Mich. 430 (2013) (application of facts to statutory scoring reviewed de novo)
- People v. Terrell, 312 Mich. App. 450 (2015) (harmless-error review for nonstructural constitutional errors)
- People v. Stokes, 312 Mich. App. 181 (2015) (Lockridge-related sentencing authority discussion)
- People v. Biddles, 316 Mich. App. 148 (2016) (post-Lockridge: guidelines advisory; judicial fact-finding permitted for advisory ranges)
- People v. Ratkov, 201 Mich. App. 123 (1993) (preponderance standard may support findings the jury declined to find beyond a reasonable doubt)
- People v. Morson, 471 Mich. 248 (2004) (multiple-offender scoring requires same OV points for all offenders)
- People v. Houston, 473 Mich. 399 (2005) (OV 3 scoring where victim dies: life‑threatening injury supports 25 points if 100/50 precluded)
- People v. Sargent, 481 Mich. 346 (2008) (OV 9 counts persons present and endangered even if not charged victims)
- People v. Walden, 319 Mich. App. 344 (2017) (OV 9 applied where multiple persons at scene were placed in danger)
- People v. Lockridge, 498 Mich. 358 (2015) (Michigan Supreme Court: mandatory guidelines violated Sixth Amendment; remedy made guidelines advisory)
- People v. Snider, 239 Mich. App. 393 (2000) (counsel not ineffective for failing to lodge futile objections)