Defendant appeals as of right his jury trial conviction of assault with intent to do great bodily harm less than murder, MCL 750.84. Defendant was sentenced as a second-offensе habitual offender, MCL 769.10, to 47 months to 15 years in prison. We affirm in part, reverse in part, and remand for resentencing.
Defendant first argues that the prosecution failed to present sufficient evidence to sustain his conviction. Specifically, defendant contends that the prosecution failed to refute his claim of sеlf-defense. We disagree. We
*677
review de novo challenges to the sufficiency of the evidence in a criminal trial to determine whether, when viewing the evidеnce in the light most favorable to the prosecutor, a rational trier of fact could have found all of the elements of the charged crime to hаve been proven beyond a reasonable doubt.
People v Bowman,
Defendant argues that he honestly and reasonably believed that his life was in danger. It is well-settled that “ ‘[t]he killing of another in self-defense is justifiable homicide if the defendant honestly and reasonably believes that his life is in imminent danger or that there is a threat of serious bodily harm.’ ”
People v Fortson,
Here, there was evidеnce presented that when defendant opened the door to a storage closet in the basement, the victim lunged at defendant and hit him on top of thе head. However, there was also evidence presented that defendant secured the victim in a headlock, dragged him upstairs, and was able to call 911 twice while still restraining the victim. Although there was evidence presented that the victim was able to break away from defendant at one point (i.e., there was arguably a perceived threat), defendant punched the victim twice, causing the victim to fall to the floor. Indeed, there was evidence presented that the victim remained immobilized in the fetal position when defendant began to stomp his face and chest; therefore, any perceived threat was nо longer imminent. Two witnesses testified that defendant stomped the victim several times and that the victim did not attempt to *678 fight defendant. One of the witnesses also testified that the victim did not possess a weapon at the time of the incident. Additionally, defendant weighed nearly 100 pounds more than the victim. The evidence, when viewed in а light most favorable to the prosecution, was sufficient for the jury to find that defendant did not have an honest and reasonable belief that he was in imminent danger оr that the victim posed a threat of serious bodily harm. Therefore, defendant is not entitled to relief on this issue.
Defendant next argues that the trial court erronеously scored prior record variable (PRV) 5 and offense variable (OV) 7. “A sentencing court has discretion in determining the number of points to be scored, providеd that evidence of record adequately supports a particular score.”
People v Hornsby,
We find that the trial court abused its discretion in assessing two points for PRV 5, where defendant did not have a prior misdemeanоr conviction: MCL 777.55(1)(e). The record indicates that defendant was previously charged with possession of marijuana and sought deferred sentencing under MCL 333.7411(1), which prоvides that “[w]hen an individual who has not previously been convicted of [a controlled substance offense] pleads guilty to . . . [certain controlled substance offenses], the court, without entering a judgment of guilt with the consent of the accused, may defer *679 further proceedings and place the individual on probatiоn .... Upon fulfillment of the terms and conditions [of probation], the court shall discharge the individual and dismiss the proceedings. Discharge and dismissal under this section shall be without adjudication of guilt and ... is not a conviction for purposes of this section or for purposes of disqualifications or disabilities imposed by law upon cоnviction of a crime .. . .”
Defendant pleaded guilty of possession of marijuana under MCL 333.7411(1), had to serve two years of probation, and subsequently fulfilled the terms and conditions of his probation. Defendant argues that because he was discharged and the proceedings were dismissed upon fulfillment of the terms and conditions оf his probation, he did not have a conviction for which the trial court could assess points under PRV 5. We agree. We review de novo questions of statutory cоnstruction.
People v Morey,
The Michigan Sentencing Guidelines Manual (2003), p 7, defines “conviction” as “an adjudication of guilt in a criminal matter.” MCL 333.7411(1) specifically states that the discharge and dismissal procedure that it authorizes is “without adjudication of guilt” and “is not a conviction for purposes of... disabilities imрosed by *680 law upon conviction of a crime ...Thus, defendant’s misdemeanor guilty plea cannot be used to enhance his sentence in this case. To do so would be to impose a “disability]” against him upon his conviction of this offense. 1 Under the plain language of the statute, defendant did not have a prior misdemeanor conviction, and the trial court abused its discretion in assessing two points for PRV 5 under MCL 777.55(1)(e). Because the evidence did not support a score of two рoints for PRV 5, the trial court’s scoring decision was error, and defendant is entitled to resentencing on this basis.
We find that the trial court did not abuse its discretion in assessing 50 points for OV 7, concerning aggravated physical abuse, where the victim was “treated with sadism, torture, or excessive brutality or conduct designed to substantially increase the fear and anxiety... suffered during the offense.” MCL 777.37(1)(a). “Sadism” is defined as “conduct that subjects a victim to extreme or prolonged pain or humiliation and is inflictеd to produce suffering or for the offender’s gratification.” MCL 777.37(3).
Here, the record indicates that defendant repeatedly stomped the victim’s face and chest after the victim was lying unconscious on the ground. Additionally, the victim was deprived of oxygen for a period of four to six minutes, causing him to have anoxic еncephalopathy, i.e., significant brain damage from lack of oxygen, and currently remains comatose with little or no chance of ever regaining consciousness. Defendant treated the victim with sadism, torture, excessive brutality, and conduct designed to substantially increase the fear and *681 anxiety the victim suffered during the offense. Because the evidence supports a score of 50 points for OV 7, we find no error in the trial court’s scoring decision, and defendant is not entitled to relief on this basis.
Finally, defendant argues that his sentence was imposed in violation of the United States Supreme Court decision in
Blakely v Washington,
We affirm in part, reverse in part, and remand for resentencing. We do not retain jurisdiction.
Notes
We acknowledge the contrary holding of the United States Court of Appeals for the Sixth Circuit in
United States v Hawkins,
969 F2d 169, 173 (CA 6, 1992). However, we are not bound to follow, decisions of federal courts of appeals,
Abela v Gen Motors Corp,