In People v. Lopez
, No. 314953, the Court of Appeals reiterated that a trial court is not required to score and sentence the defendant on each of his concurrent convictions. Instead, as the Court of Appeals previously held in People v. Mack
, 265 Mich App 122; 695 NW2d 342 (2005), a trial court may sentence the defendant by referring to the sentencing guideline range for the most serious conviction. The court did, however, caution trial courts to remain aware of the statutory maximums for each individual conviction, regardless of the sentencing guideline used. Here, because the defendant was sentenced using the properly scored sentencing guideline for the most serious offense, and because the defendant’s sentence on each individual conviction did not exceed the statutory maximum for those offenses, his sentence was affirmed.
Lopez was convicted of Armed Robbery, Assault with Intent to Rob while Armed, Felony Firearm, Unlawful Possession of a Firearm by a Felon, and Carrying a Concealed Weapon, stemming from his armed robbery of a bar. He was sentenced as a Fourth Degree Habitual Defender, which elevated the stator maximum penalty on the two less serious offenses from five years in prison to life. Lopez contended that the sentencing court improperly sentenced him by only using the sentencing guidelines for the most serious conviction (Armed Robbery, a Class A Felony). The court disagreed, stating that under Mack
a trial court is “not required to independently score and sentence the defendant on each of his concurrent convictions if the court properly scored and sentenced the defendant on the conviction with the highest crime classification.” Therefore, since Lopez was to serve the sentences concurrently, the sentencing guidelines for the Class E Felonies were “subsumed by the guidelines of the higher class offense,” meaning the sentencing court did not depart from the guidelines.
The court also concluded that Lopez’s argument that he was denied effective assistance of counsel was without merit. Lopez failed to identify any legal issue that his initial appellate counsel should have raised but failed to do. Additionally, Lopez’s argument that his trial attorney did not investigate how the police obtained information relating to Lopez’s arrest, was not objectively unreasonable, or Lopez failed to prove that it would have affected the outcome of the trial. Finally, the court ruled that there was sufficient evidence to support the verdict. Two witnesses identified Lopez as the man who robbed them at gunpoint, and the defendant did not impeach their credibility or offer contrary evidence. Accordingly, the “evidence did not heavily preponderate against the verdict,” and the court upheld the convictions.
Judge Gleicher, concurred in part and dissented in part
, stating that she agreed with the majority’s findings as to the issues of ineffective assistance of counsel and sufficiency of the evidence. However, Judge Gleicher disagreed with the majority’s holding as to the sentencing issue, stating that MCL 777.21(2) requires a trial court to use the sentencing guidelines for each separate offense.