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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED January 12, 2016

v No. 323313 Wayne Circuit Court PATRICK MARIO THOMAS, JR., LC No. 12-011083-FH

Defendant-Appellant.

Before: S AAD , P.J., and W ILDER and M URRAY , JJ.

P ER C URIAM

.

A jury convicted defendant of first-degree home invasion, MCL 750.110a, and larceny in a building, MCL 750.360. The trial court sentenced defendant a s an habitual offender, second offense, MCL 769.10, to prison terms of 11 to 30 years for the home invasion conviction and three to six years for the lar ceny conviction, to be served con currently. Defendant appeals as of right, arguing that the case should be remanded for further con sideration of his sentences under People v Lockridge , 498 Mich 358; 870 NW2d 502 (2015), because the trial court se ntenced him on the basis of a sentencing gui delines range determined by jud icially-found facts. We agree and remand for further inquiry of defe ndant’s sentences in accordan ce with Lockridge

.

Defendant was convicted of break ing into a home in which his y oung child, the mother of his child, and the latter’s gra ndmother were residing. Defenda nt gained entry by breaking a window to the house. Defendant was still at the property attem pting to move electronics from the home when the police arrived.

The trial court scored the sentencing guidelines for defendant ’s conviction of first-degree home invasion, a class B offense. MCL 777.16f. Defendant rece ived 60 total prior record variable (PRV) points, placing h im in PRV Level E, and 35 total offense variable (OV) points, placing him in OV Level IV (35 to 49 points) on the applicable sentencing grid. MCL 777.63. The guidelines range for an E-IV offender is 84 to 140 months. Because defendant was sentenced as a second habitual offender, the upper end of the g uidelines range was increased by 25%, resulting in an enhanced guidelines range of 84 to 175 mon ths. MCL 777.21(3)(a). The trial court sentenced defendant within that range to a minimum term of 11 years (i.e., 132 months).

Defendant argues that he was improperly sentenced on the basis of a sentencing guidelines range calculated in violation of Lockridge , 498 Mich 358, because the trial court-2- scored OVs 9, 13, 16, and 19 on the basis of judicially-found f acts, which were used to mandatorily increase the floor o f the guidelines minimum senten ce range in violat ion of his Sixth Amendment right to a jury trial. Although defendant objected t o the scoring of the sentencing guidelines at sentencing, he did not do so on the basis of impe rmissible judicial fact-finding in
violation of the Sixth Amendment . Therefore, defendant’s appel late challenge on this ground is unpreserved and review is limited to plain error affecting defe ndant’s substantial rights. Lockridge , 498 Mich at 392-393.

In Lockridge , our Supreme Court held that “the rule from Apprendi v New Jersey , 530 US 466; 120 S Ct 2348; 147 L Ed 2d 435 (2000), as extended by Alleyne v United States , 570 US ___; 133 S Ct 2151; 186 L Ed 2d 314 (2013), applies to Michigan ’s sentencing guidelines and renders them constitutionally deficient” because of “the extent to which the guidelines require judicial fact-finding beyond the facts admitted by the defendan t or found by the jury to score
offense variables that mandatorily increase the floor of the guidelines minimum sentence range

. . . .” Lockridge , 498 Mich at 364 (parenthetical omitted). The Court thus foun d it necessary to “sever MCL 769.34(2) to the extent that it makes the sentencing guidelines range as scored on the basis of facts beyond those admitted by the defendant or fo und by the jury beyond a reasonable doubt mandatory.” Id. Accordingly, the Court decreed that, although the guidelines would remain in effect, “a guidelines minimum sentence range ca lculated in violation of Apprendi and Alleyne is advisory only.” Id. at 364-365 and n 1.

We disagree with defendant’s ar gument that the trial court’s s coring of OV 13 was based on judicially-found facts. OV 13 (continuing pattern of crimin al behavior), permits a court to score 10 points if “[t]he offense was part of a pattern of felo nious criminal activity involving a combination of 3 or more crimes against a person or property . . . .” MCL 777.43(1)(d). At sentencing, defendant acknowledged the existence of two prior c onvictions: (1) an April 2008 conviction of second-degree home invasion, and (2) a February 2 011 conviction of breaking and entering a vehicle. Second-degree home invasion is a crime aga inst a person, MCL 777.16f, and breaking and entering a vehicle, MCL 750.356a(3), is a crime ag ainst property, MCL 777.16r.
Defendant’s instant conviction of first-degree home invasion al so qualifies as a crime against a person. MCL 777.16f.

Although defendant argued that his home invasion conviction fo r the instant offense should not be considered to score OV 13, MCL 777.43(2)(a) expre ssly provides that “[f]or determining the appropriate points under this variable, all cri mes within a 5-year period, including the sent encing offense , shall be counted regardless of whether the offense resulted i n a conviction.” (Emphasis added.) T hus, it was proper to conside r defendant’s instant conviction to score OV 13. Because defendant acknowledged the accuracy of his prior record, and the jury found defendant guilty of the charged November 2012 first-degre e home invasion beyond a reasonable doubt, the trial cour t’s 10-point score for OV 13 ma y be upheld on the basis of facts admitted by defendant. See People v Jackson, ___ Mich App ___; ___ NW2d ___ (2015) (Docket No. 322350); slip op at 12.

We also disagree with defendant’s argument that the trial cour t’s scoring of OV 19 (interference with the administration of justice) was based on judicially-found facts. The trial court assessed 10 points for OV 19 because defendant violated t he terms of his bond and went to South Carolina. At a pretrial conference in March 2014, defend ant admitted that he violated his-3- bond by failing to appear at a pr etrial conference in 2013 and going to South Carolina. Thus, the trial court’s scoring of OV 19 was based on defendant’s own adm issions, not judicially-found
facts.

We agree with defendant, 1 however, that judicial fact-finding was necessary to the trial court’s 10-point score for OV 9 (2 to 9 victims placed in dange r of physical injury or death), MCL 777.39(1)(c), and five-point score for OV 16 (the value of property obtained, damaged, lost, or destroyed was between $1,000 and $20,000), MCL 777.46( 1)(c). The jury was not required to find whether more than one person was placed in dan ger of physical injury or loss of life, nor was it required to find a larceny or property damage of a specific value. The trial court’s scoring of OV 9 and OV 16 cannot be upheld on the basis of fact s found by the jury or admitted by defendant.

The combined 15 points attributab le to the scoring of OVs 9 an d 16 is necessary to place
defendant in the E-IV cell of the sentencing grid under which h e was sentenced. MCL 777.63. If those 15 points are not considered, defendant’s total OV sco re would be reduced to 20 points, which would place him in OV Level II (10 to 24 points). MCL 77 7.63. Whereas the trial court used a guidelines range 84 to 175 months at defendant’s sentenc ing, the guidelines range for an E-II offender, as enhanced for a second habitual offender, is 7 2 to 150 months. Because
defendant was sentenced before ou r Supreme Court’s decision in Lockridge , and the facts admitted by defendant or found by the jury’s verdict are insuff icient to assess the minimum number of OV points necessary for defendant’s OV score to fall in the E-IV cell of the sentencing grid under which he was sentenced, defendant has mad e a threshold showing of the potential for plain error sufficient to warrant a remand to the trial court for further inquiry of his

sentences. Lockridge , 498 Mich at 395-396.

Accordingly, we remand this case to the trial court to determi ne whether the court would have imposed a materially diffe rent sentence but for the uncons titutional constraint on its discretion because of the mandatory application of the guidelin es at the time of defendant’s original sentencing. Id. at 397. On remand, the trial court shall follow the procedure 

### described
in Lockridge , 498 Mich at 395-399. If the tria l court determines that it w ould have imposed the
same sentence absent the uncons titutional constr aint on its dis cretion, it may reaffirm the original sentence. If, however, the court determines that it would not have imposed the same sentence
absent the unconstitutional c onstraint on its discretion, it sh all resentence the defendant.

1 The prosecution also agreed with defendant that OV 9 and 16 we re scored in violation of defendant’s Sixth Amendment right, and that a remand for resent encing pursuant to Lockridge is

necessary.-4- Remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

/s/ Henry William Saad
/s/ Kurtis T. Wilder /s/ Christopher M. Murray