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### S T A T E O F M I C H I G A N

**C O U R T O F A P P E A L S**

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff

- Appellee, UNPUBLISHED January 11, 2018

v No. 335120 Calhoun Circuit Court RICHARD SENTELL BROOMFIELD

, LC No. 2012

- 002954

- FH

Defendant

- Appellant.

Before: O’C ONNELL , P .J., and H OEKSTRA and S WARTZLE , JJ.

P ER C URIAM

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This case is before us for the third time. F ollowing a jury trial , defendant was convicted of two counts of third

- degree criminal sexual conduct (CSC

- III), MCL 750.520d(1)(a) ( involving

a victim who is at least 13 years of age and under 16 years of age )

. Defendant was sentenced , as a fourth

- offense habitual offender, MCL 769.12, to 22 to 40 years’ imprisonment

. On appeal, we affirmed defendant’s convictions but remanded for resentencing due to an error in the scoring of offense variable (OV) 11

. 1 On remand, t he trial court again sentenced defendant to 22 to 40 years’ imprisonment

. A second appeal to this Court followed, and we again remanded for resentencing because the trial court failed to address defendant’s challenges to the accuracy of information contained in the presentence investigation report. 2 On remand, the trial court sentenced defendant to 20 to 40 years’ imprisonment. Defendant now appeals as of right. Because defendant ’s constitutional rights were not violated by judicial fact

- finding related to the scoring of the now advisory sentencing guidelines , we affirm.

On appeal

, defendant’s only argu ment is that the trial court engaged in impermissible judicial fact

- finding by scoring OV 4 at 10 points and OV 10 at 10 points. Specifically, defendant contends that the scoring of these variables was not supported by the jury’s verdict or facts admitted by defendant. Further, defendant argues that the scoring of these variables

1 People v Broomfield , unpublished per curiam opinion of the Court of Appeals, issued April 8, 2014 (Docket No. 314353).

2 People v Broomfield , unpublished per curiam opinion of the Court of Appeals, issued July 26, 2016 (Docket No. 327199).- 2

- increased the minimum sentencing range under the legislative guidelines . According to defendant, in these circumstances, he has made a threshold showing of plain error under Loc kridge 3 and he is entitled to a Crosby 4 remand for possible resentencing. Defendant’s argument lacks merit.

In Lockridge , our Supreme Court determined that Michigan’s legislative s entencing guidelines violated the Sixth Amendment to the extent that “the guidelines require judicial fact

finding beyond facts admitted by the defendant or found by the jury to score [OVs] that mandatorily increase the floor of the guidelines minimum sentence range . . . .” Lockridge

, 498 Mich at 364

. “ What made the guidelines unconstitutional, in other words, was the combination of the two mandates of judicial fact

- finding and adherence to the guidelines .” People v Steanhouse , 500 Mich 453, 467; 902 NW2d 327 (2017)

. To remedy this defect, the Court held that the guidelines were now “ advisory only ” and that certain defendants “ sentenced under the mandatory guidelines were entitled to Crosby remands for the trial court to determine whether it would have imposed a materially different sentence if it had been aware that the guidelines were not mandatory. ” Id. at 461

- 462

. Notably, in rendering the guidelines advisory, the Court did not eliminate judicial fact

- finding. See Lockridge , 498 Mich at 392 n 28.

The constitutional evil addressed by the Lockridge Court was not judicial fact

finding in and of itself, it was judicial fact

- finding in conjunction with required application of those found facts for purposes of increasing a mandatory minimum sentence rang e. Lockridge remedied this constitutional violation by making the guidelines advisory, not by eliminating judicial fact

- finding. [ People v Biddles

, 316 Mich App 148, 158; 896 NW2d 461 (2016) .]

P ost

- Lockridge

, any resentencing must be conducted in accorda nce with Lockridge ’s holding

, specifically the directive that the guidelines are now advisory only. Id. at 157

. Recognizing that “ judicial fact

- finding is proper, as long as the guidelines are advisory only ,” id. at 159 , it is clear that defendant’s argum ents are without merit. Quite simply, defendant was not resentenced under mandatory sentencing guidelines, and thus any judicial fact

- finding relating to the OVs ha s no constitutional consequences . See id. at 160

- 161 . More specifically, at the most recent resentencing hearing, the trial court expressly stated on the record “that the guidelines still appear to be accurate in this case but

. . . they are advisory ” (emphasis added). Given the trial court’s express acknowledgement that the guidelines a re advisory, there is no merit to defendant’s contention that judicial fact

- finding related to the scoring of OV 4 and OV

3 People v Lockridge , 498 Mich 35 8; 870 NW2d 502 (2015)

. 4 United States v Crosby , 397 F3d 103 (CA 2 2005)

.- 3

- 10 violated his constitutional rights under Lockridge

. 5 Defendant has not shown any error. He is not entitled to a Crosb y remand, and he is not entitled to resentencing

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Affirmed.

/s/ Peter D. O’Connell /s/ Joel P. Hoekstra /s/ Brock A. Swartzle

5 Defendant’s argument is solely a constitutional judicial fact

- finding challenge under Lockridge ; he does not raise an evidentiary challenge to the trial court’s scoring of OV 4 or OV 10. See Biddles , 316 Mich App at 156

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