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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED May 9, 2017

v No. 331311 Wayne Circuit Court JOSE ALFREDO CORTES-AZCATL, LC No. 13-004761-01-FH

Defendant-Appellant.

Before: M. J. K ELLY , P.J., and B ECKERING and S HAPIRO , JJ.

P ER C URIAM

.
A jury convicted defendant, Jo se Cortes-Azcatl, of operating a motor vehicle while intoxicated causing death, MCL 257.625(4). The trial court ori ginally sentenced him to 5 to 15 years’ imprisonment, and Cortes-Azcatl appealed. In April 2015 , we affirmed his conviction, but vacated his sentence because of a scoring error and remande d for resentencing. People v Cortes-Azcatl , unpublished opinion per curiam of the Court of Appeals, issue d April 21, 2015 (Docket No. 319725). On July 24, 2015, the trial court resente nced Cortes-Azcatl to a prison term of 49 months to 15 years. Cortes-Azcatl appeals as of rig ht. We remand for further inquiry
of defendant’s sentence consistent with People v Lockridge , 498 Mich 358; 870 NW2d 502 (2015).

Cortes-Azcatl argues that he is entitled to a Crosby 1 remand because the trial court’s use of judicial fact-finding to manda torily increase his sentencing guidelines range violated his rights
under the Sixth Amendment. Whether a defendant’s sentence viol ates the Sixth Amendment is a question of law that we review de novo. Lockridge , 498 Mich at 373. Because Cortes-Azcatl objected to the use of judicial fact-finding, the issue is pres erved for appeal. A preserved Lockridge error must be reviewed to dete rmine if it qualifies as harmles s beyond a reasonable
doubt. People v Stokes , 312 Mich App 181, 198; 877 NW2d 752 (2015).

In Lockridge our Supreme Court held that Mi chigan’s sentencing guidelines a re constitutionally deficient to the extent that they “ require judicial fact-finding beyond facts admitted by the defendant or found by the jury to score offense variables (OVs) that mandatorily

1 United States v Crosby , 397 F3d 103 (CA 2, 2005).-2- increase the floor of the guidelines minimum sentence range . . . .” Id. at 364. To remedy this deficiency, the Court held that the guidelines are advisory onl y. Id. at 365. The Court explained that in cases where the guidelines were mandatory at the time o f sentencing, if the facts “admitted by a defendant or found by the jury verdict were insufficient to assess the minimum number of OV points necessary for the defendant’s score to fall in the cell of the sentencing grid under which he or she was sentenced,” then “an unconstitutional constraint [will have] actually impaired the defendant’s Sixth Amendment right.” Id. at 395. The Court further held that “in
cases in which a defendant’s minimum sentence was established b y application of the sentencing guidelines in a manner that violated the Sixth Amendment, the c ase should be remanded to the trial court to determine whether that court would have imposed a materially different sentence
but for the constitutional error.” Id. at 397.

Here, the trial court necessarily engaged in judicial fact-fi nding when scoring OV 5 (psychological injury to member of a victim’s family), OV 9 (nu mber of victims), OV 16 (property obtained, damaged, lost, or destroyed), and OV 17 (de gree of negligence exhibited) because the facts necessary to score them are not encompassed b y the jury’s verdict or any admissions by Cortes-Azcatl. Further, the scores for these OVs affect Cortes-Azcatl’s minimum guidelines range. As scored, his guidelines range was 29 to 57 months; however, without judicial fact-finding, his guide lines range would have been 19 to 38 months. 2 Accordingly, because Cortes-Azcatl’s minimum sentence range was actually con strained by a Sixth Amendment violation, and he was not subject to an upward depart ure, he is entitled to a Crosby
remand. Lockridge , 498 Mich at 395.

On remand, the trial court must determine whether it would hav e imposed a materially
different sentence but for the unconstitutional constraint on i ts discretion because of the mandatory application of the guidelines at the time of Cortes-A zcatl’s resentencing. Lockridge

, 498 Mich at 397. The trial court shall follow the procedure de scribed in Lockridge . CortesAzcatl must be given the option of promptly notifying the trial judge that resentencing will not be sought. If notification is not received in a timely manner, the trial court shall continue with the proceeding. If the trial court determines that it would ha ve imposed the same sentences
absent the unconstitutional cons traint on its discretion, it ma y reaffirm the original sentence. If, however, the court determines that it would not have imposed th e same sentence absent the
unconstitutional constraint on its discretion, it shall resente nce defendant. Id. at 399.

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

/s/ Michael J. Kelly /s/ Jane M. Beckering /s/ Douglas B. Shapiro

2 The scores for OVs 5, 9, 16, and 17 increased Cortes-Azcatl’s total OV score from 65 points to 105 points, which in turn changed his placement from OV Level V to OV Level VI.