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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellant, UNPUBLISHED May 11, 2017

v No. 330827 Wayne Circuit Court GEORGE EDWARD WRIGHT, LC No. 15-000375-01-FC

Defendant-Appellee.

Before: T ALBOT , C.J., and K. F. K ELLY and B ORRELLO , JJ.

P ER C URIAM

.

The trial court convicted defendant at a bench trial of first -degree home invasion, MCL 750.110a(2), and assault and battery, MCL 750.81(1). In Ap ril 2015, the trial court sentenced defendant to 3 to 20 years in prison for the home inv asion conviction and 93 days for the assault and battery convict ion. In August 2015, defendant filed a motion for resentencing, seeking relief pursuant to our Supreme Court’s decision in People v Lockridge , 498 Mich 358; 870 NW2d 502 (2015). The trial court agreed that defendant was entitled to relief under Lockridge , granted defendant’s motion fo r resentencing, and resentenced defendant to a reduced prison term of 1 to 20 years for the home invasion conviction. The prosecution appeals as of right, arguing that Lockridge does not apply to defendant’s case because defendant’s origina l sentence was not affected by judi cial fact-finding, and therefo re, defendant’s original sentence was valid and the trial court lacked the authority to modify it . For the reasons set forth in this opinion, we affirm.

First-degree home invasion is a Class B felony subject to the legislative sentencing guidelines. MCL 777.16f. The guidelines as scored for defenda nt’s conviction established a minimum sentence range of 36 to 60 months. It is undisputed th at no judicial fact-finding was involved in scoring defendant’s guidelines because defendant wa s not assessed any points for the

offense variables. At the time of sentencing, the trial court was required to impose a minimum sentence within the guidelines r ange unless it “has a substanti al and compelling reason” to depart from the guidelines. MCL 769.34(2) and (3). The trial court f ound that the guidelines were “a bit harsh,” but that defendant had not shown a substantial and compelling reason for a downward departure. It therefore sentenced defendant within, but at the bottom of, the guidelines range, imposing a minimum sentence of 36 months.-2- After defendant was sentence d, our Supreme Court decided Lockridge , in which it held that the guidelines are unconstitutional “to the extent they require judicial fact-finding beyond facts admitted by the defendant or found by the jury to score t he offense variables . . . that mandatorily increase the floor of the guide lines minimum sentence range[.] ” Lockridge , 498 Mich at 364 (emphasis in original). To remedy the constitution al violation, the Court severed MCL 769.34(2) “to the extent that it is mandatory and str[uck] down the requirement of a ‘substantial and compelling reason’ to depart from the guidelin es range in MCL 769.34(3).” Id. at 391. The Court held that the gu idelines “are advisory only. ” Id. at 399.

Defendant thereafter moved for resentencing on the ground that the trial court erred in treating the guidelines as mandatory, rather than advisory. Th e prosecutor opposed the motion, arguing that Lockridge did not apply because no judicial fact-finding was involved an d thus the sentencing guidelines were mandatory as applied to defendant. The trial court disagreed and ruled that it would have imposed a materially different sentenc e had it not been constrained by the mandatory application of def endant’s guidelines range at th e time of sentencing. It therefore resentenced defendant and imposed a reduced sentence of 1 to 20 years’ imprisonment.

Plaintiff argues on appeal that the trial court lacked the aut hority to resentence defendant because his original sentence was valid. See MCR 6.429(A). Pl aintiff contends that because judicial fact-finding did not inc rease the floor of defendant’s sentencing guidelines range, the guidelines were not unconstitutional as applied to defendant an d the trial court properly sentenced him within the guideline s range at the original sente ncing hearing.

This Court recently considered and rejected this same argument in People v Rice

, ___ Mich App ___; ___NW2d ___ (2017) (Docket No. 329502). In that case, the defendant was sentenced shortly after Lockridge was decided. Id . at ___; slip op at 1. The guidelines recommended a minimum sentence range of 72 to 240 months and th e scoring “did not involve any fact-finding.” The trial cour t departed from the guideline s and imposed a minimum sentence

of 48 months. Id . at ___; slip op at 1-2. “The prosecution argued that the tri al court was mandated to apply the sentencing guidelines because Rice’s case did not involve constitutionally impermissible judicial f act-finding and, therefore, Lockridge did not apply.” Id . at ___; slip op at

2. This Court held that “the Lockridge Court rewrote MCL 769.34(2) and (3) without exception, rendering the guidelines advisory in all cases.” Rice , ___ Mich App at ___; slip op at 2. Both Lockridge and Rice are precedentially binding and must be followed. People v Strickland , 293 Mich App 393, 402; 810 NW2d 660 (2011); MCR 7.215(J)(1). Becau se the trial court has authority to correct an invalid sentence, MCR 6.429(A), a sente nce is invalid when it is based on a misconception of the law, People v Miles , 454 Mich 90, 96; 559 NW2d 299 (1997), and the trial court committed an error of law at the original sentencin g hearing by treating the guidelines as mandatory rather than advisory, the trial court did not err in granting defendant’s motion for resentencing.

Affirmed.

/s/ Michael J. Talbot /s/ Kirsten Frank Kelly /s/ Stephen L. Borrello