If this opinion indicates that it is “FOR PUBLICATION,” it is subject to revision until final publication in the Michigan Appeals Reports.

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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

- Appell ee , UNPUBLISHED August 15, 2024

v No. 366053
Berrien Circuit Court

JAMES DRAKE

, LC No. 2022

- 002514

- FH

Defendant

- Appell ant

.

Before : S WARTZLE

, P .J., and K. F. K ELLY and Y OUNG , JJ.

P ER C URIAM

.

D efendant appeals by leave granted 1 from the trial court ’ s judg ment of sentence entered after pleading guilty to possession of methamphetamine and possession of less than 25 grams of fentanyl. Defendant was sentenced to serve 3 to 10 years in prison for possession of methamphetamine and 72 days in jail for possession of fentanyl. Because we agree that 50 points were improperly assessed for offense variable (“ OV ”) 15 and 15 points were improperly asse sse d for prior record variable ( “ PRV ” ) 5 , and because correction of the score results in a change to the applicable sentencing guidelines range s , we vacate defendant ’ s sentences and remand for resentencing.

I. BA SIC FACTS AND PROCED URAL HISTORY

In August 2022, officers performed a traffic stop on defendant ’ s vehicle and controlled substances and paraphernalia were f ound in it during an inventory search. T he substances found included three individually

- wrapped plastic bag s and two unlabeled pills. Officers also found a large quantity of empty plastic bag s , a digital scale, and three cell ular tele phones. Defendant

, an Indiana resident, was initially charged with possession with intent to deliver methamphetamine

, MCL 333.7401(2)(b)( i )

, and possession with intent to deliver heroin, MCL 333.7401(2)(a)( iv ). Ultimately, d efendant pleaded guilty to possession of methamphe tamine , MCL 333.7403(2)(b)( i ), and possession of less than 25 grams of fentanyl , MCL 333.7403(2)(a)( v )

.

1 People v Drake , unpublished order of the Court of Appeals, entered June 15, 2023 (Docket No. 366053 )

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During sentencing, the prosecutor argued that defendant should be assessed 15 points for PRV 5 (prior misdemeanor convictions and juvenile adjudications)

, rather than the five points recommended in the presentence investigation report ( “ PSIR ” )

, because defendant had five prior scorable misdemeanors:

two Michigan offenses that were listed in the PSIR and already scored ; one Indiana offense tha t was listed
in the PSIR but not scored ; and two Indiana offenses that were not listed in the PSIR a nd not scored

. Defendant conceded that the Indiana conviction that was listed but not scored in the PSIR should have been but objected to the scoring of th e two unlisted convictions.

The two convictions that were not listed were for operating while intoxicated ( “ OWI ” ) and carrying a handgun without a license . Defense counsel objected, contending that the offenses were , to his knowledge, pending charges but had “ not been processed in any way ” and that he had “ not been convicted
of those. ” In response, the prosecutor submitted a “ MyCase ” printout from Indiana to the trial court that, according to the prosecut or , demonstrated that defendant ple a d ed guilty to “ carrying a handgun without a
license and was sentenced to a jail term of 150 days, suspended 60 days

. ” The prosecutor stated that the

“ document also contains the OWI conviction. ” After reviewing the printout, the trial court concluded that
PRV 5 sho uld be scored at 15 points rather than five points, which raised the total PRV score from 20 points to 30 points and placed the PRV Level at D for both offenses.

The prosecutor also requested that OV 15 (aggravated controlled substance offenses) be scored at 50 points for both of defendant ’ s convictions because the conduct involved “ traveling from another sta t e i nto this state while i n possession of a mixture containing a controlled substance, Schedu l e I or II

, with
the intent to deliver that mixture in thi s state

. ” Although the prosecutor conceded that the amount
defendant was found with “ might be a personal use amount, ” there was nothing found to suggest personal

use. Defense counsel objected, arguing that defendant was convicted of possession of methamp hetamine and possession of a controlled substance, and he did not make any “ admission of guilt in regards to whether he was going to distribute the drugs

. ”

After an adjournment, the trial court concluded that OV 15 was properly scored at 50 points. The trial court acknowledged that the amount was small, but stated that it believed that the “ the legislature intended there to be a harsh penalty for, for lack of a bette r word, out

- of

- state drug dealers

. ” With these changes, defendant ’ s total PRV score was 30 points and his total OV score was 50 points, and his recommended minimum sentencing guidelines ranges were 29 to 57 months for possession of methamphetamine

, M CL 77 7.65 ; and 2 to 17 months for possession of fentanyl

, MCL 777.68. The trial
court sentenced defendant to 36 to 120 months in prison for possession of methamphetamine and 72 days in jail for possession of fentanyl , and t his appeal followed.

II. STANDARDS O F REVIEW

“ Under the sentencing guidelines, the circuit court ’ s factual determinations are reviewed for clear error and must be supported by a preponderance of the evidence. ” People v Lampe

, 327 Mich App 104

, 111 ; 933 NW2d 314 (2016) (quotation marks and citation omitted)

. “ P reponderance of the evidence means such evidence as, when weighed with that opposed to it, has more convincing force and the greater probability of truth. ” People v Cross , 281 Mich App 737, 740; 760 NW2d 314 (2008 ) (quotation marks and citation omitted)

. “ Clear error exists when the reviewing court is left with a definite and firm
conviction that a mistake was made. ” Lampe

, 327 Mich App at 111 (quotation marks and citation omitted)

. Finally, “ [w] hether the facts, as found, are ade quate to satisfy the scoring conditions prescribed- 3

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by statute, i.e., the application of the facts to the law, is a question of statutory interpretation, which an appellate court reviews de novo. ” Id . (quotation marks and citation omitted)

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III. ANALYSIS

A. OV 15

On appeal, d efendant argues that the trial court erred when it assessed 50 points for OV 15 because the court considered conduct that was beyond the elements of the sentencing offense s when the court scored the variable. We agree.

A defendant i s entitled to be sentenced on the basis of accurately scored sentencing guidelines. People v Francisco , 474 Mich 82, 89 n 8 ; 711 NW2d 44 (2006). In scoring the variables that form the basis of the sentencing guidelines, the trial court may consider all r ecord evidence, including the PSIR

, plea admissions, and testimony at a preliminary examination or trial. People v Johnson , 298 Mich App 128, 130

- 131; 826 NW2d 170 (2012). In addition, “ [t] he trial court may rely on reasonable inferences arising from the record evidence to sustain the scoring of an offense variable. ” People v Horton

, ___ Mich App ___, ___; ___ NW2d ___ (2023) (Docket No. 360726 ); slip op at 2 (quotation marks and citations omitted). At the sentencing hearing, the court must “give each party an opportunity to explain, or challenge the accuracy or relevancy of, any information in the presentence report, and resolve any challenges in accordance with the procedure set forth in [MCR 6.42 5(D)(2)].” MCR 6.425(D)(1)(b).

E ither party may challenge the accuracy or relevancy of any information contained in the presentence
report. MCL 771.14(6); MCR 6.425(E)(1)(b); People v Lloyd , 284 Mich App 703, 705

- 706 ; 774 NW2d 347 (2009). If presented with a challenge to the factual accuracy of information, a court has a duty to resolve the challenge. People v Uphaus , 278 Mich App 174, 183

- 184 ; 748 NW2d 899 (2008)

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OV 15 relates to “ aggravated controlled substance offenses. ” MCL 777.45(1). Fifty poi nts are
assessed for OV 15 when “ [t]he offense involved traveling from another state or country to this state while in possession of any mixture containing a controlled substance classified in schedule 1 or 2 [ 2 ]

. . . with the
intent to deliver that mixtur e in this state

. ” MCL 777.45(1)(d). For purposes of OV 15, “ ’ [d]eliver ’
means the actual or constructive transfer of a controlled substance from 1 individual to another regardless
of remuneration

. ” MCL 777.45(2)(a).

“ Offense variables must be scored giving consideration to the sentencing offense alone, unless otherwise provided in the particular variable. ” People v McGraw , 484 Mich 120, 1 33; 771 NW2d 655 (2009) . MCL 777.45 does not otherwise provide such consideration . See People v Gra y , 297 Mich A pp 22, 32; 824 NW2d 213 (2012) . Accordingly, when assessing OV 15, a sentencing court may examine only conduct related to the sentencing offense. Id

. Therefore, OV 15 “ requires a court to separate the conduct forming the basis of the sentencing offense from the conduct forming the basis of an offense that was charged and later dismissed or dropped, regardless of the sequence in which the conduct transpired

. . .

. ” Id

. at 3 3

- 34. In other words, a trial court may not consider conduct resulting in dismis sed charges that are not part of the sentencing offense when assessing points for OV 15 because “ it would be fundamentally

2 Methamphetamine is a Schedule 1 controlled substance as defined by MCL 333.7212. See MCL 333.7212(1)(h). Fentanyl is a Schedule 2 controlled substance as defined by MCL 333.7214. See MCL 333.7214(b).- 4

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unfair to allow the prosecution to drop

. . . a charge while brokering a plea bargain, then resurrect it at sentencing in another for m

. ” See i d

. at 32 (quotation marks and citations omitted; citation clean up ).

The trial court below erred when it concluded that it was proper to assess 50 points for OV 15 on
the basis of defendant ’ s intent to deliver controlled substances in this state. The offense s involved for purposes of OV 15 are the offenses to which defendant pleaded guilty, i.e., possess ion of methamphetamine and possession of less than 25 grams of fentanyl. Intent to distr ibute is not an element of either sentencing offense. See MCL 333.7403(1) (stating that a person “ shall not knowingly or intentionally possess a controlled substance

. . . . ” ); People v Hartuniewicz , 294 Mich App 237, 242; 816 NW2d 442 (2011) ( “ MCL 333.74 03(1) proscribes the knowing or intentional possession of a controlled substance unless obtained directly through a valid prescription or valid doctor ’ s order. ” )

. Indeed, the original charge s of possession with intent to deliver methamphetamine, MCL 333.7 401(2)(b)( i )

, and possession with intent to deliver heroin, MCL 333.7401(2)(a)( iv )

, were dismissed as part of defendant ’ s plea agreement

. Because a sentencing court must separate the conduct constituting the sentencing offense
from the conduct constitutin g any counts that were dismissed under a plea bargain

, Gray , 297 Mich App

at 32

, the trial court erred when it considered the conduct concerning defendant ’ s dismissed charges of possession with intent to deliver when scoring OV 15. See McGraw , 484 Mich at 133 ; Gray , 297 Mich App at 32

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R educing defendant ’ s score for OV 15 to zero points results in a change in the applicable sentencing guidelines range s

. S ee MCL 777.6 5; MCL 777. 68 . Accordingly, defendant is entitled to resentencing on the basis of conduc t related to the sentencing offense only

. Francisco , 474 Mich at 89 n 8.

B . PRV 5

Defendant also argues that the trial court erred when it assessed 15 points for PRV 5 in reliance on
the Indiana “ MyCase ” printouts purporting to show that defendant had two state misdemeanors from
Indiana that were not listed in the PSIR , in addition to the three misdemeanors that were listed in the

PSIR

. 3 We agree.

PRV 5 addresses a defendant ’ s “ p rior misdemeanor convictions or prior misdemeanor juvenile adjudicatio ns

. ” MCL 777.55(1 )

. Fifteen points are assessed for PRV 5 when “ [t]he offender has 5 or 6 prior misdemeanor convictions or prior misdemeanor juvenile adjudications. ” MCL 777.55(1)(b). PRV
5 is scored at 10 points when “ [t] he offender has 3 or 4 prior m isdemeanor convictions or prior misdemeanor juvenile adjudications

. ” MCL 777.55(1)(c). A prior misdemeanor conviction or prior misdemeanor juvenile adjudication should be considered “ if it is an offense against a person or property,

a controlled substanc e offense, or a weapon offense

, ” MCL 777.55(2)(a), or if it is an offense “ for operating or attempting to operate a vehicle, vessel, ORV, snowmobile, aircraft, or locomotive while under the influence of or impaired by alcohol, a controlled substance, or a combination of alcohol and a
controlled substance

, ” MCL 777.55(2)(b). Qualifying convictions or adjudications from other states

3 The “MyCase” printout is not part of the record and the transcript does not fully describe what “MyCase” is. It is likely that the prosecutor was referring to https://mycase.in.gov, which is the public court record
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constitute prior misdemeanor convictions or adjudications for purposes of scoring PRV 5

. MCL 777.55(3)

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The PSIR in this case did not include the two purported convictions from Indiana that the
prosecutor believed should have been included when calculating the score for PRV 5 . And while the trial court may rely on all record evidence when fashioning a sente nce , Johnson , 298 Mich App at 130

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, it is not at all clear to this Court whether the MyCase printouts relied on by the prosecutor and trial court
were official court records from a court in Indiana , as they are not part of the record transmitted from t he
trial court to this Court and were only shown to defendant and his attorney for the first time on the day of sentencing . The record does show that the prosecutor represented to the trial court that the printouts
showed the criminal cases as in a “ pendi ng ” status despite the purported convictions because, according to the prosecutor, “ it appears it ’ s pending for a show cause for payments

. . . . ” (Emphasis added.) To the extent the prosecutor was relying on abstracts from https://mycase.in.gov, doing so would be improper as that site specifically cautions : “ Information displayed on this site is not to be considered or used as an official court record and may contain errors or omissions. Accuracy of the information is not warranted.
Official records of court proceedings may only be obtained directly from the court maintaining a particular
record. ” MyCase: Indiana Courts Case Search <https://mycase.in.gov> (accessed July 30, 2024). In light of the fact that the Court is otherwise remanding the case for resentencing defendant concerning OV 15, and given the ambiguities regarding the MyCase printouts submitted to the trial court, we also vacate
defendant ’ s sentence to allow the parties to present record evidence concerning defendant ’ s criminal history in I ndiana for the purpose of scoring PRV 5

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C. PRV 6

Defendant also argues that the trial court erred by scoring PRV 6 on the basis that he was on probation for one of the Indiana offenses not listed in the PSIR. A trial court should assess five points for
PRV 6 when “ [t]he offender is on probation or delayed sentence status or on bond awaiting adjudication or sentencing for a misdemeanor. ” MCL 777.56 (1)(d). The PSIR demonstrates that, at the time of
defendant ’ s sentencing, he was on probation for leaving the scene of an accident, an offense that was listed
in the PSIR and that defendant conceded should have be en scored . Therefore, defendant has failed to
establish a factual basis for his assertion that PRV 6 was improperly scored on the basis of his two Indiana
offenses not listed on the PSIR

. Peop le v Carbin , 463 Mich 590, 600; 623 NW2d 884 (2001).

Defendant ’ s sentences are vacated and the case is remand ed for resentencing consistent with this opinion . We do not retain jurisdiction.

/s/ Brock A. Swartzle /s/ Kirsten Frank Kelly /s/ Adrienne N. Young