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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED February 21, 2017

v No. 329445 Wayne Circuit Court THOMAS MARKESE HARRIS, LC No. 12-008332-01-FC

Defendant-Appellant.

Before: J ANSEN , P.J., and B ECKERING and G ADOLA , JJ.

P ER C URIAM

. A jury convicted defendant of armed robbery, MCL 750.529, felo nious assault, MCL 750.82, and possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b. The trial court vacated the felonious assault convic tion and sentenced defendant to 10 to 22 years’ imprisonment for the armed robbery conviction, and a consecutive two-year term of imprisonment for the felony-firearm conviction. In a prior app eal, this Court affirmed defendant’s convictions, but vacated his sentences and remanded for resentencing. People v Harris , unpublished opinion per curiam o f the Court of Appeals, issue d May 19, 2015 (Docket No. 320233), p 8. On remand, the tr ial court resentenced defen dant to another prison term of 10 to 22 years for the armed robbery conviction. Defendant appeal s as of right, again challenging his armed robbery sentence. We remand for further proceedings in accordance with People v Lockridge , 498 Mich 358, 397-399; 870 NW2d 502 (2015).

Defendant’s sole stated issue is that the trial court scored o ffense variables (OVs) 4 and 14 on the basis of facts not found by the jury in violation of his Sixth Amendment right to a jury trial. 1 Because defendant did not object to the scoring of the senten cing guidelines on

1 Defendant’s brief includes an argument that he was sentenced o n the basis of inaccurate information because the trial court failed to consider informat ion regarding his good conduct while in prison. However, defendant failed to properly present the issue for our review because it was not raised in his statement of the questions presented. People v Unger , 278 Mich App 210, 262; 749 NW2d 272 (2008). Regardle ss, the record indicate s that the court did consider this information. Defendant made a statement during his resentencin g in which he described his positive accomplishments while in prison, as well as the fact t hat he had not received any prison-2- constitutional grounds at the resentencing, this issue is unpre served, and therefore, is reviewed for plain error affecting defe ndant’s substantial rights. See Lockridge , 498 Mich at 392.

The core holding of Lockridge is that the sentencing guidelines are “constitutionally deficient” to the extent that they “ require judicial fact-finding be yond facts admitted by the defendant or found by the jury to score the offense variables . . . that mandatorily increase the floor of the guidelines minimum sentence range.” Lockridge , 498 Mich at 364. To remedy this violation, the Court severed MCL 769.34(2) to the extent that i t made a sentencing guidelines range based on judge-found facts mandatory and held that the gu idelines are advisory only. Id

. at 364-365. The Court concluded, “To preserve as much as possi ble the legislative intent in enacting the guidelines, however, we hold that a sentencing cou rt must determine the applicable guidelines range and take it int o account when imposing a sente nce.” Id . at 365.

In cases in which (a) the defendant was sentenced on or before July 29, 2015, and the issue is unpreserved, (b) the de fendant’s OV score was calculat ed using facts found by the court, (c) the impermissible judicial fact-finding affected the defend ant’s placement in the cell of the sentencing grid under which he wa s sentenced, and (d) the trial court did not depart upward from the guidelines, the appropriate remedy is to remand the case to “the trial court for that court to determine whether plain error occurred, i.e., whether the court would have imposed the same sentence absent the unconstitutional constraint on its discreti on.” Lockridge , 498 Mich at 397, 399. This procedure is known as a “ Crosby ” 2 remand. Id . at 397. The Court clarified that “[i]f the trial court determines tha t it would not have imposed the s ame sentence but for the constraint, it must resentence the defendant.” Id . at 399.

Although this Court previously held that there was sufficient evidence to support the 10- point scores for OVs 4 and 14, this Court did not address wheth er these variables were scored on the basis of judici ally found facts. Harris , unpub op at 2-3. OV 4 considers psyc hological injury to the victim. MCL 777.34(1). A score of 10 points is appropr iate where “[s]erious psychological injury requiring pr ofessional treatment occurred to a victim.” MCL 777.34(1)(a). OV 14 considers the offender’s role in the offense. MCL 777.44 . A score of 10 points is appropriate where “[t]he offender was a leader in a multiple of fender situation.” MCL 777.44(1)(a). “ ‘The essential elements of an armed robbery ar e (1) an assault, and (2) a felonious taking of property from the victim’s person or presen ce, while (3) the defendant is armed with a weapon described in the statute.’ ” People v Henry (After Remand) , 305 Mich App 127, 142-143; 854 NW2d 114 (2014) (citation omitted). “ ‘The o ffense of assault requires proof that the defendant made either an attempt to commit a battery o r an unlawful act that places another in reasonable apprehension of receiving an immediate ba ttery.’ ” Id . at 143 (citation omitted). A battery constitutes “ ‘an intentional, unconsented and harmful or offensive touching of the person of another, or of something closely connected wit h the person.’ ” Id . (citation omitted).

tickets in 20 months and had been in an honor unit for over 15 months. The court responded, “I appreciate what you said,” befo re resentencing defendant.

2 United States v Crosby , 397 F3d 103 (CA 2, 2005).-3- In finding defendant guilty of armed robbery, it was not nece ssary for the jury to find that the victim suffered a serious psychological injury that wo uld require professional treatment, or to find that defendant was a leader in the commission of the offense. Further, while defendant did testify at trial, he denied any knowledge of the offense. Accordingly, the scores for OVs 4 and 14 were based on judicially found facts. In addition, the judicial fact-finding affected defendant’s placement in the cell of the sentencing grid under which he was sentenced. Defendant’s minimum sentencing guidelines range was 81 to 135 m onths’ imprisonment. However, reducing his OV score by 20 points places defendant in the 51 to 85 months’ imprisonment sentencing guidelines range. Id

.
Defendant was resentenced before Lockridge was decided, and the 20 points attributable to the scoring of OVs 4 and 14 a ffect defendant’s placement in the cell of the sentencing grid under which he was sentenced. Therefore, defendant is entitled to a Crosby remand. On remand, the trial court must determine whether it would have im posed a materially different sentence but for the unconstitu tional constraint on its discret ion because of the mandatory application of the guidelines at the time of defendant’s previo us resentencing. See Lockridge

, 498 Mich at 397. Defendant must be given the option of promptl y notifying the tr ial judge that another resentencing will not be sought. See id . at 398. “If . . . defendant does not so notify the court, it ‘should obtain the vi ews of counsel, at least in writ ing, but “need not” require the presence of [defendant],’ in ‘r eaching its decision (with or wi thout a hearing) whether to resentence.’ ” Id . (citation omitted). “Upon making that decision, the trial co urt shall ‘either place on the record a decision not to resentence, with an appro priate explanation, or vacate the sentence and, with . . . [d]efendant present, resentence in con formity with’ ” Lockridge

. Id

. (citation omitted).

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

/s/ Kathleen Jansen /s/ Jane M. Beckering /s/ Michael F. Gadola