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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED March 2, 2017

v No. 329936 Monroe Circuit Court CARLOS ORTIZ, LC No. 14-041534-FC

Defendant-Appellant.

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

P ER C URIAM

. Defendant, Carlos Ortiz, pleaded guilty to unarmed robbery, MC L 750.530, and the trial court sentenced him as a second habitual offender to 90 to 270 months’ imprisonment. Defendant appeals by delayed leave granted, 1 contending that, pursuant to People v Lockridge

, 498 Mich 358, 395-399; 870 NW2d 502 (2015), he is entitled to a remand for a Crosby proceeding to allow the trial court to determine if it would ha ve imposed the same sentence under the now-advisory sentencing guidelines. Defendant also c ontends that the trial court erred by ordering him to pay attorney fees without assessing his abil ity to pay. For the reasons stated below, we conclude that defendant’s challenge to the court’s or der regarding attorney fees is premature, but we remand the matte r to the trial court for cons ideration under Crosby

. 2

I. RELEVANT FACTS

This case arises from an assault and robbery that occurred on September 16, 2014, at the Luna Pier Hotel in Luna Pier, Michigan. According to the prese ntence investigation report (PSIR), defendant and codefendant , Victor Woods, were leaving t he Luna Pier Hotel, where they had spent the previous night, when Woods and defendant forced t heir way into the front desk office. In the office were hotel personnel Vellanki Nagadhar a nd Lakshman Das-Keshwani. Woods began beating Nagadhar and demanding money. When Woods t urned his attention to Das-Keshwani, Nagadhar attempted to escape by climbing over the front desk toward the lobby.

1 People v Ortiz , unpublished order of the Court of Appeals, entered December 1 1, 2015 (Docket No. 329936).

2 United States v Crosby , 397 F 3d 103 (CA 2, 2005).-2- Woods caught Nagadhar and continued to beat him in the lobby wh ile defendant beat DasKeshwani in the office. Upon Woods’ return to the office, he r esumed beating Das-Keshwani, pushed him into the laundry room and to his living quarters, hi t him in the face with a laptop computer, and took approximately $400 from him. Das-Keshwani’s jaw was broken as a result of the beating, and had to be wired closed. Das-Keshwani repor ted that he was unable to talk for six weeks, and that the assault left him fearful and in financi al hardship.

Defendant was charged with arm ed robbery for the assault on Da s-Keshwani, MCL 750.529, and unarmed robbery for the assault on Nagadhar, MCL 7 50.530. Pursuant to an agreement with the prosecution, defendant pleaded guilty to una rmed robbery and agreed to be sentenced within the guidelines; in exchange, the prosecution d ropped the armed robbery charge. At his plea agreement hearing, defendant testified that the inc ident was unplanned, that it began when Woods asked him if he wanted to “get some money,” and that he served as lookout for Woods. Defendant maintained t hat it was Woods who did the beat ing and hit a victim in the face with a computer. 3 Concluding that the elements of the crime pleaded to were met on an aiding and abetting theory, the tria l court found defendant guilty.

II. LOCKRIDGE CHALLENGE

Defendant argues on appeal that he is entitled to a Crosby remand because he was sentenced prior to the Supreme Court’s issuance of People v Lockridge , 498 Mich 358; 870 NW2d 502 (2015), and the trial court scored offense variables ( OVs) 1, 2, 3, 4, 7, and 9 based on judicially found facts, which manda torily increased his minimum sentencing range. We agree.

Because defendant did not object to the scoring of these OVs a t sentencing on Sixth Amendment grounds, 4 our review is for plain error affecting substantial rights. Id . at 392. “To establish entitlement to relief under plain-error review, the d efendant must establish that an error occurred, that the error was pl ain, i.e., clear or obvious, and that the plain error affected [the defendant’s] substantial rights.” Id . at 392-393. To show that the error affected defendant’s

3 Defendant could not remember the name of the victim whom Woods had hit with the laptop, and agreed with the trial court that the victim was Nagadhar. However, according to the PSIR, the victim actually was Das-Keshwani. Although defendant did n ot use the word “laptop” to describe the computer used to strike the victim, it is apparent from the record that it was a laptop computer.

4 Defendant contends that his objection in the trial court to th e court’s assessment of points for OV 1, 2, and 7 preserves his scor ing-issue appeal with respect to these OVs. However, defendant’s objections in the trial court were challenges to th e preponderance of the evidence supporting the trial court’s assessment of points. Defendant a sserted that it was Woods, not he, who used the laptop computer to hit one of the clerks (OVs 1 an d 2), and that his conduct did not rise to the level of the “sadism, torture, or excessive brutali ty” envisioned by OV 7. Defendant does not renew these evidentiary challenges on appeal; rather, he raises only the constitutional challenge arising from our Supreme Court’s decision in Lockridge . Objecting in the trial court on evidentiary grounds does not preserve a Lockridge issue. See Lockridge , 498 Mich at 392.-3- substantial rights, defendant m ust show that prejudice resulted from the error, “i.e., that the error affected the outcome of the lower court proceedings.” Id . at 393. Even if a defendant satisfies those three requirements, reversal is a matter for the appellat e court’s discretion and “is warranted only when the error resulted in the conviction of an actually innocent defendant or seriously affected the fairness, integrity, or public reputatio n of judicial proceedings independently of the defendant’s innocence.” Id

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The Lockridge Court determined that Michigan’s sentencing guidelines were constitutionally deficient with respect to “the extent to which the guidelines require judicial factfinding beyond facts admitted by the defendant or found by the jury to score offense variables (OVs) that mandatorily increase the floor of the guidelines minimum sentence range[.] ” Lockridge , 498 Mich at 364. To remedy the infirmity, the Court made a s entencing guidelines range scored using judicially found facts advisory rather than mandatory. Id . Defendants “(1) who can demonstrate that their guidelines minimum sentence rang e was actually constrained by the violation of the Sixth Amendment and (2) whose sentences we re not subject to an upward departure can establish a thres hold showing of the potential fo r plain error sufficient to warrant a remand to the trial court for further inquiry.” Id . at 395. Once defendant h as made this threshold showing, the proper procedure is to remand the matter to the tr ial court for a Crosby proceeding as outlined in Lockridge , 498 Mich at 395-399.

Defendant contends that the tria l court used judicial fact-fin ding to score OVs 1, 2, 3, 4, 7, and 9, which resulted in a mandatory increase in his guideli nes minimum sentence range. Because defendant admitted facts that support the trial court’s assignment of points to OV 1 and 2, we disagree with respect to th ese OVs. However, we agree wi th defendant with regard to OVs 3, 4, 7, and 9.

A. OVS 1 AND 2

Points are assessed under OV 1 fo r the aggravated use of a wea pon. MCL 777.31(1). Ten points may be assessed when the victim is touched by a weap on other than a firearm. MCL 777.31(1)(d). At his plea hearing, defendant admitted that his codefendant used a laptop computer to assault one of the victims. See People v Lange , 251 Mich App 247, 257; 650 NW2d 691 (2002) (describing as a weapon “any instrument or device us ed for attack or defense in a fight or in combat” and “anything used against an opponent, adv ersary, or victim”) (quotation marks and citation omitted). Def endant’s admission regarding h is codefendant’s use of a laptop computer to assault a victim s upports the trial court’s conclus ion that the computer was used as a weapon and, consequently, the assessment of 10 points under OV 1 was proper under a theory of aiding and abetting. MCL 767.39. 5 Thus, we conclude that, in light of MCL 767.39, the trial court based its assessment of 10 points for OV 1 on facts admit ted by defendant.

5 MCL 767.39 provides, “Every person concerned in the commission of an offense, whether he directly commits the act constituting the offense or procures, counsels, aids, or abets in its commission may hereafter be pr osecuted, indicted, tried and on conviction shall be punished as if he had directly committed such offense.”-4- OV 2 “scores the ‘lethal potential of the weapon possessed or used.’ ” People v Hutcheson , 308 Mich App 10, 16; 865 NW2d 44 (2014), quoting MCL 777.32(1 ). Here, the trial court tied the 1-point OV 2 scor e to defendant’s admission rega rding his codefenda nt’s use of the laptop computer to assault one of the victims. An ordinary object, such as a laptop computer, can become a lethal weapon when it is “so employed in an assaul t” that it becomes dangerous. See Lange , 251 Mich App at 256 , quoting People v Vaines , 310 Mich 500, 505-506; 17 NW2d 729 (1945) . Defendant described at the plea hearing that a victim was st ruck in the face with a computer, and thus, he admitted facts supporting the scoring of OV 2. Lange , 251 Mich App at 256 . Accordingly, for the same reasons that the trial court’s ass essment of 10 points for OV 1 was based on defendant’s admission, we conclude that the trial court’s assessment of 1 point for OV 2 was also based on defendant’s admission.

B. OVS 3, 4, 7, AND 9

OV 3 governs “physical injury to a victim.” Trial courts assi gn 10 points where the victim suffers “[b]odily injury requiring medical treatment.” MCL 777.33(1)(d) . Although the PSIR stated that Das-Keshwani suffered a broken jaw that requir ed medical attention, defendant did not admit that he or Woods assaulted anyone such that they required medical treatment.

OV 4 governs “psychological injury to a victim.” MCL 777.34(1) . Ten points are scored for “[s]erious psychological i njury requiring professional trea tment[.]” MCL 777.34(1)(a) In scoring 10 points for OV 4, the fact that treatment has not bee n sought is not conclusive. MCL 777.34(2) . Although the PSIR reported that the assault had left Das-Kes hwani fearful, defendant did not admit that he or Woods inflicted serious psychological injury on the victims of the assault.

OV 7 refers to “aggravated physical assault.” MCL 777.37 . Fifty points are assessed where “[a] victim is treated wit h sadism, torture, or excessive brutality or c onduct designed to substantially increase the fear a nd anxiety a victim suffered d uring the offense.” MCL 777.37(1)(a) . Defendant did not admit to any victim being treated with sad ism, torture, excessive brutality, or conduct designed to substantially incre ase the person’s fear and anxiety during the offense. Thus, the assignment of 50 points for OV 7 was based on judicially found facts.

OV 9 addresses “the number of v ictims.” MCL 777.39(1). To sco re OV 9, a trial court must first “[c]ount each person who was placed in danger of phy sical injury or loss of life or property as a victim.” MCL 777.39(2)(a). Then, the trial cour t must assign 10 points if “2 to 9 victims . . . were placed in danger of physical injury or death , or 4 to 19 victims . . . were placed in danger of property loss.” MCL 777.39(1)(c). Although the P SIR indicates that there were two victims of the assault, defendant’s plea agreement testimon y did not clearly indicate that there was more than one victim. Consequently, the trial court based its assessment of 25 points for OV 9 on judicially found facts.

If OVs 3, 4, 7, and 9 had not been scored, defendant would hav e had a total OV score of 11, not 91. The guideline minimum sentencing range for a defen dant who is a Class C, second habitual offender with a total PRV score of 35 and a total OV s core of 11 is 19 to 47 months. MCL 777.64; MCL 777.21(3)(a). This range is lower than the gui deline minimum sentencing-5- range of 50 to 125 months calculated by the trial court by usin g judicial fact-finding. Hence, defendant is entitled to a Crosby remand. See Lockridge , 498 Mich at 395-399.

The prosecution contends that defendant waived his right to a Crosby remand via the terms of his plea agreement. Specifically, the prosecution rel ies on the following language set forth in the Wayne County Circuit Court standard plea agreement form:

12. The Defendant waives any claim or right to a jury determin ation of any fact pertaining to guilt or sentencing and agrees the burden of proo f for sentencing shall be by a preponderance of the evidence.

The prosecution relies on this p rovision to argue that, “[i]f a defendant can waive his right to a jury trial, clearly he can do the same at sentencing.” We find the prosecution’s argument unpersuasive.

A waiver is “ the ‘intentiona l relinquishment or abandonment o f a known right.’ ” People v Carines , 460 Mich 750, 762 n 7; 597 NW2d 130 (1999), quoting United States v Olano

, 507 US 725, 722; 113 S Ct 1770; 123 L Ed 2d 508 (1993). The tr ial court sentenced defendant before our Supreme Court decided Lockridge , and, therefore, before the Lockridge Court identified the constitutional inf irmity inherent in Michigan’s sentencing scheme and remedied the infirmity by making the sentencing guidelines advisory. Co nsequently, neither the prosecution nor defendant could ha ve had in mind that defendant ’s waiver of a jury trial also waived his right under Lockridge to be sentenced according to a constitutional sentencing scheme wherein judicially found facts did not mandatorily increase his guidelines minimum sentence range. Therefore, we reject the prosecution’s argumen t that, by accepting the plea agreement, defendant waived his ri ght to challenge his sentence on Lockridge grounds.

III. ATTORNEY FEES

Defendant next argues that he was entitled to an ability-to-pa y assessment prior to the trial court imposing attorney fees at defendant’s sentencing. We disagree.

To preserve a challenge to court assessed attorney fees, the i ssue must be raised before the trial court. See People v Pipes , 475 Mich 267, 277; 715 NW2d 290 (2006) (indicating that, to preserve most issues for appellate review, a party must obje ct below). Because defendant did not object to the imposition of a ttorney fees at his sentencing , this issue is unpreserved. Id . As indicated above, we review unpres erved errors for plain error a ffecting a defendant’s substantial rights. Carines , 460 Mich at 763.

Because of defendant’s guilty plea, the trial court, at the ti me of sentencing, has the authority to require defendant t o pay the “expenses of providin g legal assistance to the defendant” by a court appointed attorney. MCL 769.1k(1)(b)(iv) . Pursuant to People v Jackson

, 483 Mich 271, 290; 769 NW2d 630 (2009), a defendant is entitled to notice, and an opportunity to be heard, regarding his ability to pay court assessed attorn ey fees after the imposition of the fee is enforced. However, “tri al courts should not entertain d efendant’s ability-to-pay-based-6- challenges to the imposition of fees until enforcement of that imposition has begun.” Id . at 292. On appeal, defendant does not point to anything suggesting that the imposition of the attorney fees has been enforced against him. 6 Thus, defendant’s claim is prem ature. Unless and until the imposition of attorney fees is enforced against defendant, defe ndant is not entitled to an abilityto-pay assessment. Id

.

IV. CONCLUSION

We reject defendant’s challenge to the trial court’s impositio n of attorney fees as premature, as defendant has faile d to allege that enforcement p roceedings have begun. However, because defendant has established that his guidelines minimum s entence range was actually constrained by a violation of the Sixth Amendment and he was se ntenced within those guidelines, we order a Crosby remand. We do not retai n jurisdiction.

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

6 As noted in Jackson , “ remittance orders of prisoner funds, under MCL 769.1 l

, generally obviate the need for an ability-t o-pay assessment with relation to defendants sentenced to a term of imprisonment because the statute is structured to only take monies from prisoners who are presumed to be nonindigent.” Id . at 274. Defendant has not stated whether funds have been taken from a prisoner account or anywhere else associated with enforcement of the imposed attorney fee. As the prosecution correctly points out, if defe ndant believes he has a meritorious ability-to-pay argument at the t ime of enforcement, he should s ubmit that issue to the trial court for evaluation. Id . at 293-294, 296.