                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   February 21, 2017
               Plaintiff-Appellee,

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

               Defendant-Appellant.


Before: JANSEN, P.J., and BECKERING and GADOLA, JJ.

PER CURIAM.

       A jury convicted defendant of armed robbery, MCL 750.529, felonious 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 conviction 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 appeal, this Court affirmed
defendant’s convictions, but vacated his sentences and remanded for resentencing. People v
Harris, unpublished opinion per curiam of the Court of Appeals, issued May 19, 2015 (Docket
No. 320233), p 8. On remand, the trial court resentenced defendant to another prison term of 10
to 22 years for the armed robbery conviction. Defendant appeals 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 offense 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 sentencing guidelines on


1
   Defendant’s brief includes an argument that he was sentenced on the basis of inaccurate
information because the trial court failed to consider information 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). Regardless, the record indicates that the court did consider this
information. Defendant made a statement during his resentencing in which he described his
positive accomplishments while in prison, as well as the fact that he had not received any prison


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constitutional grounds at the resentencing, this issue is unpreserved, and therefore, is reviewed
for plain error affecting defendant’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 beyond 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 it made a sentencing guidelines
range based on judge-found facts mandatory and held that the guidelines are advisory only. Id.
at 364-365. The Court concluded, “To preserve as much as possible the legislative intent in
enacting the guidelines, however, we hold that a sentencing court must determine the applicable
guidelines range and take it into account when imposing a sentence.” 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 defendant’s OV score was calculated using facts found by the court,
(c) the impermissible judicial fact-finding affected the defendant’s placement in the cell of the
sentencing grid under which he was 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 discretion.” 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 that it would not have imposed the same 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 whether these variables were scored on
the basis of judicially found facts. Harris, unpub op at 2-3. OV 4 considers psychological injury
to the victim. MCL 777.34(1). A score of 10 points is appropriate where “[s]erious
psychological injury requiring professional 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 offender situation.” MCL
777.44(1)(a). “ ‘The essential elements of an armed robbery are (1) an assault, and (2) a
felonious taking of property from the victim’s person or presence, 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 offense of assault requires proof
that the defendant made either an attempt to commit a battery or an unlawful act that places
another in reasonable apprehension of receiving an immediate battery.’ ” 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 with 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,” before resentencing defendant.
2
    United States v Crosby, 397 F3d 103 (CA 2, 2005).


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         In finding defendant guilty of armed robbery, it was not necessary for the jury to find
that the victim suffered a serious psychological injury that would 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 months’ 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 affect 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 imposed a materially different
sentence but for the unconstitutional constraint on its discretion because of the mandatory
application of the guidelines at the time of defendant’s previous resentencing. See Lockridge,
498 Mich at 397. Defendant must be given the option of promptly notifying the trial judge that
another resentencing will not be sought. See id. at 398. “If . . . defendant does not so notify the
court, it ‘should obtain the views of counsel, at least in writing, but “need not” require the
presence of [defendant],’ in ‘reaching its decision (with or without a hearing) whether to
resentence.’ ” Id. (citation omitted). “Upon making that decision, the trial court shall ‘either
place on the record a decision not to resentence, with an appropriate explanation, or vacate the
sentence and, with . . . [d]efendant present, resentence in conformity 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




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