                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED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

v                                                                    No. 330012
                                                                     Genesee Circuit Court
DEWAN LEE ODOM,                                                      LC No. 15-036639-FC

                Defendant-Appellant.


Before: TALBOT, C.J., and MURRAY and BOONSTRA, JJ.

PER CURIAM.

       Defendant pleaded no contest to unarmed robbery, MCL 750.530, second-degree home
invasion, MCL 750.110a(3), and felonious assault, MCL 750.82. The trial court sentenced
defendant to concurrent prison terms of 84 to 180 months each for the unarmed robbery and
second-degree home invasion convictions, and 24 to 48 months for the felonious assault
conviction. After this Court denied defendant’s delayed application for leave to appeal his
sentences,1 our Supreme Court, in lieu of granting leave to appeal, remanded the case to this
Court for consideration as on leave granted.2 We remand for further inquiry into defendant’s
sentence consistent with People v Lockridge, 498 Mich 358, 392; 870 NW2d 502 (2015).

        In his sole issue on appeal, defendant argues that he is entitled to a Crosby3 remand
because the trial court engaged in judicial fact-finding at sentencing to mandatorily increase his
sentencing guidelines range, thereby violating his rights under the Sixth Amendment. The
prosecution concedes that remand is required. We agree. Because defendant did not object on
this basis at sentencing, this issue is unpreserved, and therefore, review is limited to plain error
affecting defendant’s substantial rights. Lockridge, 498 Mich at 392.




1
 People v Odom, unpublished order of the Court of Appeals, entered January 13, 2016 (Docket
No. 330012).
2
    People v Odom, 499 Mich 982; 882 NW2d 157 (2016).
3
    United States v Crosby, 397 F3d 103 (CA 2, 2005).


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        As defendant observes, shortly after he was sentenced, our Supreme Court decided
Lockridge and held that Michigan’s sentencing guidelines are constitutionally deficient, in
violation of the Sixth Amendment, to the extent that they “require judicial fact-finding 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 . . . .” Id. at 364. To
remedy this deficiency, the Court held that the guidelines are advisory only. Id. at 365. The
Court explained that in cases where the guidelines were mandatory at the time of sentencing, if
the facts “admitted by a defendant or found by the jury verdict were insufficient to assess the
minimum number of OV points necessary for the defendant’s score to fall in the cell of the
sentencing grid under which he or she was sentenced[,] . . . an unconstitutional constraint [will
have] actually impaired the defendant’s Sixth Amendment right.” Id. at 395. The Court further
held that “in cases in which a defendant’s minimum sentence was established by application of
the sentencing guidelines in a manner that violated the Sixth Amendment, the case should be
remanded to the trial court to determine whether that court would have imposed a materially
different sentence but for the constitutional error.” Id. at 397.

        We agree with defendant that the facts underlying the 15-point score for OV 8 (victim
asportation or captivity) and the 10-point score for OV 12 (contemporaneous felonious criminal
acts) are not encompassed by defendant’s plea-based convictions or any other admission by
defendant.4 Further, the scores for these OVs affect defendant’s placement in the particular cell
of the sentencing grid under which he was sentenced. The trial court scored the guidelines for
defendant’s convictions of unarmed robbery and second-degree home invasion, which are class
C offenses. MCL 777.16f and MCL 777.16y. Defendant received a total OV score of 86 points,
which combined with his 24 prior record variable points, placed him in the C-VI cell of the
applicable sentencing grid, for which the minimum sentence range is 43 to 86 months.
MCL 777.64. The scores for OVs 8 and 12 increased defendant’s total OV score from 61 points
to 86 points, which in turn changed his placement in OV Level V (36 - 71 points) to OV Level
VI (75+ points), resulting in a higher guidelines range. Because defendant’s minimum sentence
range was actually constrained by a Sixth Amendment violation, and he was not subject to an
upward departure, he is entitled to a Crosby remand for further inquiry. Lockridge, 498 Mich at
395-396.

        On remand, the trial court must determine whether it would have imposed materially
different sentences but for the unconstitutional constraint on its discretion because of the
mandatory application of the guidelines at the time of defendant’s original sentencing.
Lockridge, 498 Mich at 397. The trial court shall follow the procedure described in Lockridge.
Defendant must be given the option of promptly notifying the trial judge that resentencing will
not be sought. If notification is not received in a timely manner, the trial court shall continue
with the proceeding. If the trial court determines that it would have imposed the same sentences


4
  Under Lockridge, the phrase “admitted by the defendant” means “formally admitted by the
defendant to the court, in a plea or in testimony or by stipulation or by some similar analogous
route.” People v Garnes, ___ Mich App ___, ___; ___ NW2d ___ (2016) (Docket No. 324035);
slip op at 3.


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absent the unconstitutional constraint on its discretion, it may reaffirm the original sentences. If,
however, the court determines that it would not have imposed the same sentences absent the
unconstitutional constraint on its discretion, it shall resentence defendant. Id. at 396-399.

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



                                                              /s/ Michael J. Talbot
                                                              /s/ Christopher M. Murray
                                                              /s/ Mark T. Boonstra




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