                          STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     March 8, 2016
               Plaintiff-Appellee,

v                                                                    Nos. 315068, 325251
                                                                     Bay Circuit Court
VICTOR ANTHONY CORPUZ,                                               LC No. 12-010302-FH

               Defendant-Appellant.


                                           ON REMAND

Before: GLEICHER, P.J., and JANSEN and RONAYNE KRAUSE, JJ.

PER CURIAM.

        In a September 16, 2014 opinion, we determined that the trial court erred in scoring
Offense Variables (OVs) 1, 2, and 19 when calculating defendant’s minimum sentencing
guidelines range. The elimination of those scores did not merit resentencing, standing alone,
given defendant’s high overall OV score. However, we vacated the defendant’s sentences and
remanded for resentencing as the court had imposed upwardly departing sentences and we could
not “be certain that the court would have departed to the extent chosen” had the OVs been
correctly scored. See People v Gutierrez, unpublished opinion per curiam of the Court of
Appeals, issued September 16, 2014 (Docket Nos. 315057, 315059, 315068), unpub op at 13. Of
import at this time, we rejected defendant’s challenge “that the trial court improperly engaged in
judicial fact-finding in its scoring of the sentencing guidelines, contrary to the rule announced in
Alleyne v United States, 570 US ___; 133 S Ct 2151, 2155; 186 L Ed 2d 314 (2013),” because
this Court had concluded in People v Herron, 303 Mich App 392, 403; 845 NW2d 533 (2013),
that “Alleyne does not implicate Michigan’s sentencing scheme.” Gutierrez, unpub op at 11-12.

       Defendant filed an application for leave to appeal in the Michigan Supreme Court, which
was held in abeyance pending that Court’s decision in People v Lockridge, 498 Mich 358; 870
NW2d 502 (2015). During that time, the trial court proceeded to resentence defendant to
concurrent prison terms within the minimum sentencing ranges and defendant filed a separate
claim of appeal from those sentences. Following the resolution of the Lockridge matter, the
Supreme Court vacated that portion of our earlier decision “that vacated the defendant’s
sentences and remanded for resentencing” and remanded to this Court for reconsideration in light
of Lockridge. We consolidated defendant’s more recent claim of appeal with the appeal on
remand from the Supreme Court. We again remand for the trial court to consider whether it

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would have imposed the same sentences had it known the guidelines would be rendered advisory
in Lockridge.

                                        I. LOCKRIDGE

        Defendant preserved his challenge to the trial court’s reliance on judge-found facts by
raising it in a motion for resentencing. We review such preserved challenges to “determine
whether the beneficiary of the error has established that it is harmless beyond a reasonable
doubt.” People v Carines, 460 Mich 750, 774; 597 NW2d 130 (1999); People v Stokes, ___ Mich
App ___; ___ NW2d ___ (Docket No. 321303, issued September 8, 2015), slip op at 10.

        In his appellate brief filed before our 2014 opinion, defendant complained that the trial
court engaged in judicial fact-finding in scoring OVs 1, 2, 3, 4, 7, 10, 14 and 19. We previously
held that the trial court erroneously scored OVs 1, 2, and 19. Gutierrez, unpub op at 10-11. The
Supreme Court took no issue with our reasoning in that regard. Even under Lockridge, trial
courts must accurately score the relevant variables and calculate a defendant’s offense and prior
record variable totals. Lockridge, 498 Mich at 392 n 28. We adopt our earlier reasoning
regarding the improper scoring of OVs 1, 2, and 19, eliminating the need for further review of
those variables.

        Here, the trial court was indeed required to engage in judicial fact-finding to score the
remaining challenged variables. Defendant was convicted of unarmed robbery, MCL 750.350,
assault with intent to do great bodily harm less than murder, MCL 750.84, and possession of
marijuana, MCL 333.7403(2)(d). The facts underlying the challenged OV scores were not
offense elements found by the jury or admitted by defendant. See MCL 777.33(1)(c) (requiring
the assignment of 25 points for OV 3 when the defendant’s actions cause “life threatening or
permanent incapacitating injury”); MCL 777.34 (governing the scoring of OV 4 when the victim
suffers “serious psychological injury requiring professional treatment”); MCL 777.37 (governing
the scoring of OV 7 when the defendant’s treatment of the victim is categorized as “aggravated
physical abuse”); MCL 777.40(1)(c) (directing the assignment of 5 points for OV 10 when the
defendant exploits a victim based on size difference, intoxication, sleep or unconsciousness);
MCL 777.44(1)(a) (requiring the assignment of 10 points when a defendant is the leader in a
multiple-offender situation). The 100 points assigned for these variables were the sum total of
defendant’s OV level. As the deduction of those points would alter defendant’s minimum
sentence ranges, he would be entitled to further consideration of his sentences under Lockridge.
See People v Sardy, ___ Mich App ___; ___ NW2d ___ (Docket No. 319227, issued December
29, 2015), slip op at 25.

        Lockridge acknowledges that judicial fact-finding is an integral part of Michigan’s
legislative sentencing guidelines. The reliance on judicial decision-making to calculate a
defendant’s mandatory minimum sentence floor violates the Sixth Amendment, however. To
preserve the statutory scheme, the Supreme Court rendered the sentencing guidelines advisory.
Lockridge, 498 Mich at 364-365; Stokes, ___ Mich App at ___, slip op at 6-7. The trial court
here relied on judge-found facts in calculating defendant’s guidelines score but did not treat the
resultant range as advisory. Accordingly, at defendant’s February 4, 2013 sentencing, the trial
court violated defendant’s Sixth Amendment rights.


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       The court also relied upon substantial and compelling reasons to upwardly depart from
the guidelines range. As the Lockridge Court struck down MCL 769.34(3), a court may now
depart within its discretion to impose a “reasonable[]” upward departure sentence. Lockridge,
498 Mich at 391-392. In Lockridge, 498 Mich at 395 n 31, the Supreme Court explained that a
defendant whose sentence represents an upward departure, but who did not preserve his Alleyne
challenge, cannot show the plain error necessary to merit relief. In such cases, the trial court
already “clearly exercised its discretion to impose a harsher sentence than allowed by the
guidelines and expressed its reasons for doing so on the record.” Id. (emphasis in original). The
Court found it illogical to assume that the trial court would have reached a different decision if it
knew the guidelines were advisory. Therefore, remand would be unnecessary in such cases. Id.

       Despite this message in Lockridge, this Court concluded in People v Steanhouse, ___
Mich App___; ___ NW2d ___ (Docket No. 318329, issued October 22, 2015), slip op at 25, that
this Court must remand for a hearing under United States v Crosby, 397 F3d 103 (CA 2, 2005),
to consider the reasonableness (interpreted as proportionality) of a departure sentence when
faced with an unpreserved Alleyne challenge. We discern no ground to afford less protection to a
defendant who preserved his challenge. Therefore, in this case, defendant was entitled to a
remand to consider the reasonableness of his departure sentences.

                                 II. INTERIM RESENTENCING

        Following our September 2014 opinion, the trial court proceeded to resentence defendant
despite that he had filed an application for leave to appeal in the Michigan Supreme Court. The
trial court reasoned that as neither this Court nor the Supreme Court had entered a stay of
proceedings, it was required to act. This was error. MCR 7.302(C)(5)(a) plainly provides that
when a party timely files with the Supreme Court an application for leave to appeal a Court of
Appeals decision that remands for further proceedings, those proceedings are stayed “unless the
Court of Appeals or the Supreme Court orders otherwise.” Neither this Court nor the Supreme
Court entered such an order. However, as we have determined that defendant is again entitled to
reconsideration of his sentence, albeit on new grounds, the trial court’s decision to proceed with
resentencing may be harmless.

       At the November 20, 2014 resentencing hearing, the trial court sentenced defendant to
terms of imprisonment within the minimum sentencing guideline ranges. The court made this
decision after considering defendant’s good behavior in prison, which showed a marked
improvement from his attitude before his conviction. Accordingly, the court was no longer
required to consider the reasonableness of its previous upwardly departing sentences.

       Pursuant to Lockridge, however, defendant was entitled to specific consideration:

               We conclude that all defendants (1) who can demonstrate that their
       guidelines minimum sentence range was actually constrained by the violation of
       the Sixth Amendment and (2) whose sentences were not subject to an upward
       departure can establish a threshold showing of the potential for plain error
       sufficient to warrant a remand to the trial court for further inquiry. We reach this
       conclusion in part on the basis of our agreement with the following analysis from
       [Crosby, 397 F3d at 117-118]:

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              Some might suppose that the only choice for an appellate court in a
         case presenting a procedural error in imposing a sentence is between
         disregarding the error and requiring a new sentencing. However, the choice
         is not so limited. . . . . Bearing in mind the several considerations outlined
         above that shape the context in which a disposition decision is to be made,
         we conclude that the “further sentencing proceedings” generally appropriate
         for pre-Booker/Fanfan[1] sentences pending on direct review will be a
         remand to the district court, not for the purpose of a required resentencing,
         but only for the more limited purpose of permitting the sentencing judge to
         determine whether to resentence, now fully informed of the new sentencing
         regime, and if so, to resentence. . . .

             A remand for determination of whether to resentence is appropriate in
         order to undertake a proper application of the plain error and harmless error
         doctrines. Without knowing whether a sentencing judge would have
         imposed a materially different sentence, . . . an appellate court will normally
         be unable to assess the significance of any error that might have been
         made. . . .

              Obviously, any of the errors in the procedure for selecting the original
         sentence discussed in this opinion would be harmless, and not prejudicial
         under plain error analysis, if the judge decides on remand, in full
         compliance with now applicable requirements, that under the post-
         Booker/Fanfan regime the sentence would have been essentially the same
         as originally imposed. Conversely, a district judge’s decision that the
         original sentence would have differed in a nontrivial manner from that
         imposed will demonstrate that the error in imposing the original sentence
         was harmful and satisfies plain error analysis.

             In short, a sentence imposed under a mistaken perception of the
         requirements of law will satisfy plain error analysis if the sentence imposed
         under a correct understanding would have been materially different. [Some
         emphasis added.]

              Thus, in accordance with this analysis, 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. If the trial court determines that
      the answer to that question is yes, the court shall order resentencing. Id. at 118.
      [Lockridge, 498 Mich at 395-397 (ellipses and emphasis in original).]



1
 This refers to United States v Booker, 543 US 220; 125 S Ct 738; 160 L Ed 2d 621 (2005).
Fanfan was one of the respondents in Booker.


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       The trial court did not consider whether it would have imposed the same sentences on
resentencing had the sentencing guidelines been advisory. We cannot determine from the record
of the November 20, 2014 hearing, whether the court would have altered its course had it been
aware of the upcoming change in the law. Accordingly, we must remand for further
consideration as required by Lockridge relying on Crosby. On remand, defendant may choose to
forego further resentencing. If he chooses to proceed, however, the trial court must conduct a
hearing consistent with Crosby.

                             III. INDIVIDUAL OV CHALLENGES

       In his appeal from his resentencing, defendant also challenges the propriety of various
OV scores. “[T]he standards of review traditionally applies to the trial court’s scoring of the
variables remain viable after Lockridge.” Steanhouse, ___Mich App at ___, slip op at 19.
Accordingly, we review the trial court’s factual findings for clear error and consider the record to
ensure that a preponderance of the evidence supported the score. Id., quoting People v Hardy,
494 Mich 430, 438; 835 NW2d 340 (2013).

       In relation to OVs 3, 10, and 14, defendant merely states that the scores were improper
because they were based solely on judge-found facts. As discussed, this is an invalid argument.
In connection with OV 4 and OV 7, however, defendant additionally contends that the record
evidence was insufficient to support the court’s scores.

          MCL 777.34(1)(a) provides for the assignment of 10 points when “[s]erious
psychological injury requiring professional treatment occurred to a victim.” That the victim
failed to actually pursue treatment “is not conclusive.” MCL 777.34(2). This Court discussed
the evidentiary basis for scoring OV 4 in People v McChester, 310 Mich App 354; ___ NW2d
___ (2015). In McChester, 310 Mich App at 359, this Court found insufficient evidence to score
OV 4 where the presentence investigation report merely stated that the victim appeared “visibly
shaken.” The victim did not provide a victim impact statement or “testify in any meaningful way
. . . in regard to her psychological state.” Id.

         The victim in this case did provide meaningful testimony regarding his psychological
state following his violent attack by defendant and his two accomplices. The victim asserted that
“throughout the whole thing I was scared, I wanted to run away.” He continued, “This trying to
think about the whole deal, especially afterwards is very difficult. I was terrified and I couldn’t
see.” The victim recounted, “I was terrified. . . . I asked them to please not kill me, . . . I told
them I wanted to see my wife one more time.” The victim conceded on cross-examination that
his trial and preliminary examination testimonies were not entirely consistent. He explained that
the preliminary examination “was only a very short time after” the attack and he “was in a really
bad emotional state.” It was only more recently that he had “been able to deal with this a little
bit better.” The preliminary examination transcript poignantly reflects the victim’s emotional
distress. The prosecutor had to calm the victim so he could testify. The victim explained that his
“heart’s beatin’ so fact” and “I’m very upset, these gentlemen tried to kill me.” The stress of
testifying even caused a physical reaction; the victim developed stomach pains and became
nauseous partway through the examination.



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        As the testimony reveals, this was not a case with an indifferent victim. The victim was
brutally attacked and suffered lasting emotional trauma. The record is clear that the victim
required treatment, regardless of whether he secured such services. Therefore, the trial court did
not err in scoring OV 4 at 10 points.

        Defendant similarly challenges the factual basis for scoring 50 points for OV 7, reflecting
that “[a] victim was treated with sadism, torture, or excessive brutality or conduct designed to
substantially increase the fear and anxiety a victim suffered during the offense.” We determined
in our prior opinion that defendant’s score was supportable because he acted with “excessive
brutality.” Gutierrez, unpub op at 9-10. Accordingly, we need not consider defendant’s new
challenge.

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



                                                            /s/ Elizabeth L. Gleicher
                                                            /s/ Kathleen Jansen




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