Order                                                                        Michigan Supreme Court
                                                                                   Lansing, Michigan

  July 27, 2018                                                                      Stephen J. Markman,
                                                                                                Chief Justice

  156272                                                                                   Brian K. Zahra
                                                                                   Bridget M. McCormack
                                                                                         David F. Viviano
                                                                                     Richard H. Bernstein
                                                                                          Kurtis T. Wilder
  PEOPLE OF THE STATE OF MICHIGAN,                                                  Elizabeth T. Clement,
            Plaintiff-Appellee,                                                                      Justices

  v                                                       SC: 156272
                                                          COA: 336861
                                                          Berrien CC: 2015-001142-FC
  FREDDIE LEE NELSON,
            Defendant-Appellant.

  _________________________________________/

          By order of March 7, 2018, the prosecuting attorney was directed to answer the
  application for leave to appeal the June 16, 2017 order of the Court of Appeals. On order
  of the Court, the answer having been received, the application for leave to appeal is again
  considered and, pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we
  VACATE the sentence of the Berrien Circuit Court, and we REMAND this case to the
  trial court for resentencing. The court assigned 25 points to Offense Variable (OV) 13,
  MCL 777.43, based upon charges that were dismissed in accordance with the plea
  agreement, but the record provides no evidence to support the conclusion that the
  defendant committed a third crime against a person. People v Francisco, 474 Mich 82
  (2006). Before any alleged crimes may be used to score OV 13, the prosecution must
  prove by a preponderance of the evidence that the crimes actually took place, that the
  defendant committed them, that they are properly classified as felony “crimes against a
  person,” MCL 777.43(1)(c), and that they occurred “within a 5-year period” of the
  sentencing offense, MCL 777.43(2)(a).

         MARKMAN, C.J. (dissenting).

         I respectfully dissent from the order vacating defendant’s sentence and remanding
  to the trial court for resentencing on the basis that “the record provides no evidence to
  support the conclusion that the defendant committed a third crime against a person.”
  Offense Variable (OV) 13 is properly scored at 25 points where “[t]he offense was part of
  a pattern of felonious criminal activity involving 3 or more crimes against a person[.]”
  MCL 777.43(1)(c). However, a review of the record indicates that there is evidence that
  defendant committed the necessary predicate crimes against the victim: (1) the first-
  degree criminal sexual conduct offense in the house, to which defendant admitted guilt
  during the plea hearing; (2) a “rape” at the Motel 6, which the victim herself identified in
  the presentence investigation report (PSIR); and (3) accosting a minor for immoral
  purposes, which was established by a text message set forth in the PSIR. It is true that
  the trial court did not explicitly articulate each of these crimes when defendant
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challenged the 25-point score for OV 13 in that court, perhaps because that court
incorrectly understood defendant’s challenge as grounded in People v Lockridge, 498
Mich 358 (2015). The reduction of 25 points in defendant’s OV score alters defendant’s
guidelines minimum sentence range from 126-210 months to 81-135 months. I would
not remand, as the majority does, for resentencing but would remand to the trial court to
either articulate an evidentiary basis for its original sentencing ruling or resentence
defendant absent the points assessed for OV 13. See, e.g., People v Harper, 498 Mich
968 (2016).




                         I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
                   foregoing is a true and complete copy of the order entered at the direction of the Court.
                         July 27, 2018
       t0724
                                                                             Clerk
