                            STATE OF MICHIGAN

                             COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                      UNPUBLISHED
                                                                      November 29, 2016
                 Plaintiff-Appellee,

v                                                                     No. 328244
                                                                      Wayne Circuit Court
ELIAS ORTIZ,                                                          LC No. 15-000174-01-FH

                 Defendant-Appellant.


Before: JANSEN, P.J., and MURPHY and RIORDAN, JJ.

PER CURIAM.

        Defendant was convicted in a bench trial of first-degree home invasion, MCL
750.110a(2), assault with intent to do great bodily harm less than murder (AWIGBH), MCL
750.84, and assault with a dangerous weapon (felonious assault), MCL 750.82. He was
sentenced as a fourth-habitual offender, MCL 769.12, to 15 to 30 years’ imprisonment for the
home invasion conviction, 5 to 20 years’ imprisonment for the AWIGBH conviction, and 4 to 15
years’ imprisonment for the felonious assault conviction. On appeal, defendant does not
challenge his convictions; therefore, the convictions stand. Defendant does argue that the trial
court improperly assessed 25 points for offense variable (OV) 13, MCL 777.43 (continuing
pattern of criminal behavior), that trial counsel was ineffective for failing to object to the scoring
of OV 13, and that the alleged scoring error necessitates a remand for resentencing, considering
that the error altered the guidelines minimum sentence range. Defendant further maintains that
he is entitled to a Crosby1 remand under People v Lockridge, 498 Mich 358; 870 NW2d 502
(2015), where the trial court engaged in judicial fact-finding when scoring the OVs, violating his
Sixth and Fourteenth Amendment rights. We affirm the trial court’s scoring of OV 13, but
remand the case for purposes of a Crosby proceeding consistent with Lockridge.

         Defendant presents an evidentiary challenge and a constitutional challenge in the context
of sentencing. And in People v Biddles, __ Mich App __, __; __ NW2d __ (2016); slip op at 4-
5, this Court examined a similar two-pronged assault on a sentence, articulating:




1
    This is a reference to United States v Crosby, 397 F3d 103 (CA 2, 2005).


                                                 -1-
               Each of defendant’s challenges has its own distinct remedy. With respect
       to the evidentiary challenge, if the trial court clearly erred in finding that a
       preponderance of the evidence supported one or more of the OVs or otherwise
       erred in applying the facts to the OVs, People v Hardy, 494 Mich 430, 438; 835
       NW2d 340 (2013), and if the scoring error resulted in an alteration of the
       minimum sentence range, he would be entitled to resentencing, People v
       Francisco, 474 Mich 82, 89; 711 NW2d 44 (2006). On the other hand, a Crosby
       remand[] under Lockridge is not the same remedy as remanding a case for
       resentencing. In Lockridge, 498 Mich at 398, our Supreme Court set forth the
       parameters of a Crosby remand, stating:

                “[O]n a Crosby remand, a trial court should first allow a defendant an
       opportunity to inform the court that he or she will not seek resentencing. If
       notification is not received in a timely manner, the court (1) should obtain the
       views of counsel in some form, (2) may but is not required to hold a hearing on
       the matter, and (3) need not have the defendant present when it decides whether to
       resentence the defendant, but (4) must have the defendant present, as required by
       law, if it decides to resentence the defendant. Further, in determining whether the
       court would have imposed a materially different sentence but for the
       unconstitutional constraint, the court should consider only the ‘circumstances
       existing at the time of the original sentence.’ ”

               Accordingly, a Crosby remand results in the possibility of resentencing,
       whereas, in the context of a successful evidentiary challenge, resentencing is
       actually ordered by the appellate court. Of course, post-Lockridge, any
       resentencing will have to be conducted pursuant to the principles enunciated in
       Lockridge, primarily the directive that the guidelines are now advisory only.
       Lockridge, 498 Mich at 365. When this Court is presented with an evidentiary and
       a constitutional challenge regarding the scoring of the guidelines, the evidentiary
       challenge must initially be entertained, because if it has merit and requires
       resentencing, the constitutional or Lockridge challenge becomes moot, as a
       defendant will receive the protections of Lockridge on resentencing. And if an
       evidentiary challenge does not succeed, then and only then should we entertain
       the constitutional challenge. [Emphasis and latter alteration in original.]

        Thus, we first address defendant’s argument that the trial court improperly assessed 25
points for OV 13. We hold that the court did not clearly err in finding that a preponderance of
the evidence supported the 25-point assessment for OV 13.

        Twenty-five points must be assessed for OV 13 when the sentencing “offense was part of
a pattern of felonious criminal activity involving 3 or more crimes against a person.” MCL
777.43(1)(c). And MCL 777.43(2)(a) provides that in assessing points for OV 13, “all crimes
within a 5-year period, including the sentencing offense, shall be counted regardless of whether
the offense resulted in a conviction.” Here, the sentencing or scored offense was first-degree
home invasion, which constitutes a felony and a crime against a person, MCL 750.110a(5); MCL
777.16f, as do AWIGBH, MCL 750.84(1)(a); MCL 777.16d, and felonious assault, MCL
750.82(1); MCL 777.16d. Within the 5-year period alluded to in MCL 777.43(2)(a), defendant

                                               -2-
also had a conviction for the felony of domestic violence, third offense, MCL 750.81(5), which
is a crime against a person, MCL 777.16d. The victim of each of the three current felonies was
defendant’s former girlfriend. Defendant contends that these three convictions can only be
counted as one felonious criminal act for purposes of scoring OV 13, along with the domestic
violence conviction, given that the home invasion, AWIGBH, and felonious assault offenses
occurred contemporaneously, involving the same and only one victim.

      In People v Gibbs, 299 Mich App 473, 487; 830 NW2d 821 (2013), this Court addressed
OV 13 and stated:

               Gibbs was convicted of two counts of armed robbery and one count of
       unarmed robbery, which are all classified under the sentencing guidelines as
       crimes against a person. MCL 777.16y. Gibbs argues that his convictions arose
       out of one incident and that he could not have 25 points assessed. However, there
       is nothing in the language of MCL 777.43(1)(c) to support Gibbs's argument that
       multiple convictions arising from the same incident cannot be considered for
       scoring OV 13. In People v Harmon, 248 Mich App 522; 640 NW2d 314 (2001),
       the defendant was convicted of four counts of making child sexually abusive
       material. He photographed two 15–year–old girls. There were four photos in all—
       two of each girl, taken on a single date. Id. at 524-526. We held that 25 points
       were properly assessed under OV 13 because of the “defendant's four concurrent
       convictions . . . .” Id. at 532. Similarly, in this case, while the robberies arose out
       of a single criminal episode, Gibbs committed three separate acts against each of
       the three victims and these three distinct crimes constituted a pattern of criminal
       activity. Additionally, although some subsections of MCL 777.43 contain
       limitations on a trial court's ability to score for more than one instance arising out
       of the same criminal episode, subsection (1)(c) contains no such limitation.
       Accordingly, because multiple concurrent offenses arising from the same incident
       are properly used in scoring OV 13, the trial court did not err by assessing 25
       points for that variable. [Emphasis added; omission in original.]

       Gibbs and Harmon make clear that multiple concurrent offenses arising from the same
incident or from a single criminal episode are to be counted in scoring OV 13, and Harmon
undermines defendant’s sole- or same-victim theory, where this Court determined that there were
four concurrent convictions assessable under OV 13, even though there were only two victims.
Nothing in the plain language of MCL 777.43 suggests that the felonious criminal activity
involving three or more crimes must pertain to different victims if arising from a single criminal
episode. Defendant is perhaps arguing that where two or more criminal offenses arise from the
same specific conduct, e.g., stealing a car at gunpoint giving rise to the offenses of armed
robbery and carjacking, only one crime can be counted when scoring OV 13. In our review of
the lower court record, it is never made clear whether the AWIGBH and felonious assault




                                                -3-
offenses were based on the same specific conduct or different conduct.2 Indeed, there was
evidence that defendant initially swung a knife at the victim’s head, missing her and driving the
knife into a bedroom wall, followed by the interjection of a roommate’s boyfriend into the fray,
fighting between him and defendant, with them tumbling down some stairs, and then defendant
cutting the victim’s arm with the knife as he was pushed out of the living room and the house by
the roommate’s boyfriend. The trial court clearly found that the crime of AWIGBH had been
committed during the initial stabbing effort in the victim’s bedroom. But we cannot decipher
whether the court relied on that same conduct to support the felonious assault conviction or
relied on the subsequent conduct when the victim was actually cut, or both instances.
Nevertheless, assuming for the sake of argument that the AWIGBH and felonious assault
offenses could not be considered as two felonious criminal acts, but just a single act, the offense
of home invasion was certainly a distinct crime, which, when considered in conjunction with a
single assault and the previous domestic violence conviction, provide the requisite three
felonious criminal acts for assessing 25 points under OV 13. Resentencing is unwarranted.3

      Because defendant is not entitled to resentencing relative to his evidentiary challenge of
OV 13, we must entertain defendant’s constitutional argument under Lockridge, wherein our
Supreme Court ruled:

               Because Michigan's sentencing guidelines scheme allows judges to find by
       a preponderance of the evidence facts that are then used to compel an increase in
       the mandatory minimum punishment a defendant receives, it violates the Sixth
       Amendment to the United States Constitution . . . . To remedy the constitutional
       flaw in the guidelines, we hold that they are advisory only.

               To make a threshold showing of plain error that could require
       resentencing,[4] a defendant must demonstrate that his or her OV level was
       calculated using facts beyond those found by the jury or admitted by the
       defendant and that a corresponding reduction in the defendant's OV score to
       account for the error would change the applicable guidelines minimum sentence
       range. If a defendant makes that threshold showing and was not sentenced to an
       upward departure sentence, he or she is entitled to a [Crosby] remand [to] the trial
       court for that court to determine whether plain error occurred, i.e., whether the


2
  We note that convictions for both AWIGBH and felonious assault arising out of the same
conduct do not violate double jeopardy protections because the offenses have different elements.
People v Strickland, 293 Mich App 393, 401-402; 810 NW2d 660 (2011).
3
  Given our ruling, defendant’s accompanying ineffective assistance claim necessarily fails, as
counsel is not required to make futile or meritless objections. People v Moorer, 262 Mich App
64, 76; 683 NW2d 736 (2004).
4
  We note that defendant did raise the Lockridge issue in a motion to remand; however, even
with proper preservation, this Court has determined that the analysis in Lockridge applies equally
to cases involving preserved claims of error. People v Stokes, 312 Mich App 181, 200; 877
NW2d 752 (2013).


                                                -4-
       court would have imposed the same sentence absent the unconstitutional
       constraint on its discretion. If the trial court determines that it would not have
       imposed the same sentence but for the constraint, it must resentence the
       defendant. [Lockridge, 498 Mich at 399.]

        Defendant maintains that the trial court engaged in constitutionally-impermissible
judicial fact-finding with respect to OV 12, MCL 777.42 (contemporaneous felonious criminal
acts), OV 13, and OV 19, MCL 777.49 (interference with the administration of justice) and that,
absent the scoring of those variables, the guidelines minimum sentence range would be lowered.
The prosecution agrees and joins defendant in asserting that defendant is entitled to a Crosby
remand under Lockridge. The facts underlying the scores for OVs 12 (ten points) and 19 (ten
points) were plainly not encompassed by the jury’s verdict or an admission by defendant. And
when those 20 points are subtracted from defendant’s total OV score, he moves from OV level
VI down to OV level V on the applicable class B grid. MCL 777.63. Accordingly, defendant is
entitled to a Crosby remand under Lockridge, without the need for us to explore the impact of
OV 13 on the analysis. As a final point, we note that the lower court record in our possession
lacks a sentencing information report (the one-page scored guidelines) that reflects the alterations
made by the trial court at sentencing, i.e., reducing the score for OV 3 from ten to five points and
reducing the score for OV 4 from ten points to zero points. As part of the Crosby remand, we
direct the trial court to make the necessary corrections to the document.

        We affirm defendant’s unchallenged convictions and the assessment of 25 points for OV
13, but remand the case for purposes of a Crosby proceeding consistent with Lockridge. We do
not retain jurisdiction.



                                                             /s/ Kathleen Jansen
                                                             /s/ William B. Murphy
                                                             /s/ Michael J. Riordan




                                                -5-
