                          STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     FOR PUBLICATION
                                                                     June 30, 2016
               Plaintiff-Appellee,

v                                                                    No. 326140
                                                                     Wayne Circuit Court
CLIFFORD LUCAS BIDDLES,                                              LC No. 14-005402-FC

               Defendant-Appellant.


Before: MURPHY, P.J., and CAVANAGH and RONAYNE KRAUSE, JJ.

RONAYNE KRAUSE, J. (concurring)

        I write separately because I respectfully do not understand the majority’s resolution of
defendant’s sentencing issue. In particular, in the specific context of an alleged violation of
People v Lockridge, 498 Mich 358; 870 NW2d 502 (2015), I do not understand the majority’s
construction of a framework for evaluating “evidentiary” as opposed to “constitutional”
challenges. I fully agree with the majority’s resolution of defendant’s challenge to the trial
court’s conduct. I likewise concur with the majority’s recitation of the basic facts of the case.

        Defendant contends that the trial court improperly scored offense variables (OVs) 1, 3, 4,
and 9 of his sentencing guidelines; respectively pursuant to MCL 777.31, MCL 777.33, MCL
777.34, and MCL 777.39. He further asserts that trial counsel was ineffective for failing to
object to the scoring of OV 1. Defendant argues that his scores lack the requisite evidentiary
support, and he presents that challenge as a Lockridge violation. We review issues of
constitutional law, such as whether the trial court engaged in judicial fact-finding, de novo.
People v Stokes, 312 Mich App 181, 192; ___ NW2d ___ (2015).

        In Lockridge, our Supreme Court held that Michigan’s mandatory sentencing guidelines
violate a defendant’s Sixth Amendment right to a jury trial to the extent that they require judicial
fact-finding beyond facts admitted by defendant or found by the jury beyond a reasonable doubt
and this judicial fact-finding increases the floor of defendant’s minimum sentence range.
Lockridge, 498 Mich at 364-65; Stokes, 312 Mich App at 193-194. Our Supreme Court has
seemingly held that judicial fact-finding is not impermissible per se, but rather impermissible in
the context of a mandatory minimum sentence range. This Court has reconciled certain
statements in Lockridge by determining that judges may score guidelines on the basis of facts
they found independent of the jury or defendant’s admissions on the theory that doing so
constitutes a departure, which now need only be justified as reasonable. Id. Our Supreme Court

                                                -1-
did not, however, abrogate the requirement that a trial court departing from the guidelines range
articulate its reasons for departure. See Lockridge, 498 Mich at 392. If the trial court’s improper
scoring of offense variables increased the floor of the guidelines minimum sentence range, the
guidelines range was unconstitutionally constrained by a violation of the Sixth Amendment.
Lockridge, 498 Mich at 399.

        The net effect as I understand it is that if (1) the trial court imposed a sentence on the
basis of sentencing guidelines scored on the basis of facts the trial court found independent of
necessary jury findings or the defendant’s admissions, and (2) it did so under the belief that the
sentence range was mandatory, and (3) the guidelines minimum sentence range cannot be
sustained on the basis of facts admitted by defendant or necessarily found by the jury, then the
defendant has “establish[ed] a threshold showing of the potential for plain error sufficient to
warrant a remand to the trial court for further inquiry.” Lockridge, 498 Mich at 395.
Conversely, the trial court may depart from the properly-scored guidelines range on the basis of
judicially-found facts, and any such departure will be reviewed for reasonableness. Lockridge,
498 Mich at 392.

        In People v Sours, __ Mich App __; __ NW2d __ (2016), the majority seemingly implies
that this Court distinguished between an evidentiary and a constitutional challenge under
Lockridge in addressing the defendant’s challenge to the trial court’s scoring of OV 19 pursuant
to MCL 777.49. I do not read Sours in the same way. In Sours, this Court noted that OV 19
requires either that the crime itself constitute some manner of interference with the
administration of justice or that the defendant engage in conduct that in some way seeks to evade
responsibility for illegal conduct. Sours, ___ Mich App at ___. The Court observed that the
defendant’s parole violation, for which he was not even apparently convicted in the proceeding
that culminated in the Sours appeal, was neither of those things; and he was arrested for the
actual sentencing offense, possession of methamphetamine, promptly upon its discovery, so he
had no opportunity to make any attempt to evade justice. Id. at ___. In other words, it was quite
simply impossible for there to have been any facts that could conceivably have supported scoring
OV 19.

        Here, there clearly are facts in the record that could support the OV scores given by the
trial court. For example, OV 3 should be scored at 100 points if “a person was killed,” MCL
777.33(1)(a), and indeed, a person was killed. At issue is whether, in context, those facts were
properly found. I conclude that the OV scores calculated by the trial court could not have been
based only on facts necessarily found by the jury or admitted by defendant, as I understand
Lockridge requires when the trial court imposes a mandatory sentence range based on those
scores. Defendant was convicted only of being a felon in possession of a firearm, so the jury was
only required to find beyond a reasonable doubt that defendant was armed with a weapon and
was ineligible to possess it. See MCL 750.224f; People v Perkins, 473 Mich 626, 629-631; 703
NW2d 448 (2005). Defendant stipulated only to the fact that he was ineligible to possess a
firearm at the time of the shooting. Each of the challenged OV scores requires a finding of at
least one fact that is neither directly nor indirectly mandated by the jury’s verdict or defendant’s
admission.

       The trial court scored OV 1 at 25 points, indicating that a “firearm was discharged at or
toward a human being or a victim was cut or stabbed with a knife or other cutting or stabbing

                                                -2-
weapon.” See MCL 777.31(1)(a). However, the jury’s verdict requires a finding that defendant
possessed a firearm, but not that defendant used that firearm. Accordingly, OV 1 should not
have been scored at 25 points. As noted, the trial court scored OV 3 at 100 points, indicating that
“a victim was killed,” MCL 777.33(1)(a). Although the trial court may consider other facts and
injuries for the purpose of a sentence departure, OV scores must be based on “‘the sentencing
offense alone.’” People v Mushatt, 486 Mich 934, 934; 782 NW2d 202 (2010), quoting People v
McGraw, 484 Mich 120, 133; 771 NW2d 655 (2009). Again, nothing in the jury’s verdict or
defendant’s admissions causally links possession of a firearm to any death, so OV 3 should not
have been scored at 100 points.

        Likewise, OV 4 was scored at 10 points, indicating “[s]erious psychological injury
requiring professional treatment occurred to a victim,” MCL 777.34(1)(a), and OV 9 was scored
at 10 points indicating, “2 to 9 victims who were placed in danger of physical injury or death, or
4 to 19 victims who were placed in danger of property loss,” MCL 777.39(1)(c). Again, the jury
did not necessarily find that any victim existed or that a victim suffered or was placed in danger
of injury. Accordingly, these OVs should also not have been scored at 10 points each.

        The trial court scored the guidelines for defendant’s conviction of felon in possession of a
firearm, which is a class E offense. MCL 777.16m. Defendant received a total OV score of 155
points, which combined with his 70 prior record variable points, placed him in the E-VI cell of
the applicable sentencing grid, for which the minimum sentence range is 22 to 76 months for a
fourth-offense habitual offender. MCL 777.66. The scores for OVs 1, 3, 4, and 9 increased
defendant’s total OV score from 10 points to 155 points, which in turn changed his placement
from OV Level II (10 - 24 points) to OV Level VI (75+ points), resulting in a higher guidelines
range. Because defendant was sentenced before our Supreme Court’s decision in Lockridge and
his placement in OV Level VI cannot be sustained on the basis of facts admitted by defendant or
necessarily found by the jury, defendant has “establish[ed] a threshold showing of the potential
for plain error sufficient to warrant a remand to the trial court for further inquiry.” Lockridge,
498 Mich at 395. Because I understand that all OV scores might be considered for some purpose
by the Department of Corrections, I disagree with the majority’s conclusion that it is unnecessary
to consider defendant’s challenges to all of them.

        My understanding of Lockridge is that because the trial court’s scoring of the offense
variables was based on judicially-found facts that increased the floor of the guidelines minimum
sentence range, defendant is entitled to the Crosby remand procedure outlined in Lockridge.
Stokes, 312 Mich App at 197-203; see Lockridge, 498 Mich at 395-399. On remand, the trial
court should allow the defendant an opportunity “‘to avoid resentencing by promptly notifying
the [trial] judge that resentencing will not be sought.’” Lockridge, 498 Mich at 398, quoting
Crosby, 397 F3d 103, 118 (2d Cir. 2005). If the defendant does not wish to avoid resentencing,
the court must determine if it “would have imposed a materially different sentence but for the
unconstitutional constraint [considering] only the ‘circumstances existing at the time of the
original sentence.’” Id., quoting Crosby, 397 F3d at 117. The trial court may properly consider
the judicially-found facts underlying its original scoring when determining if departure from the
properly scored guidelines range is appropriate. See id. at 391-392 (“[T]he sentencing court may
exercise its discretion to depart from that guidelines range without articulating substantial and
compelling reasons for doing so. A sentence that departs from the applicable guidelines range
will be reviewed by an appellate court for reasonableness.”). If the sentencing court decides to

                                                -3-
depart from the properly scored guidelines range, it must state on the record its reasons for
departure. MCL 769.34(3).

        To be clear, I do not in any way wish to suggest that I believe the majority’s reasoning is
irrational, fallacious, or wrong. I do not agree with it only because it does not make sense to me.
The majority’s assertion that I somehow claim that “defendant’s evidentiary challenge need not
be reached” appears equally to fail to understand my own reading of Lockridge and Sours. It is
my hope that further developments in the law will provide further guidance.

                                                            /s/ Amy Ronayne Krause




                                                -4-
