                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    October 13, 2016
              Plaintiff-Appellee,

v                                                                   No. 327775
                                                                    Marquette Circuit Court
ROY WOODROW DELARYE, JR.,                                           LC No. 14-052869-FC

              Defendant-Appellant.


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

PER CURIAM.

       Defendant pleaded guilty to second-degree criminal sexual conduct, MCL 750.520c(1)(a)
(victim under 13 years of age), for which he was sentenced to 71 months to 15 years’
imprisonment, along with third-degree criminal sexual conduct, MCL 750.520d(1)(a) (victim 13
to 15 years of age), for which he was sentenced to 10 to 15 years’ imprisonment. Defendant
appeals by leave granted, solely raising sentencing issues. We affirm defendant’s plea-based
convictions as they are unchallenged, but vacate defendant’s sentences and remand for
resentencing.

         Defendant first argues that prior record variable (PRV) 5, MCL 777.55, was improperly
assessed at 15 points for five prior misdemeanor convictions, MCL 777.55(1)(b), when he only
had four prior misdemeanor convictions, allowing for an assessment of not more than 10 points
for PRV 5, MCL 777.55(1)(c), which lowers the guidelines minimum sentence range. Defendant
contends that a 1998 charged misdemeanor of second-degree retail fraud to which he pleaded
guilty was later dismissed pursuant to a nolle prosequi entered under the delayed-sentencing
statute, MCL 771.1, and thus cannot be considered for purposes of PRV 5. Defendant accurately
maintains that alteration of the guidelines range generally necessitates resentencing. People v
Francisco, 474 Mich 82, 89; 711 NW2d 44 (2006).

        In People v Hardy, 494 Mich 430, 438; 835 NW2d 340 (2013), our Supreme Court
recited the standards of review governing sentencing, observing:

              Under the sentencing guidelines, the circuit court's factual determinations
       are reviewed for clear error and must be supported by a preponderance of the
       evidence. Whether the facts, as found, are adequate to satisfy the scoring
       conditions prescribed by statute, i.e., the application of the facts to the law, is a


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       question of statutory interpretation, which an appellate court reviews de novo.
       [Citations omitted.]

        PRV 5 concerns “prior misdemeanor convictions or prior misdemeanor juvenile
adjudications,” MCL 777.55(1), and the instant dispute regards a misdemeanor charged against
defendant when he was an adult. The full extent of the available information with respect to the
misdemeanor comes from the presentence investigation report (PSIR). The PSIR indicates that
defendant was arrested for second-degree retail fraud on February 22, 1998, that he pleaded
guilty to the offense on an unknown date, that he was given a six-month delayed sentence under
MCL 771.1 on February 27, 1998, and that a nolle prosequi was entered on August 27, 1998,
with the “case [being] dismissed.” There is nothing in the record to enlighten us regarding the
specific circumstances of the plea, e.g., whether it was conditional and induced by a promise of
dismissal if defendant behaved appropriately for the six-month period.

       PRV 5 defines a “prior misdemeanor conviction” as “a conviction for a misdemeanor
under a law of this state, a political subdivision of this state, another state, a political subdivision
of another state, or the United States if the conviction was entered before the sentencing offense
was committed.” MCL 777.55(3)(a). And the definitional section for the PRVs in general
provides that a “conviction” includes “[a]ssignment to youthful trainee status” under MCL
762.11 to MCL 762.15, as well as “[a] conviction set aside under . . . MCL 780.621 to 780.624”
(expungement statutes). MCL 777.50(4)(a)(i) and (ii). “The Michigan Sentencing Guidelines
Manual . . . defines ‘conviction’ as ‘an adjudication of guilt in a criminal matter.’ ” People v
James, 267 Mich App 675, 679; 705 NW2d 724 (2005).

       We hold that there is simply no prior misdemeanor conviction to score with respect to the
1998 retail fraud charge and PRV 5. MCL 771.1 provides, in pertinent part, as follows:

               (1) In all prosecutions for felonies, misdemeanors, or ordinance violations
       other than murder, treason, criminal sexual conduct in the first or third degree,
       armed robbery, or major controlled substance offenses, if the defendant has been
       found guilty upon verdict or plea and the court determines that the defendant is
       not likely again to engage in an offensive or criminal course of conduct and that
       the public good does not require that the defendant suffer the penalty imposed by
       law, the court may place the defendant on probation under the charge and
       supervision of a probation officer.

               (2) In an action in which the court may place the defendant on probation,
       the court may delay sentencing the defendant for not more than 1 year to give the
       defendant an opportunity to prove to the court his or her eligibility for probation
       or other leniency compatible with the ends of justice and the defendant's
       rehabilitation, such as participation in a drug treatment court under chapter 10A of
       the revised judicature act of 1961, 1961 PA 236, MCL 600.1060 to 600.1082.
       When sentencing is delayed, the court shall enter an order stating the reason for
       the delay upon the court's records. The delay in passing sentence does not deprive
       the court of jurisdiction to sentence the defendant at any time during the period of
       delay. [Emphasis added.]


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        With respect to the 1998 retail fraud charge and defendant’s plea to the charge, defendant
evidently comported his behavior to that required by the sentencing court during the six-month
delayed sentencing period, resulting in entry of a nolle prosequi. “A prosecuting attorney shall
not enter a nolle prosequi upon an indictment, or discontinue or abandon the indictment, without
stating on the record the reasons for the discontinuance or abandonment and without the leave of
the court having jurisdiction to try the offense charged, entered in its minutes.” MCL 767.29.
Accordingly, we must assume, reasonably so, that the sentencing court signed off on the nolle
prosequi. “In Michigan, a trial court approval is the sine qua non of the decision to nolle
prosequi.” People v Reagan, 395 Mich 306, 317; 235 NW2d 581 (1975). And “[n]ormally a
nolle prosequi is a dismissal without prejudice[.]” Id. Nolle prosequi is a formal entry on the
record by a prosecutor in a criminal action that he or she will no longer prosecute the charge(s).
People v McCartney, 72 Mich App 580, 585; 250 NW2d 135 (1976).

        Regardless of the plea to second-degree retail fraud and its true dimensions, there
ultimately and effectively was no “conviction for a misdemeanor under a law of this state[.]”
MCL 777.55(3)(a). And the circumstances surrounding the retail fraud charge, the plea, and the
nolle prosequi did not entail expungement of a conviction or youthful trainee status. See MCL
777.50(4)(a)(i) and (ii). Therefore, the trial court erred in assessing 15 points for PRV 5, as
defendant only had four prior misdemeanor convictions. The proper score for PRV 5 is 10
points, MCL 777.55(1)(c), and because the error alters the guidelines range, resentencing is
necessary, Francisco, 474 Mich at 89.

       In supplemental authority, but not a supplemental brief, defendant raises an argument
under People v Lockridge, 498 Mich 358; 870 NW2d 502 (2015), claiming that the trial court
engaged in unconstitutional judicial fact-finding at sentencing with respect to the offense
variables. This issue was not presented in defendant’s application for leave to appeal, nor in his
appellate brief. Regardless, because we are remanding the case for resentencing in regard to the
PRV scoring error, defendant will be afforded the full protection of Lockridge on remand. See
People v Biddles, __ Mich App __, __; __ NW2d __ (2016); slip op at 5.

        Next, defendant argues that the trial court failed to consider a variety of mitigating factors
when sentencing defendant. As to the court’s alleged failure to consider mitigating factors and
the actual existence of some of the claimed mitigating factors, such as an asserted “long and
extensive substance abuse history and . . . a serious mental health history,” the record simply
does not support these arguments. We note that appellate counsel has made nearly identical
assertions in a great number of the appeals that he has filed in this Court, effectively utilizing
boilerplate language regardless of the actual facts of a given case relative to sentencing.
Defendant’s argument is rejected, and again, there will be resentencing, where he can voice any
grievances about mitigating factors.

         Finally, defendant argues that the trial court erred in sentencing him on the basis of
inaccurate information in the PSIR, given that a statement made by the investigating agent in the
PSIR was not supported by the record, and that trial counsel was ineffective in failing to raise the
issue at sentencing. Given that we are remanding the case for resentencing, defendant can raise
this issue, if he wishes, during resentencing, thereby allowing the trial court to rule on the matter
in the first instance.


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       Affirmed with respect to defendant’s convictions, vacated in regard to defendant’s
sentences, and remanded for purposes of resentencing. We do not retain jurisdiction.



                                                      /s/ Jane E. Markey
                                                      /s/ William B. Murphy
                                                      /s/ Amy Ronayne Krause




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