                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     December 3, 2015
                Plaintiff-Appellee,

v                                                                    No. 323012
                                                                     Oakland Circuit Court
CASIMIR ALEXANDER MAGIC,                                             LC No. 2014-249796-FH

                Defendant-Appellant.


Before: SERVITTO, P.J., and WILDER and BOONSTRA, JJ.

BOONSTRA, J. (concurring).

       I fully concur in the majority opinion. I write separately to offer additional rationale for
affirming defendant’s sentence in this case.

         Were we to consider the judicial fact-finding issue raised by defendant by way of
Supplemental Authority (but not raised in defendant’s brief on appeal), I would find that a
remand under People v Lockridge, ___ Mich ___; ___ NW2d ___ (2015) (Docket No. 149073),
is not required in this case.

        Whether defendant is entitled to a Crosby1 hearing on remand under Lockridge depends
on whether defendant can satisfy the plain-error standard of People v Carines, 460 Mich 750,
763-764; 597 NW2d 130 (1999), reh den 461 Mich 1205 (1999). Lockridge, slip op at 30.
Defendant is entitled to a Crosby hearing only if he can show that the “facts admitted by a
defendant or found by a jury verdict were insufficient to assess the minimum number of OV
points necessary for the defendant’s score to fall in the cell of the sentencing grid under which he
or she was sentenced.” Lockridge, slip op at 32-33 (italics in original). In other words, “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 remand to the trial court for further inquiry.” Lockridge, slip op at 33. Under the
circumstances of this case, I would find that defendant has not established plain error and, thus,
has not demonstrated an entitlement to a remand for a Crosby hearing.



1
    United States v Crosby, 397 F3d 103 (CA 2, 2005).


                                                -1-
        Defendant argues that his “minimum sentence was determined based, in part, on a
judicial finding of 5 points on OV 13.” In Lockridge, our Supreme Court held that in order to
avoid any Sixth Amendment violation, Michigan’s sentencing guidelines scheme must be
deemed advisory, instead of mandatory. Lockridge, ___ Mich at ___; slip op at 28. The concern
is that when a judge makes findings of fact “beyond facts admitted by the defendant or found by
the jury” in a sentencing proceeding that increases a defendant’s minimum sentence, this runs
afoul of a defendant’s right to a jury trial. Id. at ___; slip op at 1. In the context of addressing
the application of its decision to other cases, the Supreme Court stated that if the facts “admitted
by a defendant or found by the jury verdict were insufficient to assess the minimum number of
OV points necessary for the defendant’s score to fall in the cell of the sentencing grid under
which he or she was sentenced[,] . . . an unconstitutional restraint [will have] actually impaired
the defendant’s Sixth Amendment right.” Id. at ___; slip op at 32. In such a case, the defendant
will have “establish[ed] a threshold showing of the potential for plain error sufficient to warrant
a remand to the trial court for further inquiry.” Id. at ___; slip op at 32-33. If the facts admitted
by the defendant and the facts necessarily found by the jury “were sufficient to assess the
minimum number of OV points necessary for the defendant’s score to fall in the cell of the
sentencing grid under which he or she was sentenced,” defendant cannot establish any plain
error. Id. at ___; slip op at 32.

         OV 13 considers the “continuing pattern of criminal behavior.” MCL 777.43. A score of
five points is appropriate when “the offense was part of a pattern of felonious criminal activity
involving three or more crimes against property.” MCL 777.43(1)(f). All crimes within a five-
year period, including the sentencing offense, must be counted, regardless of whether the offense
resulted in a conviction. MCL 777.43(2)(a). Defendant did not object to the scoring of OV 13 in
the trial court, and has not provided the presentence information report. However, after the jury
rendered its verdict, the trial court gave the defense the option to address the habitual offender,
fourth offense, notice. The following exchange then occurred:

               Defense counsel: Mr. Magic, you know that you’ve been charged with
       habitual fleeing, that you have three prior felonies. You can—you’re not entitled
       to a jury trial on that. You can plead to it or the Court can find it through various
       means at the time of sentence or sometime prior to that. What do you want to do?

               Defendant: Well I could plead out to it.

               Defense counsel: All right.

               The court: Okay. If you could please stand . . .

                                                  * * *

              Okay. You understand that you’re pleading to the Notice of Intent to Seek
       Sentence Enhancement for fourth or subsequent offense and based upon that you
       could receive up to fifteen years of incarceration?

               Defendant: Yes.

                                                  * * *

                                                -2-
               The court: Is it your own choice to plead to the Notice of Intent?

               Defendant: Yes.

               The court: Is it true that you have been convicted of breaking and entering
       a building with intent to commit larceny and sentenced on or about December 6th,
       2007 in Oakland County Circuit Court of larceny in a building and sentenced on
       or about August 6th, 2012 in Oakland County Circuit Court and a breaking and
       entering a building with intent to commit larceny and sentenced on or about
       August 6th, 2012 in Oakland County Circuit Court?

               Defendant: Yes.

       Given defendant’s testimony that he was convicted of two crimes against property in
2012, plus the sentencing offense in this case, the trial court’s score for OV 13 was not based on
“judge-found facts,” but on facts admitted by defendant and found by the jury. Therefore,
defendant cannot establish any plain error. Lockridge, ___ Mich at ___; slip op at 32.



                                                            /s/ Mark T. Boonstra




                                               -3-
