People of Michigan v. Freddie Lee Nelson , 914 N.W.2d 917 ( 2018 )

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
2
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