STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     December 20, 2016
               Plaintiff-Appellee,

v                                                                    No. 328717
                                                                     Wayne Circuit Court
MAURICE WILLIAMS,                                                    LC No. 11-004382-01-FC

               Defendant-Appellant.


Before: K. F. KELLY, P.J., and GLEICHER and SHAPIRO, JJ.

PER CURIAM.

        A jury convicted Maurice Williams of armed robbery, MCL 750.529, for the early
morning mugging of an employee at Eastern Market. The trial court originally sentenced
Williams as a fourth habitual offender to life imprisonment, an upward departure from the
sentencing range. In a prior appeal, this Court remanded for resentencing because the trial court
failed to state substantial and compelling reasons to support this sentence and improperly
sentenced Williams as a fourth, rather than second, habitual offender. People v Williams,
unpublished opinion per curiam of the Court of Appeals, issued January 16, 2014 (Docket No.
306499). On remand, the trial court resentenced Williams as a second habitual offender to a
within-guideline sentence. Unfortunately, the resentencing occurred one month before the sea
change in Michigan’s sentencing scheme triggered by People v Lockridge, 498 Mich. 358; 870
NW2d 502 (2015), and the trial court relied on judicially found facts in imposing sentence.
Moreover, the court erroneously listed Williams as a fourth habitual offender on the judgment of
sentence. Accordingly, we remand for further sentencing procedures and for the ministerial
correction of the judgment.

                                 I. JUDICIAL FACT-FINDING

         At resentencing, the trial court scored five points for offense variable (OV) 2. Pursuant
to MCL 777.32(1)(d), a court must score five points if an offender “possessed or used a pistol,
rifle, shotgun, or knife or other cutting or stabbing weapon.” The prosecution charged Williams
of felon in possession of a firearm and felony-firearm, but the jury acquitted him of those
offenses. Although the jury convicted Williams of armed robbery, actual possession of a real
weapon, let alone “a pistol, rifle, shotgun, or knife or other cutting or stabbing weapon,” is not a
necessary element of that offense. See MCL 750.529 (providing that armed robbery occurs even
when the defendant possesses “an article used or fashioned in a manner to lead any person

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present to reasonably believe the article is a dangerous weapon, or who represents orally or
otherwise that he or she is in possession of a dangerous weapon”). The trial evidence supported
that Williams either actually possessed a handgun or feigned possession. The jury believed he
did not actually possess this weapon. Accordingly, any score under OV 2 had to be based on
judicially found facts.

        The trial court scored 10 points for OV 19, reflecting that “[t]he offender otherwise
interfered with or attempted to interfere with the administration of justice.” MCL 777.49(c). It
appears that Williams conceded that refused to give police his name, potentially supporting this
score. However, Williams also contended that his decision not to cooperate was legally justified,
and therefore not an interference with the administration of justice because the police were acting
unlawfully. As such, the court was also required to find the facts necessary to impose a 10-point
score for OV 19.

        In Lockridge, 498 Mich. at 364, our Supreme Court held Michigan’s sentencing
guidelines unconstitutional to the extent they require judicial fact-finding beyond facts admitted
by the defendant or found by the jury to score offense variables that mandatorily increase the
floor of the guidelines minimum sentence range. To avoid any Sixth Amendment violation, the
Court rendered the guidelines advisory only. Id. at 391. Courts must still score the sentencing
variables and assess “the highest number of points possible . . . whether using judge-found facts
or not.” Id. at 392 and n 28. When a defendant establishes that the court relied on judicially
found facts in calculating his or her sentence (under the assumption that the legislative guidelines
were mandatory), we must determine whether the elimination of those scores would alter the
now-advisory sentencing guidelines range. Id. at 394. If the guidelines range is altered, we
must remand to the trial court for a Crosby proceeding1 to determine whether the court would
have imposed a materially different sentence had it been aware the guidelines were advisory. Id.
at 395-397. If the court determines that it would have imposed a materially different sentence,
and the defendant chooses to pursue resentencing, the court must reconsider its sentencing
decision. Id.

       In scoring Williams’s guidelines, the trial court assessed 65 total prior record variable
(PRV) points and 25 OV points, placing Williams in PRV Level E and OV Level II for a class A
offense. MCL 777.62. Less the 15 points assessed for OVs 2 and 19, Williams’s total OV score
of 10 would place him in OV Level I. As judicially found facts increased Williams’s OV level,
we must remand for further proceedings consistent with Lockridge and Crosby.2




1
    United States v Crosby, 397 F3d 103, 117-118 (CA 2, 2005).
2
  If Williams elects to be resentenced on remand, the trial court may again base its scoring
decisions on judicially found facts with the understanding that the sentencing guidelines are
advisory only.


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                                             II. OV 19

        Williams contends that on remand, the trial court should be precluded from assessing any
points for OV 19. In this vein, he reiterates his claim made at resentencing that he acted within
his legal rights in the face of an unlawful arrest and his conduct cannot be counted against him at
the sentencing phase. See People v Moreno, 491 Mich. 38, 44-57; 814 NW2d 624 (2012).

         According to a testifying officer, the victim reported that he heard another man call his
robber “Snap.” Officers questioned “several anonymous citizens” in the area regarding whether
they knew an individual by that name. Someone advised that Snap could be “located in the
house, 2281 Hale,” one street south of the robbery situs. Officers arrived, knocked on the door,
and asked the individual who answered for permission to enter, which was granted. Williams
was inside the house and matched the description of “Snap” given by the victim. The officer
testified that Williams initially gave him a false name, but then admitted his real identity and his
street name. The officer placed Williams under arrest when a LEIN search revealed outstanding
warrants.

        The court was not asked before or during trial to consider the legality of the search or
arrest. Williams never filed a motion to suppress or offered any evidence to contradict the
officer’s testimony that an occupant answered the door and consented to entry by the police.
Law enforcement officers are permitted to seek consent to enter a home and even to conduct a
search within. See People v Frederick, 313 Mich. App. 457, 473; 886 NW2d 1 (2015).
Accordingly, if the officer’s testimony is believed, Williams’s arrest was legal. If the court
believes the officer that Williams gave a false name, a 10-point score would be supportable. See
People v Barbee, 470 Mich. 283, 288; 681 NW2d 348 (2004). We therefore cannot preclude the
court from scoring OV 19 on remand.

                   III. CORRECTION OF THE JUDGMENT OF SENTENCE

        Finally, Williams notes that even though the trial court sentenced him as a second
habitual offender at resentencing, the judgment of sentence continues to improperly identify him
as a fourth habitual offender. Accordingly, we remand for the ministerial task of correcting the
judgment of sentence in this regard. See MCR 6.435(A).

       We remand for further sentencing procedures pursuant to Lockridge and for correction of
the judgment of sentence. We do not retain jurisdiction.



                                                             /s/ Kirsten Frank Kelly
                                                             /s/ Elizabeth L. Gleicher
                                                             /s/ Douglas B. Shapiro




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