People v. Aldridge

1

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. DARIN REY ALDRIDGE, Defendant-Appellant.

No. 349082

Court of Appeals of Michigan

December 16, 2021

UNPUBLISHED

St Clair Circuit Court LC No. 18-002783-FH

Before: Beckering, P.J., and Jansen and Shapiro, JJ.

ON REMAND

Per Curiam.

This appeal arises from defendant Darin Rey Aldridge's guilty plea convictions for malicious destruction of a building valued at $1, 000 or more but less than $20, 000, MCL 750.380(3)(a), and third-offense attempted domestic violence MCL 750.81(5). The trial court sentenced defendant, as a third-offense habitual offender, MCL 769.11, to concurrent terms of 4 to 10 years' imprisonment for the malicious destruction of a building conviction, and 40 months to 5 years' imprisonment for the third-offense attempted domestic violence conviction.

Defendant's appellate counsel filed a delayed application for leave to appeal defendant's sentences, raising an issue regarding the scoring of Offense Variable (OV) 13. This Court granted the delayed application, indicating in our order that the appeal was "limited to the issues raised in the application and supporting brief."^[1] Appellate counsel briefed the OV 13 issue. Defendant later filed his own brief ^[2] challenging the scoring of OV 9, OV 10, OV 12, OV 13, and OV 19, and raising an ineffective assistance argument based on his trial counsel's failure to object to the scoring of OV 9, OV 10, and OV 12.^[3] The majority opinion of this Court limited its analysis to OV 13 and concluded that it was properly scored at 25 points because defendant engaged in a pattern of criminal activity involving three crimes against a person within a five-year period.^[4] The concurring opinion agreed with the majority's analysis of OV 13, but chose to address defendant's additional arguments; it ultimately came to the same guidelines range conclusion as the majority opinion. Aldridge, unpub op at 1 (Shapiro, J., concurring).^[5]

Defendant filed an application for leave to appeal with our Supreme Court. In lieu of filing an answer, the prosecution filed a motion to remand to the trial court for resentencing.^[6] On October 29, 2021, the Supreme Court vacated the judgment of this Court, stating, in pertinent part:

In upholding the trial court's scoring of Offense Variable (OV) 13 at 25 points, the Court of Appeals failed to consider this Court's order in People v Nelson, 491 Mich. 869 (2012). In addition, the defendant challenged his OV 19 score in the trial court and in his Standard 4 brief in the Court of Appeals. The Court of Appeals did not consider this argument, but concurring Judge Shapiro concluded OV 19 was improperly scored. If successful on his challenges to OV 13 and OV 19, the defendant's sentencing guidelines range would change, entitling him to resentencing. People v Francisco, 474 Mich. 82, 87 (2006). Therefore, pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we VACATE the judgment of the Court of Appeals and REMAND this case to the Court of Appeals for reconsideration of the defendant's challenge to OV 13 in light of Nelson and for consideration of the issues raised in the defendant's Standard 4 brief. [Aldridge, 965 N.W.2d at 507 (Mem).]

For the reasons explained in this opinion, we conclude that OV 13 and OV 19 were improperly scored, and there is currently insufficient evidence to support the score for OV 12. Our conclusions entitle defendant to a remand for resentencing.

I. BASIC FACTS

Defendant's convictions arise from an incident that occurred in the home that defendant shared with his girlfriend, DP, and her daughter, AB. Defendant, who had been drinking, became enraged after DP refused his request for her car keys. He started grabbing furniture and throwing it out of various windows in the home, causing $1, 300 in damages. Specifically, defendant threw a coffee table through a large window in the living room, a printer through a kitchen window, and multiple chairs through a sliding glass door in the kitchen. AB became fearful and called the police. Before the police arrived, AB's boyfriend SO arrived. SO attempted to calm defendant and offered to give him a ride. At some point, defendant stated that "he was going to pummel everyone" and "that when police arrived, he was going to go after them with a knife and get shot, committing suicide by cop." Defendant then left the home before the police arrived. He was located by the electronic tether device that he was wearing and apprehended a short time later.

Defendant pleaded guilty to the previously referenced counts. In exchange for his guilty plea, the prosecution agreed to reduce defendant's status from a fourth-offense habitual offender to a third-offense habitual offender. The prosecution also agreed to not proceed with an additional charge of witness interference. Defendant was sentenced as mentioned earlier in this opinion. This case is again before us following a remand from the Supreme Court.

II. ANALYSIS

A. SENTENCING

1. OV 13

We first address defendant's challenge to the 25-point score for OV 13. Because the sentencing offense, malicious destruction of a building, was not a crime against a person OV 13 was improperly scored.

This Court reviews de novo issues involving the interpretation and application of the legislative sentencing guidelines. People v Reynolds, 334 Mich.App. 205, 208; 964 N.W.2d 127 (2020), aff'd in part and rev'd in part on other grounds by __ Mich. __; __N.W.2d __ (Issued December 7, 2021, Docket No. 162331). "The trial court's findings of fact are reviewed for clear error and must be supported by a preponderance of the evidence." People v McChester, 310 Mich.App. 354, 358; 873 N.W.2d 646 (2015). "When calculating the sentencing guidelines, a court may consider all record evidence, including the contents of a PSIR, plea admissions, and testimony presented at a preliminary examination." Id. "The question [w]hether 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 question of statutory interpretation, which an appellate court reviews de novo." Reynolds, 334 Mich.App. at 208 (quotation marks and citation omitted; alteration in original). This Court reviews unpreserved sentencing issues for plain error affecting substantial rights. People v Anderson, 322 Mich.App. 622, 634; 912 N.W.2d 607 (2018).

The Supreme Court directed this Court to reconsider whether OV 13 was properly scored in light of its order in Nelson, 419 Mich. at 869. In People v Nelson, unpublished per curiam opinion of the Court of Appeals, (issued July 19, 2011, Docket No. 296932), p 1, the defendant was convicted of possession with intent to deliver less than 50 grams of cocaine, MCL 333.7401(2)(a)(iv), and possessing a firearm when committing or attempting to commit a felony, MCL 750.227b. This Court upheld the scoring of OV 13 at 25 points on the basis of the defendant's "lengthy criminal history, including at least three crimes against a person in the five-year period preceding the sentencing offense." Id. at 2. In an opinion concurring in part and dissenting in part, Judge Shapiro stated:

As to OV 13, it is captioned "continuing pattern of criminal behavior" and was scored at 25 points based on a finding that "the offense was part of a pattern of felonious criminal activity involving 3 or more crimes against a person." MCL 777.43(1)(c). However, the crime for which defendant was charged and convicted was not a "crime against a person" under the guidelines, but rather a "crime involving a controlled substance." Thus, the crime for which he was convicted could not have been part of a pattern of crimes against persons. While there do not appear to be any published cases dealing precisely with this question, the language of the statute and the Supreme Court decision in People v Francisco, 474 Mich. 82; 711 N.W.2d 44 (2006) strongly suggest this view. In Francisco, the Court concluded that the relevant five year period to be considered under OV 13 must include the sentencing offense since "in order for the sentencing offense to constitute a part of the pattern it must be encompassed by the same five-year period as the other crimes constituting the pattern." Id. at 86-87. By the same logic, in order for the sentencing offense to be part of a pattern of crimes against persons, it must itself be a crime against a person. [Id. at 1-2 (Shapiro, J., concurring in part and dissenting in part).]

The Supreme Court reversed this Court's judgment regarding the scoring of OV 13 for the reasons stated in the dissenting opinion, and remanded to the trial court for resentencing. Nelson, 491 Mich. at 869.

Pursuant to the Supreme Court's order in Nelson, in order for the sentencing offense to be "part of a pattern" of crimes against persons for purposes of scoring OV 13 at 25 points under MCL 777.43(1)(a)^[7], it must itself be a crime against a person. In our initial ruling in this case, we counted three crimes against a person by using defendant's lesser crime class conviction of third-offense attempted domestic violence, MCL 750.81(5).^[8] However, defendant's third-offense attempted domestic violence conviction was not the sentencing offense in this case. "The sentencing offense is the crime of which the defendant has been convicted and for which he or she is being sentenced." People v McGraw 484 Mich. 120, 122 n 3; 771 N.W.2d 655 (2009). When a defendant is sentenced to concurrent sentences, a sentencing information report is only required to be prepared for the crime of the highest crime class. See People v Mack, 265 Mich.App. 122, 127-128; 695 N.W.2d 342 (2005); MCL 771.14(2)(e). See also People v Lopez, 305 Mich.App. 686, 691-692; 854...