
    PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Freddie Lee NELSON, Defendant-Appellant.
    SC: 156272 COA: 336861
    Supreme Court of Michigan.
    July 27, 2018
    Order
   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, 711 N.W.2d 44 (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 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, 870 N.W.2d 502 (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, 873 N.W.2d 304 (2016).  