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People v. Howard

Court of Appeals of Michigan

February 27, 2018

JUSTIN DUANE HOWARD, Defendant-Appellant.

         Calhoun Circuit Court LC No. 2012-003518-FC

          Before: Cavanagh, P.J., and Hoekstra and Beckering, JJ.

          Per Curiam.

         Defendant, Justin Duane Howard, appeals as of right the circuit court's order stemming from a Crosby[1] remand, which was ordered because defendant's within-the-guidelines sentence was imposed prior to the Michigan Supreme Court's ruling in People v Lockridge, 498 Mich. 358, 870 N.W.2d 502 (2015).[2] Because the sentencing judge was no longer available at the time of the remand, a newly assigned judge reviewed defendant's case and ruled that he would not have imposed a materially different sentence. Therefore, he declined to resentence defendant. Defendant contends that the trial court failed to follow the proper procedure in a Crosby remand, and that because the sentencing judge was no longer available, he should either have received a full resentencing or at least an opportunity to appear before the court and be heard before the judge made his decision. We agree in part with defendant, and thus, we vacate the trial court's order and remand for further proceedings.


         Defendant's convictions arise out of an October 2012 incident in which defendant and another man broke into Pearlie Parker's home in Battle Creek, Michigan, stole money, and assaulted Parker with a firearm. A jury convicted defendant of armed robbery, MCL 750.529, first-degree home invasion, MCL 750.110a(2), and assault with a dangerous weapon, MCL 750.82. The trial court sentenced him as a habitual offender, second offense, MCL 769.10, to concurrent prison terms of 30 to 60 years for armed robbery, 10 to 30 years for first-degree home invasion, and three to six years for assault with a dangerous weapon.[3]

         In his initial appeal, defendant challenged his convictions on grounds that he was denied a speedy trial and that the trial court erred by denying his motion to suppress a witness identification. This Court affirmed his convictions in an unpublished per curiam opinion, [4] and defendant subsequently applied for leave to appeal in the Michigan Supreme Court. After our Supreme Court denied defendant's application, defendant moved for reconsideration, arguing in part that he was entitled to a Crosby remand and resentencing pursuant to Lockridge, 498 Mich. at 395-398. The Supreme Court vacated its prior order and, in lieu of granting leave, remanded defendant's case to the trial court "to determine whether the court would have imposed a materially different sentence under the sentencing procedure described in [Lockridge]." People v Howard, 500 Mich. 852; 884 N.W.2d 284 (Mem) (2016). The Supreme Court further instructed, "On remand, the trial court shall follow the procedure described in Part IV of [Lockridge]." Id.

         The original sentencing judge was unavailable to conduct the Crosby remand, having retired from the bench and subsequently passed away. The successor judge who replaced him on the bench had been the prosecutor in the instant case. She entered an order of disqualification and the case was assigned to a different judge. The newly assigned judge did not appoint an attorney to represent defendant for the Crosby remand or seek any input from defendant or defense counsel. In his order on remand, which he entered within days of being assigned the case, the judge noted that he had reviewed the presentence report, transcripts, and court file from defendant's case, as well as the Lockridge opinion, and determined that he would not impose a materially different sentence. Defendant, acting in propria persona, moved for reconsideration, arguing that he was denied his constitutional right to counsel and due process pursuant to Const 1963, art 1, § 20, and that the trial court erred by not obtaining the views of defense counsel before making his determination. The trial court denied defendant's motion for reconsideration, which led to this appeal as of right.


         Defendant first argues that the trial court erred by failing to comply with the required procedure for Crosby remands. We agree.

         The Lockridge Court provided the following instructions for a trial court conducting a Crosby remand:

[O]n a Crosby remand, a trial court should first allow a defendant an opportunity to inform the court that he or she will not seek resentencing. If notification is not received in a timely manner, the court (1) should obtain the views of counsel in some form, (2) may but is not required to hold a hearing on the matter, and (3) need not have the defendant present when it decides whether to resentence the defendant, but (4) must have the defendant present, as required by law, if it decides to resentence the defendant. [Lockridge, 498 Mich. at 398 (citation omitted).]

         Defendant contends that the trial court erred by not appointing and obtaining the views of defense counsel prior to determining whether resentencing was warranted. The prosecution does not dispute that trial courts must follow the steps outlined in Lockridge for Crosby remands, but restricts their applicability to situations in which a trial court determines that resentencing is warranted. In other words, once the trial court determines that it would have imposed a materially different sentence but for the mandatory nature of the sentencing guidelines, then the court should give the defendant an opportunity to decline resentencing and should seek the views of counsel. And if the trial court decides that resentencing is not warranted, none of the other steps are necessary.

         The prosecution cites no authority for this strained interpretation of the Lockridge Court's instructions. In our view, the procedure proposed by the prosecution contrasts with the Supreme Court's statement, "a trial court considering a case on a Crosby remand should first and foremost include an opportunity for a defendant to avoid resentencing by promptly notifying the [trial] judge that resentencing will not be sought." Lockridge, 498 Mich. at 398 (quotation marks and citation omitted; emphasis added).[5] It also ignores the Supreme Court's next statement that "[i]f the defendant does not so notify the court, it 'should obtain the views of counsel, at least in writing . . . in 'reaching its decision . . . whether to resentence.' " Id., quoting Crosby 397 F.3d at 120. Furthermore, having a trial court review the record and determine whether resentencing is warranted before providing a defendant the opportunity to avoid resentencing constitutes a waste of judicial resources in those cases where the defendant does not want to ...

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