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People v. Washington

Court of Appeals of Michigan

September 17, 2019

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant,
v.
GREGORY CARL WASHINGTON, Defendant-Appellee.

          Wayne Circuit Court LC No. 04-004270-01-FC

          Before: O'Brien, P.J., and Jansen and Stephens, JJ.

         ON REMAND

          PER CURIAM.

         Our Supreme Court, in lieu of granting leave to appeal, vacated this Court's prior judgment in People v. Washington, 321 Mich. App. 276; 908 N.W.2d 924 (2017), and remanded for "reconsideration in light of Luscombe v. Shedd's Food Prod Corp, 212 Mich. App. 537; 539 N.W.2d 210 (1995). People v. Washington, __Mich__, __; __N.W.2d__(2019) (Docket No. 156648). On remand, we reverse and remand for further proceedings.

         This Court previously articulated the relevant factual background as follows:

On November 10, 2004, defendant was convicted after a jury trial of second-degree murder, MCL 750.317, two counts of assault with intent to commit murder (AWIM), MCL 750.83, possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b, and felon in possession of a firearm (felon-in-possession), MCL 750.224f. On December 13, 2004, the trial court sentenced defendant, a second-offense habitual offender, MCL 769.10, to 40 to 60 years' imprisonment for the second-degree murder conviction, life imprisonment for each AWIM conviction, 2 years' imprisonment for the felony-firearm conviction, and 2 to 7½ years' imprisonment for the felon-in-possession conviction. The trial court's sentence for second-degree murder represented a 12-month upward departure from the applicable guidelines range.
On January 7, 2005, defendant appealed as of right his convictions and sentences on a number of grounds. Relevant here, defendant challenged the propriety of the trial court's upward departure from the sentencing guidelines range for second-degree murder without stating on the record "substantial and compelling reasons" for the departure as required under MCL 769.34(3).3 In a June 13, 2006 unpublished opinion, this Court affirmed defendant's convictions, but agreed that "the trial court did not satisfy MCL 769.34(3) when imposing a sentence outside the prescribed sentencing guidelines range." People v. Washington, unpublished per curiam opinion of the Court of Appeals, issued June 13, 2006 (Docket No. 260155), p 8. This Court remanded for resentencing, directing the trial court to reconsider the propriety of its sentence and articulate substantial and compelling reasons for any departure as required by MCL 769.34(3). Id. at 8-9.
Defendant's issues on appeal included ineffective assistance of trial counsel for failure to raise an insanity defense and failure to file a motion for a new trial based on the assertion that defendant's convictions were against the great weight of the evidence, violation of a sequestration order by the prosecution's witnesses, and prosecutorial misconduct.
On the date of defendant's sentencing, MCL 769.34(3) provided that "[a] court may depart from the appropriate sentence range established under the sentencing guidelines . . . if the court has a substantial and compelling reason for that departure and states on the record the reasons for departure." MCL 769.34(3) was later struck down in People v. Lockridge, 498 Mich. 358, 391-392; 870 N.W.2d 502 (2015), and the substantial and compelling reason requirement was replaced with a requirement that a departure be reasonable.
On August 8, 2006, defendant filed an application for leave to appeal in the Michigan Supreme Court. On October 4, 2006, while the application was still pending, the trial court resentenced defendant pursuant to this Court's June 13, 2006 opinion and remand, imposing identical sentences and offering a number of justifications for the departure. The Supreme Court denied defendant's application for leave to appeal on December 28, 2006. People v. Washington, 477 Mich. 973 (2006).
On December 4, 2006, about three weeks before the Supreme Court denied defendant's initial application, defendant filed in this Court a delayed application for leave to appeal the resentencing order, again arguing that the trial court failed to articulate on the record the required "substantial and compelling reasons" for the upward departure from defendant's sentencing guidelines for second-degree murder. This Court denied defendant's application "for lack of merit." People v. Washington, unpublished order of the Court of Appeals, entered May 4, 2007 (Docket No. 274768). Defendant filed an application for leave to appeal in the Michigan Supreme Court on June 28, 2007, which that Court denied. People v. Washington, 480 Mich. 891 (2007).
Several months later, on March 25, 2008, defendant filed a motion for relief from judgment in the trial court pursuant to MCR 6.502, raising claims of (1) insufficient evidence, (2) denial of his right to present an insanity defense, (3) ineffective assistance of trial counsel, and (4) ineffective assistance of appellate counsel. On July 9, 2008, the trial court denied defendant's motion under MCR 6.508(D)(3) for failure to demonstrate good cause for not raising the issues in a prior appeal and failure to show actual prejudice. This Court denied defendant's July 8, 2009 delayed application for leave to appeal the trial court's decision, People v. Washington, unpublished order of the Court of Appeals, entered October 19, 2009 (Docket No. 292891), and the Michigan Supreme Court denied defendant leave to appeal this Court's denial, People v. Washington, 486 Mich. 1042 (2010).
On June 22, 2016, after exhausting all available post[-]conviction relief, defendant filed his second motion for relief from judgment-the motion giving rise to the instant appeal. Defendant challenged his sentences on jurisdictional grounds, arguing that the trial court's October 4, 2006 order after resentencing was invalid because the court lacked jurisdiction to resentence defendant while his application remained pending before the Michigan Supreme Court. In response, the prosecution argued that defendant's successive motion for relief from judgment was clearly barred by MCR 6.502(G), which prohibits successive motions for relief from judgment unless there has been a retroactive change in the law or new evidence has been discovered. In a November 22, 2016 written order and opinion, the trial court indicated its agreement with the prosecution's argument but noted that the prosecution had failed to address the jurisdictional issue, which "may be raised at any time." The trial court concluded that under MCR 7.215(F)(1)(a), MCR 7.305(C)(6)(a), and ...

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