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People v. Washington
Court of Appeals of Michigan
September 17, 2019
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant,
GREGORY CARL WASHINGTON, Defendant-Appellee.
Circuit Court LC No. 04-004270-01-FC
Before: O'Brien, P.J., and Jansen and Stephens, JJ.
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
Court previously articulated the relevant factual background
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2006 unpublished opinion, this Court affirmed defendant's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Washington, unpublished per curiam opinion of the Court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
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
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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