June 13, 2019, at Lansing.
Circuit Court LC No. 04-004270-01-FC.
Nessel, Attorney General, Fadwa A. Hammoud, Solicitor
General, Kym L. Worthy, Prosecuting Attorney, and Jason W.
Williams, Chief of Research, Training, and Appeals, for the
F. Royal for defendant.
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 Products Corp., 212
Mich.App. 537, 539 N.W.2d 210 (1995)." People v.
Washington, 503 Mich. 1030, 1030 (2019). On remand, we
reverse and remand for further proceedings.
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). In a June 13, 2006 unpublished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Washington, unpublished per curiam opinion of the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 [2006 WL 1626910]. 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. 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');">477 Mich. 973 [725 N.W.2d 20] (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');">480 Mich. 891 [738 N.W.2d 734] (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
defendant leave to appeal this Court's denial,
People v. Washington,486 Mich. 1042');">486 Mich. 1042 [783 N.W.2d
335] (2010). On June 22, 2016, after exhausting all
available postconviction 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 ...