People v. Lockmiller

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. JAMES EDWARD LOCKMILLER, Defendant-Appellant.

No. 356217

Court of Appeals of Michigan

February 21, 2023

UNPUBLISHED

Calhoun Circuit Court LC No. 2017-003699-FH

ON REMAND

Before: MURRAY, P.J., and SERVITTO and O'BRIEN, JJ.

PER CURIAM.

This case returns to this Court after remand from our Supreme Court. Following a jury trial, defendant was convicted of second-degree criminal sexual conduct (CSC-II), MCL 750.520c(1)(a) (victim under 13). The trial court originally sentenced defendant to 38 months to 15 years' imprisonment, and ordered lifetime electronic monitoring (LEM) as required by MCL 750.520c(2)(b) and MCL 750.520n(1). In his first appeal, a panel of this Court concluded that the trial court had erred in its assessment of offense variable 7, and remanded "for resentencing under the appropriate minimum sentencing guidelines range." People v Lockmiller, unpublished per curiam opinion of the Court of Appeals, issued November 19, 2020 (Docket No. 348184), p 9. On remand, the trial court resentenced defendant to 17 to 180 months' imprisonment, and again ordered LEM as required by MCL 750.520c(2)(b) and MCL 750.520n(1). In his second appeal to this Court, defendant challenged the trial court's imposition of LEM as an unreasonable search and a cruel or unusual punishment, but a panel of this Court declined to address defendant's arguments, reasoning that they were outside the scope of the remand. People v Lockmiller, unpublished per curiam opinion of the Court of Appeals, issued April 14, 2022 (Docket No. 356217), p 2. Our Supreme Court reversed that decision and remanded "to the Court of Appeals to consider those issues the defendant raised in that court challenging the imposition of LEM." People v Lockmiller, ___ Mich. ___, ___ (2022) (Docket No. 164505). Doing so, we affirm defendant's sentence.

In the trial court, defendant never contested the imposition of LEM as being an unconstitutional. Accordingly, as defendant concedes, his arguments on appeal that the imposition of LEM violated his constitutional rights against (1) unreasonable search and seizure and (2) cruel or unusual punishment are unpreserved. See People v Pipes, 475 Mich. 267, 277 715 N.W.2d 290 (2006). An unpreserved, nonstructural constitutional error is reviewed for plain error affecting substantial rights. Id. at 278.^[1] "Plain error exists when 1) an error occurred, 2) the error was plain i.e., clear or obvious, 3) and the plain error affected substantial rights." People v Beck, ___ Mich. ___, ___; ___ N.W.2d ___ (2022) (Docket Nos. 160668, 160669); slip op at 30 (quotation marks, citation, and alterations omitted).^[2]

This Court has previously addressed the two arguments raised by defendant in People v Hallak, 310 Mich.App. 555, 566-581; 873 N.W.2d 811 (2015), rev'd in part on other grounds, People v Hallak, 499 Mich. 879 (2016). That opinion was reversed in part on other grounds in Hallak, 499 Mich. at 879-880, but the issue leading to reversal nevertheless concerned the defendant's sentence. As the portion of Hallak relevant to defendant's arguments in this appeal also concerned the Hallak defendant's sentence, our Supreme Court's reversal of Hallak, even on other grounds, rendered the relevant portion of Hallak "to be without precedential value." Dunn v Detroit Auto Inter-Ins Exch, 254 Mich.App. 256, 266; 657 N.W.2d 153 (2002).

Since Hallak, however, no court has addressed the constitutionality of Michigan's LEM statute. "A clear or obvious error under the second prong [of the plain-error standard] is one that is not subject to reasonable dispute." People v Allen, 507 Mich. 597, 614; 968 N.W.2d 532 (2021) (quotation marks and citation omitted). Here, no court has ever held that Michigan's LEM statute is unconstitutional, and the only time an appellate court has addressed the issue, it held that the statute passed constitutional muster. While that decision may no longer have precedential value for the reasons explained, the relevant portion of the decision was never reversed or vacated. In light of this, we are compelled to conclude that defendant's claims of error are subject to at least reasonable dispute. As such, even if we were to revisit Hallak and rebalance the considerations of defendant's constitutional claims to favor defendant like he urges, we would still conclude that the trial court's imposition of LEM was not an obvious error warranting relief under plain-error review. See People v Swenor, 336 Mich.App. 550, 569; 971 N.W.2d 33 (2021) (holding that a trial court's alleged error on an unpreserved, nonstructural constitutional issue was "not plainly or obviously wrong" because there was "no binding caselaw" directly addressing the issue); United States v Finnesy, 953 F.3d 675, 696-697 (CA 10, 2020) (same); United States v Olano, 507 U.S. 725, 734; 113 S.Ct. 1770; 123 L.Ed.2d 508 (1993) ("At a minimum, court of appeals cannot correct an error [under plain-error review] unless the error is clear under current law."); Henderson v United States, 568 U.S. 266, 278; 133 S.Ct. 1121; 185 L.Ed.2d 85 (2013) (explaining that the "requirement that an error be 'plain' means that lower court decisions that are questionable but not plainly wrong (at time of trial or at time of appeal) fall outside the . . . scope" of plain-error review); United States v Ellis, 564 F.3d 370, 378 (CA 5, 2009) (rejecting a defendant's challenge to his sentence because the alleged error was not obvious, noting that "all defendants' appeals challenging a sentence rest on the practical premise that the sentence should be less," but "[n]ot every error that increases a sentence need be corrected by a call upon plain error doctrine").^[3]

Affirmed.

MURRAY, P.J. (concurring).

I concur with the majority that defendant has not established plain error in the trial court's imposition of the statutorily mandated lifetime electronic monitoring for his CSC-II conviction. See MCL 750.520c(2)(b) and MCL 750.520n(1). However, I also believe People v Hallak, 310 Mich.App. 555, 566-581; 873 N.W.2d 811 (2015), rev'd in part on other grounds 499 Mich. 879 (2016), precludes defendant's arguments on the merits.

In Hallak, this Court addressed four issues: (1) whether defendant's conviction was supported by sufficient evidence, (2) whether the judicial fact-finding for purposes of scoring his guidelines was unconstitutional, (3) whether his mandatory sentence of lifetime electronic monitoring was cruel or unusual punishment or a violation of his right against unreasonable search and seizures, and (4) whether defendant's sentence was in part precluded by double jeopardy. Hallak, 310 Mich.App. at 560. On defendant's application for leave to appeal, the Supreme Court reversed the sentencing issue based on its recent decision in People v Lockridge, 498 Mich. 358, 399; 870 N.W.2d 502 (2015), which held that the sentencing guidelines are advisory. See Hallak, 499 Mich. at 879-880. The sentencing guideline issue in our Hallak decision was based on application of the then mandatory guidelines that determined the range for the length of defendant's sentence. In addressing that sentencing issue, we acknowledged that the outcome of Lockridge could impact our decision but that binding Court of Appeals precedent required affirmance. Hallak, 310 Mich.App. at 566 and n 5. Because Lockridge did in fact change that legal landscape, the Hallak order reversed defendant's sentence of 57 to 180 months for the CSC- II conviction, 85 to 180 months for the CSC-III conviction involving another victim, and 16 to 24 months for each CSC-IV conviction, Hallak, 310 Mich.App. at 562-563, and remanded for the trial court to exercise its discretion on the length of defendant's sentence. Hallak, 499 Mich. at 879880. Leave to appeal was denied "[i]n all other respects." Id.

The mandatory imposition of lifetime electronic monitoring was simply not impacted by Lockridge, and nothing in the Hallak Supreme Court order indicates that anything other than defendant's sentence to prison was vacated and required reconsideration under Lockridge. Indeed although the Court in People v Cole, 491 Mich. 325, 336; 817 N.W.2d 497 (2012), held that lifetime electronic monitoring was a part of the sentence, it also recognized that the statute "indicates that the...