People v. Odom

327 Mich.App. 297

933 N.W.2d 719

PEOPLE of the State of Michigan, Plaintiff-Appellee,

v.Steven Aderrick ODOM, Defendant-Appellant.

No. 339027

Court of Appeals of Michigan.

Submitted March 6, 2019, at Lansing.

Decided March 12, 2019, at 9:15 a.m.

Dana Nessel, Attorney General, Fadwa A. Hammoud, Solicitor General, Brian L. Mackie, Prosecuting Attorney, and Brenda Taylor and Fawn Montgomery, Assistant Prosecuting Attorneys, for the people.

Steven A. Odom, in propria persona, and Ann M. Prater for defendant.

Before: Meter, P.J., and Servitto and Redford, JJ.

Meter, P.J. Defendant appeals as of right the trial court’s out-of-guidelines sentence, entered after our Supreme Court ordered a remand consistent with Part VI of its opinion in People v. Lockridge , 498 Mich. 358, 870 N.W.2d 502 (2015). People v. Odom , 498 Mich. 901, 870 N.W.2d 575 (2015). In pertinent part, defendant argues that the prohibition on ex post facto laws—embodied in Article 1, § 10 of both the federal and state Constitutions—prevented the trial court from imposing a lengthier sentence on remand than it did during the original sentencing. We conclude that Lockridge ’s shift from a mandatory sentencing regime to an advisory one was not the type of unforeseeable legal change that offends the Ex Post Facto Clauses. Accordingly, we hold that those clauses present no obstacle to the retroactive application of Lockridge , even when its application results in an increased sentence. Finding no merit in any of defendant’s other assertions of error, we affirm the trial court’s out-of-guidelines sentence.

I. BACKGROUND

In March 2011, a jury found defendant guilty of armed robbery, MCL 750.529, and bank robbery, MCL 750.531, after defendant stole nearly $3,000 from a payday lender. The trial court originally sentenced defendant to 210 to 420 months of imprisonment for the armed-robbery conviction and 86 to 420 months of imprisonment for the bank-robbery conviction. Defendant appealed, and in a pre-Lockridge opinion, this Court affirmed defendant’s convictions and sentences. See People v. Odom , unpublished per curiam opinion of the Court of Appeals, issued January 7, 2014 (Docket No. 304699). Then, after having held defendant’s appeal in abeyance, our Supreme Court reversed the Court of Appeals judgment in part under its recently issued opinion in Lockridge , which held that a defendant is entitled to resentencing if the trial court engaged in judicial fact-finding when scoring a defendant’s then-mandatory sentencing guidelines. Odom , 498 Mich. 901, 870 N.W.2d 575. Accordingly, our Supreme Court ordered a Crosby¹ remand to cure the constitutional error. Id .

On remand, defendant elected to be resentenced. The trial court found that it would have imposed a materially different sentence had its sentencing discretion not been constrained by the mandatory sentencing guidelines and ordered resentencing. In its order for resentencing, the trial court expressed its belief that defendant’s original sentence was not proportionate to the seriousness of his conduct and that an out-of-guidelines sentence was likely warranted. Defendant then moved for a new attorney and to withdraw his request for resentencing. The trial court denied the motion to withdraw the resentencing request but granted the motion for new counsel. Eventually, the matter proceeded to a resentencing hearing. After receiving updated sentencing information, the trial court sentenced defendant to 360 to 720 months of imprisonment for each of his convictions and ordered him to pay restitution to the payday lender. The trial court opined that defendant’s recidivism and the brazenness of his most recent offenses justified the upward departure from the sentencing-guidelines range.

Defendant again appealed his sentence, alleging in part that his first defense attorney on remand was ineffective for failing to inform him of the possibility of an increased sentence at resentencing. To explore this issue further, we remanded this case for an evidentiary hearing. See People v. Odom , unpublished order of the Court of Appeals, entered September 27, 2017 (Docket No. 339027). Following a Ginther² hearing, the trial court concluded that defendant was not unconstitutionally deprived of the effective assistance of counsel. The trial court found that defense counsel may have failed to timely communicate with defendant but that any error did not affect the outcome of defendant’s resentencing. The trial court emphasized defendant’s intent to seek resentencing; thus, defense counsel’s ultimate motion for resentencing and the trial court’s new sentence granted defendant the relief he sought. This appeal followed.

II. ANALYSIS

Defendant raises several challenges to the trial court’s out-of-guidelines sentence. Broadly, we may group defendant’s issues into two categories: those that address the general limits of the trial court’s authority on remand and those that address the trial court’s exercise of its sentencing discretion. We review de novo questions of law, including the interpretation of statutory and constitutional provisions. People v. Callon , 256 Mich. App. 312, 315, 662 N.W.2d 501 (2003). The trial court’s discretionary decisions—including its exercise of sentencing discretion—are reviewed for an abuse of discretion. See People v. Yost , 278 Mich. App. 341, 353, 749 N.W.2d 753 (2008) ; People v. Steanhouse , 500 Mich. 453, 459-460, 902 N.W.2d 327 (2017). A trial court abuses its discretion when it selects an outcome that falls outside the range of reasonable and principled outcomes. Yost , 278 Mich. App. at 353, 749 N.W.2d 753. We review the trial court’s factual findings for clear error. People v. Armstrong , 490 Mich. 281, 289, 806 N.W.2d 676 (2011).

"Clear error exists if the reviewing court is left with a definite and firm conviction that the trial court made a mistake." Id .

A. THE TRIAL COURT’S AUTHORITY ON REMAND

In Alleyne v. United States , 570 U.S. 99, 116, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), the United States Supreme Court determined that, in mandatory sentencing schemes, a criminal defendant’s Sixth Amendment rights are violated when he or she is sentenced on the basis of facts that are not found by a jury beyond a reasonable doubt. Acknowledging that Alleyne directly implicated our own sentencing regime, in Lockridge , 498 Mich. at 391, 870 N.W.2d 502, our Supreme Court severed Michigan’s sentencing guidelines, MCL 777.1 et seq. , to the extent that they were mandatory and "[struck] down the requirement of a substantial and compelling reason to depart from the guidelines range ...." (Citation and quotation marks omitted.) Our Supreme Court held that, moving forward,

all defendants (1) who can demonstrate that their guidelines minimum sentence range was actually constrained by the violation of the Sixth Amendment and (2) whose sentences were not subject to an upward departure can establish a threshold showing of the potential for plain error sufficient to warrant a remand to the trial court for further inquiry. [ Id. at 395, 870 N.W.2d 502.]

For cases decided before Lockridge that require resentencing, our Supreme Court adopted the procedure set forth in United States v. Crosby , 397 F.3d 103, 117-118 (C.A. 2, 2005). Lockridge , 498 Mich. at 395, 870 N.W.2d 502. On remand under Crosby , a defendant is first given an opportunity to inform the trial court that he or she will not seek resentencing. Id. at 398, 870 N.W.2d 502. If the defendant takes advantage of this opportunity, the original sentence stands. Id . If, however, the defendant fails to timely inform the trial court of his or her desire to forgo resentencing or affirmatively requests resentencing, the trial court must then determine whether it "would have imposed a materially different sentence but for the constitutional error. If the trial court determines that the answer to that question is yes, the court shall order resentencing." Id. at 397, 870 N.W.2d 502.

A Crosby remand returns the case to the trial court in a "presentence posture, allowing the trial court to consider every aspect of defendant’s sentence[ ] de novo." People v. Lampe , 327 Mich. App. 104, 112, 933 N.W.2d 314, 2019 WL 848716 (2019) (Docket No. 342325). See also People v. Williams (After Second Remand) , 208 Mich. App. 60, 65, 526 N.W.2d 614 (1994). Given that Lockridge rendered the sentencing guidelines purely advisory, the trial court may rescore the sentencing guidelines on the basis of judicially found facts, see Steanhouse , 500 Mich. at 466-467, 902 N.W.2d 327, provided that its scoring determinations are supported by a preponderance of the evidence, People v. Hardy , 494 Mich. 430, 438, 835 N.W.2d 340 (2013). The trial court must consult the resulting guidelines range, but it retains its discretion to depart from that range. Lockridge , 498 Mich. at 391-392, 870 N.W.2d 502. "A sentence that departs from the applicable guidelines range will be reviewed by an appellate court for reasonableness." Id . at 392, 870 N.W.2d 502. A sentence is reasonable when it is proportionate to the seriousness of the circumstances surrounding the offense and the offender. Steanhouse , 500 Mich. at 471-472, 902 N.W.2d 327. See also People v. Milbourn , 435 Mich. 630, 651, 461 N.W.2d 1 (1990).

1. APPLICATION OF LOCKRIDGE AND THE PRESUMPTION OF VINDICTIVENESS

On appeal, defendant argues that the trial court’s authority on remand was limited to correcting scoring errors predicated on judicial fact-finding. Accordingly, defendant argues that, because the error necessitating remand was the trial court’s use of judicial fact-finding to score Offense Variable (OV) 4, the only correction that the trial court could make on remand was to delete the points scored for OV 4 on the basis of judicial fact-finding. We disagree. As noted previously, a Crosby remand returns the case to the trial court in a "presentence posture, allowing the trial court to consider every aspect of defendant’s sentence[ ]...