Opinion
No. 335255
01-23-2018
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. DAVID BRANDELL JESSIE, Defendant-Appellant.
UNPUBLISHED Oakland Circuit Court
LC No. 2011-237057-FC Before: TALBOT, C.J., and MURRAY and O'BRIEN, JJ. PER CURIAM.
Defendant was convicted of second-degree murder, MCL 750.317, two counts of possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b, felonious assault, MCL 750.82, carrying a concealed weapon, MCL 750.227, and assault and battery, MCL 750.81. People v Jessie, unpublished per curiam opinion of the Court of Appeals, issued June 17, 2014 (Docket No. 310869), p 1. Defendant was sentenced to 37½ to 70 years' imprisonment for the second-degree murder conviction, two years' imprisonment for each felony-firearm conviction, 23 months to 4 years' imprisonment for the felonious assault conviction, two to five years' imprisonment for the carrying a concealed weapon conviction, and 93 days for the assault and battery conviction. Jessie, unpub op at 1. Defendant subsequently appealed to this Court, and this Court affirmed defendant's convictions and sentences in an unpublished, per curiam opinion. Jessie, unpub op at 1, 11.
Defendant then sought leave to appeal in the Michigan Supreme Court. Instead of granting leave, the Supreme Court entered an order reversing in part the judgment of this Court, and remanded the case to the trial court for determination of whether the trial court "would have imposed a materially different sentence under the sentencing procedure described in People v Lockridge, 498 Mich 358; 870 NW2d 502 (2015)." People v Jessie, 498 Mich 902; 870 NW2d 713 (2015) (denying leave in all other respects).
On remand, defendant sought resentencing and the trial court declined to resentence defendant because the trial court "would have imposed the same sentence but for the unconstitutional constraint on the [c]ourt's discretion . . . ." Defendant now appeals as of right. We affirm.
Defendant argues that his nondeparture sentence for second-degree murder is unreasonably long and disproportional; thus, he concludes that he is entitled to resentencing in light of Lockridge.
This Court reviews constitutional issues de novo, People v Fonville, 291 Mich App 363, 376; 804 NW2d 878 (2011), as it does with the interpretation and application of statutes, People v Waclawski, 286 Mich App 634, 645; 780 NW2d 321 (2009). Likewise, this Court reviews questions of law de novo. People v Conner, 209 Mich App 419, 423; 513 NW2d 734 (1995).
This Court reviews a trial court's discretionary decisions related to sentencing for an abuse of discretion. See People v Norfleet, 317 Mich App 649, 662-663; 897 NW2d 195 (2016), citing People v Milbourn, 435 Mich 630, 662, 664-665; 461 NW2d 1 (1990), overruled on other grounds by statute as recognized in People v Armisted, 295 Mich App 32, 51 (2011). Because the remand order spoke in discretionary terms regarding reaffirming the original sentence imposed, this Court reviews the trial court's decision to decline resentencing for an abuse of discretion. Jessie, 498 Mich at 902 ("If [on remand] the trial court determines that it would have imposed the same sentence absent the unconstitutional constraint on its discretion, it may reaffirm the original sentence.") (Emphasis added.) To determine if an abuse of discretion occurred, we ask whether the trial court's chosen outcome falls outside the range of principled outcomes. Norfleet, 317 Mich App at 664.
Defendant argues that his nondeparture sentence for second-degree murder should be reviewed for reasonableness in light of Lockridge. However, defendant is not entitled to relief for these reasons.
First, reasonableness review under Lockridge is limited to review of departure sentences. Lockridge, 498 Mich at 392 ("A sentence that departs from the applicable guidelines range will be reviewed by an appellate court for reasonableness."). Because defendant was sentenced to 37½ years, or in other words 450 months, defendant was sentenced at the top end of his recommended minimum sentencing guidelines range of 270 to 450 months' imprisonment. Consequently, Lockridge's mandate of reasonableness review for departure sentences does not extend to defendant's nondeparture sentence.
Second, to overcome the above conclusion, defendant asserts that this Court should treat his sentence as a de facto departure sentence because judicial fact-finding elevated defendant's applicable guidelines range beyond what the jury verdict supported or beyond what was admitted to by defendant. However, defendant's argument is misguided. Lockridge did not forbid judicial fact-finding while scoring the guidelines. Lockridge, 498 Mich at 389, 391-392. Rather, Lockridge forbid the combination of judicial fact-finding and nondiscretionary scoring of the guidelines paired with the mandate that the imposed sentence must fall within the applicable minimum sentencing guidelines range absent substantial and compelling reasons. Id. at 391-392; People v Steanhouse, 500 Mich 453, 466-467; 902 NW2d 327 (2017). To remedy the constitutional error, Lockridge excised the requirement that the sentence imposed adhere to the applicable guidelines range absent substantial and compelling reasons. Lockridge, 498 Mich at 391-392; Steanhouse, 500 Mich at 466-470. In doing so, Lockridge left intact the nondiscretionary scoring of the guidelines based on judicial fact-finding and further required that sentencing courts still consult the applicable guidelines and take them into account when sentencing. Lockridge, 498 Mich at 391-392, 392 n 28; Steanhouse, 500 Mich at 466-470 (reaffirming Lockridge's remedial holding). Consequently, because the judicial fact-finding aspect of the guidelines was not found to be constitutionally deficient in and of itself, the judicial fact-finding here does not justify treating defendant's sentence as a de facto departure sentence.
Third, and as defendant acknowledges, his argument is foreclosed by the directive of MCL 769.34(10), and this Court's decision in People v Schrauben, 314 Mich App 181, 196 n 1; 886 NW2d 173 (2016), acknowledging the continued viability of that provision post-Lockridge. MCL 769.34(10) provides, in the relevant part: "If a minimum sentence is within the appropriate guidelines sentence range, the court of appeals shall affirm that sentence and shall not remand for resentencing absent an error in scoring the sentencing guidelines or inaccurate information relied upon in determining the defendant's sentence." Under Schrauben, this Court noted that "Lockridge did not alter or diminish MCL 769.34(10)[.]" Schrauben, 314 Mich App at 196 n 1. Because defendant's sentence falls within the top end of the appropriate guidelines range, this Court must affirm defendant's sentence unless there is a scoring error or inaccurate information was relied upon in determining defendant's sentence. Defendant has not asserted that the trial court relied on inaccurate information in sentencing him, and this Court has already rejected defendant's argument that his minimum sentencing guidelines range was improperly calculated. Jessie, unpub op at 8-11 (denying defendant's challenge to the scoring of offense variables 3, 14, and 19). Consequently, we must affirm defendant's nondeparture sentence for second-degree murder under MCL 769.34(10).
Affirmed.
/s/ Michael J. Talbot
/s/ Christopher M. Murray
/s/ Colleen A. O'Brien