Opinion
No. 341985
02-26-2019
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. KAYLEE ROSE BOOTH, Defendant-Appellant.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Charlevoix Circuit Court
LC No. 14-019011-FC Before: SWARTZLE, P.J., and MARKEY and RONAYNE KRAUSE, JJ. PER CURIAM.
Following a jury trial, defendant was convicted of assault with intent to murder under MCL 750.83, and was sentenced to serve 12 to 25 years in prison. This Court affirmed her conviction, but remanded for a Crosby proceeding pursuant to People v Lockridge, 498 Mich 358; 870 NW2d 502 (2015). The original trial judge had retired and the new judge denied defendant's request for resentencing. Defendant appeals by right. We remand for further proceedings.
United States v Crosby, 397 F3d 103 (CA2, 2005).
I. FACTS
In defendant's prior appeal, this Court summarized the underlying facts as follows:
Defendant was charged with assault with intent to murder for stabbing Justine Murray in the thigh, arm, and chest with a kitchen knife that had a six-inch blade. The incident occurred outside of an apartment that defendant shared with her boyfriend. Defendant suspected that her boyfriend was cheating on her with Murray. There were multiple eye-witnesses to the stabbing, and defendant admitted that she stabbed Murray multiple times, but argued that she was suffering from temporary insanity and did not have an intent to kill. The jury
rejected defendant's insanity defense and convicted her of assault with intent to murder. [People v Booth, unpublished per curiam opinion of the Court of Appeals, issued March 22, 2016 (Docket No. 324630), slip op at p 1.]In relevant part, this Court concluded that the trial court had improperly scored Offense Variables (OV) 4, 6, and 9 by engaging in judicial fact-finding, and therefore remanded "for further proceedings in accordance with Lockridge." Id., slip op at p 7.
In the interim, the original trial judge retired. On remand, defendant's appointed counsel filed a "Request for Resentencing Memorandum" arguing that his proper guidelines range should have been 81 to 135 months, but the original judge's fact-finding had improperly increased his guidelines range to 108 to 180 months. He asserted that the original judge would have imposed a much lower sentence if not bound by the guidelines. The prosecutor responded that defendant's argument was premised on an erroneous claim that the trial judge had misscored the sentencing guidelines. The prosecutor argued that in fact Lockridge had expressly affirmed the propriety of judicial fact-finding and merely rendered the guidelines advisory. The prosecutor argued that defendant's guidelines range was correct, and defendant's argument that he would have received a lower sentence would only make sense if his original sentence had been at the low end of the range. A sentence at the bottom of the range would suggest that the original judge felt constrained by the guidelines, but in fact the original judge had indicated that the offense and offender did not support a sentence at the either the high or low end of the guidelines range.
After reviewing the relevant materials, the successor judge concluded that:
. . . if [the original judge] was inclined to impose a minimum sentence of less than the 108 months calculated to be the minimum of the computed guidelines range, but for being constrained by the mandatory guidelines, logically, he would likely have imposed a minimum sentence at or near 108 months. Instead, [the judge] sentenced this defendant to a minimum sentence of 144 months, 36 months in excess of the minimum calculated guidelines range. [The trial judge] explained at the sentencing hearing that, in has [sic—his] view, the facts and circumstances warranted neither a sentence at the high end nor the low end of the minimum guidelines range.
. . . This Court determines that it would not have imposed a different sentence knowing that the guidelines range is now advisory and not mandatory pursuant [Lockridge].
Although defendant was represented by counsel on remand, defendant was not allowed to be physically present and address the replacement judge, who had not conducted the jury trial or the original sentencing.
II. CROSBY REMANDS BEFORE A SUCCESSOR JUDGE
In Lockridge, 498 Mich at 397, our Supreme Court stated:
. . . on a Crosby remand, a trial court should first allow a defendant an opportunity to inform the court that he or she will not seek resentencing. If
notification is not received in a timely manner, the court (1) should obtain the views of counsel in some form, (2) may but is not required to hold a hearing on the matter, and (3) need not have the defendant present when it decides whether to resentence the defendant, but (4) must have the defendant present, as required by law, if it decides to resentence the defendant. Further, in determining whether the court would have imposed a materially different sentence but for the unconstitutional constraint, the court should consider only the "circumstances existing at the time of the original sentence." [Lockridge, 498 Mich at 397-398 (footnote omitted).]
Thus, our Supreme Court in Lockridge clearly stated that the defendant should be given the opportunity to indicate whether he or she wished to be resentenced, and if no notice is received, the court must give the defendant's counsel the opportunity to offer his or her views on the issue of resentencing—either in person or in writing. The physical presence of the defendant was only required if the trial court first concluded that a resentencing should be conducted.
However, in a subsequent case, this Court ordered a Crosby remand to a court in which the original sentencing judge had retired and then passed away. People v Howard, 323 Mich App 239, 244; 916 NW2d 654 (2018). The judge who presided over the remand proceeding concluded that he would not have imposed a different sentence and declined to resentence the defendant. Id. at 242, 244. The defendant argued that the court erred by failing to obtain the views of defense counsel before deciding not to conduct a resentencing, and, in relevant part, that he should have an opportunity to appear and be heard before the court prior to the successor judge rendering a decision. Id. at 242-244. Noting that the Lockridge decision specifically indicated that the court conducting a Crosby remand was to "obtain the views of counsel," this Court concluded "that [the] defendant's Crosby remand [had been] improperly handled" because there was no evidence that the trial court obtained the views of counsel and because defendant was apparently unrepresented at the time. Howard, 323 Mich App at 246-247. This Court accordingly vacated the trial court's order and remanded the case for further proceedings.
Because it was ordering a remand, this Court further determined that it must resolve the defendant's claim that he was entitled to a full resentencing, or, alternatively, that he must be allowed to be present to advise the replacement judge of any considerations that might influence the judge's ultimate sentencing decision. Id. at 247. This Court looked to United States v Bonner, 440 F3d 414 (CA 7, 2006), and United States v Sanders, 421 F3d 1044 (CA 9, 2005), both of which had concluded that when the original judge was unavailable, a complete resentencing hearing must be conducted. Howard, 323 Mich App at 248-249. In contrast, United States v Garcia, 413 F3d 201 (CA 2, 2005), concluded that the task of the newly assigned judge was not to determine what sentence the original judge would have imposed, but rather to determine "what sentence he or she would have imposed on behalf of the court with the benefit of . . . a full record . . . [and] then determine whether that lawful sentence differs in more than trivial manner from the one that was actually imposed." Howard, 323 Mich App at 251, quoting Garcia, 413 F3d at 228. This Court found Garcia persuasive and adopted it. Howard, 323 Mich App at 252.
This Court further noted that the Garcia court had held that the newly assigned judge "must order the defendant to appear in court and afford the defendant an opportunity to be heard," Howard, 323 Mich App at 251, citing Garcia, 413 F3d at 230, for two reasons:
First, because "human insights important to sentencing cannot be gleaned simply from a review of a cold record," the Second Circuit deemed the defendant's appearance and opportunity to be heard necessary to the district court's achieving the level of familiarity with the case necessary for "a reliable sentencing comparison." [Garcia, 413 F3d at 230.] Second, the Second Circuit considered production of the defendant to be important to the perceived integrity of the resentencing decision[.] [Howard, 323 Mich App at 251.]Therefore:
When a newly assigned judge handles a Crosby remand without ever encountering the defendant, both the personal nature of sentencing and perceptions of fairness, integrity, and public reputation of the judicial proceeding are called into question. We conclude that when the original sentencing judge is unavailable, in addition to following the other Crosby remand requirements, the assigned judge must allow the defendant an opportunity to appear before the court and be heard before the judge can decide whether he or she would resentence the defendant. [Howard, 323 Mich App at 252-253 (citation and footnotes omitted).]
III. APPLICATION
It is unambiguous from the trial court's opinion on remand that the trial court violated the requirements of Howard by attempting to discern what the original judge would have done, rather than evaluating "what sentence he or she would have imposed." However, it should be noted that when the trial court issued its opinion in this case, Howard had not yet been issued as precedent for the trial court to follow; thus, it had no way of realizing this procedural mishap. Additionally, nothing in the record suggests that defendant waived the right to appear and be heard before the trial court, meaning the defendant indeed had a right to such opportunity prior to determining whether to resentence her. Pursuant to People v Howard, 323 Mich App 239; 916 NW2d 654 (2018), this Court must therefore remand for another Crosby proceeding at which defendant must be allowed to be present, if she so wishes, and to address the court.
The prosecutor maintains that this case can be distinguished from Howard because the defendant in that case was not represented by counsel and thus had no one to represent his interests, whereas defendant in this case had appointed counsel who vigorously advocated for her and continues to do so. However, the representation of counsel only addresses the first issue decided by this Court in Howard. This Court also found error requiring relief based on the fact that a replacement judge, who had not overseen the original case and was forced to work from a "cold record," was conducting the Crosby remand proceedings. This concern arose independent of the provision of counsel and addressed "perceptions of fairness, integrity, and public reputation of the judicial proceeding." Howard, 323 Mich App at 252-253.
IV. REQUEST FOR NEW JUDGE ON REMAND
Citing this Court's decision in People v Hill, 221 Mich App 391, 398-399; 561 NW2d 862 (1997), defendant argues that the remand proceeding should be conducted by another judge because the current judge "would have a hard time putting aside his previously expressed findings after reviewing the entire record, including the trial and sentencing transcripts and the presentence investigation report." Defendant fails to establish how the current judge would have a "hard time" putting aside his previous determination; instead, she simply asserts that this would be the case. In any event, the trial court has not expressed an opinion of its own regarding resentencing, but rather, views regarding what it believed the original judge would have done. Remanding the case back to the same trial court judge may, in fact, lead to a different result now that Howard is on the books as precedent. As such, we find no basis for granting defendant's request for a new judge on remand.
In Hill, this Court concluded that there was "no indication, as defendant asserts, that the original trial judge would have substantial difficulty in setting aside his previously expressed views." Hill, 221 Mich App at 398.
V. CONCLUSION
We remand this case for further proceedings consistent with this opinion. We do not retain jurisdiction.
/s/ Brock A. Swartzle
/s/ Jane E. Markey
/s/ Amy Ronayne Krause