Opinion
No. 335036
07-18-2017
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. JAWANTA DERIN COVINGTON, Defendant-Appellant.
UNPUBLISHED Wayne Circuit Court
LC No. 13-007478-01-FC Before: GADOLA, P.J., and JANSEN and SAAD, JJ. PER CURIAM.
Defendant appeals the order of the trial court denying his motion for resentencing on remand from this Court. We reverse and remand.
This case arises out of the armed robbery of a jewelry store in Hamtramck on August 1, 2013. That day, defendant and two co-conspirators attempted to rob the store at gunpoint, resulting in a gunfight with the store's security guard. One of defendant's co-conspirators was shot and killed by the security guard during the struggle. Police arriving at the store after the gunfight found a pillow case and hammer in defendant's possession, and a gun in the possession of defendant's remaining co-conspirator.
After a jury trial, defendant was convicted of armed robbery, MCL 750.529, conspiracy to commit armed robbery, MCL 750.529; MCL 750.157a, possession of burglary tools, MCL 750.116, and possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b. The trial court sentenced defendant to concurrent terms of 15 to 40 years' imprisonment for armed robbery, 15 to 40 years' imprisonment for conspiracy to commit armed robbery, and 2 to 10 years' imprisonment for possession of burglary tools. The trial court also sentenced defendant to a consecutive mandatory two years' imprisonment for the felony-firearm conviction. At defendant's sentencing, the trial court scored 100 points for Offense Variable (OV) 3 on the basis that defendant's criminal actions resulted in the death of one of his co-conspirators.
On appeal to this Court, defendant challenged the trial court's scoring of OV 3 on the basis that the trial court had engaged in judicial fact-finding contrary to the mandate of People v Lockridge, 498 Mich 358; 870 NW2d 502 (2015). This Court affirmed defendant's convictions but remanded for possible resentencing in accordance with United States v Crosby, 397 F3d 103, 117-118 (CA 2, 2005). See People v Covington, unpublished opinion per curiam of the Court of Appeals, issued April 12, 2016 (Docket No. 325610), pp 1, 4-5.
On remand, the trial court entered an order denying resentencing. The trial court's July 21, 2016 order provides, in part:
IT IS HEREBY ORDERED the defendant's motion for conviction reduction and resentence pursuant to Lockridge/Crosby is denied. This Court would not have imposed a materially different sentence had it known that it had greater discretion to depart from the guidelines. The sentence is reasonable and this Court would not resentence to a different term.
On appeal once again to this Court, defendant argues that the trial court erred by failing on remand to properly comply with Crosby. We agree.
Our Supreme Court in Lockridge outlined the procedures that the trial court must follow when a Crosby remand is ordered. See id. at 397-399. First, the trial court must provide the defendant the opportunity to avoid resentencing by allowing the defendant to advise the trial court if resentencing will not be sought. If the defendant does not inform the trial court that he or she wishes to avoid resentencing, then the trial court "should obtain the views of counsel, at least in writing, but 'need not' require the presence of the Defendant," in "reaching its decision (with or without a hearing) whether to resentence." Lockridge, 498 Mich at 398, quoting Crosby, 397 F3d at 120. Finally, "[u]pon making that decision, the trial court shall 'either place on the record a decision not to resentence, with an appropriate explanation, or vacate the sentence and, with the Defendant present, resentence in conformity with' this opinion." Id. at 398, quoting Crosby, 397 F3d at 120.
Thus, pursuant to Lockridge, the trial court in this case on remand was (1) required to allow defendant the opportunity to inform the trial court if defendant wished to avoid resentencing, (2) required to seek the views of counsel in some form, (3) permitted, but not required, to hold a hearing on the matter, (4) not required to have defendant present for its decision whether to resentence defendant, but, upon making that decision was (5) required either to place on the record the decision not to resentence defendant, together with an appropriate explanation, or to vacate the sentence and have defendant present for resentencing. Id. at 398.
Defendant in this case argues on appeal that the trial court did not follow proper procedure on remand because the record does not indicate that the trial court solicited the views of counsel. We agree. The record on remand in this case is devoid of any indication that the trial court on remand sought the views of counsel, or that counsel presented their views to the trial court on remand. We therefore reverse the order of the trial court and again remand for proceedings in accordance with our Supreme Court's instructions in Lockridge. Defendant should be permitted an opportunity to inform the trial court if resentencing will not be sought. The trial court then is required to solicit the views of counsel in some form. The trial court need not hold a hearing, and defendant's presence is not required, when the trial court decides whether to resentence defendant. The trial court then should either indicate on the record its decision not to resentence defendant, together with an appropriate explanation, or vacate the original sentence and resentence defendant with defendant present. Lockridge 498 Mich at 397, citing Crosby. We do not retain jurisdiction.
In light of our decision to remand this case to the trial court to again determine whether to resentence defendant, we need not reach defendant's argument that the trial court did not present an adequate explanation for its decision not to resentence defendant. --------
/s/ Michael F. Gadola
/s/ Kathleen Jansen
/s/ Henry William Saad