Opinion
363167
02-28-2023
People of Michigan v. Philip Hoyt McCarver
LC No. 14-005965-01-FH
Noah P. Hood Presiding Judge Michael J. Riordan Kristina Robinson Garrett Judges
ORDER
The delayed application for leave to appeal is DENIED because defendant has failed to establish that the trial court erred in denying the motion for relief from judgment. However, we note that the trial court's opinion indicates at points that the motion was untimely under MCR 6.429. According to the circuit court's opinion, defendant did not file a motion to correct an invalid sentence under MCR 6.429. Rather, and as is contemplated by MCR 6.429(B)(4), defendant filed a motion for relief from judgment, as the time for filing a motion to correct an invalid sentence had expired. To the extent the trial court's opinion deems the motion untimely under MCR 6.429, the circuit court erred. Further, the trial court's analysis of defendant's claim regarding judicial fact-finding at sentencing is erroneous. Defendant was sentenced before the decision in People v Lockridge, 498 Mich. 358; 870 N.W.2d 502 (2015). Thus, at the time he was sentenced, the sentencing guidelines were mandatory, not discretionary, as the trial court's opinion indicates. However, defendant's conviction became final before Lockridge was decided on July 29, 2015. As Lockridge is not retroactive to cases on collateral review, defendant is not entitled to relief on this issue. People v Barnes, 502 Mich. 265; 917 N.W.2d 577 (2018). Further, defendant's sentence was part of a plea agreement for a specific sentence. As such, the concerns of Lockridge and Alleyne v United States, 570 U.S. 99; 133 S.Ct. 2151; 186 L.Ed.2d 314 (2013), would not be implicated. See Amezcue v Ochoa, 577 Fed App'x 699, 700-701 (CA 9, 2014), and United States v Cieslowski, 410 F.3d 353, 356, 363-364 (CA 7, 2005). But despite the errors in the trial court's analysis, defendant has not established entitlement to relief from judgment, and thus, the trial court did not err by denying the motion.