Opinion
No. 352618
01-14-2021
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. ISAIAH SANDERS, 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 UNPUBLISHED Wayne Circuit Court
LC No. 2014-010082-01-FC Before: K. F. KELLY, P.J., and STEPHENS and CAMERON, JJ. PER CURIAM.
This case returns to the Court after remand for a Crosby hearing. Defendant now appeals as of right his resentencing by the trial court. We affirm.
United States v Crosby, 397 F3d 103 (CA 2, 2005), cert den 549 US 915; 127 S Ct 260; 166 L Ed2d 202 (2006).
People v Campbell, unpublished per curiam opinion of the Court of Appeals, issued October 18, 2016 (Docket Nos. 327059, 327060, 327061).
I. BACKGROUND
The facts were summarized in our prior opinion:
[Victim Bernard] Ogburn testified that as he was getting into his burgundy Ford Explorer, a black Explorer approached, and [defendant] then appeared and hit Ogburn in the face with a gun, injuring his lip and breaking his glasses. As [defendant] and Ogburn fought over the gun, another man appeared on the side of the black Explorer and pointed another gun at Ogburn. Ogburn could not see the second man well enough to identify him because Ogburn's glasses had been broken. [Defendant] or the other man then "mushed" Ogburn "upside the head" with a gun and said, "[G]imme this truck bitch." Ogburn let [defendant] and the other man have the burgundy Explorer. One of the men pushed Ogburn away, and Ogburn
partially fell to the ground. The men got in Ogburn's vehicle and drove away. Later that day, following a police chase of the stolen burgundy Explorer, [defendant's codefendant] got out of the vehicle, removed a handgun from his waistband, tossed it to the ground, and ran before being apprehended and arrested. [This codefendant] later made an oral statement to police admitting that he had participated in taking the burgundy Explorer and that he had a gun. [The codefendant] said that he was riding in the stolen black Explorer when he and his cohorts saw an "old man" in the burgundy Explorer, whereupon "we turned around and took his s—, too." [People v Campbell, unpublished per curiam opinion of the Court of Appeals, issued October 18, 2016 (Docket Nos. 327059, 327060, 327061), unpub op at 4].
On remand, the trial court agreed that it "misapplied the [People v Tanner, 387 Mich 683; 199 NW2d 202 (1972)] principle" in calculating defendant's maximum sentence, and that defendant was entitled to resentencing. Defendant was resentenced, as a second-offense habitual offender, MCL 769.10, to 17 to 30 years' imprisonment each for his armed robbery, MCL 750.529, and carjacking, MCL 750.529a, convictions; 1 to 7 1/2 years' imprisonment each for his unlawful driving away of an automobile (UDAA), MCL 750.413, and possession of a firearm by a person convicted of a felony (felon-in-possession), MCL 750.224f, convictions; 2 years' imprisonment for his possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b(1), conviction; and 93 days in jail for his reckless driving, MCL 257.626, conviction.
Defendant was previously sentenced, as a second habitual offender, MCL 769.10, 2 to 23 years and 9 months to 75 years' imprisonment each for his armed robbery and carjacking convictions, 1 to 10 years' imprisonment each for his UDAA and felon in possession of a firearm convictions, two years' imprisonment for his felony-firearm conviction, and 93 days' imprisonment for his reckless driving conviction. --------
Defendant argues in his attorney brief regarding his sentencing that the trial court erroneously assessed points for offense variables (OVs) 4, 7, 9 and 10, entitling him to a second resentencing. In his Standard 4 brief, defendant again addresses the offense variables and argues that the court violated his Sixth Amendment rights at resentencing by engaging in judicial fact-finding.
II. STANDARD OF REVIEW
"A trial court's factual determinations at sentencing are reviewed for clear error and need only be supported by a preponderance of the evidence. Whether the facts, as found, are adequate to warrant the assessment of points under the pertinent OVs and PRVs is a question of statutory interpretation, which this Court reviews de novo." People v Carter, 503 Mich 221, 226; 931 NW2d 566 (2019). This Court also reviews de novo a defendant's constitutional challenges. People v Skinner, 502 Mich 89, 99; 917 NW2d 292 (2018); People v Borgne, 483 Mich 178, 184; 768 NW2d 290 (2009). Whether the law of the case doctrine applies is a question of law which we also review de novo. Duncan v Michigan, 300 Mich App 176, 188; 832 NW2d 761 (2013). Similarly, "[w]hether a trial court followed an appellate court's ruling on remand is a question of law that this Court reviews de novo." People v Anderson, 326 Mich App 747, 751; 929 NW2d 835 (2018) (citation omitted), app held in abeyance, ___ Mich ___; 941 NW2d 672 (2020).
III. ANALYSIS
A. OFFENSE VARIABLE SCORING
We conclude that the law-of-the-case doctrine bars assessment of OVs 4, 7, 9, and 10 because this Court addressed the OVs in defendant's prior appeal. The law-of-the-case doctrine provides that "an appellate court's determination of law will not be differently decided on a subsequent appeal in the same case if the facts remain materially the same." People v Kozyra, 219 Mich App 422, 433; 556 NW2d 512 (1996). "[A] question of law decided by an appellate court will not be decided differently on remand or in a subsequent appeal in the same case." Ashker v Ford Motor Co, 245 Mich App 9, 13; 627 NW2d 1 (2001). The doctrine applies "only to issues actually decided, either implicitly or explicitly, in the prior appeal." Grievance Administrator v Lopatin, 462 Mich 235, 260; 612 NW2d 120 (2000). When the prior appeal involves the same set of facts, parties, and question of law, the law of the case doctrine applies. Manistee v Manistee Fire Fighters Ass'n, Local 645, IAFF, 174 Mich App 118, 125; 435 NW2d 778 (1989). "The law of the case may be viewed as shorthand for the holding of a prior decision between the same parties which is applied by a lower court upon remand or an appellate court upon subsequent review." Topps-Toeller, Inc v Lansing, 47 Mich App 720, 727; 209 NW2d 843 (1973). "[L]aw of the case offers the same parties a measure of certainty by according finality to the litigated issues until the cause of actions is fully litigated, including retrials or appeals, and the superseding doctrines of res judicata and collateral estoppel become effective." Id. at 729.
Defendant challenged each the scoring of OVs 4, 7 and 10 in the prior appeal. Only his co-defendant challenged OV 9. In defendant's previous appeal, this Court reviewed the record and concluded:
The trial court did not clearly err in assessing 10 points for OV 4 with respect to [defendant] and [defendant's codefendant] given [the victim's] expressions of continuing fearfulness as a result of this incident.We acknowledge that this defendant did not appeal OV 9. While the facts of the case have not changed, defendant now makes the same arguments for OVs 4, 7, and 10 as he did in the prior appeal by defendant and his codefendants. Accordingly, the law-of-the-case doctrine applies regarding the scoring of OVs 4, 7, and 10.
* * *
[T]he assessment of 50 points for OV 7 was proper.
* * *
There was no clear error in assessing 10 points for OV 9.
* * *
The trial court properly assessed 15 points for OV 10. . . . Therefore, the evidence supports the trial court's finding of predatory conduct. [Campbell, unpub op at 15-20.]
Regarding OV 9, we find no error in its scoring. A compelling argument can be made that the law-of-the-case doctrine also applies here because this defendant asserts the identical arguments as his co-defendant did in the prior appeal of OV 9. However, we reject this defendant's claim of error on OV 9 on separate grounds. Defendant argues, "There is no record evidence that actual or threatened danger of physical injury or death to anyone other than the complainant. For these reasons, OV 9 was erroneously scored at ten points and should be scored at zero points." To the contrary, Officer Frank Lenz's vehicle was struck by the stolen automobile in the course of fleeing and attempting to control the stolen property. This was not a separate offense from the initial crime. Carjacking also includes acts that occur "in flight or attempted flight after the commission of the larceny, or in an attempt to retain possession of the motor vehicle." MCL 750.529a(2). Accordingly, there was sufficient evidence to score OV 9 at 10 points.
B. JUDICIAL FACT-FINDING
Defendant asserts in a Standard 4 brief that the trial court violated his Sixth Amendment rights by engaging in judicial fact-finding to score OVs 4, 7, 9 and 10, and thereby blatantly disregarded this Court's instructions to reassess defendant's OV scores without considering such factual findings. We disagree.
Our Supreme Court, in People v Lockridge, 498 Mich 358; 870 NW2d 502 (2015), held that the Michigan sentencing guidelines were constitutionally deficient under the Sixth Amendment because "[t]he Sixth Amendment does not permit judicial fact-finding to score OVs to increase the floor of the sentencing guidelines range." Id. at 388-389. As a result, the sentencing guidelines were declared "advisory only" and a trial court's decision to depart from the guidelines is reviewed by appellate courts for reasonableness. Id. at 365. However, if the "facts admitted by a defendant or found by the jury verdict were insufficient to assess the minimum number of OV points necessary for the defendant's score to fall in the cell of the sentencing grid under which he or she was sentenced[,]" a defendant's Sixth Amendment right may be violated. Id. at 395. "[I]n cases in which a defendant's minimum sentence was established by application of the sentencing guidelines in a manner that violated the Sixth Amendment, the case should be remanded to the trial court to determine whether that court would have imposed a materially different sentence but for the constitutional error[,]" i.e., a Crosby remand. Id. at 397. Our Supreme Court outlined the procedure for a Crosby remand, stating:
[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. [Id. at 398 (quotation marks and citations omitted).]
After remand, "this Court is required to review for reasonableness only those sentences that depart from the range recommended by the statutory guidelines." People v Anderson, 322 Mich App 622, 636; 912 NW2d 607 (2018). Under MCL 769.34(10):
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. A party shall not raise on appeal an issue challenging the scoring of the sentencing guidelines or challenging the accuracy of information relied upon in determining a sentence that is within the appropriate guidelines sentence range unless the party has raised the issue at sentencing, in a proper motion for resentencing, or in a proper motion to remand filed in the court of appeals. [MCL 769.34(10).]As a result, when the "trial court does not depart from the recommended minimum sentencing range, the minimum sentence must be affirmed unless there was an error in scoring or the trial court relied on inaccurate information." People v Schrauben, 314 Mich App 181, 196; 886 NW2d 173 (2016).
The trial court did not violate defendant's Sixth Amendment rights in reassessing OVs 4, 7, 9 and 10 on remand. The trial court considered and heard arguments from both parties during defendant's resentencing. It reconsidered assessment of points for defendant's OVs and eliminated points for OV 14 and OV 19, resulting in a reduced total OV of 115 points. As a result, defendant's sentencing guidelines range was 171 to 356 months. Further, the trial court considered additional factors, during resentencing, stating:
But I think I should, in fashioning his sentence, I should take into consideration the fact that today, he has expressed some remorse, for what he did. I should take into account the fact that he was not the leader in this situation, and that he was goin' along with these other people.
The trial court resentenced defendant within the sentencing guidelines range to 17 to 30 years' imprisonment each for his armed robbery and carjacking convictions. Defendant has not otherwise established an error in scoring the guidelines or that the trial court relied on inaccurate information to entitle him to resentencing. Schrauben, 314 Mich App at 196. Because the trial court did not depart from the recommended minimum sentencing range and the trial court's assessments of the OVs were supported by a preponderance of the evidence, the trial court did not violate defendant's Sixth Amendment rights. Id.
Contrary to defendant's assertion of error regarding the trial court's use of judicial fact-finding, "[t]he constitutional evil addressed by the Lockridge Court was not judicial fact-finding in and of itself, it was judicial fact-finding in conjunction with required application of those found facts for purposes of increasing a mandatory minimum sentence range. Lockridge remedied this constitutional violation by making the guidelines advisory, not by eliminating judicial fact- finding." People v Biddles, 316 Mich App 148, 158; 896 NW2d 461 (2016). Specifically, this Court recognized:
That judicial fact-finding remains part of the process of calculating the guidelines is evidenced by the Lockridge Court's observation that its "holding today does nothing to undercut the requirement that the highest number of points possible must be assessed for all OVs, whether using judge-found facts or not." [Lockridge, 498 Mich] at 392 n 28. This quote from Lockridge is consistent and reconcilable with the full Lockridge opinion; judicial fact-finding is proper, as long as the guidelines are advisory only. [Biddles, 316 Mich App at 159 (footnote omitted).]
Affirmed.
/s/ Kirsten Frank Kelly
/s/ Cynthia Diane Stephens
/s/ Thomas C. Cameron