933 N.W.2d 719
Mich. Ct. App.2019Background
- In 2011 defendant Steven Odom was convicted of armed robbery and bank robbery and originally received lengthy prison terms within then-mandatory guidelines.
- The Michigan Supreme Court vacated sentencing and ordered a Crosby remand under People v Lockridge because the trial court engaged in judicial fact-finding under a mandatory-guidelines regime.
- On remand, after updated information and a new PSIR, the trial court resentenced Odom to substantially higher, out-of-guidelines terms (360–720 months each), citing recidivism and brazenness of offenses.
- Odom challenged the resentencing on multiple grounds: limits on the trial court’s authority on remand, vindictiveness, ex post facto violation from retroactive application of Lockridge, ineffective assistance of counsel re: notice of resentencing risk, adequacy of the updated PSIR, proportionality, and restitution enforcement.
- A Ginther evidentiary hearing found defense counsel not ineffective in a manner that affected the outcome; the trial court’s upward departure relied on updated facts and an individualized assessment.
Issues
| Issue | Plaintiff's Argument (People) | Defendant's Argument (Odom) | Held |
|---|---|---|---|
| Scope of trial court authority on Crosby remand | Remand returns case to presentence posture; court may consider all sentencing aspects and rescore OVs using judicial fact-finding | Remand limited to correcting the specific, constitutionally infirm scoring (OV 4) only | Court: Crosby remand permits de novo resentencing, new info, rescoring, and discretionary departure |
| Presumption of vindictiveness | No presumption because remand under Lockridge created a new advisory regime; de novo resentencing may increase or decrease sentence | Increase over original sentence is presumptively vindictive per Pearce | Court: No presumption of vindictiveness; Lockridge/Booker-type regime change negates inference |
| Ex post facto challenge to retroactive Lockridge | Retroactive advisory guidelines do not increase statutory maximums or unexpectedly change sentencing exposure; no fair-warning problem | Applying Lockridge retroactively that results in a longer sentence violates ex post facto/fair-warning protections | Court: Retroactive Lockridge does not violate ex post facto; Alleyne and prior precedent made change foreseeable and maxima unchanged |
| Reasonableness / proportionality of upward departure | Sentencing was individualized; guidelines (126–210 months) understated recidivism and seriousness; analogy to 4th-offender range supports longer term | Upward departure is disproportionate and excessive | Court: Departure was reasonable and proportionate given extensive criminal history and offense context |
Key Cases Cited
- People v Lockridge, 498 Mich 358 (made Michigan sentencing guidelines advisory; Crosby remand procedure)
- Alleyne v United States, 570 US 99 (extended jury-trial factfinding principles to facts increasing mandatory minimums)
- United States v Crosby, 397 F.3d 103 (2d Cir.) (procedure for remand when guidelines change)
- Rogers v Tennessee, 532 US 451 (due process limits retroactive judicial decisions that produce unforeseeable criminal penalties)
- Pearce v. Alabama, 395 US 711 (presumption of vindictiveness on resentencing)
- People v Steanhouse, 500 Mich 453 (guideline rescoring on remand allowed by preponderance standard)
- People v Milbourn, 435 Mich 630 (proportionality principle in sentencing)
- People v Triplett, 407 Mich 510 (need for reasonably updated presentence report)