PEOPLE OF THE STATE OF MICHIGAN v. STEVEN ADERRICK ODOM
No. 339027
State of Michigan Court of Appeals
March 12, 2019
FOR PUBLICATION. Washtenaw Circuit Court LC No. 10-000618-FC. Before: METER, P.J., and SERVITTO and REDFORD, JJ.
If this opinion indicates that it is “FOR PUBLICATION,” it is subject to revision until final publication in the Michigan Appeals Reports.
METER,
Defendant appeals as of right the trial court‘s out-of-guidelines sentence, entered after our Supreme Court ordered a remand consistent with part VI of its opinion in People v Lockridge, 498 Mich 358; 870 NW2d 502 (2015). People v Odom, 498 Mich 901; 870 NW2d 575 (2015). In pertinent part, defendant argues that the prohibition against ex post facto laws—embodied in
I. BACKGROUND
In March 2011, a jury found defendant guilty of armed robbery,
On remand, defendant elected to be resentenced. The trial court found that it would have imposed a materially different sentence had its sentencing discretion not been constrained by the mandatory sentencing guidelines and ordered resentencing. In its order for resentencing, the trial court expressed its belief that defendant‘s original sentence was not proportionate to the seriousness of his conduct and that an out-of-guidelines sentence was likely warranted. Defendant then moved for a new attorney and to withdraw his request for resentencing. The trial court denied the motion to withdraw the resentencing request, but granted the motion for new counsel. Eventually, the matter proceeded to a resentencing hearing. After receiving updated sentencing information, the trial court sentenced defendant to 360 to 720 months of imprisonment for each of his convictions and ordered him to pay restitution to the bank. The trial court opined that defendant‘s recidivism and the brazenness of his most-recent offenses justified the upward departure from the sentencing-guidelines range.
Defendant again appealed his sentence, alleging in part that his first defense attorney on remand was ineffective for failing to inform him of the possibility of an increased sentence at resentencing. To explore this issue further, we remanded this case for an evidentiary hearing. See People v Odom, unpublished order of the Court of Appeals, entered September 27, 2017 (Docket No. 339027). Following a Ginther2 hearing, the trial court concluded that defendant was not unconstitutionally deprived of the effective assistance of counsel. The trial court found that defense counsel may have failed to timely communicate with defendant, but that any error did not affect the outcome of defendant‘s resentencing. The trial court emphasized defendant‘s intent to seek resentencing; thus, defense counsel‘s ultimate motion for resentencing and the trial court‘s new sentence granted defendant the relief he sought. This appeal followed.
II. ANALYSIS
Defendant raises several challenges to the trial court‘s out-of-guidelines
A. THE TRIAL COURT‘S AUTHORITY ON REMAND
In Alleyne v United States, 570 US 99, 116; 133 S Ct 2151, 2162; 186 L Ed 2d 314 (2013), the United States Supreme Court determined that, in mandatory sentencing schemes, a criminal defendant‘s Sixth Amendment rights are violated when he is sentenced on the basis of facts that are not found by a jury beyond a reasonable doubt. Acknowledging that Alleyne directly implicated our own sentencing regime, in Lockridge, 498 Mich at 391, our Supreme Court severed Michigan‘s sentencing guidelines,
all defendants (1) who can demonstrate that their guidelines minimum sentence range was actually constrained by the violation of the Sixth Amendment and (2) whose sentences were not subject to an upward departure can establish a threshold showing of the potential for plain error sufficient to warrant a remand to the trial court for further inquiry. [Id. at 395.]
For cases decided before Lockridge that require resentencing, our Supreme Court adopted the procedure set forth in United States v Crosby, 397 F3d 103, 117-118 (CA 2, 2005). Lockridge, 498 Mich at 395. On remand under Crosby, a defendant is first given an opportunity to inform the trial court that he will not seek resentencing. Id. at 398. If the defendant avails himself of this opportunity, the original sentence stands. Id. If, however, the defendant fails to timely inform the trial court of his desire to forego resentencing or affirmatively requests resentencing, the trial court must then determine whether it “would have imposed a materially different sentence but for the constitutional error. If the trial court determines that the answer to that question is yes, the court shall order resentencing.” Id. at 397.
A Crosby remand returns the case to the trial court in a “presentence posture, allowing the trial court to consider every aspect of the defendant‘s sentence de novo.” People v Lampe, ___ Mich App ___, ___; ___ NW2d ___ (2019) (Docket No. 342325); slip op at 3. See also People v Williams (After Second Remand), 208 Mich App 60, 65; 526 NW2d 614 (1994). Given that Lockridge rendered the
1. APPLICATION OF LOCKRIDGE AND THE PRESUMPTION OF VINDICTIVENESS
On appeal, defendant argues that the trial court‘s authority on remand was limited to correcting scoring errors predicated on judicial fact finding. Accordingly, defendant argues that, because the error necessitating remand was the trial court‘s use of judicial fact finding to score Offense Variable (OV) 4, the only correction that the trial court could make on remand was to delete the points scored for OV 4 on the basis of judicial fact finding. We disagree. As noted previously, a Crosby remand returns the case to the trial court in a “presentence posture, allowing the trial court to consider every aspect of the defendant‘s sentence de novo.” Lampe, ___ Mich App at ___; slip op at 3. Thus, the trial court may receive new sentencing information, may rescore the guidelines (even utilizing judicial fact finding), and may exercise its discretion to depart from the sentencing-guidelines range.3
Relatedly, defendant argues that the trial court‘s sentence on remand was presumptively vindictive because it exceeded his original sentence. See North Carolina v Pearce, 395 US 711; 89 S Ct 2072; 23 L Ed 2d 656 (1969),4 overruled in part by Alabama v Smith, 490 US 794; 109 S Ct 2201; 104 L Ed 2d 865 (1989). Again, we emphasize that a Crosby remand returns the case to the trial court in a “presentence posture, allowing the trial court to consider every aspect of the defendant‘s sentence de novo.” Lampe, ___ Mich App at ___; slip op at 3. It is axiomatic then that, if the trial court has discretion to impose an out-of-guidelines sentence during the original sentencing, on de novo resentencing there can be no presumption of vindictiveness for the trial court‘s exercise of that discretion—especially when our Supreme Court has stricken the substantial-and-compelling requirement for departure and replaced it with a reasonableness review. See Lockridge, 498 Mich at 391-392. Indeed, the basic purpose of de novo resentencing is to make the sentencing decision anew, without any respect for the prior (now invalid) sentence. Accordingly, defendant‘s argument is without merit.5
2. EX POST FACTO PROHIBITION
Next, defendant argues that the retroactive application of the advisory sentencing guidelines violates the prohibition against ex post facto laws when the application results in an increase in the defendant‘s sentence compared to the sentence originally imposed. Effectively, defendant argues that, to pass constitutional muster, the original sentence must act as a cap on the trial court‘s sentencing discretion on remand. We disagree.
A law violates the ex post facto clauses6 when, in relevant part, it criminalizes conduct that was innocent when done or when it increases the punishment that was applicable when the crime was committed. Callon, 256 Mich App at 317-318. The United States Supreme Court has recognized that due process applies the ex post facto clause to judicial decisions construing or applying a statute because a state court may not do through a judicial decision what the ex post facto prohibition bars its legislature from doing. See Rogers v Tennessee, 532 US 451, 458-459; 121 S Ct 1693; 149 L Ed 2d 697 (2001). The rationale for this rule rests “on core due process concepts of notice, foreseeability, and, in particular, the right to fair warning as those concepts bear on the constitutionality of attaching criminal penalties to what previously had been innocent conduct.” Id. Accordingly, the ex post facto prohibition will preclude retroactive application of those decisions implicating notice, foreseeability, and the right to fair warning—that is, those decisions that were unexpected and are indefensible by reference to the law previously expressed. Id. at 462.
It cannot be said that our Supreme Court‘s decision in Lockridge criminalizes conduct which was previously innocent—robbery was criminal at the
Finally, we note that the United States Supreme Court‘s decision in Alleyne, which prompted our Supreme Court‘s decision in Lockridge, was not fashioned out of whole cloth. Rather, Alleyne was a logical extension of nearly a decade of decisions “strik[ing] down mandatory sentencing systems at the state and federal levels.” Alleyne, 570 US at 120. Indeed, the majority of these decisions predate defendant‘s offense. See id. Accordingly, it cannot be said that Lockridge was unexpected and indefensible by reference to the law previously expressed. Rogers, 532 US at 462. Thus, we conclude that retroactive application of Lockridge does not offend the prohibition against ex post facto laws—even when its application results in a lengthier sentence than the one previously imposed.7
B. THE TRIAL COURT‘S SENTENCE
Having addressed any misconceptions regarding the trial court‘s authority on remand, we now turn to defendant‘s other arguments on appeal.
1. OPPORTUNITY TO AVOID RESENTENCING
Defendant argues that several errors denied him the opportunity that Lockridge guarantees him to avoid resentencing. According to defendant, the trial court
As a preliminary matter, defendant has failed to identify any authority that requires a trial court to consider a motion for substitute counsel before it may consider any subsequently filed motion by the attorney who was the subject of the motion for substitution. Accordingly, defendant has abandoned this issue. See People v Martin, 271 Mich App 280, 315; 721 NW2d 815 (2006).
Regarding his other arguments, defendant has not provided this Court with any credible evidence that he wished to avoid resentencing before the trial court indicated that it would increase his sentence. At the Ginther hearing, defense counsel testified that he informed defendant of the Crosby remand procedure and defendant‘s opportunity to avoid resentencing. Defense counsel also testified that he reminded defendant that, at the original sentencing, the trial court had expressed an inclination to depart upward from the sentencing guidelines. Accordingly, defense counsel informed defendant that an out-of-guidelines sentence was a possibility at resentencing. Despite these explanations, defense counsel maintained that defendant wished to be resentenced. Defense counsel acknowledged that he may have failed to communicate timely with defendant for a portion of the time the case was pending before the trial court (and that, because of this untimely communication, defendant sought other counsel), but testified that he ultimately fulfilled defendant‘s wishes by requesting resentencing. According to defense counsel, once the trial court indicated its intent to increase defendant‘s sentence in its order for resentencing, he moved to withdraw the request for resentencing. For his part, defendant offered a document entitled “Judicial Notice” in which he claims he expressed his intent to forego resentencing. That document, however, was not registered with the trial court and was not in any attorney‘s records. The document first appeared as an attachment to a document that defendant submitted on his own behalf after the trial court had already determined that it would resentence defendant.
Given that its decision eliminated the requirement of a substantial and compelling reason to depart from the sentencing guidelines, the Lockridge court granted defendants entitled to a remand under its opinion an opportunity to avoid resentencing by informing the trial court of their decision to forego resentencing. Lockridge, 498 Mich at 398; Crosby, 397 F3d at 118. Yet, a defendant must seize upon this opportunity before the trial court expresses its intent to resentence the defendant. Id. Thus, because the record in this case is devoid of any indication that defendant wished to forego resentencing before the trial court expressed its intention to increase his sentence, we conclude that the trial court did not abuse its discretion by denying defendant‘s motion to withdraw his request for resentencing.
Further, while it appears that defense counsel could have been timelier when communicating with defendant and filing motions on defendant‘s behalf, we may only grant relief when counsel‘s unprofessional errors affected the outcome of the proceedings. People v Sabin (On Second Remand), 242 Mich App 656, 659; 620 NW2d 19 (2000). Here, any errors resulted, at most, in a delayed request for
2. UPDATED PRESENTENCE INVESTIGATION REPORT
Defendant argues that the trial court erred by sentencing him using an insufficiently updated presentence investigation report (PSIR). As defendant correctly notes on appeal, our Supreme Court has held that a trial court should not resentence a defendant without the benefit of a “reasonably updated presentence report.” People v Triplett, 407 Mich 510, 515; 287 NW2d 165 (1980).
Given the time between defendant‘s offense and his resentencing, on remand, an agent updated defendant‘s PSIR to reflect defendant‘s conduct while incarcerated. The updated PSIR indicates that, while incarcerated, defendant only had one citation for misconduct. Defendant argues that the updated PSIR was insufficient because it failed to include information about voluntary programs defendant completed while incarcerated. While this information does not appear in defendant‘s updated PSIR, defendant did provide the trial court with documentation regarding the programs he voluntarily completed in prison. As our Supreme Court recognized in People v Hemphill, 439 Mich 576, 581-582; 487 NW2d 152 (1992), when it comes to sentencing, it is not particularly important how the information gets before the trial court; rather, it is important that the trial court have the relevant information available for sentencing. Accordingly, defendant‘s provision of his program documents to the trial court alleviates any concern that inaccurate or incomplete information hampered the trial court‘s sentencing decision.
Defendant also argues that the PSIR was inaccurate because it did not include a victim impact statement by a different victim, whom defendant claims would have professed his innocence. Defendant, however, has presented no evidence that this alleged other victim had or could have provided such a statement. Accordingly, because defendant has failed to establish the factual predicate for his claim, his claim is without merit. See People v Ackerman, 257 Mich App 434, 455-456; 669 NW2d 818 (2003).
3. PROPORTIONALITY
Defendant next argues that the trial court‘s out-of-guidelines sentence was not proportionate to his criminal conduct. As noted previously, we review sentences in excess of the sentencing guidelines for reasonableness. Lockridge, 498 Mich at 391-392. A sentence is reasonable when it is proportionate to the seriousness of the circumstances surrounding the offense and the offender. Steanhouse, 500 Mich at 471-472. The purpose of the proportionality requirement is to combat unjustified disparity in sentencing, thereby ensuring that “similar offense and offender characteristics receive substantially similar sentences.” People v Dixon-Bey, 321 Mich App 490, 524; 909 NW2d 458 (2017) (internal citation and quotation marks omitted). Under our system of sentencing, this principle of proportionality is first entrusted to the Legislature, which is tasked with “grading the seriousness and harmfulness of a given crime and given offender within the legislatively authorized range of punishments.” Id. at 524 (internal citation and quotation marks omitted). Although the Legislature‘s guidelines are advisory, they remain a highly relevant consideration in a
In this case, the trial court calculated defendant‘s guidelines on remand at 126 to 210 months of imprisonment. The trial court, however, identified several factors that it felt were not adequately reflected in defendant‘s guidelines scores. The trial court noted defendant‘s significant criminal history, including three serious criminal convictions in 1980 and a first-degree criminal-sexual-conduct conviction in 1982. The trial court noted that defendant committed the instant offense while on parole from the sexual-misconduct conviction, indicating that defendant was not a strong candidate for reform. The trial court also found noteworthy the fact that, despite defendant‘s criminal history, defendant was not scored as a fourth-offense habitual offender because of a notice issue in the original proceedings. Finally, the trial court noted that each of defendant‘s current convictions carried a maximum penalty of life in prison. Opining that the guidelines range did not accurately reflect the serious recidivism of this defendant and the brazenness of his crimes, the trial court imposed a sentence of 360 to 720 years in prison for each conviction.
The sentence imposed by the trial court was proportionate to the seriousness of defendant‘s crimes and background. Notably, had the fourth-habitual enhancement been applied, it would have provided for a minimum sentence of up to 420 months in prison. See
4. RESTITUTION
Finally, defendant argues that the trial court erred when it refused to modify its order of restitution on the ground that Odom established that the collection of funds from his prison account amounted to an undue hardship. Under the Crime Victim‘s Rights Act,
Under
III. CONCLUSION
Our Supreme Court‘s remand order returned this case to the trial court in a presentence posture, entitling the trial court to consider de novo whether defendant‘s conduct justified an out-of-guidelines sentence. After receiving updated sentencing information, the trial court chose to impose a sentence exceeding the range recommended by the sentencing guidelines. Its out-of-guidelines sentence was reasonable, given defendant‘s extensive criminal history and tendency to reoffend. Therefore, for the reasons stated in this opinion, we affirm defendant‘s sentence.
/s/ Patrick M. Meter
/s/ Deborah A. Servitto
/s/ James Robert Redford
Notes
Due process of law, then, requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial. And since the fear of such vindictiveness may unconstitutionally deter a defendant‘s exercise of the right to appeal or collaterally attack his first conviction, due process also requires that a defendant be freed of apprehension of such a retaliatory motivation on the part of the sentencing judge.
In order to assure the absence of such a motivation, we have concluded that whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear. Those reasons must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding. And the factual data upon which the increased sentence is based must be made part of the record, so that the constitutional legitimacy of the increased sentence may be fully reviewed on appeal. [Pearce, 395 US at 725-726.]
When there is no relevant legal or factual change between sentence and resentence, the motive for an increase in punishment is indeed suspect. But [US v Booker, 543 US 220, 125 S Ct 738; 160 L Ed 2d 621 (2005)] brought about a fundamental change in the sentencing regime. The guidelines, mandatory when [the defendant] was sentenced, are now advisory. Were he to be resentenced, it would be under a different standard, one that would entitle the judge to raise or lower the sentence, provided the new sentence was justifiable under the standard of reasonableness. No inference of vindictiveness would arise from the exercise of the judge‘s new authority. [United States v Goldberg, 406 F3d 891, 894 (CA 7, 2005) (internal citations omitted); accord United States v Williams, 444 F3d 250, 254 (CA 4, 2006).]