Michigan Court Of Appeals Develops Crosby Remand Procedure Under Lockridge

On November 17, 2015, the Michigan Court of Appeals remanded a criminal case for resentencing in order to determine what effect if any the seminal case of People v Lockridge would have on defendant's sentence of 14 to 27 years in prison.  

In People v Shank, Docket No. 321534, the Michigan Court of Appeals addressed the issue of whether the trial court erred in sentencing defendant to 12 to 25 years in prison for the crime of felon in possession of a firearm plus a consecutive sentence of two years for felony firearm - a sentence that the trial court imposed before the publication of Lockridge - when defendant's sentencing guidelines called for a sentence between 7 to 46 months for felon in possession of a firearm.

Shank further develops the Lockridge line of cases that involve Crosby remands, an optional remand procedure in criminal cases that allows a defendant to raise the issue on appeal of what effect if any Lockridge would have on a pre-Lockridge sentence.

The Shank Court first recited the facts of the case:

olice officers received disturbing information that Jerry Hilliard, a prison inmate, had sent an eight year old child a gift and card through Shank, who had been in prison with Hilliard and who has previous convictions of accosting minors for immoral purposes. During the investigation, officers discovered that Hilliard had requested that Shank take a photograph of the child posing in only a necklace. While executing a warrant, officers found a Winchester pump .22 caliber rifle in Shank’s hall closet. Officers also found evidence that Shank had sent Hilliard a photograph of what appeared to be a pregnant seven year old child and discovered in Shank’s photo album a photograph of a 5-year-old girl exposing her vaginal area, which Shank denied belonged to him.

Shank pleaded guilty to felon in possession and felony-firearm, and the prosecution dropped a charge of possession of child sexually abusive material. The sentencing guidelines recommended a minimum sentence of 7 to 46 months’ imprisonment for Shanks’ felon in possession conviction. The trial court decided to depart upward, instead sentencing Shank to 12 to 25 years’ imprisonment. It gave several reasons for its departure, including that Shank did not have much rehabilitative potential since he had been frequently incarcerated for reoffending, violated probation, parole, and received misconduct citations in prison. The trial court also relied on the concerning nature of Shank’s noncriminal behavior. The trial court explained that Shank was “assisting his prison mates in making contact with young children outside the prison system. He’s starting to groom children in spite of having served these long sentences . . . . There’s been just no rehabilitation at all.”

The Court's analysis of whether the trial court erred in departing upward from defendant's sentencing guideline range of 7 to 46 months' imprisonment:

This Court, in Steanhouse, considered the impact of People v Lockridge, ___ Mich ___; ___ NW2d ___ (2015) on departure sentences following our Supreme Courts’ opinion in Lockridge. Steanhouse holds that pursuant to Lockridge, this Court must review a defendant’s sentence for reasonableness. Lockridge, ___ Mich at ___; slip op at 2, 29, citing United States v Booker, 543 US 220, 264; 125 S Ct 738; 160 L Ed 2d 621 (2005). Hence, when the trial court departs from the applicable sentencing guidelines range, this Court will review that sentence for reasonableness. People v Lockridge, ___ Mich ___; ___; slip op at 29. However, as stated in Steanhouse, “The appropriate procedure for considering the reasonableness of a departure sentence is not set forth in Lockridge.” Steanhouse, ___ Mich App at ___; slip op at 35. After discussion of the approaches Michigan Appellate courts should employ when determining the reasonableness of a sentence, this Court adopted the standard set forth by our Supreme Court in People v Milbourn, 435 Mich 630; 461 NW2d 1 (1990) . . . .

As set forth in Steanhouse, “factors previously considered by Michigan courts under the proportionality standard included, among others, (1) the seriousness of the offense, (2) factors not considered by the guidelines . . . (3) factors that were inadequately considered by the guidelines in a particular case. Steanhouse, at ___ slip op at 38. (Internal citations omitted).

In this case, the trial court did not have the benefit of our Supreme Court’s decision in Lockridge or this Court’s decision in Steanhouse. Because of this fact, the trial court’s sentence departure centered on the then existing substantial and compelling reason standard which was overturned by Lockridge, ___ Mich at ___; slip op at 29. Accordingly, in accordance with this Court’s decision in Steanhouse, we remand this matter to the trial court for a Crosby hearing. “The purpose of a Crosby remand is to determine what effect Lockridge would have on the defendant’s sentence, so that it may be determined whether any prejudice resulted from the error.” People v Stokes, ___ Mich App ___ ; ___ NW2d ___; (2015) slip op at 11. Also, pursuant to Stokes, defendant is provided with an opportunity to avoid resentencing by promptly notifying the trial judge that resentencing will not be sought. Stokes, ___ Mich App at ___; slip op at 11-12, quoting Lockridge, ___ Mich at ___; slip op at 35.

Accordingly, we remand the matter to the trial court to follow the Crosby procedure outlined in Lockridge. Because defendant may be sentenced to a more severe sentence, defendant “may elect to forgo resentencing by providing the trial court with prompt notice of his intention to do so. If notification is not received in a timely manner,” the trial court shall continue with the Crosby remand as explained in Lockridge and Steanhouse. See generally, Stokes, ___ Mich App at ___; slip op at 12.