Michigan Court Of Appeals Develops Sentencing Remand Procedure Under Lockridge

On September 8, 2015, the Michigan Court of Appeals developed the legal procedures that come into play under People v Lockridge, a recent decision of the Michigan Supreme Court that held that the Michigan Sentencing Guidelines are now advisory rather than mandatory because the judicial fact-finding in scoring Offense Variables (OV) violates a defendant's Sixth Amendment right to a jury trial.

In People v Stokes, the Michigan Court of Appeals addressed an argument from a defendant found guilty of armed robbery and other crimes following a jury trial. At trial, the jury found defendant guilty of armed robbery but not guilty of crimes involving the use of a firearm. At sentencing, the trial court scored OV 1 and OV 2 as if defendant had possessed a weapon during the course of the armed robbery. On appeal, defendant argued that the trial court erred and violated Lockridge when it scored these OVs, thereby increasing his minimum mandatory sentence in violation of the law.

The Court first recited the facts of the case:

Stokes’s convictions arise out of a carjacking that occurred near midnight on July 10, 2013. That night, Charles Jones drove into his driveway in Detroit. Stokes appeared and ordered Jones to hand over his car keys and cell phone. According to Jones, Stokes did so while pointing a pistol at Jones’s head. Jones complied, and Stokes fled in Jones’s vehicle. Stokes was charged with carjacking, armed robbery, and firearms offenses. At trial, Stokes presented several alibi witnesses. These witnesses generally testified that on the night of the carjacking, Stokes was at a hair salon in Oak Park, which was hosting a “tattoo party.”4 The jury found Stokes guilty of carjacking and armed robbery, but acquitted Stokes of the firearms offenses. Stokes now appeals as of right.

The Court's analysis of the remand procedures necessary to correct the sentencing errors committed by the trial court followed:

Next, Stokes argues that, pursuant to Alleyne v United States, his Sixth Amendment right to a jury trial was violated when the trial court made factual determinations to determine Stokes’s minimum sentence. We agree. “A Sixth Amendment challenge presents a question of constitutional law that this Court reviews de novo . . . .”

In People v Lockridge, our Supreme Court held that Michigan’s sentencing scheme violates the Sixth Amendment right to a jury trial because it requires “judicial fact-finding beyond facts admitted by the defendant or found by the jury to score offense variables (OVs) that mandatorily increase the floor of the guidelines minimum sentence range, i.e., the ‘mandatory minimum’ sentence under Alleyne.” Precisely such a violation occurred in this case. Although the jury acquitted Stokes of both firearms charges brought against him, the trial court scored OVs 1 and 2 as if Stokes possessed a pistol and pointed it at Jones. If no points are assigned to these variables, Stokes’s OV level drops from Level III to Level II, and his minimum sentence range under the guidelines would be reduced from a range of 126 to 262 months to a range of 108 to 225 months. Thus, it cannot be disputed that the trial court relied on facts not admitted by Stokes or found by the jury in order to calculate his sentencing guidelines range, and that these judicially-found facts resulted in an increased minimum sentencing range. As such, under Lockridge, Stokes’s Sixth Amendment rights were violated at sentencing . . . .

In Lockridge, our Supreme Court instructed courts regarding how to proceed “in the many cases that have been held in abeyance for this one.” Noting that “virtually all” of these cases involve unpreserved challenges, our Supreme Court described a procedure, the goal of which is to determine whether a Lockridge error resulted in prejudice to any given defendant. Such an inquiry is necessary because unpreserved constitutional errors are subject to plain-error review, which requires a defendant to demonstrate not only that an error occurred, but that “the error affected the outcome of the lower court proceedings.” Our Supreme Court held that if a defendant is able to “establish a threshold showing of the potential for plain error,” the case must “be remanded to the trial court to determine whether that court 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.” The precise procedure to be followed, modeled on that adopted in United States v Crosby, is as follows:

[O]n a Crosby remand, 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 [MCR 6.425], 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.

However, in this case, Stokes preserved his claim of error by raising the issue in the trial court. “[C]onstitutional error such as occurred here must be classified as either structural or nonstructural. If the error is structural, reversal is automatic. If the constitutional error is not structural, it is subject to the harmless beyond a reasonable doubt test.” A Lockridge error is not structural, and thus, must be reviewed for harmless error.

We conclude that, in order to determine whether the error in this case was harmless, the Crosby remand procedure must be followed. First and foremost, the Court’s opinion in Lockridge supports this conclusion. In Lockridge, our Supreme Court cited with approval the following language from Crosby:

“A remand for determination of whether to resentence is appropriate in order to undertake a proper application of the plain error and harmless error doctrines. Without knowing whether a sentencing judge would have imposed a materially different sentence, . . . an appellate court will normally be unable to assess the significance of any error that might have been made. . . .

Obviously, any of the errors in the procedure for selecting the original sentence discussed in this opinion would be harmless, and not prejudicial under plain error analysis, if the judge decides on remand, in full compliance with now applicable requirements, that . . . the sentence would have been essentially the same as originally imposed. Conversely, a district judge’s decision that the original sentence would have differed in a nontrivial manner from that imposed will demonstrate that the error in imposing the original sentence was harmful and satisfies plain error analysis . . . .”

But given that our Supreme Court specifically expressed its “agreement with” the quoted analysis stated in Crosby, we believe our Supreme Court intended that the Crosby procedure would apply to both preserved and unpreserved errors. Notably, our Supreme Court did not acknowledge or address Lake or any other cases discussing how to proceed with preserved errors of the nature at issue here. And although Lockridge concerned an unpreserved claim of error, the portion of the Court’s opinion in which the above analysis appears is a section explicitly devoted to describing the appropriate procedure to be followed in cases, such as this one, involving pre-Lockridge sentencing errors. Thus, we cannot say that our Supreme Court’s reference to this language was merely dicta . . . .

Further, the Crosby procedure offers a measure of protection to a defendant. As the first step of this procedure, a defendant is provided with an opportunity “to avoid resentencing by promptly notifying the trial judge that resentencing will not be sought.” We believe this step is particularly important because, given the sentencing discretion now afforded to trial courts, Stokes faces the possibility of receiving a more severe sentence on resentencing. Although Stokes raised his challenge in the trial court and has pursued the issue on appeal, his desired remedy was resentencing with a lower, but still mandatory, guidelines range. While Stokes has ultimately prevailed on his claim of constitutional error, we do not assume that he is satisfied with the remedy available to him. If we were to simply remand for resentencing, we would deprive Stokes of the opportunity to avoid resentencing if that is his desire. In that sense, we would be punishing Stokes for preserving his claim of error.

Thus, in this case, we remand the matter to the trial court to follow the Crosby procedure in the same manner as outlined in Lockridge for unpreserved errors. Stokes may elect to forego 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 procedure as explained in Lockridge . . . .