Lockridge error in Michigan

2017“When this Court is presented with an evidentiary and a constitutional challenge regarding the scoring of the guidelines, the evidentiary challenge must initially be entertained, because if it has merit and requires resentencing, the constitutional or Lockridge challenge becomes moot—a defendant will receive the protections of Lockridge when he or she is resentenced.” People v Biddles, 316 Mich App 148, 157-158 ; 896 NW2d 461 (2016).

2017In People v Biddles, 316 Mich App 148 , ___; ___ NW2d ___ (2016) (Docket No. 326140), slip op at 5, the Court noted that where there is a constitutional challenge to the defendant’s sentence under Lockridge and an evidentiary challenge to the scoring of the sentencing guidelines, the evidentiary challenge must initially be entertained, because if it has merit and requires resentencing, the constitutional or Lockridge challenge becomes moot, as a defendant will receive the protections of Lockridge on resentencing.

2018Whether the facts, as found, are adequate to satisfy the scoring conditions prescribed by statute, i.e., the application of the facts to the law, is a -6- question of statutory interpretation, which an appellate court reviews de novo. [People v Hardy, 494 Mich 430, 438 ; 835 NW2d 340 (2013) (citation omitted).] Where a defendant poses both an evidentiary challenge to the adequacy of the evidence supporting the trial court’s score for an offense variable and a constitutional challenge under People v Lockridge, 498 Mich 358 ; 870 NW2d 502 (2015), the evidentiary challenge must initially be enter

2016“Under the sentencing guidelines, the circuit court’s factual determinations are *668 reviewed for clear error and must be supported by a preponderance of the evidence.” People v Hardy, 494 Mich 430, 438 ; 835 NW2d 340 (2013).

2017Steanhouse, 313 Mich App at 46 . 4 Although the trial court referred to “substantial and compelling” reasons to depart from the guidelines range, which could be interpreted as reference to the pre-Lockridge standard, the trial court also stated that the sentence was “reasonable.” Counsel for both parties made reference to Lockridge before the trial court, and to their understanding that the sentencing was proceeding under the standards set forth in that case. 5 We note that the scoring of this PRV does not change depending on whether the underlying convictions are for three CSC II convictions

2017Steanhouse, 313 Mich App at 46 . 4 Although the trial court referred to “substantial and compelling” reasons to depart from the guidelines range, which could be interpreted as reference to the pre-Lockridge standard, the trial court also stated that the sentence was “reasonable.” Counsel for both parties made reference to Lockridge before the trial court, and to their understanding that the sentencing was proceeding under the standards set forth in that case. 5 We note that the scoring of this PRV does not change depending on whether the underlying convictions are for three CSC II convictions

2017Accordingly, this Court need not consider defendant’s constitutional challenge to his original sentencing because he will receive the protections of Lockridge when he is resentenced. 5 MCL 777.38 was added by 1988 PA 317 , effective December 15, 1998. 6 “The sentencing offense is the crime of which the defendant has been convicted and for which he or she is being sentenced.” People v McGraw, 484 Mich 120 , 122 n 3; 771 NW2d 655 (2009). -12- Remanded to the trial court for it to articulate its reasoning for denying defendant an evidentiary hearing on defendant’s claim of new evidence and for re

2017Accordingly, this Court need not consider defendant’s constitutional challenge to his original sentencing because he will receive the protections of Lockridge when he is resentenced. 5 MCL 777.38 was added by 1988 PA 317 , effective December 15, 1998. 6 “The sentencing offense is the crime of which the defendant has been convicted and for which he or she is being sentenced.” People v McGraw, 484 Mich 120 , 122 n 3; 771 NW2d 655 (2009). -12- Remanded to the trial court for it to articulate its reasoning for denying defendant an evidentiary hearing on defendant’s claim of new evidence and for re

2017In all other respects, leave to appeal is DENIED because we are not persuaded that the remaining questions presented should be reviewed by this Court. [People v Gaston, 498 Mich 900 ; 870 NW2d 909 (2015).] On remand, this Court again determined that the scoring error was “a Francisco error, not a Lockridge error” since “the sentencing court’s sentencing decision was in error, not because it engaged in judicial factfinding, but because there was no evidence to support the scoring decision.” People v Gaston (On Remand), unpublished opinion per curiam of the Court of Appeals, issued January 14, 2

2017In all other respects, leave to appeal is DENIED because we are not persuaded that the remaining questions presented should be reviewed by this Court. [People v Gaston, 498 Mich 900 ; 870 NW2d 909 (2015).] On remand, this Court again determined that the scoring error was “a Francisco error, not a Lockridge error” since “the sentencing court’s sentencing decision was in error, not because it engaged in judicial factfinding, but because there was no evidence to support the scoring decision.” People v Gaston (On Remand), unpublished opinion per curiam of the Court of Appeals, issued January 14, 2

2017Finally, defendant contends that, pursuant to People v Konopka (On Remand), 309 Mich App 345, 359-360 ; 869 NW2d 651 (2015), the assessment of $500 in court costs should be vacated and the matter should be remanded for the sentencing court to establish a factual basis for the costs imposed and determine whether those were reasonably related to the actual costs incurred by the trial court as required by MCL 769.1k(1)(b)(iii).2 We agree.

2017Finally, defendant contends that, pursuant to People v Konopka (On Remand), 309 Mich App 345, 359-360 ; 869 NW2d 651 (2015), the assessment of $500 in court costs should be vacated and the matter should be remanded for the sentencing court to establish a factual basis for the costs imposed and determine whether those were reasonably related to the actual costs incurred by the trial court as required by MCL 769.1k(1)(b)(iii).2 We agree.

2016“An issue is moot when an event occurs that renders it impossible for the reviewing court to fashion a remedy to the controversy.” People v Cathey, 261 Mich App 506, 510 ; 681 NW2d 661 (2004).

2016“An issue is moot when an event occurs that renders it impossible for the reviewing court to fashion a remedy to the controversy.” People v Cathey, 261 Mich App 506, 510 ; 681 NW2d 661 (2004).

2016People v Stokes, 312 Mich App 181, 198 ; 877 NW2d 181 (2015), appeal held in abeyance ___ Mich ___; 878 NW2d 886 (2016); People v Terrell, 312 Mich App 450, 464 ; 879 NW2d 294 (2015), appeal held in abeyance ___ Mich ___; 878 NW2d 480 (2016).

2016Kelly /s/ Amy Ronayne Krause 6 Because defendant did not preserve the Lockridge issue, this case does not fall within the ambit of People v Terrell, 312 Mich App 450, 464-467 ; ___ NW2d ___ (2015), held in abeyance 878 NW2d 480 (2016), in which this Court held that the remand procedure described in Lockridge was required for a preserved error resulting from the compulsory use of the guidelines even though judicial fact-finding in Terrell did not increase the defendant’s minimum guidelines range.

2016People v Moorer, 262 Mich App 64, 76 ; 683 NW2d 736 (2004). 4 We note that defendant did raise the Lockridge issue in a motion to remand; however, even with proper preservation, this Court has determined that the analysis in Lockridge applies equally to cases involving preserved claims of error.

2016Therefore, we address defendant’s claim of sentencing error as a Francisco3 error and not as a Lockridge error and remand to the trial court for resentencing.4 However, on remand, as the 2 People v Lockridge, 498 Mich 358 ; 870 NW2d 502 (2015). 3 People v Francisco, 474 Mich 82, 84, 88 ; 711 NW2d 44 (2006). 4 While unpreserved claims are reviewed for plain error affecting a substantial right, People v Schumacher, 276 Mich App 165, 177 ; 740 NW2d 534 (2007), a prosecutor’s admission of a scoring error constitutes “a plain error affecting the defendant’s substantial rights.” People v Lathrop, 48

2016Therefore, we address defendant’s claim of sentencing error as a Francisco3 error and not as a Lockridge error and remand to the trial court for resentencing.4 However, on remand, as the 2 People v Lockridge, 498 Mich 358 ; 870 NW2d 502 (2015). 3 People v Francisco, 474 Mich 82, 84, 88 ; 711 NW2d 44 (2006). 4 While unpreserved claims are reviewed for plain error affecting a substantial right, People v Schumacher, 276 Mich App 165, 177 ; 740 NW2d 534 (2007), a prosecutor’s admission of a scoring error constitutes “a plain error affecting the defendant’s substantial rights.” People v Lathrop, 48

2016In Lockridge, our Supreme Court held that Michigan’s statutory sentencing scheme violated the Sixth Amendment principles articulated in Alleyne v United States, 570 US ___ ; 133 S Ct 2151 ; 186 L Ed 2d 314 (2013), because it required a mandatory increase in the minimum- sentence range imposed upon a defendant based on judicially found facts that required proof by only a preponderance of the evidence.

2016In Lockridge, our Supreme Court held that Michigan’s statutory sentencing scheme violated the Sixth Amendment principles articulated in Alleyne v United States, 570 US ___ ; 133 S Ct 2151 ; 186 L Ed 2d 314 (2013), because it required a mandatory increase in the minimum- sentence range imposed upon a defendant based on judicially found facts that required proof by only a preponderance of the evidence.

2016People v Moorer, 262 Mich App 64, 76 ; 683 NW2d 736 (2004). 4 We note that defendant did raise the Lockridge issue in a motion to remand; however, even with proper preservation, this Court has determined that the analysis in Lockridge applies equally to cases involving preserved claims of error.

2016The Court held that the “first-in-time sentencing court lacked discretionary consecutive sentencing authority.” Id. at 231-232 . 12 In addition to his Lockridge challenge, defendant argues on appeal that the trial court’s assignment of 10 points for OV 12 was not supported by the record. 13 This evidence is sufficient to defeat defendant’s argument on appeal that the trial court erred by assessing 10 points for OV 12.

2016See MCL 777.62. 52 People v Rhodes (On Remand), 305 Mich App 85, 91 ; 849 NW2d 417 (2014) (quotation omitted). 53 Trakhtenberg, 493 Mich at 51 . 54 Carines, 460 Mich at 763 . 55 Lockridge, 498 Mich at 399 . -10- Court held that the guidelines “are advisory only.”56 The Court provided direction with regard to cases where a defendant, sentenced prior to the date Lockridge was decided, had not preserved his or her claim of Lockridge error.

2016Jackson, 487 Mich at 793-794 . -4- eligibility,” this comment was made to support review of a minimum sentence that fell within the guidelines as scored by the trial court and within the proper but modified minimum sentence range.3 The statement in Melton did not suggest that parole eligibility may be impacted by a scoring error that does not alter the minimum sentence range.

2016Therefore, we address defendant’s claim of sentencing error as a Francisco3 error and not as a Lockridge error and remand to the trial court for resentencing.4 However, on remand, as the 2 People v Lockridge, 498 Mich 358 ; 870 NW2d 502 (2015). 3 People v Francisco, 474 Mich 82, 84, 88 ; 711 NW2d 44 (2006). 4 While unpreserved claims are reviewed for plain error affecting a substantial right, People v Schumacher, 276 Mich App 165, 177 ; 740 NW2d 534 (2007), a prosecutor’s admission of a scoring error constitutes “a plain error affecting the defendant’s substantial rights.” People v Lathrop, 48

2016Therefore, we address defendant’s claim of sentencing error as a Francisco3 error and not as a Lockridge error and remand to the trial court for resentencing.4 However, on remand, as the 2 People v Lockridge, 498 Mich 358 ; 870 NW2d 502 (2015). 3 People v Francisco, 474 Mich 82, 84, 88 ; 711 NW2d 44 (2006). 4 While unpreserved claims are reviewed for plain error affecting a substantial right, People v Schumacher, 276 Mich App 165, 177 ; 740 NW2d 534 (2007), a prosecutor’s admission of a scoring error constitutes “a plain error affecting the defendant’s substantial rights.” People v Lathrop, 48

2016Therefore, we address defendant’s claim of sentencing error as a Francisco3 error and not as a Lockridge error and remand to the trial court for resentencing.4 However, on remand, as the 2 People v Lockridge, 498 Mich 358 ; 870 NW2d 502 (2015). 3 People v Francisco, 474 Mich 82, 84, 88 ; 711 NW2d 44 (2006). 4 While unpreserved claims are reviewed for plain error affecting a substantial right, People v Schumacher, 276 Mich App 165, 177 ; 740 NW2d 534 (2007), a prosecutor’s admission of a scoring error constitutes “a plain error affecting the defendant’s substantial rights.” People v Lathrop, 48

2016Therefore, we address defendant’s claim of sentencing error as a Francisco3 error and not as a Lockridge error and remand to the trial court for resentencing.4 However, on remand, as the 2 People v Lockridge, 498 Mich 358 ; 870 NW2d 502 (2015). 3 People v Francisco, 474 Mich 82, 84, 88 ; 711 NW2d 44 (2006). 4 While unpreserved claims are reviewed for plain error affecting a substantial right, People v Schumacher, 276 Mich App 165, 177 ; 740 NW2d 534 (2007), a prosecutor’s admission of a scoring error constitutes “a plain error affecting the defendant’s substantial rights.” People v Lathrop, 48

2016“A Lockridge error is not structural, and thus, must be reviewed for harmless error.” Id. at ___; slip op at 10. -4- To determine if the error here is harmless, the Crosby3 procedure must be followed4.

2016“A Lockridge error is not structural, and thus, must be reviewed for harmless error.” Id. at ___; slip op at 10. -4- To determine if the error here is harmless, the Crosby3 procedure must be followed4.

2015“When the evidence establishes a fight and then a killing, there must be a showing of a thought process undisturbed by hot blood in order to establish . . . premeditated murder.” People v Plummer, 229 Mich App 293, 301 ; 581 NW2d 753 (1998) (citation and quotation marks omitted).

2015“When the evidence establishes a fight and then a killing, there must be a showing of a thought process undisturbed by hot blood in order to establish . . . premeditated murder.” People v Plummer, 229 Mich App 293, 301 ; 581 NW2d 753 (1998) (citation and quotation marks omitted).