S T A T E O F M I C H I G A N C O U R T O F A P P E A L S PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, UNPUBLISHED November 21, 2017 v No. 333317 Wayne Circuit Court LAKEISHA NICOLE GUNN, LC No. 13-004566-01-FH Defendant-Appellant. Before: MURRAY, P.J., and FORT HOOD and GLEICHER, JJ. PER CURIAM. Defendant appeals as of right, following resentencing, 1 her sentence of 15 to 30 years imprisonment for her jury-trial conviction of second-degree arson, MCL 750.73(1). 2 We affirm. This case has a somewhat complicated and protracted procedural history. Following a jury trial, defendant was convicted of second-degree arson, MCL 750.73(1) ( Count I ), and placing an offensive or injurious substance in or near real property with intent to injure or damage property, MCL 750.209(1)(b) ( Count II ). The trial court originally sentenced defendant, as a third habitual offender, MCL 769.11, to 15 to 30 years imprisonment for each conviction, to be served concurrently. On appeal, this Court affirmed defendant s convictions, but vacated her sentence on Count II, and remanded for resentencing on that count only. People v Lakeisha Nicole Gunn, unpublished opinion per curiam of the Court of Appeals, issued February 17, 2015 (Docket No. 318065), pp 1-2. In the context of considering defendant s sufficiency of the evidence challenge, this Court stated its reasoning for ordering resentencing of Count II in pertinent part, as follows: 1 For reasons set forth in more detail subsequently in this opinion, defendant was only resentenced on a count of placing an offensive or injurious substance in or near real property with intent to injure or damage property, MCL 750.209(1)(b). 2 Defendant was sentenced as a third habitual offender, MCL 769.11. As will be detailed subsequently in this opinion, the trial court also sentenced defendant to 10 to 30 years imprisonment for her jury-trial conviction of placing an offensive or injurious substance in or near real property with intent to injure or damage property, MCL 750.209(1)(b). -1-
[The judgment of sentence]... identifies the conviction offense on Count II as placing an explosive substance in or near real property, citing MCL 750.207(2)(b). The record indicates, however, that defendant was charged with and convicted of placing an offensive or injurious substance in or near real property, contrary to MCL 750.209(1)(b). At sentencing however, defendant s conviction for Count II was inaccurately listed on the sentencing information report as placing explosives on or near property, contrary to MCL 750.207(2)(b), and the parties and the trial court proceeded as if defendant had been convicted of that offense, which is the offense identified on defendant s judgment of sentence. Because the trial court sentenced defendant under the mistaken belief that [she] had been convicted of placing explosives on or near property, pursuant to MCR 2.617(A)(7), we vacate defendant s sentence for Count II and remand for resentencing on the correct conviction of placing an offensive or injurious substance in or near real property, contrary to MCL 750.209(1)(b). [Gunn, unpub op at 1-2 (emphasis added).] With respect to defendant s challenge that the trial court engaged in impermissible judicial fact-finding in scoring the sentencing guidelines variables, this Court stated, in pertinent part, as follows: Defendant lastly argues that judicial fact-finding by the trial court when scoring the sentencing guidelines variables entitles [her] to resentencing under Alleyne v United States, 570 US ; 133 S Ct 2151; 186 L Ed 2d 314 (2013). As defendant acknowledges, this Court rejected this same argument in People v Herron, 303 Mich App 392, 405; 845 NW2d 533 (2013) appeal held in abeyance Mich ; 846 NW2d 924 (2014). Because we are required to follow Herron, see MCR 7.215(J)(1), we reject this claim of error. [Gunn, unpub op at 13.] Defendant subsequently applied for leave to appeal to the Michigan Supreme Court. In lieu of granting leave to appeal, the Michigan Supreme Court remanded for a Crosby 3 hearing pursuant to People v Lockridge, 498 Mich 358; 870 NW2d 502 (2015) on Count I, but denied leave on the remaining issues. People v Gunn, 498 Mich 903; 870 NW2d 894 (2015). Specifically, the Michigan Supreme Court s order provided, in pertinent part, as follows: [W]e REVERSE in part the judgment of the Court of Appeals, and we REMAND this case to the Wayne Circuit Court to determine whether the court would have imposed a materially different sentence under the sentencing procedure described in People v Lockridge, 498 Mich 358; 870 NW2d 502 (2015). On remand, the trial court shall follow the procedure described in Part VI of our opinion. If the trial court determines that it would have imposed the same sentence absent the unconstitutional constraint on its discretion, it may reaffirm the original sentence. 3 United States v Crosby, 397 F3d 103 (CA 2, 2005). -2-
If, however, the trial court determines that it would not have imposed the same sentence absent the unconstitutional constraint on its discretion, it shall resentence the defendant. In all other respects, leave to appeal is DENIED, because we are not persuaded that the remaining questions presented should be reviewed by this Court. [Gunn, 498 Mich at 903 (emphasis added).] The trial court held a Crosby hearing, and concluded, with respect to Count I, that it would have imposed the same sentence on Count I had the sentencing guidelines been advisory. The trial court also resentenced defendant in accordance with the proper offense on Count II to 10 to 30 years imprisonment. Defendant then filed a motion for resentencing with respect to Count I, which the trial court denied, holding that it lacked authority to resentence defendant. Defendant now argues on appeal that this Court should remand to the trial court for resentencing on Count I. We disagree. Where our resolution of the issue presented requires an interpretation of the applicable court rule, our review is de novo. People v Comer, 500 Mich 278, 287; 901 NW2d 553 (2017). At issue in this case is the trial court s authority to revisit the sentence it rendered with respect to Count I. As an initial matter, MCR 6.429(A) states, [A] court may correct an invalid sentence, but the court may not modify a valid sentence after it has been imposed except as provided by law. In People v Miles, 454 Mich 90, 96; 559 NW2d 299 (1997), the Michigan Supreme Court set forth the following legal principles with respect to what constitutes an invalid sentence: A sentence is invalid when it is beyond statutory limits, when it is based upon constitutionally impermissible grounds, improper assumptions of guilt, a misconception of law, or when it conforms to local sentencing policy rather than individualized facts. This Court has also repeatedly held that a sentence is invalid if it is based on inaccurate information. [Citations omitted.] In the instant case, defendant contends that her sentence on Count I was invalid for several reasons, and we will address each in turn. First, defendant contends that her sentence on Count I was the product of impermissible judicial fact-finding in violation of the Sixth Amendment. However, as noted above, the trial court, in accordance with the Michigan Supreme Court s order that a Crosby hearing be held, clearly noted, with regard to its sentence on Count I, that it would not have imposed a materially different sentence for defendant but for the unconstitutional restraint on its discretion. Lockridge, 498 Mich at 397. Defendant also argues that her sentence is unreasonable, disproportionate, disparate and that unusual circumstances existed warranting a more lenient sentence where defendant s actions in committing second-degree arson were the result of her being in an abusive domestic -3-
relationship. 4 As an initial matter, we note that a review of her brief on appeal in Docket No. 318065 confirms that defendant, aside from her Alleyne challenge, did not raise any other arguments concerning the validity of her sentence in her initial appeal. Moreover, where defendant s minimum sentence falls within the appropriate guidelines sentence range, this Court shall affirm that sentence absent an error in scoring or an indication that the sentence was based on inaccurate information. MCL 769.34(10); People v Schrauben, 314 Mich App 181, 196; 886 NW2d 173 (2016). Defendant also argues that her sentence on Count I was based on inaccurate information where the trial court initially rendered a sentence on Count II for the incorrect offense of placing explosives on or near real property, contrary to MCL 750.207(2)(b). In support of her argument, defendant points to the Michigan Supreme Court s decision in Miles, 454 Mich at 90. At issue in Miles was the authority of the trial court to modify a sentence. Id. at 96. The Michigan Supreme Court held that the trial court erred in increasing the defendant s sentence for felony-firearm and reaffirming its sentence for armed robbery without affording [the] defendant an opportunity to challenge [subsequent] new information at a resentencing hearing. Id. at 98. 5 Where the defendant conceded the accuracy of a prior felony-firearm conviction, the Michigan Supreme Court concluded that the trial court s failure to conduct a resentencing hearing before amending the judgment of sentence as a result of that new information was harmless error. Id. at 100-101. However, with respect to the defendant s sentence of armed robbery, the Michigan Supreme Court remanded for resentencing where that sentence was based on... inaccurate information in the presentence report[.] Id. at 101. In our view, Miles is factually dissimilar, in that the defendant s presentence investigation report (PSIR) in that case omitted information that directly affected both his sentence for felonyfirearm and armed robbery. In the present case, the incorrect citation of the offense in the PSIR and in the judgment of sentence did not directly impact defendant s sentence for second-degree arson. In fact, the trial court plainly stated that although the wrong citation had been included in the PSIR and judgment of sentence, the trial court was cognizant that it was sentencing defendant on the correct charge. Further, while there may have been an inadvertent procedural discrepancy that occurred with regard to defendant s sentence on Count II, we note that the sentencing guidelines for both offenses relative to Count II were the same, given that placing explosives on or near real property, MCL 750.207(2)(b), and placing an offensive or injurious substance in or near real property with intent to injure or damage property, MCL 750.209(1)(b), are both Class B offenses. MCL 777.16k. 6 Therefore, because defendant s sentence of 15 to 30 years 4 Aside from arguing for a lesser sentence where defendant had been involved in an abusive relationship, defendant did not raise any of these claims with respect to Count I at the resentencing for Count II. 5 Specifically, the report did not correctly include information that the defendant had a previous felony-firearm conviction. Id. at 92. 6 Notably, at the resentencing hearing on May 3, 2016, defense counsel conceded that the sentencing guidelines range remained the same. -4-
imprisonment for Count I is a valid sentence, the trial court correctly recognized that it did not have the authority to modify it. See MCR 6.429(A). Affirmed. /s/ Christopher M. Murray /s/ Karen M. Fort Hood -5-
S T A T E O F M I C H I G A N C O U R T O F A P P E A L S PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, UNPUBLISHED November 21, 2017 v No. 333317 Wayne Circuit Court LAKEISHA NICOLE GUNN, LC No. 13-004566-01-FH Defendant-Appellant. Before: MURRAY, P.J., and FORT HOOD and GLEICHER, JJ. GLEICHER, J. (dissenting). The issue presented is whether defendant Lakeisha Gunn s sentence of 15 to 30 years imprisonment for second-degree arson is invalid, entitling her to resentencing. The majority holds that because Gunn s minimum sentence falls within the appropriate guidelines range, resentencing is not required. I believe Gunn s sentence represents a departure, and respectfully dissent. When Gunn was first sentenced in 2013, the probation department calculated her sentencing guidelines only for the higher crime class offense, placing explosives on or near property, MCL 750.207(2)(b), and not for second-degree arson, MCL 750.73(1). The trial court selected the same minimum sentence for both crimes (15 years), which amounted to a departure sentence for Gunn s arson offense. Since Gunn would serve the longer sentence anyway, the departure made no practical difference; any error in imposing it was harmless. But when the trial court resentenced Gunn in 2016 and reduced her sentence for the higher crime class offense, the departure sentence for arson was harmless no more. Because the trial court neglected to justify Gunn s departure sentence for second-degree arson, I would hold that sentence invalid and would remand for a third resentencing to permit the trial court to either sentence Gunn within the applicable guidelines, or to justify the departure sentence it imposed. -1-
I rest my reasoning on several related rules. First, at the time Gunn committed the offenses of conviction, second-degree arson was a class D felony; it is now a class B offense. 1 MCL 769.34(2) provides in relevant part that a defendant s sentence shall be within the appropriate sentence range under the version of those sentencing guidelines in effect on the date the crime was committed. As a class D felony, the guidelines minimum sentencing range for second-degree arson was 34 to 100 months for a third habitual offender such as Gunn. Her minimum sentence (180 months) is well above that range. And although a sentencing court has discretion to depart from the guidelines, it must explain why the sentence it has elected to impose is more proportionate to the offense and the offender than a within-guidelines sentence would be. Despite two resentencing hearings, the court has not justified either the departure or its extent. A brief review of the procedural history of this case helps explain this omission. In Gunn s initial appeal, we held that the trial court had mistakenly sentenced Gunn for a crime she did not commit (placing explosives on or near property, MCL 750.207(2)(b)) rather than her actual crime of conviction (placing an offensive or injurious substance in or near real property with intent to injure or damage property. MCL 750.209(1)(b)). We vacated Gunn s sentence for placing explosives on real property and ordered that she be resentenced on the correct conviction. Gunn filed an application for leave to appeal in the Supreme Court challenging other aspects of our initial opinion, including whether judicial fact-finding entitled her to resentencing under Alleyne v United States, 570 US 99; 133 S Ct 2151; 186 L Ed 2d 314 (2013). The Supreme Court affirmed but for the Alleyne claim; pursuant to People v Lockridge, 498 Mich 358; 870 NW2d 894 (2015), the Supreme Court remanded for a determination of whether the trial court would have imposed a materially different sentence had its discretion not been unconstitutionally constrained. On remand, the trial court expressed confusion about whether the Supreme Court intended both of Gunn s sentences to be subject to the Lockridge remand, or only the sentence for the higher crime-class offense (placing an offensive or injurious substance in or near real property with intent to injure or damage property). The court acknowledged that the arson sentence was really based on the sentence for placing an offensive or injurious substance in or near real property, and observed that it was not required to score the guidelines for the arson conviction, a class D offense, given that they had been scored for the more serious class B offense. See People v Lopez, 305 Mich App 686; 854 NW2d 205 (2014). Gunn s counsel suggested that the two offenses should be treated differently as far as remedy is concerned, but the trial court declined to do so. Instead, it announced that it would have imposed the same sentences even absent the unconstitutional constraint on its discretion. The trial court then turned to this Court s order for resentencing on the more serious of the two convictions. To fulfill this Court s mandate, the trial court ordered an updated presentence report based on the correct crime of conviction. At the subsequent (second) 1 Effective October 1, 2013, the Legislature amended MCL 771.6c, which had deemed arson of real property to be a class D offense, to reflect that second degree arson constituted a class B crime. Gunn committed the arson in April 2013. -2-
resentencing hearing, the court considered a sentencing memorandum prepared on Gunn s behalf, which included a report submitted by a social worker familiar with Gunn s conduct during her incarceration. Gunn also addressed the court. Based on the mitigating circumstances brought to the court s attention, the court reduced Gunn s minimum sentence from 15 to 10 years for the injurious substance conviction. But the court refused to reconsider Gunn s arson sentence based on the court s expressed belief that it was valid when imposed. As a result, Gunn is now serving an unexplained departure sentence for second-degree arson, and a sentence within the guidelines for the higher crime category offense, despite that both convictions arise from precisely the same conduct. I acknowledge that initially the probation department was required to score only the higher crime classification offense, as Gunn would serve her sentences concurrently. People v Mack, 265 Mich App 122; 695 NW2d 342 (2005). 2 This Court explained in Lopez that the probation department is not obligated to score a minimum sentence range for a concurrent conviction of a lower-crime-class offense because except in possibly an extreme and tortured case, the guidelines range for the conviction with the highest crime classification will be greater than the guidelines range for any other offense. Given that the sentences are to be served concurrently, the guidelines range for the highest-crime-class offense would subsume the guidelines range for lower-crime-class offenses, and there would be no tangible reason or benefit in establishing guidelines ranges for the lowercrime-class offenses. [Lopez, 305 Mich App at 691-692.] While I m not sure that the phrase extreme and tortured applies here, both Mack and Lopez nevertheless prophesied the problem this case presents: a departure sentence lacking an articulated justification. In Mack, we specifically questioned whether a sentence for a conviction of the lesser class felony that is not scored under the guidelines...could permissibly exceed the sentence imposed on the highest crime class felony and remain proportional. Mack, 265 Mich App at 129. And in Lopez, the majority reiterated concern that a conviction for a lesser class felony not scored under the guidelines could wind up exceeding the guidelines for that crime. Lopez, 305 Mich App at 692. This case exemplifies the departure dilemma predicted in Lopez and Mack. In People v Steanhouse, 500 Mich 453; 902 NW2d 327 (2017), the Supreme Court emphasized that although the sentencing guidelines are now advisory rather than mandatory, a sentence must be proportional. The principal of proportionality has guided sentencing at least since the Court s decision in People v Milbourn, 435 Mich 630; 461 NW2d 1 (1990). Pursuant to that principal, 2 I respectfully disagree with Mack s reasoning. See Lopez, 305 Mich App at 696 (GLEICHER, J., concurring in part and dissenting in part). -3-
a judge helps to fulfill the overall legislative scheme of criminal punishment by taking care to assure that the sentences imposed across the discretionary range are proportionate to the seriousness of the matters that come before the court for sentencing. In making this assessment, the judge, of course, must take into account the nature of the offense and the background of the offender. [Id. at 651.] When applying the Milbourn proportionality standard, the guidelines remain a highly relevant consideration in a trial court s exercise of sentencing discretion that trial courts must consult and take...into account when sentencing. Steanhouse, 500 Mich at 475. And courts must also continue to justify the sentence imposed in order to facilitate appellate review. Id. at 470. I would hold that the trial court violated the principal of proportionality by imposing a departure sentence for second-degree arson without justifying its reasons for doing so. Scoring only the higher crime class makes sense from an efficiency perspective when a defendant s sentence for the lower crime class offense is within the guidelines and will necessarily be subsumed by a longer sentence. That was the case before Gunn was resentenced for the second time. But the trial court s decision to significantly reduce Gunn s sentence for the higher crime class offense eliminated the rationale for scoring only the higher crime class felony, and thereby also created a departure sentence for second-degree arson. The principal of proportionality dictates that the trial court tailor a defendant s sentence to the circumstances surrounding the offense and the qualities of the offender. Here, the two convictions are for precisely the same conduct. The information relayed at the second resentencing hearing persuaded the trial court to reduce Gunn s sentence for the higher crime class offense. No reasons have been offered for departing upward by almost doubling the applicable highest permissible minimum sentence for second-degree arson. I would hold that because the trial court failed to justify this departure sentence, it qualifies as invalid. Contrary to the trial court s belief and the majority s reasoning, the trial court was empowered to correct an invalid sentence. See MCR 6.429 (A); People v Buehler, 477 Mich 18, 28; 727 NW2d 127 (2007) ( Defendant s probationary sentence is a departure from the appropriate guidelines sentence range, and the trial court failed to articulate substantial and compelling reasons for the departure on the record as required by MCL 769.34(3). Because defendant s sentence is invalid, we reverse the judgment of the Court of Appeals and remand the case to the Ottawa Circuit Court for an articulation of substantial and compelling reasons on the record or resentencing. ). I would remand for resentencing. /s/ Elizabeth L. Gleicher -4-