People of Michigan v. Ivan Christopher Gollman ( 2018 )

STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
May 17, 2018
Plaintiff-Appellee,
v No. 334402
Wayne Circuit Court
IVAN CHRISTOPHER GOLLMAN, LC No. 02-011287-01-FC
Defendant-Appellant.
Before: O’CONNELL, P.J., and HOEKSTRA and K. F. KELLY, JJ.
PER CURIAM.
In 2003, a jury found defendant guilty of assault with intent to murder (AWIM), MCL
750.83, and possession of a firearm during the commission of a felony (felony-firearm), MCL
750.227b. This case has a long appellate history, and defendant has been resentenced several
times. Most recently, we remanded for Crosby1 proceedings to determine whether resentencing
was required in light of People v Lockridge, 498 Mich. 358; 870 NW2d 502 (2015). See People v
Gollman, unpublished per curiam opinion of the Court of Appeals, issued January 12, 2016
(Docket No. 323187). On remand, the trial court did not resentence defendant, concluding that,
although the guidelines were now advisory, defendant’s sentence should remain at 15 to 25 years
in prison for the AWIM conviction and a consecutive two-year sentence for the felony-firearm
conviction. Defendant again appeals as of right to this Court. Because defendant is not entitled
to resentencing, we affirm.
Defendant’s convictions arise from his actions in August 2002, when he shot the victim
in the mouth. Although the victim survived, he suffered damage to his gums and he was left
with a bullet lodged near his spine, which could not be removed because of the potential that the
victim could be paralyzed. Relevant to the present appeal, the trial court scored offense variable
(OV) 3 at 25 points and OV 10 at 15 points, resulting in a total OV score of 95 points. Under the
sentencing guidelines, with a prior record variable score of seven points, defendant’s minimum
sentence range was 108 to 180 months. See MCL 777.62. Defendant’s sentence of 15 to 25
years for his AWIM conviction is within this advisory guideline range.
1
United States v Crosby, 397 F3d 103 (CA 2, 2005).
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Following Crosby proceedings and the trial court’s decision not to resentence defendant,
defendant challenges his sentence on appeal. First, defendant asserts that the trial court erred by
scoring OV 3 at 25 points and OV 10 at 15 points. Related to these OVs, in a Standard 4 brief,
defendant also maintains that the law of the case should not prevent this Court from correcting
these scoring errors. Second, in his Standard 4 brief, defendant contends that the trial court
failed to abide by this Court’s Crosby remand order because the trial court did not impose a
“materially different” sentence. Finally, defendant more generally argues that his sentence is
disproportionate given his age, his lack of prior adult criminal convictions, his attainment of a
GED, and his participation in services while incarcerated. These arguments are without merit.
I. OFFENSE VARIABLES
Defendant’s arguments regarding OV 3 and OV 10 are controlled by the law of the case
doctrine. “That doctrine provides that an appellate court’s decision regarding a particular issue is
binding on courts of equal or subordinate jurisdiction during subsequent proceedings in the same
case.” People v Herrera (On Remand), 204 Mich. App. 333, 340; 514 NW2d 543 (1994). This
doctrine applies when “the facts remain substantially or materially the same.” People v Phillips,
227 Mich. App. 28, 31-32; 575 NW2d 784 (1997). Here, defendant challenges the scoring of OV
3 and OV 10; but, he raised these same arguments in a previous appeal to this Court, at which
time we considered and rejected his contentions that OVs 3 and 10 were improperly scored. See
People v Gollman, unpublished opinion of the Court of Appeals, issued May 27, 2014 (Docket
No. 312016), p 1-2. Indeed, defendant also challenged the scoring of OV 3 and OV 10 during
his most recent appeal to this Court, at which time we concluded that the law of the case doctrine
applied. People v Gollman, unpublished per curiam opinion of the Court of Appeals, issued
January 12, 2016 (Docket No. 323187), p 1-2. The facts remain materially the same, and thus
we again conclude that the law of the case doctrine controls our analysis of OVs 3 and 10.
Consequently, we again reject defendant’s contention that these OVs were improperly scored.
II. CROSBY PROCEEDINGS
Next, we reject defendant’s argument in his Standard 4 brief to the effect that the trial
court was required to impose a “materially different” sentence on remand. Quite simply, a
remand for Crosby proceedings is not an order that the trial court must impose a materially
different sentence; rather, the purpose of a Crosby remand is for the trial court to determine
whether it would have imposed a materially different sentence if the trial court had been aware
that the guidelines were merely advisory. People v Steanhouse, 500 Mich. 453, 461-462; 902
NW2d 327 (2017); Lockridge, 498 Mich. at 395 n 31; Crosby, 397 F3d at 117-118. Adhering to
the procedures for a Crosby remand, the trial court afforded defendant an opportunity to indicate
that he wished to be resentenced, the trial court obtained the views of counsel about
resentencing, and, recognizing that the guidelines were advisory, the trial court declined to
impose a different sentence. See Lockridge, 498 Mich. at 398. In short, the trial court complied
with this Court’s Crosby remand instructions, and defendant is not entitled to relief on this basis.
III. PROPORTIONALITY
Finally, there is no merit to defendant’s claim that his sentence is disproportionate.
Following Lockridge, “[a] trial court’s decision to depart from the sentencing guidelines is
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reviewed for reasonableness.” People v Schrauben, 314 Mich. App. 181, 193; 886 NW2d 173
(2016). In contrast, “[w]hen a trial court does not depart from the recommended minimum
sentencing range, the minimum sentence must be affirmed unless there was an error in scoring or
the trial court relied on inaccurate information.” Id. at 196, citing MCL 769.34(10). Further, a
sentence within the advisory guidelines range is “presumptively proportionate.” People v
Jackson, 320 Mich. App. 514, 527; 907 NW2d 865 (2017). “In order to overcome the
presumption that the sentence is proportionate, a defendant must present unusual circumstances
that would render the presumptively proportionate sentence disproportionate.” People v
Bowling, 299 Mich. App. 552, 558; 830 NW2d 800 (2013) (quotation marks and citation omitted).
In this case, defendant’s sentence of 15 to 25 years was within the minimum sentence
guidelines range of 108 to 180 months. This sentence is presumed proportionate, and the
circumstances identified by defendant as relevant to the proportionality of his sentence—e.g., his
age, lack of other adult convictions, a GED, and participation in services while incarcerated—do
not constitute “unusual circumstances” which render defendant’s presumptively proportionate
sentence disproportionate, particularly considering the grievous nature of the offense. See
People v Lyons, 222 Mich. App. 319, 324; 564 NW2d 114 (1997); People v Piotrowski, 211 Mich
App 527, 533; 536 NW2d 293 (1995); People v Daniel, 207 Mich. App. 47, 54; 523 NW2d 830
(1994). Accordingly, defendant’s sentence within the applicable minimum sentence guidelines
range is affirmed. See Schrauben, 314 Mich. App. at 196.
Affirmed.
/s/ Peter D. O’Connell
/s/ Joel P. Hoekstra
/s/ Kirsten Frank Kelly
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