People of Michigan v. Valentino Lahron Lee Stewart Jr ( 2018 )

STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
May 8, 2018
Plaintiff-Appellee,
v No. 338726
Ingham Circuit Court
VALENTINO LAHRON LEE STEWART, JR., LC No. 14-000463-FC
Defendant-Appellant.
Before: SHAPIRO, P.J., and M. J. KELLY and O’BRIEN, JJ.
PER CURIAM.
Defendant, Valentino Stewart, Jr, appeals by right the trial court’s order denying his
request for resentencing after a Crosby1 remand hearing. We affirm.
In June 2013, Stewart orchestrated a shooting that resulted in the death of Anthony Kye.
In Stewart’s previous appeal, this Court affirmed Stewart’s convictions, but determined that
because judicially found facts resulted in an increased minimum sentencing range the case had to
be remanded for a Crosby hearing under People v Lockridge, 498 Mich 358; 870 NW2d 502
(2015). People v Stewart, unpublished per curiam opinion of the Court of Appeals, issued
February 18, 2016 (Docket No. 323969). On remand, the trial court determined that it would
have imposed the same sentence had it known that the sentencing guidelines were advisory, so it
denied Stewart’s request for resentencing. The court also rejected Stewart’s lawyer’s argument
that, under Miller v Alabama, 567 US 460; 132 S Ct 2455; 183 L Ed 2d 407 (2012), the court
should reduce Stewart’s sentence because he had been a juvenile when he committed the murder.
On appeal, Stewart argues (1) that he is entitled to be resentenced because his sentence
violates the principle of proportionality and (2) that the trial court erred by failing to consider
Miller when determining his sentence. However, in cases “where an appellate court remands for
some limited purpose following an appeal as of right in a criminal case, a second appeal as of
right, limited to the scope of remand, lies from the decision on remand.” People v Kincade (On
Remand), 206 Mich App 477, 481; 522 NW2d 880 (1994). Thus, “the scope of the second
1
United States v Crosby, 397 F3d 103 (CA 2, 2005).
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appeal is limited by the scope of the remand.” People v Jones, 394 Mich 434, 435-436; 231
NW2d 649 (1975).
Here, the remand was for the trial court to determine whether it would have imposed a
materially different sentence in light of Lockridge and the now-advisory guidelines. See Stewart,
unpub op at 8. This Court did not “leave open any [other] issue . . . for further resolution on
remand.” Kincade (On Remand), 206 Mich App at 481-482. Accordingly, Stewart’s challenge
to the proportionality of his sentence and the trial court’s failure to consider Miller are issues
outside the scope of the remand order, and we decline to address them.
Affirmed.
/s/ Douglas B. Shapiro
/s/ Michael J. Kelly
/s/ Colleen A. O'Brien
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