People of Michigan v. Christopher Lee Johnson ( 2018 )

STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
January 25, 2018
Plaintiff-Appellee,
v No. 334741
Wayne Circuit Court
CHRISTOPHER LEE JOHNSON, LC No. 13-001600-01-FC
Defendant-Appellant.
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v No. 334742
Wayne Circuit Court
CHRISTOPHER LEE JOHNSON, LC No. 12-010789-01-FC
Defendant-Appellant.
Before: METER, P.J., and SAWYER and SHAPIRO, JJ.
SHAPIRO, J. (concurring in part and dissenting in part).
I concur in the majority opinion in Docket No. 334741. I respectfully dissent in Docket
No. 334742. In that case, I agree with my colleagues that this case must be returned to the trial
court, but do not agree with the remand directives as I believe they are, at best, unclear and more
likely incorrect. When this case was first before us in Docket No. 316314, we remanded the case
directing the trial court to “sentence defendant within any applicable sentencing guidelines
ranges . . . or articulate on the record a substantial and compelling reason for departure and
justify the extent of the departure[.]” Rather than doing so, the trial court conflated our order
with the decision in People v Lockridge, 498 Mich 358; 870 NW2d 502 (2015), and issued an
order on remand stating that knowing that guidelines are advisory, it would impose the same
sentence. As my colleagues recognize, the trial court’s action on remand does not comply with
our order.
The proper remedy is to again remand with direction that the trial court follows the
remand order. Alternatively, given that the “substantial and compelling” requirement is no
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longer in effect, we could remand simply for the trial court to resentence and, in the event of a
departure, set forth its reasons consistent with People v Steanhouse (On Remand), ___ Mich App
___, ___; ___ NW2d ___ (2017). Instead, the majority directs the trial court to conduct
“proceedings consistent with Steanhouse.” I do not understand what my colleagues are telling
the trial court to do. It is the role of the appellate court to conduct the reasonableness review
under Steanhouse. See People v Lockridge, 498 Mich 358, 392; 870 NW2d 502 (2015) (holding
that “[a] sentence that departs from the applicable guidelines range will be reviewed by an
appellate court for reasonableness”). The trial court has imposed the challenged sentence and it
cannot “review” its own sentence. The trial court should resentence defendant and we should
review that sentence pursuant to Steanhouse if defendant again appeals it.
Moreover, under Steanhouse, a departure sentence for which no reasons are provided is
itself error. Resentencing or at least a statement of reasons to allow review is required. Neither
has occurred and the majority has not clearly directed the trial court.
/s/ Douglas B. Shapiro
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