People of Michigan v. Delmerey Deshawn Morris ( 2018 )

STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
June 22, 2018
Plaintiff-Appellee,
v No. 337317
Wayne Circuit Court
DELMEREY DESHAWN MORRIS, LC No. 11-003373-01-FC
Defendant-Appellant.
Before: BECKERING, P.J., and M. J. KELLY and O’BRIEN, JJ.
PER CURIAM.
Following a jury trial, defendant, Delmerey Morris, was convicted of two counts of
second-degree murder,1 MCL 750.317, assault with intent to do great bodily harm less than
murder, MCL 750.84, conspiracy to commit armed robbery, MCL 750.157a; MCL 750.529, and
possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b. He
appeals by right the trial court’s amended judgment of sentence in which the trial court
resentenced him to concurrent prison terms of 35 to 50 years for second-degree murder, 60 to
220 months for assault with intent to do great bodily harm less than murder, and 20 to 50 years
for conspiracy to commit armed robbery, to be served consecutive to a two-year term of
imprisonment for the felony-firearm conviction. We affirm.
I. BASIC FACTS
In November 2011, Morris, Derrico Searcy, and Darnell Hayes were convicted of
shooting Philden Reid during their planned attempt to rob him of his designer sunglasses and
money. Morris’s sentencing guidelines range for the second-degree murder conviction was 270
1
In a prior appeal, this Court vacated one of Morris’s second-degree murder convictions,
remanded for correction of the judgment of sentence to reflect only one conviction and sentence
for second-degree murder and to correct an error in the judgment that referred to a conviction
and sentence for armed robbery, and affirmed in all other respects. People v
Searcy/Hayes/Morris, unpublished per curiam opinion of the Court of Appeals, issued March 27,
2014 (Docket Nos. 308101, 308527 & 311177); unpub op at 17. Our Supreme Court denied
Morris’s application for leave to appeal. People v Morris, 496 Mich. 868 (2014).
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to 450 months, and on November 17, 2011, the trial court sentenced him within the guidelines
range to serve 35 to 50 years for the second-degree murder conviction. However, on November
21, 2011, the trial court resentenced Morris to 35 to 60 years for the second-degree murder
conviction based on its belief that the adjustment was necessary to comply with the two-thirds
rule in MCL 769.34(2)(b).
Subsequently, on October 23, 2015, Morris filed a motion in circuit court for relief from
judgment, seeking resentencing. In relevant part, Morris argued that the trial court erroneously
believed that it was required to increase his maximum sentence for second-degree murder from
50 years to 60 years to comply with the two-thirds rule. He also argued that the trial court
violated his right of allocution at the second sentencing proceeding when it imposed a greater
maximum sentence without providing him with an opportunity to address the court. Following
an evidentiary hearing, the trial court granted Morris’s request for resentencing. On September
13, 2016, the trial court resentenced Morris to 35 to 50 years for the second-degree murder
conviction.
II. RESENTENCING
A. STANDARD OF REVIEW
Morris first argues that the trial court failed to exercise its discretion when resentencing
him because the court erroneously believed that it had to re-impose the 35-year minimum
sentence it had originally sentenced Morris to serve. Because Morris did not raise this issue on
resentencing, we review this unpreserved error for plain error affecting his substantial rights.
People v Carines, 460 Mich. 750, 763-764; 597 NW2d 130 (1999).
B. ANALYSIS
To begin, we reject the prosecution’s position that a remand for a Crosby2 proceeding is
required. Although the sentencing guidelines are advisory following our Supreme Court’s
decision in People v Lockridge, 498 Mich. 358, 365; 870 NW2d 502 (2015), the Lockridge Court
expressly held that “Crosby remands are warranted only in cases involving sentences imposed on
or before July 29, 2015,” whereas a defendant sentenced after that date would have his or her
sentence reviewed under “traditional plain-error review from Carines . . . .” Lockridge, 498
Mich. App. at 397. Here, Morris was resentenced in September 2016, which is after July 29,
2015, so we must review his sentence under the plain-error standard from Carines.3
Morris argues that a trial court’s failure to exercise sentencing discretion is grounds for
resentencing. In support, he directs us to People v Daniels, 69 Mich. App. 345, 349-350; 244
NW2d 472 (1976), where this Court held that resentencing was required when a trial judge
2
United States v Crosby, 397 F3d 103 (CA 2, 2005).
3
In addition, we note that Morris is requesting resentencing, not a Crosby remand. Thus, the
prosecution’s willingness to “concede” that a Crosby remand is necessary is unresponsive to the
issue actually before this Court.
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erroneously believed that consecutive sentencing was mandatory rather than discretionary. He
also directs us to People v Mauch, 23 Mich. App. 723, 730-731; 179 NW2d 184 (1970), where
this Court held resentencing was required where a judge erroneously believed that enhancement
under the habitual offender statute was mandatory. Neither opinion is binding as they were both
issued before November 1, 1990. See MCR 7.215(J). However, even if we were to apply
Daniels and Mauch, there is nothing on the record supporting Morris’s contention that the trial
court believed that it had to re-impose the same 35-year minimum sentence. Indeed, the record
reflects that an updated presentence report was prepared, that the court inquired about whether
there were challenges to the scoring of the guidelines, and that it considered other sentencing
issues, such as the imposition of restitution. In the absence of any evidence that the court
believed it was required to impose a 35-year minimum sentence, we cannot find that there is a
plain error that affected Morris’s substantial rights. Accordingly, remand for resentencing is not
warranted.
III. PUBLIC TRIAL
Morris next seeks relief from his original convictions by arguing that the trial court’s
closure of the courtroom during a witness’s testimony violated his right to a public trial. We
decline to consider this issue because it is beyond the scope of this appeal. Pursuant to MCR
7.203(A)(1), this Court has jurisdiction as of right from a final order as defined in MCR
7.202(6). Morris filed this appeal from the amended judgment of sentence issued on
resentencing, which qualifies as a “final order” under MCR 7.202(6)(b)(iii) (in a criminal case, a
final order includes “a sentence imposed following the granting of a motion for resentencing”).
“An appeal from resentencing is limited to the resentencing proceeding.” People v Gauntlett,
152 Mich. App. 397, 400; 394 NW2d 437 (1986). Accordingly, Morris’s issue challenging his
original convictions is not reviewable in this appeal.
IV. RESTITUTION
Finally, Morris argues that there is no evidence supporting the court’s order that he pay
$5,000 in restitution. The prosecution has the burden of proving the amount of restitution by a
preponderance of the evidence. People v Fawaz, 299 Mich. App. 55, 65; 829 NW2d 259 (2012).
In determining the amount of restitution, “[a] judge is entitled to rely on the information in the
presentence report, which is presumed to be accurate unless the defendant effectively challenges
the accuracy of the factual information.” People v Grant, 455 Mich. 221, 233-234; 565 NW2d
389 (1997). At the original sentencing proceeding, the subject of restitution was raised by the
prosecutor, who stated:
[T]here was a request for restitution for five thousand dollars for burial
expenses[.] I didn’t want to make that part of the record[.] I’ve instructed [the
victim’s] mother to submit those documents to the probation department to order
restitution through the Michigan Department of Corrections for the amount of five
thousand dollars.
The trial court stated that “each defendant has to pay restitution once that is determined[.]”
Morris did not request an evidentiary hearing on the issue or otherwise comment on the matter.
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Before Morris’s 2016 resentencing, the trial court granted Morris’s request for an updated
presentence report. In the updated report, the probation department recommended that
“restitution be set at $5,000 to be paid to the mother of the victim . . . Restitution should be paid
jointly and severely with co-defendants . . . .” At the outset of the resentencing proceeding,
Morris’s lawyer stated that he had reviewed the updated presentence report. Although Morris’s
lawyer challenged the accuracy of some of the information in the report, there was no objection
to the amount of restitution. Subsequently, the trial court ordered Morris to pay $5,000 in
restitution to the victim’s mother. When the trial court proceeded to discuss Morris’s right to
appeal, the following exchange occurred:
The court: Anything else?
Morris’s lawyer: Yes, your Honor with respect to the restitution I would
just ask the Court to note that it is to be joint and several with the other two co-
defendant’s [sic].
The prosecutor: No objection to that, your Honor.
The court: Very well that motion is granted.
Morris’s lawyer: Thank you. [Emphasis added.]
Given this record, there is no basis for challenging the amount of restitution. Because
Morris did not challenge the accuracy of the restitution amount specified in the updated
presentence report, the trial court was entitled to rely on that amount. Furthermore, after the trial
court announced the amount of restitution, Morris’s lawyer acquiesced, only requesting that the
amount be made joint and several with the codefendants. “A defendant should not be allowed to
assign error on appeal to something his own counsel deemed proper at trial. To do so would
allow a defendant to harbor error as an appellate parachute.” People v Green, 228 Mich. App.
684, 691; 580 NW2d 444 (1998) (citation omitted). By acquiescing to the accuracy of the
amount of restitution specified in the presentence report and ordered by the trial court, Morris
waived his right to challenge the amount of restitution. People v Carter, 462 Mich. 206, 215; 612
NW2d 144 (2000). Morris’s waiver extinguishes any error. Id.
Affirmed.
/s/ Jane M. Beckering
/s/ Michael J. Kelly
/s/ Colleen A. O'Brien
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