People of Michigan v. Dani Ray Malm ( 2023 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
February 16, 2023
Plaintiff-Appellee,
v No. 357503
Leelanau Circuit Court
DANI RAY MALM, LC No. 12-001770-FC
Defendant-Appellant.
Before: GLEICHER, C.J., and BOONSTRA and CAMERON, JJ.
PER CURIAM.
Defendant appeals by right from his resentencing after remand. We vacate those sentences
and remand for further proceedings.
I. PERTINENT FACTS AND PROCEDURAL HISTORY
In 2012, defendant was convicted, following a jury trial, of three counts of first-degree
criminal sexual conduct (CSC-I), MCL 750.520b(1)(b)(ii) (victim between 13 and 16 years old
and related to defendant). The trial court originally sentenced defendant to concurrent prison terms
of 18 to 40 years for each of the three counts, with lifetime electronic monitoring. 1 Defendant
appealed, and this Court affirmed his convictions and sentences.2 However, the Michigan
Supreme Court entered an order reversing in part and remanding the case, directing the trial court
to determine whether it would have imposed the same sentence in light of People v Lockridge, 498
Mich 358, 391; 870 NW2d 502 (2015), and if not, to resentence defendant. People v Malm, 498
Mich 901 (2015). There is no indication in the record that the trial court complied with this order.
Defendant filed successive motions for relief from judgment, which the trial court denied without
1
The minimum sentence imposed (i.e., 18 years, or 216 months, was within the then-mandatory
guidelines minimum sentence range of 171 to 285 months.
2
People v Malm, unpublished per curiam opinion of the Court of Appeals, issued April 1, 2014
(Docket No. 312486), p 1, rev’d in part 498 Mich 901.
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addressing the Supreme Court’s 2015 order. Defendant appealed the trial court’s denial, and this
Court again remanded the case, directing the trial court to address defendant’s assertion that the
trial court had failed to comply with the Supreme Court’s 2015 remand order.3 On remand, the
trial court resentenced defendant to serve concurrent sentences of 22 to 40 years in prison for
defendant’s three CSC-I convictions and subjected defendant to lifetime electronic monitoring
under MCL 750.520n.
II. COMPLIANCE WITH REMAND ORDER
Defendant raises several claims of error on appeal; however, we need not address them,
because it is clear that the trial court failed to comply with our remand order and again appears to
have failed to comply with our Supreme Court’s 2015 remand order. When an appellate court
remands a case with specific instructions, a trial court is required to follow those instructions.
People v Russell, 297 Mich App 707, 714; 825 NW2d 623 (2012). Whether the trial court
exceeded the scope of its authority on remand is a question of law that we review de novo. People
v Milton, 257 Mich App 467, 470; 668 NW2d 387 (2003).
In Lockridge, 498 Mich at 391, the Michigan Supreme Court held that Michigan’s
minimum sentencing guidelines scheme was unconstitutional to the extent that the guidelines were
mandatory and “[struck] down the requirement of a substantial and compelling reason to depart
from the guidelines range.”4 The Michigan Supreme Court held in Part VI of its opinion in
Lockridge that
all defendants (1) who can demonstrate that their guidelines minimum sentence
range was actually constrained by the violation of the Sixth Amendment and (2)
whose sentences were not subject to an upward departure can establish a threshold
showing of the potential for plain error sufficient to warrant a remand to the trial
court for further inquiry. [Id. at 395.]
The Court also specified that for sentences that were imposed before Lockridge,5 a trial court
should, on remand, use the procedures set forth in United States v Crosby, 397 F3d 103, 117-118
(CA 2, 2005). Id. Cases that are remanded for resentencing consideration under Lockridge are
referred to as a “Crosby remand.” People v Odom, 327 Mich App 297, 306; 933 NW2d 719(2019). A Crosby remand is “ ‘not for the purpose of a required resentencing, but only for the
3
People v Malm, unpublished order of the Court of Appeals, entered January 19, 2021 (Docket
No. 354835). The Michigan Supreme Court denied defendant’s application for leave to appeal our
January 19, 2021 order. People v Malm, 508 Mich 925 (2021).
4
In assessing “whether the Michigan sentencing guidelines violate a defendant’s Sixth
Amendment fundamental right to a jury trial,” the Supreme Court in Lockridge described the
unconstitutional deficiency as follows: “That deficiency is the extent to which the guidelines
require judicial fact-finding beyond facts admitted by the defendant or found by the jury to score
offense variables (OVs) that mandatorily increase the floor of the guidelines minimum sentence
range.” Lockridge, 498 Mich at 364.
5
Lockridge was decided on July 29, 2015.
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more limited purpose of permitting the sentencing judge to determine whether to resentence, now
fully informed of the new sentencing regime, and if so, to resentence . . . .’ ” Lockridge, 498 Mich
at 396 (citation omitted”). Therefore, on a Crosby remand, a trial court should “first allow a
defendant an opportunity to inform the court that he or she will not seek resentencing.” Lockridge,
498 Mich at 398. If the defendant does not notify the court that he will not seek resentencing, the
trial court should “obtain the views of [defendant’s] counsel in some form” before deciding
whether or not it “would have imposed a materially different sentence but for the unconstitutional
constraint” of the previously-mandatory guidelines. Id. If, after following this procedure, the trial
court decides to resentence defendant, it should consider “only the circumstance existing at the
time of the original sentence.” Id. (quotation marks and citation omitted).
In this case, the Supreme Court specifically ordered the trial court on remand to “follow
the procedure described in Part VI of [Lockridge].” Malm, 498 Mich at 901. The Court further
directed that “[i]f 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. 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.” Id. (emphasis
added).
The record in this case indicates that the trial court did not follow this procedure. First, the
sentencing transcript does not reflect that the trial court allowed defendant an opportunity to inform
the court that he would not seek resentencing. The trial court appears to have moved straight into
resentencing, albeit while stating, without explanation, that “This matter is back for a re-
sentencing. And, the specific instruction . . . of the appellate courts, and there was some
equivocation about it at the time whether that was desirable by the defendant or not, but it’s been
raised again so we have a remand for this proceeding.” However, even assuming that defendant
was accorded the opportunity to notify the court that he would not seek resentencing, the record
shows that the trial court did not consider whether it would have imposed the same sentence but
for the unconstitutional constraint on its discretion. Rather, the trial court simply made it clear
that it had come to believe that defendant’s sentence should have been lengthier, stating in relevant
part:
The guidelines as scored are 171 to 185 [sic, 285] months. The 171 is just
over 14 years, 285 months is 23 and three quarters years. He was sentenced at that
time to 18 years. This is kind of odd, because I’ve been a judge 28 years, there are
a handful of sentences I carry around with me and I would have done differently,
mostly I sentence somebody less. This was one I carried around with me I wished
I could have sentenced him to more, it’s the most egregious sex offense I dealt with.
This involved his own daughter at a very small age on through basically her mid
teens, she was forced to have sex with this guy and stay in his bed, she probably
was confused and didn’t know what to do, and this is her life, and it’s really an
appalling thing. And, I have carried this on for a while, I should have given him
more, so unbelievably now I have that opportunity, I guess you could say.
So, I’m going to sentence the defendant to the Department of Corrections
for no less than 22 years, no more than 40 years, credit for 3,279 days time served.
There is no financial assessment for reasons we discussed.
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That is a sentence within the guideline range. Beyond that, you could—I
mean, I could go a lot harder than 22, but I’ll stay within them since he was
convicted as charged. I say, again, this one I’ve carried a long—for a long time and
I normally would never get a chance to fix a mistake like this, so now that I’ve got
that opportunity. This is not a punitive sentence of something more because I’m
angry with [defendant], I’m angry with myself, I failed to do the job the right way
the first time. And, the problem with sentencing is once you’re done with it you’re
stuck with it, and this as I say it’s one of the sentences I carry around with me and
I had a chance to fix my mistake. That’s the reasoning.
The trial court’s stated rationale makes no reference to the unconstitutional restraint on its
discretion by the at-the-time-mandatory sentencing guidelines; rather, the trial court clearly stated
that it simply wished it had imposed a lengthier sentence. The fact that the trial court again chose
to sentence defendant within the recommended guidelines range (unchanged from defendant’s
original sentencing) suggests that the then-mandatory nature of the guidelines range did not
constrain the trial court in making its original sentencing decision; the trial court was just as free
to sentence defendant to a higher sentence within the guidelines range in 2015 as it was in 2021.
The trial court was not free to decide to resentence defendant for any reason; it was specifically
required by the Supreme Court’s order (assuming that defendant sought resentencing) to determine
whether resentencing was required because its sentencing discretion had been restrained by the
then-mandatory nature of the sentencing guidelines, and to otherwise follow the Crosby remand
procedure. The record is clear that the trial court exceeded the scope of the remand order. Russell,
316 Mich App at 351.
In light of the trial court’s error, we vacate defendant’s judgment of sentence and again
remand for the trial court to comply with the directives of the Supreme Court’s 2015 remand order.
Because of the trial court’s apparently repeated failure to comply with the remand instructions
from this Court and the Supreme Court, we conclude that further proceedings on remand should
take place before a different judge. See People v Pillar, 233 Mich App 267, 270-271; 590 NW2d
622 (1998); People v Hill, 221 Mich App 391, 398; 561 NW2d 862 (1997). Because we vacate
and remand on these grounds, we need not address defendant’s claims of error concerning his
sentence.
Vacated and remanded for further proceedings consistent with this opinion. We do not
retain jurisdiction.
/s/ Elizabeth L. Gleicher
/s/ Mark T. Boonstra
/s/ Thomas C. Cameron
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