20230221_C356217_45_356217Oc.Opn.Pdf ( 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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED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 21, 2023
Plaintiff-Appellee,
V No. 356217
Calhoun Circuit Court
JAMES EDWARD LOCKMILLER, LC No. 2017-003699-FH
Defendant-Appellant.
ON REMAND
Before: MURRAY, P.J., and SERVITTO and O’BRIEN, JJ.
PER CURIAM.
This case returns to this Court after remand from our Supreme Court. Following a jury
trial, defendant was convicted of second-degree criminal sexual conduct (CSC-II), MCL
750.520c(1)(a) (victim under 13). The trial court originally sentenced defendant to 38 months to
15 years’ imprisonment, and ordered lifetime electronic monitoring (LEM) as required by MCL
750.520c(2)(b) and MCL 750.520n(1). In his first appeal, a panel of this Court concluded that the
trial court had erred in its assessment of offense variable 7, and remanded “for resentencing under
the appropriate minimum sentencing guidelines range.” People v Lockmiller, unpublished per
curiam opinion of the Court of Appeals, issued November 19, 2020 (Docket No. 348184), p 9. On
remand, the trial court resentenced defendant to 17 to 180 months’ imprisonment, and again
ordered LEM as required by MCL 750.520c(2)(b) and MCL 750.520n(1). In his second appeal to
this Court, defendant challenged the trial court’s imposition of LEM as an unreasonable search
and a cruel or unusual punishment, but a panel of this Court declined to address defendant’s
arguments, reasoning that they were outside the scope of the remand. People v Lockmiller,
unpublished per curiam opinion of the Court of Appeals, issued April 14, 2022 (Docket No.
356217), p 2. Our Supreme Court reversed that decision and remanded “to the Court of Appeals
to consider those issues the defendant raised in that court challenging the imposition of LEM.”
People v Lockmiller, ___ Mich ___, ___ (2022) (Docket No. 164505). Doing so, we affirm
defendant’s sentence.
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In the trial court, defendant never contested the imposition of LEM as being an
unconstitutional. Accordingly, as defendant concedes, his arguments on appeal that the imposition
of LEM violated his constitutional rights against (1) unreasonable search and seizure and (2) cruel
or unusual punishment are unpreserved. See People v Pipes, 475 Mich 267, 277; 715 NW2d 290(2006). An unpreserved, nonstructural constitutional error is reviewed for plain error affecting
substantial rights. Id. at 278.1 “Plain error exists when 1) an error occurred, 2) the error was plain,
i.e., clear or obvious, 3) and the plain error affected substantial rights.” People v Beck, ___ Mich
___, ___; ___ NW2d ___ (2022) (Docket Nos. 160668, 160669); slip op at 30 (quotation marks,
citation, and alterations omitted).2
This Court has previously addressed the two arguments raised by defendant in People v
Hallak, 310 Mich App 555, 566-581; 873 NW2d 811 (2015), rev’d in part on other grounds, People
v Hallak, 499 Mich 879 (2016). That opinion was reversed in part on other grounds in Hallak,
499 Mich at 879-880, but the issue leading to reversal nevertheless concerned the defendant’s
sentence. As the portion of Hallak relevant to defendant’s arguments in this appeal also concerned
the Hallak defendant’s sentence, our Supreme Court’s reversal of Hallak, even on other grounds,
rendered the relevant portion of Hallak “to be without precedential value.” Dunn v Detroit Auto
Inter-Ins Exch, 254 Mich App 256, 266; 657 NW2d 153 (2002).
1
Defendant argues on appeal that, despite failing to preserve this issue, this Court’s review should
be de novo because the facts are “essentially uncontested.” He cites People v Oliver, 464 Mich
184, 191-192; 627 NW2d 297 (2001), in support of this assertion. In Oliver, the defendants had
preserved their constitutional challenges by contesting allegedly illegal searches in motions to
suppress. Id. at 190. In explaining the standard of review, our Supreme Court first recognized
that a trial court’s factual findings at a suppression hearing are generally reviewed for clear error,
but explained that “this level of deference” was not warranted when the facts were “essentially
uncontested.” Id. at 191-192. Thus, the portion of Oliver on which defendant relies had nothing
to do with preservation requirements, and it remains true that unpreserved, nonstructural
constitutional errors are reviewed for plain error affecting substantial rights.
2
Defendant does not argue that his trial counsel rendered ineffective assistance by not raising his
appellate arguments before the trial court. As our Supreme Court has explained, the focus of a
court’s review under the plain-error standard differs from the review of a claim for ineffective
assistance:
[T]he specific error that is the focus of each standard is different. It is the trial
court’s unobjected-to error that is the subject of plain-error review. By contrast,
the ultimate determination of an ineffective-assistance claim is not the propriety of
the trial court’s actions with regard to an alleged error, but whether defendant has
suffered a genuine deprivation of his right to effective assistance of counsel.
[People v Randolph, 502 Mich 1, 10-11; 917 NW2d 249 (2018) (quotation marks,
citations, and alterations omitted).]
Here, we are reviewing only “the trial court’s unobjected-to error”—whether that error was plain
and affected defendant’s substantial rights. Id. at 10.
-2-
Since Hallak, however, no court has addressed the constitutionality of Michigan’s LEM
statute. “A clear or obvious error under the second prong [of the plain-error standard] is one that
is not subject to reasonable dispute.” People v Allen, 507 Mich 597, 614; 968 NW2d 532 (2021)
(quotation marks and citation omitted). Here, no court has ever held that Michigan’s LEM statute
is unconstitutional, and the only time an appellate court has addressed the issue, it held that the
statute passed constitutional muster. While that decision may no longer have precedential value
for the reasons explained, the relevant portion of the decision was never reversed or vacated. In
light of this, we are compelled to conclude that defendant’s claims of error are subject to at least
reasonable dispute. As such, even if we were to revisit Hallak and rebalance the considerations of
defendant’s constitutional claims to favor defendant like he urges, we would still conclude that the
trial court’s imposition of LEM was not an obvious error warranting relief under plain-error
review. See People v Swenor, 336 Mich App 550, 569; 971 NW2d 33 (2021) (holding that a trial
court’s alleged error on an unpreserved, nonstructural constitutional issue was “not plainly or
obviously wrong” because there was “no binding caselaw” directly addressing the issue); United
States v Finnesy, 953 F3d 675, 696-697 (CA 10, 2020) (same); United States v Olano, 507 US
725, 734; 113 S Ct 1770; 123 L Ed 2d 508 (1993) (“At a minimum, court of appeals cannot correct
an error [under plain-error review] unless the error is clear under current law.”); Henderson v
United States, 568 US 266, 278; 133 S Ct 1121; 185 L Ed 2d 85 (2013) (explaining that the
“requirement that an error be ‘plain’ means that lower court decisions that are questionable but not
plainly wrong (at time of trial or at time of appeal) fall outside the . . . scope” of plain-error
review); United States v Ellis, 564 F3d 370, 378 (CA 5, 2009) (rejecting a defendant’s challenge
to his sentence because the alleged error was not obvious, noting that “all defendants’ appeals
challenging a sentence rest on the practical premise that the sentence should be less,” but “[n]ot
every error that increases a sentence need be corrected by a call upon plain error doctrine”).3
Affirmed.
/s/ Deborah A. Servitto
/s/ Colleen A. O’Brien
3
This opinion neither affirms nor disavows Hallak. We conclude only that defendant cannot
satisfy the second prong of plain-error review, and thus his claims for unpreserved, nonstructural
constitutional error do not warrant appellate relief.
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