People of Michigan v. David Kenneth Rentsch ( 2019 )

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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
September 10, 2019
Plaintiff-Appellee,
v No. 344059
Livingston Circuit Court
DAVID KENNETH RENTSCH, LC Nos. 13-021213-FC;
13-021292-FC
Defendant-Appellant.
Before: MURRAY, C.J., and METER and FORT HOOD, JJ.
PER CURIAM.
Defendant appeals as of right the trial court’s order denying resentencing following a
Crosby1 remand. We affirm.
Defendant was convicted of two counts of armed robbery. MCL 750.529. On May 8,
2014, the trial court sentenced defendant as a fourth-offense habitual offender, MCL 769.12, to
37 to 75 years of imprisonment for each conviction. On appeal, this Court affirmed defendant’s
convictions and sentences.2 Following our decision, our Supreme Court issued its opinion in
People v Lockridge, 498 Mich 358; 870 NW2d 502 (2015), which severed the legislative
sentencing guidelines, MCL 777.1 et seq, to the extent that they were mandatory and struck
“down the requirement of a substantial and compelling reason to depart from the guidelines
range.” Lockridge, 498 Mich at 391. Subsequently, our Supreme Court remanded this case to
the trial court “to determine whether the court would have imposed a materially different
sentence under the sentencing procedure described in Lockridge.” People v Rentsch, 499 Mich
963, 963 (2016). Our Supreme Court denied leave to appeal in all other respects. Id. at 964. On
remand, the trial court held a hearing to determine whether it would resentence defendant. The
1
United States v Crosby, 397 F3d 103 (CA 2, 2005).
2
People v Rentsch, unpublished per curiam opinion of the Court of Appeals, issued October 22,
2015 (Docket No. 321934).
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trial court concluded that it would not have imposed a materially different sentence had it been
aware that the sentencing guidelines were advisory and declined to resentence defendant. This
appeal followed.
I. SCOPE OF THE APPEAL
As an initial matter, we must note that this Court has already affirmed defendant’s
sentences, and the sole purpose of our Supreme Court’s remand was for the trial court to
determine whether it would have imposed a materially different sentence if the sentencing
guidelines had been merely advisory at the time of defendant’s sentencing. Id. “[W]here 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)
(emphasis added); see also People v Jones, 394 Mich 434, 435-436; 231 NW2d 649 (1975).
Accordingly, because this Court has not granted defendant leave to bring any additional issues in
this appeal, defendant’s appeal is limited to determining whether the trial court properly followed
the Crosby remand procedure when declining to resentence defendant. Defendant argues that the
trial court’s original sentence, which was not disturbed by the Crosby remand, was unreasonable,
disproportionate to his crimes, cruel and unusual, and improperly based on judicial fact-finding. 3
We decline to address these arguments, however, because they are outside the scope of this
appeal.
II. THE CROSBY REMAND
Defendant does, however, raise two arguments within the scope of this appeal. First,
defendant argues that the trial court did not follow the proper procedure on remand because it
failed to consult with defense counsel before declining to resentence defendant. Second, and
relatedly, defendant argues that defense counsel provided ineffective assistance on remand
because defense counsel failed to file a sentencing memorandum. Neither argument has merit.
For cases decided before Lockridge that require resentencing, our Supreme Court adopted
the procedure set forth in United States v Crosby, 397 F3d 103, 117-118 (CA 2, 2005).
Lockridge, 498 Mich at 395. On remand under Crosby, a defendant is first given an opportunity
to inform the trial court that he will not seek resentencing. Id. at 398. If the defendant does not
avail himself of this opportunity, the trial court must then “determine whether that court would
have imposed a materially different sentence but for the constitutional error.” Id. at 397. In
contemplating that decision, the trial court “should obtain the views of counsel in some form”
and “may but is not required to hold a hearing on the matter.” Id. at 398 (emphasis added).
Once the court has made its decision regarding whether to resentence, the trial court “shall either
3
On this last argument, we note only that our Supreme Court has affirmed that its opinion in
Lockridge does not preclude the trial court from engaging in judicial fact-finding to score the
sentencing guidelines. People v Steanhouse, 500 Mich 453, 466-467; 902 NW2d 327 (2017).
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place on the record a decision not to resentence, with an appropriate explanation, or vacate the
sentence and” resentence defendant. Id. (internal citation and quotation marks omitted).
Nowhere in Lockridge did the Supreme Court require the trial court to obtain counsel’s
views in writing. Rather, our Supreme Court granted the trial court discretion whether to hold a
hearing to obtain counsel’s views or obtain those views in writing. In this case, the trial court
decided to hold a hearing at which defense counsel could make his case for resentencing. The
trial court’s decision to hold a hearing rather than request written memoranda was within the
discretion afforded it under Lockridge. Defense counsel represented defendant at the hearing,
pointed out corrections that needed to be made to the presentence investigation report and
verified that the trial court was following the proper remand procedure. Because defense
counsel’s views were brought before the trial court in the vehicle chosen by the trial court, we
cannot conclude that defense counsel’s decision not to file a sentencing memorandum fell below
an objective standard of reasonableness. People v Scott, 275 Mich App 521, 526; 739 NW2d
702 (2007). Similarly, because the trial court consulted with defense counsel at the hearing
when deciding whether to resentence defendant, we cannot conclude that the trial court failed to
follow the Crosby remand procedure.
Affirmed.
/s/ Christopher M. Murray
/s/ Patrick M. Meter
/s/ Karen M. Fort Hood
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