People of Michigan v. Tony Jerome-Jerry Harris ( 2016 )

STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
February 18, 2016
Plaintiff-Appellee,
v No. 322750
Wayne Circuit Court
TONY JEROME-JERRY HARRIS, LC No. 13-009710-FH
Defendant-Appellant.
Before: CAVANAGH, P.J., and RIORDAN and GADOLA, JJ.
PER CURIAM.
Defendant appeals as of right his jury trial conviction of third-degree fleeing or eluding a
law enforcement officer, MCL 257.602a(3)(a). The trial court sentenced him, as a second
habitual offender, MCL 769.10, to a prison term of 1 to 7 1/2 years. We affirm defendant’s
conviction, but remand for further proceedings consistent with this opinion.
I. FACTUAL BACKGROUND
At approximately 7:00 p.m. on October 10, 2013, three Michigan State Police Troopers
were driving on the west side of Detroit in a blue Chevrolet Tahoe bearing state police markings,
emergency lights, and sirens. All of the officers were in full uniform. The troopers made a U-
turn to follow a Mercury Grand Marquis driven by an African-American male because it had an
unlawfully tinted driver’s side window. The Grand Marquis sped away, and the troopers pursued
the vehicle. As the Grand Marquis turned onto West McNichols Road, they activated the police
vehicle’s emergency lights and siren. The Grand Marquis then accelerated at a “high rate of
speed,” drove through multiple stop signs in a residential neighborhood, and stopped after
striking a fire hydrant. The driver exited the vehicle and fled on foot, leaving behind an infant
child in a car seat.
Contrary to the officers’ version, defendant testified that a large, blue vehicle rear-ended
his car more than once, which prompted him to speed away from the larger vehicle until he
crashed into a fire hydrant. Tamara Adams, the mother of defendant’s son, testified that she had
been talking to defendant on his cell phone around 7:00 p.m. on October 10, 2013, at which time
she heard loud banging sounds, Adams and defendant both began screaming, and defendant
declared, “[T]hey hit me.”
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Defendant said he saw lights on the large blue vehicle illuminate, but he did not believe
that the vehicle contained police officers who were trying to stop him. As two state police
officers exited their car and approached defendant with their guns in hand, defendant said that he
raised his hands, but then the officers assaulted him. He claimed that he ran away, but two other
officers pointed their guns at him, stopped him, handcuffed him, and then tackled him face-first
to the ground. Additionally, defendant testified that many officers repeatedly punched the back
of his head, kicked him, and kneed his groin, which caused significant injuries and made him
“urinate all over [him]self.”
Deborah Sinclair also testified for the defense and supported defendant’s version of the
events. She said that while taking a walk she saw defendant run “from the . . . side of [a] house”
and heard him yell that “they were beating [and chasing] him.” She claimed that she watched a
Caucasian officer tackle him and push his face into the concrete ground. Then, she said that
three other officers arrived and all of them beat, punched, kicked, and “stomp[ed]” defendant, as
well as “kneed him in his groin,” even after placing him in handcuffs. According to Sinclair,
defendant ultimately passed out and urinated on himself.
During her testimony, Adams also confirmed that defendant incurred multiple bruises and
injuries during the incident.
II. REJECTION OF PLEA AGREEMENT
Before trial, defendant attempted to plead guilty to third-degree fleeing or eluding
pursuant to a plea agreement under which the prosecution agreed to dismiss the habitual offender
notice. The trial court determined that defendant’s admissions failed to establish a factual basis
for the plea and refused to accept it.
On appeal, defendant argues that he offered an adequate factual foundation for his plea
because he conceded that he drove away after realizing that the police wanted to stop his car.
Accordingly, defendant asserts that the trial court’s rejection of the plea was motivated only by
its personal dislike of defendant. We disagree.
A. STANDARD OF REVIEW
We review for an abuse of discretion a trial court’s decision to accept a plea agreement.
People v Plumaj, 284 Mich. App. 645, 648; 773 NW2d 763 (2009). “An abuse of discretion
occurs when the court chooses an outcome that falls outside the range of reasonable and
principled outcomes.” Id. (quotation marks and citation omitted). To the extent that the trial
court’s rejection of a plea requires the interpretation of a statute or court rule, we review such
issues de novo. Id.; see also People v Williams, 483 Mich. 226, 231; 769 NW2d 605 (2009).
When construing a statute or “court rule, we begin with its plain language; when that language is
unambiguous, we must enforce the meaning expressed, without further judicial construction or
interpretation.” Williams, 483 Mich. at 232.
B. ANALYSIS
A trial court must question a defendant to establish a factual basis for concluding that the
“defendant is guilty of the offense charged, or the offense to which the defendant is pleading.”
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MCR 6.302(D)(1). An adequate factual basis exists if “the fact-finder could have found the
defendant guilty on the basis of the facts elicited from the defendant at the plea proceeding.”
People v Fonville, 291 Mich. App. 363, 377; 804 NW2d 878 (2011).
In People v Grayer, 235 Mich. App. 737, 741; 599 NW2d 527 (1999), citing MCL
750.479a(3),1 this Court delineated the elements of third-degree fleeing or eluding:
(1) the law enforcement officer must have been in uniform and performing his
lawful duties and his vehicle must have been adequately identified as a law
enforcement vehicle, (2) the defendant must have been driving a motor vehicle,
(3) the officer, with his hand, voice, siren, or emergency lights must have ordered
the defendant to stop, (4) the defendant must have been aware that he had been
ordered to stop, (5) the defendant must have refused to obey the order by trying to
flee from the officer or avoid being caught, which conduct could be evidenced by
speeding up his vehicle or turning off the vehicle’s lights among other things, and
(6) some portion of the violation must have taken place in an area where the speed
limit was thirty-five miles an hour or less, or the defendant’s conduct must have
resulted in an accident or collision, or the defendant must have been previously
convicted of certain prior violations of the law as listed in MCL 750.479a(3)(c) . .
..
At the plea hearing, defendant testified that on October 10, 2013, he was driving in
Detroit near McNichols Road when a vehicle came around a street corner and immediately
bumped the back of defendant’s car. He explained that he sped away “out of panic,” driving
faster than 35 miles per hour. Defendant denied that he was aware that the vehicle which struck
his car was a police vehicle, or that a police vehicle had any reason to stop or pursue his vehicle.
It was only after he sped away that he recognized the other vehicle as a police vehicle when it
activated its lights and siren. Defendant admitted that he continued driving until he crashed into
a fire hydrant. The trial court refused to accept the plea because defendant’s testimony did not
establish that the police lawfully commenced their pursuit of defendant.
A necessary element of third-degree fleeing or eluding is that a law enforcement officer
was “acting in the lawful performance of his or her duty.” MCL 257.602a(1); see also Grayer,
235 Mich. App. at 741. Although defendant testified that he later recognized the vehicle as a
police vehicle after it activated its lights and siren, and acknowledged that he thereafter refused
to stop before his vehicle struck a fire hydrant, he insisted that the pursuit began when the police
vehicle bumped the back of his vehicle for no apparent reason. Although defense counsel argued
that the bumping occurred in the course of the police pursuit, defendant did not offer any reason
for the police to lawfully pursue his vehicle at that point in time. On the contrary, in response to
questioning by the court, defendant expressly agreed with the trial court’s statement that “some
crazed [s]tate trooper c[a]me[] around the corner and hit[] him in the back for no reason.”
1
When this Court decided Grayer, fleeing and eluding was proscribed by MCL 750.479a.
Substantively identical language now appears in MCL 257.602a.
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Thus, the trial court properly concluded that it could not “have found the defendant guilty
on the basis of the facts elicited from the defendant at the plea proceeding” because defendant’s
testimony did not provide a factual basis for finding, or a basis for an inculpatory inference, that
the officers were performing their lawful duties when they encountered defendant on October 10,
2013. See Grayer, 235 Mich. App. at 741. As such, the trial court’s rejection of defendant’s
guilty plea was not outside the range of reasonable and principled outcomes. Additionally,
contrary to defendant’s claim on appeal, there is no indication in the record that the trial court
refused to accept the plea because it disliked defendant or harbored bias against him. See People
v Elston, 462 Mich. 751, 762; 614 NW2d 595 (2000) (discussing a defendant’s “burden of
furnishing the reviewing court with a record to verify the factual basis of any argument upon
which reversal was predicated”).
III. LATE WITNESS
Defendant next argues that the trial court abused its discretion when it denied his request
to call Orlando Jones as a witness at trial. On the second day of trial, defense counsel explained
that the defense discovered Jones on the first day of trial, which had begun the previous week.
We disagree.
A. STANDARD OF REVIEW
Because both of defendant’s claims regarding the preclusion of Jones’ testimony were not
properly preserved for appeal, see MRE 103(a)(1); People v Grant, 445 Mich. 535, 545-547; 520
NW2d 123 (1994); People v Bulmer (After Remand), 256 Mich. App. 33, 35; 662 NW2d 117
(2003), we review these arguments for plain error affecting defendant’s substantial rights,
People v Carines, 460 Mich. 750, 763-764; 597 NW2d 130 (1999). To demonstrate such an
error, a defendant must show that (1) an error occurred, (2) the error was clear or obvious, and
(3) “the plain error affected [the defendant’s] substantial rights,” which “generally requires a
showing of prejudice, i.e., that the error affected the outcome of the lower court proceedings.”
Id. at 763. Even if a defendant establishes a plain error that affected his substantial rights,
“[r]eversal is warranted only when the plain, forfeited error resulted in the conviction of an
actually innocent defendant or when an error seriously affect[ed] the fairness, integrity or public
reputation of judicial proceedings independent of the defendant’s innocence.” Id. at 763-764
(quotation marks and citation omitted; second alteration in original).
B. ANALYSIS
Pursuant to MCR 6.201(A)(1), which governs discovery in criminal cases,
a party upon request must provide all other parties . . . (1) the names and
addresses of all lay and expert witnesses whom the party may call at trial; in the
alternative, a party may provide the name of the witness and make the witness
available to the other party for interview; the witness list may be amended without
leave of the court no later than 28 days before trial[.]
A discovery order was entered in this case, which required defense counsel, pursuant to MCR
6.201, to disclose to the prosecution a list of the names and addresses of all witnesses that the
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defense intended to call at trial within 21 days after the entry of the discovery order. The order
was entered nearly two months prior to trial.
It is undisputed that the defense discovered Jones on May 29, 2014, the first day of trial.
MCR 6.201(H) provides, “If at any time a party discovers additional information or material
subject to disclosure under this rule, the party, without further request, must promptly notify the
other party.” On June 2, 2014, the second day of trial, defense counsel conceded that she learned
of Jones’ existence on May 29, 2014, but failed to tell the prosecutor his identity until after the
prosecution had concluded its case-in-chief. Accordingly, it is apparent that a discovery
violation occurred under MCR 6.201(H).
MCR 6.201(J) provides that “[i]f a party fails to comply with this rule, the court, in its
discretion, may . . . prohibit the party from introducing in evidence the material not disclosed.”
The sanction for a discovery violation should “balance[e] the interests of the courts, the public,
and the parties.” People v Davie (After Remand), 225 Mich. App. 592, 598; 571 NW2d 229
(1997) (quotation marks and citation omitted). Thus, “the complaining party must show that the
violation caused him or her actual prejudice.” People v Greenfield, 271 Mich. App. 442, 456 n
10; 722 NW2d 254 (2006).
“[T]he sanction of preclusion is extreme and should be limited to only the most egregious
cases.” People v Yost, 278 Mich. App. 341, 379; 749 NW2d 753 (2008), citing People v Merritt,
396 Mich. 67, 82; 238 NW2d 31 (1976); see also Greenfield, 271 Mich. App. at 456 n 10. “[I]t
would be improper to exclude the defense where neither serious abuse of the right on the part of
defendant nor prejudice to the people’s case have been demonstrated.” Yost, 278 Mich. App. at
381 (quotation marks omitted), quoting Merritt, 396 Mich. at 82.
Here, the prosecutor objected to the admission of Jones’ testimony because defense
counsel knew about the witness the previous week, but did not disclose the identity of the
witness until after the prosecution had rested. The prosecution did not assert that it was
prejudiced, or would be prejudiced, if the trial court allowed Jones to testify. Nevertheless, the
trial court denied defense counsel’s motion to allow the defense to call Jones, explaining that “a
discovery order in the file . . . requires that you let [the prosecution] know about your witnesses
ahead of time. So[] that they could of [sic] actually interview[ed] and talk[ed] to them.”
Because the defense was unaware of Jones until the first day of trial, it does not appear
that the lateness of defendant’s motion was motivated by gamesmanship or otherwise constituted
an abuse of defendant’s right to call witnesses. See id. at 383. However, defense counsel
acknowledged that she failed to timely notify the prosecutor of Jones’ existence. Moreover, the
defense made no contact with Jones before moving to call him as a defense witness, and it
neglected to make an offer of proof concerning any potential testimony that Jones could offer.
Under these circumstances, we cannot conclude that the trial court’s denial of defendant’s
motion—following the close of the prosecution’s case-in-chief—and exclusion of Jones’
testimony constituted plain error. See Carines, 460 Mich. at 763-764.
Further, even if we were to conclude that the trial court abused its discretion in excluding
Jones’ testimony, the record includes no basis to conclude that this purported error affected the
outcome of the proceedings. See id. at 763. Defendant carries “the burden of furnishing the
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reviewing court with a record to verify the factual basis of any argument upon which reversal [is]
predicated.” Elston, 462 Mich. at 762. Defendant did not contend in the trial court, and he does
not argue on appeal, that Jones’ testimony was exculpatory or would have provided information
that raised a reasonable doubt as to whether defendant committed third-degree fleeing and
eluding. He merely identifies Jones as an additional “impartial” witness to the incident giving
rise to defendant’s conviction. As such, defendant’s failure to make an offer of proof regarding
the substance of Jones’ testimony, or even interview Jones prior to requesting admission of his
testimony, makes it impossible for us to conclude that defendant’s substantial rights were
affected. See People v Hampton, 237 Mich. App. 143, 154; 603 NW2d 270 (1999).
For the same reasons, defendant has failed to establish that the preclusion of Jones’
testimony violated his right to present a defense. Defendant has abandoned review of this issue
by failing to argue or explain either the substance of Jones’s testimony or the prejudice that he
incurred when the trial court excluded the evidence. People v King, 297 Mich. App. 465, 474;
824 NW2d 258 (2012) (“An appellant’s failure to properly address the merits of his assertion of
error constitutes abandonment of the issue.” [Quotation marks and citation omitted.])
Furthermore, defendant had “a meaningful opportunity to present a complete defense” during the
trial through defense counsel’s cross-examination of the prosecution’s witnesses; the
introduction of testimony from Tamara Adams, Deborah Sinclair, and the defendant in support
of his theory; and defense counsel’s presentation of arguments in his defense. See King, 297
Mich. App. at 473-474 (quotation marks and citation omitted); People v Mesik (On
Reconsideration), 285 Mich. App. 535, 537-538; 775 NW2d 857 (2009).
Thus, defendant has failed to establish a plain error affecting his substantial rights.
IV. JUDICIAL BIAS
Defendant next contends that the trial court’s interjections and statements throughout the
trial demonstrated judicial bias that pierced the veil of impartiality and violated his right to a fair
trial. We disagree.
A. STANDARD OF REVIEW
Because defendant did not raise a claim of judicial bias in the trial court, his claims are
unpreserved and reviewed for plain error affecting his substantial rights. People v Jackson, 292
Mich. App. 583, 597; 808 NW2d 541 (2011), citing Carines, 460 Mich. at 763-764; cf. People v
Stevens, 498 Mich. 162, 180 n 6; 869 NW2d 233. Because judicial bias is a structural error,
Stevens, 498 Mich. at 178; People v Duncan, 462 Mich. 47, 52; 610 NW2d 551 (2000), a
defendant is automatically prejudiced by such an error, People v Vaughn, 491 Mich. 642, 666;
821 NW2d 288 (2012). However, in order to warrant a new trial, the error must have “resulted
in the conviction of an actually innocent defendant or seriously affected the fairness, integrity, or
public reputation of” the trial proceedings. Id. at 666–667 (quotation marks and citation
omitted). Whether the error meets this standard is examined on a case-by-case basis and on the
basis of the facts of the particular case. People v Cain, 498 Mich. 108, 121; 869 NW2d 829
(2015).
B. APPLICABLE LAW
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In Stevens, 498 Mich. at 168-169, the Michigan Supreme Court articulated a new standard
for reviewing judicial partiality. The Court held:
A trial judge’s conduct deprives a party of a fair trial if the conduct pierces the
veil of judicial impartiality. A judge’s conduct pierces this veil and violates the
constitutional guarantee of a fair trial when, considering the totality of the
circumstances, it is reasonably likely that the judge’s conduct improperly
influenced the jury by creating the appearance of advocacy or partiality against a
party. In evaluating the totality of the circumstances, the reviewing court should
inquire into a variety of factors including, but not limited to, the nature of the trial
judge’s conduct, the tone and demeanor of the judge, the scope of the judicial
conduct in the context of the length and complexity of the trial and issues therein,
the extent to which the judge’s conduct was directed at one side more than the
other, and the presence of any curative instructions, either at the time of an
inappropriate occurrence or at the end of trial. [Id. at 164; see also id. at 168-
180.]
C. APPLICATION
Defendant provides no explanation on appeal regarding how each of the alleged instances
of judicial bias influenced the jury.2 Likewise, our review of the record confirms that “it is [not]
reasonably likely that the judge’s conduct improperly influenced the jury by creating the
appearance of advocacy or partiality against” the defense. Id. at 164.
First, we reject all of defendant’s claims of judicial bias arising from the trial court’s
objections to compound or leading questions posed by defense counsel, the trial court’s
comments and clarifications regarding unclear questions raised by the defense, and the trial
court’s evidentiary objections. Pursuant to MRE 611(a), the trial court is authorized to exercise
reasonable control over counsel’s questioning of witnesses in order to “make the interrogation
and presentation effective for the ascertainment of the truth, [and] . . . avoid needless
consumption of time.” It does appear from the record that the trial court interjected more
frequently during the defense’s questioning of the witnesses than during the prosecution’s
examinations. See Stevens, 498 Mich. at 164, 177. However, in each instance identified by
defendant on appeal, the trial court correctly characterized the questions raised by defense
counsel as unclear or compound, which created the potential for confusion regarding the
witnesses’ answers. Likewise, the trial court properly noted that leading questions on direct
examination are not permitted pursuant to MRE 611(d). Finally, defendant has provided no
explanation, argument, or authority indicating how any of the evidentiary objections were improper
and not in accordance with MRE 611(a), or how that conduct improperly influenced the jury. See
People v Kevorkian, 248 Mich. App. 373, 389; 639 NW2d 291 (2001).
2
We recognize that defendant filed his brief on appeal before the Michigan Supreme Court
articulated the new standard in Stevens. Nevertheless, defendant did not provide any explanation
regarding the way in which the alleged instances of judicial bias improperly influenced the jury
even under the previous tests. See Stevens, 498 Mich. at 169-170.
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Similarly, the questions raised by the trial court during defense counsel’s examination of
a witness were limited to circumstances when defense counsel’s questions or the witness’s
responses were vague, confusing, or lacking detail in such a way that the responses were
susceptible to multiple interpretations. The trial court was permitted to ask questions pursuant to
MRE 614(b), and there is no indication that the questions were hostile, “intimidating,
argumentative, or skeptical” against defendant. See Stevens, 498 Mich. at 175; cf. id. at 180-186
(describing improper questioning by the trial court).
We similarly reject defendant’s claim arising from the trial court’s statements on the
record, after the jury left the courtroom, regarding defense counsel’s use of her cell phone to
record prior hearings and her apparent request to use the cell phone recording to refresh a
witness’s recollection. Because the jury was not present during this exchange, there is no basis
for concluding that the trial court improperly influenced the jury in this regard. Id.
In addition, we reject defendant’s claim that the trial court “impeached defense counsel’s
credibility” by criticizing defense counsel when she attempted to ask a police officer whether
defendant was “running more than 25 miles an hour.” Even if we assume, arguendo, that
defendant’s characterization of the trial court’s statements is accurate, defense counsel was not a
witness in this case. Thus, it is extremely unlikely that the trial court’s limited and insignificant
statement on this topic influenced the jury given the fact that defense counsel’s statements were
not evidence, see People v Meissner, 294 Mich. App. 438, 457; 812 NW2d 37 (2011); Papke v
Tribbey, 68 Mich. App. 130, 137; 242 NW2d 38 (1976), and the trial court properly instructed the
jury as such, see Stevens, 498 Mich. at 190.
Furthermore, defendant mischaracterizes the record in asserting that the trial court
“suggested during [defense counsel’s] opening statement that . . . counsel was not going to
support her opening statement with evidence.” Moreover, the trial court’s statements during
counsel’s opening statement were not improper. See MCR 2.507(A); Wiley v Henry Ford
Cottage Hosp, 257 Mich. App. 488, 503; 668 NW2d 402 (2003) (explaining the purpose of an
opening statement); People v Finley, 161 Mich. App. 1, 9; 410 NW2d 282 (1987) (explaining the
purpose of a closing argument), aff’d 431 Mich. 506 (1988).
Finally, with regard to all of defendant’s claims, we find significant the fact that the trial
court instructed the jury at the end of the trial: (1) “Remember[] that you’ve taken an oath to
return a true and just verdict based only on the evidence and my instructions on the law”; (2)
“[M]any things are not evidence and you must be careful not to consider them as such. . . . My
comments, my rulings, my questions and my instructions are also not evidence”; and (3) “If you
believe that I have an opinion about how you should decide this case, you must pay no attention
to that opinion.” See Stevens, 498 Mich. at 190. “Because [i]t is well established that jurors are
presumed to follow their instructions, a curative instruction will often ensure a fair trial despite
minor or brief inappropriate conduct.” Id. at 177 (quotation marks and citation omitted).
Although “in some instances judicial conduct may so overstep its bounds that no instruction can
erase the appearance of partiality,” it is clear that the judicial conduct in this case did not rise to
such a level. Accordingly, to the extent that the trial court’s conduct could be deemed improper,
we presume that the court’s instructions cured the error.
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Thus, in reviewing the totality of the circumstances, defendant has failed to establish that
reversal is warranted on the basis of judicial bias. See Jackson, 292 Mich. App. at 597; Vaughn,
491 Mich. at 666-667.
V. UPWARD DEPARTURE SENTENCE
A. APPLICABLE LAW
Lastly, defendant argues that the trial court abused its discretion when it departed from
the range calculated under the sentencing guidelines3 because the trial court failed to provide
substantial and compelling reasons for the departure. See People v Smith, 482 Mich. 292, 299-
300; 754 NW2d 284 (2008). However, after defendant filed his brief on appeal, significant
changes to Michigan’s sentencing scheme were effectuated by the Michigan Supreme Court in
People v Lockridge, 498 Mich. 358, 364-365, 391-392; 870 NW2d 502 (2015), which held, inter
alia, that a trial court is no longer required to provide a substantial and compelling reason for a
departure sentence. The proper inquiry on appeal is whether defendant’s departure sentence is
reasonable. People v Shank, ___ Mich App ___, ___; ___ NW2d ___ (2015) (Docket No.
321534); slip op at 2; People v Steanhouse, ___ Mich App ___ ___; ___ NW2d ___ (2015)
(Docket No. 318329); slip op at 21; People v Terrell, ___ Mich App ___; ___; ___ NW2d ___
(2015) (Docket No. 321573); slip op at 7. However, the Lockridge Court did not set forth a
procedure for reviewing a sentence for reasonableness. Shank, ___ Mich App at ___; slip op at
2; Steanhouse, ___ Mich App at ___; slip op at 21. Accordingly, the Steanhouse Court adopted
the “principle of proportionality” that was previously in use pursuant to People v Milbourn, 435
Mich. 630; 461 NW2d 1 (1990), “hold[ing] that a sentence that fulfills the principle of
proportionality under Milbourn and its progeny constitutes a reasonable sentence under
Lockridge.” Id. at ___; slip op at 23-24. In addition, the Steanhouse Court established the
following procedure for reviewing a defendant’s departure sentence:
Given that Lockridge overturned the substantial and compelling reason
standard, Lockridge, ___ Mich at ___; slip op at 29, which was in place at the
time of defendant’s sentencing, and given our conclusion that the principle of
proportionality established under Milbourn and its progeny is now the appropriate
standard by which a defendant’s sentence should be reviewed, we also find that
the procedure articulated in Lockridge, and modeled on that adopted in United
States v Crosby, 397 F3d 103 (CA 2, 2005), should apply here. Lockridge, ___
Mich at ___; slip op at 33-36. As recently stated by this Court in People v Stokes,
___ Mich App ___, ___; ___NW2d ___ (2015); slip op at 11, “the purpose of a
3
The sentencing guidelines range for defendant’s third-degree fleeing or eluding conviction was
0 to 11 months. MCL 777.66. Defendant’s status as a second habitual offender increased that
range to 0 to 13 months, MCL 777.21(3)(a), causing the sentencing range to fall within an
intermediate sanction cell, see MCL 769.34(4). Defendant urged the trial court to impose a term
of probation, as contemplated under MCL 769.34(4)(a) and MCL 769.10(1)(a). Both parties
agree that the trial court departed from the guidelines when it imposed a sentence of 1 to 7 1/2
years’ imprisonment.
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Crosby remand is to determine what effect Lockridge would have on the
defendant’s sentence, so that it may be determined whether any prejudice resulted
from the error.” While the Lockridge Court did not explicitly hold that the
Crosby procedure applies under the circumstances of this case, we conclude this
is the proper remedy where, as here, the trial court was unaware of and not
expressly bound by a reasonableness standard rooted in the Milbourn principle of
proportionality at the time of sentencing.
Under the Crosby procedure, which “offers a measure of protection to a
defendant[,]” “a defendant is provided with an opportunity ‘to avoid resentencing
by promptly notifying the trial judge that resentencing will not be sought.’ ”
Stokes, ___ Mich App at ___; slip op at 11-12, quoting Lockridge, ___ Mich
at___; slip op at 35. Given the possibility that defendant could receive a more
severe sentence, defendant should be provided the opportunity to avoid
resentencing if that is his desire. Stokes, ___ Mich App at ___; slip op at 12.
Accordingly, we remand the matter to the trial court to follow the Crosby
procedure outlined in Lockridge. Defendant “may elect to forego resentencing by
providing the trial court with prompt notice of his intention to do so. If
‘notification is not received in a timely manner,’ the trial court shall continue with
the Crosby remand procedure as explained in Lockridge.” Stokes, ___ Mich App
at ___; slip op at 12, quoting Lockridge, ___ Mich at ___; slip op at 35-36.
[Steanhouse, ___ Mich App at ___; slip op at 25; see also Shank, ___ Mich App
at ___; slip op at 2-3.]
B. APPLICATION
As in Steanhouse and Shank, the trial court in this case imposed a departure sentence
without having an opportunity to adhere to the standard of reasonableness rooted in the Milbourn
principle of proportionality. Thus, in accordance with Steanhouse, remand is necessary so that
the trial court may implement the Crosby remand procedure as articulated in Lockridge. See
Shank, ___ Mich App at ___; slip op at 3; Steanhouse, ___ Mich App at ___; slip op at 25.4
VI. CONCLUSION
Defendant has failed to establish that his claims regarding the rejection of the plea
agreement, the preclusion of Jones’ testimony, and the alleged judicial bias warrant reversal of
his conviction. However, we remand for further proceedings concerning the reasonableness of
his departure sentence.
4
The prosecution indicates on appeal that defendant has been released from prison and is now on
parole. As such, the prosecution observes that “it is unlikely that [defendant] still wants to be
resentenced.” Under the Crosby remand procedure, defendant will have an opportunity to forgo
resentencing by providing the trial court with prompt notice of his intention to do so. If the trial
court does not receive such notice in a timely manner, the trial court shall continue with the
Crosby remand procedure as delineated in Lockridge and Steanhouse.
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We affirm defendant’s conviction, but remand for further proceedings consistent with this
opinion. We do not retain jurisdiction.
/s/ Mark J. Cavanagh
/s/ Michael J. Riordan
/s/ Michael F. Gadola
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