People of Michigan v. Steven Aderrick Odom ( 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, FOR PUBLICATION
March 12, 2019
Plaintiff-Appellee, 9:15 a.m.
v No. 339027
Washtenaw Circuit Court
STEVEN ADERRICK ODOM, LC No. 10-000618-FC
Defendant-Appellant.
Before: METER, P.J., and SERVITTO and REDFORD, JJ.
METER, P.J.
Defendant appeals as of right the trial court’s out-of-guidelines sentence, entered after
our Supreme Court ordered a remand consistent with part VI of its opinion in People v
Lockridge, 498 Mich. 358; 870 NW2d 502 (2015). People v Odom, 498 Mich. 901; 870 NW2d
575 (2015). In pertinent part, defendant argues that the prohibition against ex post facto laws—
embodied in Article 1, § 10 of both the federal and state constitutions—prohibited the trial court
from imposing a lengthier sentence on remand than it did during the original sentencing. We
conclude that Lockridge’s shift from a mandatory sentencing regime to an advisory one was not
the type of unforeseeable legal change which offends the ex post facto clauses. Accordingly, we
hold that those clauses present no obstacle to the retroactive application of Lockridge, even when
its application results in an increased sentence. Finding no merit to any of defendant’s other
assertions of error, we affirm the trial court’s out-of-guidelines sentence.
I. BACKGROUND
In March 2011, a jury found defendant guilty of armed robbery, MCL 750.529, and
bank robbery, MCL 750.531, after defendant stole nearly $3,000 from a Check ‘n Go payday
lender. The trial court originally sentenced defendant to 210 to 420 months of imprisonment for
the armed-robbery conviction and 86 to 420 months of imprisonment for the bank-robbery
conviction. Defendant appealed his convictions and, in a pre-Lockridge opinion, this Court
affirmed defendant’s convictions and sentences. See People v Odom, unpublished per curiam
opinion of the Court of Appeals, issued January 7, 2014 (Docket No. 304699). Then, applying
its recently issued opinion in Lockridge, our Supreme Court affirmed defendant’s convictions,
but concluded that defendant was entitled to resentencing because the trial court engaged in
judicial fact finding when scoring defendant’s then-mandatory sentencing guidelines. Odom,
498 Mich. 901. Accordingly, our Supreme Court ordered a Crosby1 remand to cure the
constitutional error. Id.
On remand, defendant elected to be resentenced. The trial court found that it would have
imposed a materially different sentence had its sentencing discretion not been constrained by the
mandatory sentencing guidelines and ordered resentencing. In its order for resentencing, the trial
court expressed its belief that defendant’s original sentence was not proportionate to the
seriousness of his conduct and that an out-of-guidelines sentence was likely warranted.
Defendant then moved for a new attorney and to withdraw his request for resentencing. The trial
court denied the motion to withdraw the resentencing request, but granted the motion for new
counsel. Eventually, the matter proceeded to a resentencing hearing. After receiving updated
sentencing information, the trial court sentenced defendant to 360 to 720 months of
imprisonment for each of his convictions and ordered him to pay restitution to the bank. The
trial court opined that defendant’s recidivism and the brazenness of his most-recent offenses
justified the upward departure from the sentencing-guidelines range.
Defendant again appealed his sentence, alleging in part that his first defense attorney on
remand was ineffective for failing to inform him of the possibility of an increased sentence at
resentencing. To explore this issue further, we remanded this case for an evidentiary hearing.
See People v Odom, unpublished order of the Court of Appeals, entered September 27, 2017
(Docket No. 339027). Following a Ginther2 hearing, the trial court concluded that defendant
was not unconstitutionally deprived of the effective assistance of counsel. The trial court found
that defense counsel may have failed to timely communicate with defendant, but that any error
did not affect the outcome of defendant’s resentencing. The trial court emphasized defendant’s
intent to seek resentencing; thus, defense counsel’s ultimate motion for resentencing and the trial
court’s new sentence granted defendant the relief he sought. This appeal followed.
II. ANALYSIS
Defendant raises several challenges to the trial court’s out-of-guidelines sentence.
Broadly, we may group defendant’s issues into two categories: those which address the general
limits of the trial court’s authority on remand and those that address the trial court’s exercise of
its sentencing discretion. We review de novo questions of law, including the interpretation of
statutory and constitutional provisions. People v Callon, 256 Mich. App. 312, 315; 662 NW2d
501 (2003). The trial court’s discretionary decisions—including its exercise of sentencing
discretion—are reviewed for an abuse of discretion. See People v Yost, 278 Mich. App. 341, 353;
749 NW2d 753 (2008); People v Steanhouse, 500 Mich. 453, 459-460; 902 NW2d 327 (2017). A
trial court abuses its discretion when it selects an outcome that falls outside the range of
reasonable and principled outcomes. Yost, 278 Mich. App. at 353. We review the trial court’s
1
United States v Crosby, 397 F3d 103, 117-118 (CA 2, 2005).
2
People v Ginther, 390 Mich. 436, 443-444; 212 NW2d 922 (1973).
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factual findings for clear error. People v Armstrong, 490 Mich. 281, 289; 806 NW2d 676 (2011).
“Clear error exists if the reviewing court is left with a definite and firm conviction that the trial
court made a mistake.” Id.
A. THE TRIAL COURT’S AUTHORITY ON REMAND
In Alleyne v United States, 570 U.S. 99, 116; 133 S. Ct. 2151, 2162; 186 L. Ed. 2d 314
(2013), the United States Supreme Court determined that, in mandatory sentencing schemes, a
criminal defendant’s Sixth Amendment rights are violated when he is sentenced on the basis of
facts that are not found by a jury beyond a reasonable doubt. Acknowledging that Alleyne
directly implicated our own sentencing regime, in Lockridge, 498 Mich. at 391, our Supreme
Court severed Michigan’s 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.” (Internal citation and quotation marks omitted). Our Supreme Court
held that, moving forward:
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.]
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 avails
himself of this opportunity, the original sentence stands. Id. If, however, the defendant fails to
timely inform the trial court of his desire to forego resentencing or affirmatively requests
resentencing, the trial court must then determine whether it “would have imposed a materially
different sentence but for the constitutional error. If the trial court determines that the answer to
that question is yes, the court shall order resentencing.” Id. at 397.
A Crosby remand returns the case to the trial court in a “presentence posture, allowing
the trial court to consider every aspect of the defendant’s sentence de novo.” People v Lampe,
___ Mich App ___, ___; ___ NW2d ___ (2019) (Docket No. 342325); slip op at 3. See also
People v Williams (After Second Remand), 208 Mich. App. 60, 65; 526 NW2d 614 (1994). Given
that Lockridge rendered the sentencing guidelines purely advisory, the trial court may rescore the
sentencing guidelines on the basis of judicially-found facts, see Steanhouse, 500 Mich. at 466-
467, provided that its scoring determinations are supported by a preponderance of the evidence,
People v Hardy, 494 Mich. 430, 438; 835 NW2d 340 (2013). The trial court must consult the
resulting guidelines range, but retains its discretion to depart from that range. Lockridge, 498
Mich. at 391-392. “A sentence that departs from the applicable guidelines range will be reviewed
by an appellate court for reasonableness.” Id. at 392. A sentence is reasonable when it is
proportionate to the seriousness of the circumstances surrounding the offense and the offender.
Steanhouse, 500 Mich. at 471-472. See also People v Milbourn, 435 Mich. 630, 651; 461 NW2d
1 (1990).
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1. APPLICATION OF LOCKRIDGE AND THE PRESUMPTION OF VINDICTIVENESS
On appeal, defendant argues that the trial court’s authority on remand was limited to
correcting scoring errors predicated on judicial fact finding. Accordingly, defendant argues that,
because the error necessitating remand was the trial court’s use of judicial fact finding to score
Offense Variable (OV) 4, the only correction that the trial court could make on remand was to
delete the points scored for OV 4 on the basis of judicial fact finding. We disagree. As noted
previously, a Crosby remand returns the case to the trial court in a “presentence posture,
allowing the trial court to consider every aspect of the defendant’s sentence de novo.” Lampe,
___ Mich App at ___; slip op at 3. Thus, the trial court may receive new sentencing information,
may rescore the guidelines (even utilizing judicial fact finding), and may exercise its discretion
to depart from the sentencing-guidelines range.3
Relatedly, defendant argues that the trial court’s sentence on remand was presumptively
vindictive because it exceeded his original sentence. See North Carolina v Pearce, 395 U.S. 711;
89 S. Ct. 2072; 23 L. Ed. 2d 656 (1969),4 overruled in part by Alabama v Smith, 490 U.S. 794; 109 S
3
We note that the trial court’s assessment on remand of 10 points for OV 4 was supported by a
preponderance of the evidence. The trial court should score OV 4 at 10 points if “[s]erious
psychological injury requiring professional treatment occurred to a victim.” MCL 777.34(1)(a).
The victim, in her original statement, stated that she sought professional help because of the
anxiety caused by the bank robbery. In her updated statement, the victim stated that, despite the
passage of eight years since the offense, she still becomes anxious when she enters a bank. The
victim’s statements were sufficient to score OV 4 at 10 points. See People v Gibbs, 299 Mich
App 473, 493; 830 NW2d 821 (2013).
4
The Pearce Court noted:
Due process of law, then, requires that vindictiveness against a defendant
for having successfully attacked his first conviction must play no part in the
sentence he receives after a new trial. And since the fear of such vindictiveness
may unconstitutionally deter a defendant's exercise of the right to appeal or
collaterally attack his first conviction, due process also requires that a defendant
be freed of apprehension of such a retaliatory motivation on the part of the
sentencing judge.
In order to assure the absence of such a motivation, we have concluded
that whenever a judge imposes a more severe sentence upon a defendant after a
new trial, the reasons for his doing so must affirmatively appear. Those reasons
must be based upon objective information concerning identifiable conduct on the
part of the defendant occurring after the time of the original sentencing
proceeding. And the factual data upon which the increased sentence is based
must be made part of the record, so that the constitutional legitimacy of the
increased sentence may be fully reviewed on appeal. [Pearce, 395 U.S. at 725-
726.]
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Ct 2201; 104 L. Ed. 2d 865 (1989). Again, we emphasize that a Crosby remand returns the case
to the trial court in a “presentence posture, allowing the trial court to consider every aspect of the
defendant’s sentence de novo.” Lampe, ___ Mich App at ___; slip op at 3. It is axiomatic then
that, if the trial court has discretion to impose an out-of-guidelines sentence during the original
sentencing, on de novo resentencing there can be no presumption of vindictiveness for the trial
court’s exercise of that discretion—especially when our Supreme Court has stricken the
substantial-and-compelling requirement for departure and replaced it with a reasonableness
review. See Lockridge, 498 Mich. at 391-392. Indeed, the basic purpose of de novo resentencing
is to make the sentencing decision anew, without any respect for the prior (now invalid)
sentence. Accordingly, defendant’s argument is without merit.5
2. EX POST FACTO PROHIBITION
Next, defendant argues that the retroactive application of the advisory sentencing
guidelines violates the prohibition against ex post facto laws when the application results in an
increase in the defendant’s sentence compared to the sentence originally imposed. Effectively,
defendant argues that, to pass constitutional muster, the original sentence must act as a cap on the
trial court’s sentencing discretion on remand. We disagree.
A law violates the ex post facto clauses6 when, in relevant part, it criminalizes conduct
that was innocent when done or when it increases the punishment that was applicable when the
crime was committed. Callon, 256 Mich. App. at 317-318. The United States Supreme Court has
recognized that due process applies the ex post facto clause to judicial decisions construing or
applying a statute because a state court may not do through a judicial decision what the ex post
facto prohibition bars its legislature from doing. See Rogers v Tennessee, 532 U.S. 451, 458-459;
121 S. Ct. 1693; 149 L. Ed. 2d 697 (2001). The rationale for this rule rests “on core due process
5
The federal decisions addressing this issue have uniformly held that a remand predicated on
changes to the sentencing regime precludes application of the presumption of vindictive
sentencing:
When there is no relevant legal or factual change between sentence and
resentence, the motive for an increase in punishment is indeed suspect. But [US v
Booker, 543 U.S. 220, 125 S. Ct. 738; 160 L. Ed. 2d 621 (2005)] brought about a
fundamental change in the sentencing regime. The guidelines, mandatory when
[the defendant] was sentenced, are now advisory. Were he to be resentenced, it
would be under a different standard, one that would entitle the judge to raise or
lower the sentence, provided the new sentence was justifiable under the standard
of reasonableness. No inference of vindictiveness would arise from the exercise
of the judge’s new authority. [United States v Goldberg, 406 F3d 891, 894 (CA
7, 2005) (internal citations omitted); accord United States v Williams, 444 F3d
250, 254 (CA 4, 2006).]
6
“No State shall . . . pass any Bill of Attainder, ex post facto Law, or Law impairing the
Obligation of Contracts.” US Const, Art 1, § 10. “No bill of attainder, ex post facto law or law
impairing the obligation of contract shall be enacted.” Const 1963, Art 1, § 10.
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concepts of notice, foreseeability, and, in particular, the right to fair warning as those concepts
bear on the constitutionality of attaching criminal penalties to what previously had been innocent
conduct.” Id. Accordingly, the ex post facto prohibition will preclude retroactive application of
those decisions implicating notice, foreseeability, and the right to fair warning—that is, those
decisions that were unexpected and are indefensible by reference to the law previously
expressed. Id. at 462.
In cannot be said that our Supreme Court’s decision in Lockridge criminalizes conduct
which was previously innocent—robbery was criminal at the time of defendant’s offense and
remains so post-Lockridge. Thus, defendant’s ex post facto challenge must be premised on a
lack of fair warning of increased punishment. On this ground, too, defendant’s challenge fails.
Our Supreme Court’s decision to rectify the constitutional infirmity in the mandatory sentencing
guidelines by making the guidelines advisory did not alter the maximum penalty applicable to
defendant when he committed the crimes at issue. Both offenses were punishable by up to life in
prison when committed and remain punishable by up to life in prison under the advisory
guidelines. See MCL 750.529; MCL 750.531. See also US v Barton, 455 F3d 649, 656-657
(2006) (noting that a majority of federal circuits addressing the issue have held that unchanging
statutory maximums preclude any ex post facto notice issue). Further, although the formerly
mandatory sentencing guidelines constrained the trial court’s exercise of discretion, persons who
committed crimes under the guidelines were on notice that the trial court had discretion to depart
from them. See MCL 769.34(3). See also Barton, 455 F3d at 655-656. Indeed, the trial court
opined at defendant’s original sentencing that this was a case where a departure sentence was a
distinct possibility. Where the trial court seriously considered an out-of-guidelines sentence at
defendant’s original sentencing, defendant can hardly claim surprise at an out-of-guidelines
sentence issued on de novo resentencing.
Finally, we note that the United States Supreme Court’s decision in Alleyne, which
prompted our Supreme Court’s decision in Lockridge, was not fashioned out of whole cloth.
Rather, Alleyne was a logical extension of nearly a decade of decisions “strik[ing] down
mandatory sentencing systems at the state and federal levels.” Alleyne, 570 U.S. at 120. Indeed,
the majority of these decisions predate defendant’s offense. See id. Accordingly, it cannot be
said that Lockridge was unexpected and indefensible by reference to the law previously
expressed. Rogers, 532 U.S. at 462. Thus, we conclude that retroactive application of Lockridge
does not offend the prohibition against ex post facto laws—even when its application results in a
lengthier sentence than the one previously imposed.7
B. THE TRIAL COURT’S SENTENCE
Having addressed any misconceptions regarding the trial court’s authority on remand, we
now turn to defendant’s other arguments on appeal.
7
We note that no federal court has found that the retroactive application of advisory sentencing
guidelines results in a due-process or ex post facto violation. See Barton, 455 F3d at 656.
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1. OPPORTUNITY TO AVOID RESENTENCING
Defendant argues that several errors denied him the opportunity that Lockridge
guarantees him to avoid resentencing. According to defendant, the trial court abused its
discretion when it denied his motion to withdraw his request for resentencing and when it failed
to rule on his motion for substitute counsel before deciding to resentence him. Alternatively,
defendant argues that his counsel’s ineffectiveness denied him an opportunity to avoid
resentencing. Each of defendant’s arguments is without merit.
As a preliminary matter, defendant has failed to identify any authority that requires a trial
court to consider a motion for substitute counsel before it may consider any subsequently filed
motion by the attorney who was the subject of the motion for substitution. Accordingly,
defendant has abandoned this issue. See People v Martin, 271 Mich. App. 280, 315; 721 NW2d
815 (2006).
Regarding his other arguments, defendant has not provided this Court with any credible
evidence that he wished to avoid resentencing before the trial court indicated that it would
increase his sentence. At the Ginther hearing, defense counsel testified that he informed
defendant of the Crosby remand procedure and defendant’s opportunity to avoid resentencing.
Defense counsel also testified that he reminded defendant that, at the original sentencing, the trial
court had expressed an inclination to depart upward from the sentencing guidelines.
Accordingly, defense counsel informed defendant that an out-of-guidelines sentence was a
possibility at resentencing. Despite these explanations, defense counsel maintained that
defendant wished to be resentenced. Defense counsel acknowledged that he may have failed to
communicate timely with defendant for a portion of the time the case was pending before the
trial court (and that, because of this untimely communication, defendant sought other counsel),
but testified that he ultimately fulfilled defendant’s wishes by requesting resentencing.
According to defense counsel, once the trial court indicated its intent to increase defendant’s
sentence in its order for resentencing, he moved to withdraw the request for resentencing. For
his part, defendant offered a document entitled “Judicial Notice” in which he claims he
expressed his intent to forego resentencing. That document, however, was not registered with
the trial court and was not in any attorney’s records. The document first appeared as an
attachment to a document that defendant submitted on his own behalf after the trial court had
already determined that it would resentence defendant.
Given that its decision eliminated the requirement of a substantial and compelling reason
to depart from the sentencing guidelines, the Lockridge court granted defendants entitled to a
remand under its opinion an opportunity to avoid resentencing by informing the trial court of
their decision to forego resentencing. Lockridge, 498 Mich. at 398; Crosby, 397 F3d at 118. Yet,
a defendant must seize upon this opportunity before the trial court expresses its intent to
resentence the defendant. Id. Thus, because the record in this case is devoid of any indication
that defendant wished to forego resentencing before the trial court expressed its intention to
increase his sentence, we conclude that the trial court did not abuse its discretion by denying
defendant’s motion to withdraw his request for resentencing.
Further, while it appears that defense counsel could have been timelier when
communicating with defendant and filing motions on defendant’s behalf, we may only grant
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relief when counsel’s unprofessional errors affected the outcome of the proceedings. People v
Sabin (On Second Remand), 242 Mich. App. 656, 659; 620 NW2d 19 (2000). Here, any errors
resulted, at most, in a delayed request for resentencing. Defendant was not denied his
opportunity to avoid resentencing because defendant did not wish to avoid resentencing until the
trial court expressed its intention to increase his sentence. Accordingly, because any error did
not affect the outcome of the proceedings, defendant is not entitled to relief.
2. UPDATED PRESENTENCE INVESTIGATION REPORT
Defendant argues that the trial court erred by sentencing him using an insufficiently
updated presentence investigation report (PSIR). As defendant correctly notes on appeal, our
Supreme Court has held that a trial court should not resentence a defendant without the benefit of
a “reasonably updated presentence report.” People v Triplett, 407 Mich. 510, 515; 287 NW2d
165 (1980).
Given the time between defendant’s offense and his resentencing, on remand, an agent
updated defendant’s PSIR to reflect defendant’s conduct while incarcerated. The updated PSIR
indicates that, while incarcerated, defendant only had one citation for misconduct. Defendant
argues that the updated PSIR was insufficient because it failed to include information about
voluntary programs defendant completed while incarcerated. While this information does not
appear in defendant’s updated PSIR, defendant did provide the trial court with documentation
regarding the programs he voluntarily completed in prison. As our Supreme Court recognized in
People v Hemphill, 439 Mich. 576, 581-582; 487 NW2d 152 (1992), when it comes to
sentencing, it is not particularly important how the information gets before the trial court; rather,
it is important that the trial court have the relevant information available for sentencing.
Accordingly, defendant’s provision of his program documents to the trial court alleviates any
concern that inaccurate or incomplete information hampered the trial court’s sentencing decision.
Defendant also argues that the PSIR was inaccurate because it did not include a victim
impact statement by a different victim, whom defendant claims would have professed his
innocence. Defendant, however, has presented no evidence that this alleged other victim had or
could have provided such a statement. Accordingly, because defendant has failed to establish the
factual predicate for his claim, his claim is without merit. See People v Ackerman, 257 Mich
App 434, 455-456; 669 NW2d 818 (2003).
3. PROPORTIONALITY
Defendant next argues that the trial court’s out-of-guidelines sentence was not
proportionate to his criminal conduct. As noted previously, we review sentences in excess of the
sentencing guidelines for reasonableness. Lockridge, 498 Mich. at 391-392. A sentence is
reasonable when it is proportionate to the seriousness of the circumstances surrounding the
offense and the offender. Steanhouse, 500 Mich. at 471-472. The purpose of the proportionality
requirement is to combat unjustified disparity in sentencing, thereby ensuring that “similar
offense and offender characteristics receive substantially similar sentences.” People v Dixon-
Bey, 321 Mich. App. 490, 524; 909 NW2d 458 (2017) (internal citation and quotation marks
omitted). Under our system of sentencing, this principle of proportionality is first entrusted to
the Legislature, which is tasked with “grading the seriousness and harmfulness of a given crime
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and given offender within the legislatively authorized range of punishments.” Id. at 524 (internal
citation and quotation marks omitted). Although the Legislature’s guidelines are advisory, they
remain a highly relevant consideration in a trial court’s exercise of its sentencing discretion.
Steanhouse, 500 Mich. at 469-470, 474-475. Indeed, a sentence within the Legislature’s
guidelines range is presumptively proportionate. People v Powell, 278 Mich. App. 318, 323; 750
NW2d 607 (2008). Thus, when sentencing an individual defendant, the trial court must first
score the sentencing guidelines and take them into account. Lockridge, 498 Mich. at 392. If the
trial court chooses to depart from the sentencing guidelines, it must justify the departure on the
record by explaining “why the sentence imposed is more proportionate to the offense and the
offender than a different sentence would have been.” Dixon-Bey, 321 Mich. App. at 525 (internal
citation and quotation marks omitted). Relevant factors for determining whether an out-of-
guidelines sentence is more proportionate than a sentence within the guidelines range “include
(1) whether the guidelines accurately reflect the seriousness of the crime; (2) factors not
considered by the guidelines; and (3) factors considered by the guidelines but given inadequate
weight.” Id. (internal citations omitted).
In this case, the trial court calculated defendant’s guidelines on remand at 126 to 210
months of imprisonment. The trial court, however, identified several factors that it felt were not
adequately reflected in defendant’s guidelines scores. The trial court noted defendant’s
significant criminal history, including three serious criminal convictions in 1980 and a first-
degree criminal-sexual-conduct conviction in 1982. The trial court noted that defendant
committed the instant offense while on parole from the sexual-misconduct conviction, indicating
that defendant was not a strong candidate for reform. The trial court also found noteworthy the
fact that, despite defendant’s criminal history, defendant was not scored as a fourth-offense
habitual offender because of a notice issue in the original proceedings. Finally, the trial court
noted that each of defendant’s current convictions carried a maximum penalty of life in prison.
Opining that the guidelines range did not accurately reflect the serious recidivism of this
defendant and the brazenness of his crimes, the trial court imposed a sentence of 360 to 720
years in prison for each conviction.
The sentence imposed by the trial court was proportionate to the seriousness of
defendant’s crimes and background. Notably, had the fourth-habitual enhancement been applied,
it would have provided for a minimum sentence of up to 420 months in prison. See MCL
777.21(3). As stated previously, sentences within the legislative guidelines are presumptively
proportionate. While we are unable to apply that presumption in this case given Lockridge, it
stands to reason that defendant’s criminal conduct places him in a similar position to other repeat
offenders notwithstanding the notice error in the original proceeding.8 Defendant has committed
six serious criminal offenses since he was 17 years old, separated by only short periods of
freedom. Indeed, defendant committed the instant offense while on probation for a serious
8
We reject defendant’s related argument that the trial court formulaically applied the fourth-
habitual enhancement. Rather, the trial court made an individualized determination that
defendant’s conduct warranted a sentence in excess of the recommended range, reasoning by
analogy to the fourth-habitual enhancement in the same manner as we do on appeal.
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sexual-conduct offense. Although the trial court’s departure from defendant’s guidelines range
was substantial, it was not unwarranted. Defendant’s argument to the contrary is without merit.
4. RESTITUTION
Finally, defendant argues that the trial court erred when it refused to modify its order of
restitution on the ground that Odom established that the collection of funds from his prison
account amounted to an undue hardship. Under the Crime Victim’s Rights Act, MCL 780.751 et
seq, the trial court was required to order defendant to make full restitution to the victims of his
crimes. In re Lampart, 306 Mich. App. 226, 232-233; 856 NW2d 192 (2014). When ordering
restitution, the “defendant’s ability to pay is irrelevant; only the victim’s actual losses from the
criminal conduct are to be considered.” Id. at 233. The defendant’s ability to pay only becomes
an issue when enforcement of the restitution order has begun. See People v Jackson, 483 Mich.
271, 292; 769 NW2d 630 (2009).
Under MCL 791.220h, the Department of Corrections is required to collect 50% of all
the funds that a prisoner receives over $50 per month and forward it as payment of court-ordered
restitution. Here, defendant asserted that he does not have more than $50 in his account and that
he only receives $9 per month, meaning that the department was prohibited from remitting any
funds from defendant’s prisoner account for the payment of restitution. Defendant has provided
no evidence that the department has violated this prohibition or that any other type of
enforcement has been taken on the restitution order. Therefore, because defendant failed to
establish the enforcement of the court-ordered restitution, any issue regarding defendant’s ability
to pay restitution was not ripe for the trial court’s consideration. See People v Robar, 321 Mich
App 106, 128; 910 NW2d 328 (2017) (“[T]he ripeness doctrine precludes adjudication of merely
hypothetical claims.”).
III. CONCLUSION
Our Supreme Court’s remand order returned this case to the trial court in a presentence
posture, entitling the trial court to consider de novo whether defendant’s conduct justified an out-
of-guidelines sentence. After receiving updated sentencing information, the trial court chose to
impose a sentence exceeding the range recommended by the sentencing guidelines. Its out-of-
guidelines sentence was reasonable, given defendant’s extensive criminal history and tendency to
reoffend. Therefore, for the reasons stated in this opinion, we affirm defendant’s sentence.
/s/ Patrick M. Meter
/s/ Deborah A. Servitto
/s/ James Robert Redford
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