People of Michigan v. Jawanta Derin Covington ( 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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED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 19, 2019
Plaintiff-Appellee,
v No. 345401
Wayne Circuit Court
JAWANTA DERIN COVINGTON, LC No. 13-007478-01-FC
Defendant-Appellant.
Before: O’BRIEN, P.J., and BECKERING and LETICA, JJ.
PER CURIAM.
Defendant appeals as of right the trial court’s order denying conviction reduction and
resentencing on remand from this Court. We vacate the trial court’s order and remand for further
proceedings.
This Court previously summarized this case’s underlying facts as follows:
This case arises out of the armed robbery of a jewelry store in Hamtramck
on August 1, 2013. That day, defendant and two co-conspirators attempted to rob
the store at gunpoint, resulting in a gunfight with the store’s security guard. One
of defendant’s co-conspirators was shot and killed by the security guard during
the struggle. Police arriving at the store after the gunfight found a pillow case and
hammer in defendant’s possession, and a gun in the possession of defendant’s
remaining co-conspirator. [People v Covington, unpublished per curiam opinion
of the Court of Appeal, issued July 18, 2017 (Docket No. 335036), p 1 (Covington
II).]
On January 9, 2014, a jury convicted defendant of armed robbery, MCL 750.529,
conspiracy to commit armed robbery, MCL 750.529; 750.157a, possession of burglar’s tools,
MCL 750.116, and possession of a firearm during the commission of a felony (felony-firearm),
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MCL 750.227b.1 On January 24, 2014, Judge Vera Massey Jones sentenced defendant to 15 to
40 years’ imprisonment for armed robbery, 15 to 40 years’ imprisonment for conspiracy to
commit armed robbery, 2 to 10 years’ imprisonment for possession of burglar’s tools, and two
years’ imprisonment for felony-firearm. When scoring defendant’s Offense Variable (OV) 3,
Judge Massey Jones found that defendant’s criminal actions resulted in his coconspirator’s death,
so she assessed defendant 100 points for that OV.
After defendant was sentenced, our Supreme Court decided People v Lockridge, 498
Mich 358; 870 NW2d 502 (2015), which held that Michigan’s sentencing guidelines violated the
Sixth Amendment to the extent that they required judicial fact-finding beyond facts admitted by
the defendant or found by a jury to score offense variables that mandatorily increased the floor of
the guidelines minimum sentence range. Id. at 373-374. To remedy this violation, our Supreme
Court made the guidelines advisory only. Id. at 364, 391. It then explained that “in cases in
which a defendant’s minimum sentence was established by application of the sentencing
guidelines in a manner that violated the Sixth Amendment, the case should be remanded to the
trial court to determine whether that court would have imposed a materially different sentence
but for the constitutional error.” Id. at 397. Our Supreme Court explained “the proper
procedures for trial courts to follow on [these] so-called Crosby[2] remands,” id. at 397-399,
which we will discuss later in this opinion.
When defendant appealed his convictions and sentences to this Court, he argued in part
that the trial court violated Lockridge when it scored OV 3. This Court affirmed defendant’s
convictions, but agreed that the trial court engaged in judicial fact-finding when it assessed 100
points for OV 3, and therefore remanded to the trial court for possible resentencing in accordance
with the Crosby remand procedure. People v Covington, unpublished per curiam opinion of the
Court of Appeals, issued April 12, 2016 (Docket No. 325610), pp 4-5 (Covington I).
On remand, the case was assigned to Judge Shannon Walker, who had succeeded Judge
Massey Jones. Judge Walker entered an order denying resentencing without a hearing. The
order stated, in part:
IT IS HEREBY ORDERED the defendant’s motion for conviction reduction and
resentence pursuant to Lockridge/Crosby is denied. This Court would not have
imposed a materially different sentence had it known that it had greater discretion
to depart from the guidelines. The sentence is reasonable and this Court would
not resentence to a different term.
Defendant again appealed to this Court, arguing that the trial court did not follow the
Crosby remand procedure because it did not solicit the views of counsel. This Court agreed,
noting that “[o]ur Supreme Court in Lockridge outlined the procedures that the trial court must
follow when a Crosby remand is ordered[,]” which includes seeking the “views of counsel in
1
The jury found defendant not guilty of assault with intent to murder, MCL 750.83.
2
United States v Crosby, 397 F3d 103 (CA 2, 2005).
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some form.” Covington II, unpub op at 2. This Court remanded the case to the trial court with
the following instructions:
Defendant should be permitted an opportunity to inform the trial court if
resentencing will not be sought. The trial court then is required to solicit the
views of counsel in some form. The trial court need not hold a hearing, and
defendant’s presence is not required, when the trial court decides whether to
resentence defendant. The trial court then should either indicate on the record its
decision not to resentence defendant, together with an appropriate explanation, or
vacate the original sentence and resentence defendant with defendant present. [Id.
at 2-3 (footnote omitted).]
On the second remand, defendant filed a memorandum in support of resentencing, and
the prosecution filed a response. On December 1, 2017, Judge Walker held a Crosby hearing,
which defendant was not present for. During the hearing, Judge Walker stated that she had
considered the sentencing memorandums and that, in her opinion, Judge Massey Jones’ sentence
was reasonable. On the same day, Judge Walker entered an order stating, “[t]his Court would
not have imposed a materially different sentence had it known that it had greater discretion to
depart from the guidelines. The sentence is reasonable and this Court would not resentence to a
different term.”
In Lockridge, our Supreme Court provided the following instructions for a trial court
conducting a Crosby remand:
[O]n 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. If notification is not
received in a timely manner, the court (1) should obtain the views of counsel in
some form, (2) may but is not required to hold a hearing on the matter, and (3)
need not have the defendant present when it decides whether to resentence the
defendant, but (4) must have the defendant present, as required by law, if it
decides to resentence the defendant. [Lockridge, 498 Mich at 398 (citation
omitted).]
There is no dispute that, after this Court’s second remand, Judge Walker complied with
the Crosby remand procedure as set forth in Lockridge. There is also no dispute that Judge
Walker complied with the Covington II panel’s instructions. Defendant argues, however, that he
is nonetheless entitled to a new Crosby hearing because a new judge was assigned to his case
after the original sentencing, so he should have been—but was not—afforded the opportunity to
appear before, and be heard by, the new judge before that judge decided whether to resentence
him. Based on this Court’s decision in People v Howard, 323 Mich App 239; 916 NW2d 654
(2018), we agree.
In Howard, 323 Mich App at 244, the defendant’s case was remanded to the trial court to
determine whether it would have imposed a materially different sentence under the sentencing
procedure described in Lockridge. On remand, the original sentencing judge was not available to
conduct the Crosby remand, so the case was assigned to a different judge. Id. Relevant to this
appeal, the defendant did not appear before, nor was he heard by, the new judge. Id. On appeal,
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the Howard defendant argued, in part, that he was entitled to a new Crosby hearing because “he
should at least be entitled to appear before the [new] judge and have an opportunity to be heard
before the court determines whether it would resentence him under the now-advisory sentencing
guidelines.” Id. at 247. This Court agreed, holding:
When a newly assigned judge handles a Crosby remand without ever
encountering the defendant, both the personal nature of sentencing, and
perceptions of the fairness, integrity, and public reputation of the judicial
proceeding are called into question. We conclude that when the original
sentencing judge is unavailable, in addition to following the other Crosby remand
requirements, the assigned judge must allow the defendant an opportunity to
appear before the court and be heard before the judge can decide whether he or
she would resentence the defendant. [Id. at 252-253 (citation and footnotes
omitted).]
As already stated, Judge Walker conducted the Crosby remand in accordance with the
“proper procedures” for Crosby remands laid out in Lockridge, 498 Mich at 397-399. But based
on Howard, the procedure was still deficient because Judge Walker was not the original
sentencing judge, and defendant did not appear before, or have an opportunity to be heard by,
Judge Walker before she denied resentencing. 3 We therefore vacate the trial court’s order
denying conviction reduction and resentencing and remand for further proceedings.
The prosecution argues that Howard is distinguishable because defendant was
represented by counsel and the trial court sought the views of counsel before denying
resentencing. While it is true that, in Howard, 323 Mich App at 247, this Court held that the trial
court’s failure to appoint counsel and seek the views of counsel during the Crosby remand were
sufficient grounds to vacate the trial court’s order denying resentencing and remand for
additional proceedings, the Howard Court also held that a defendant’s right to appear before, and
be heard by, a successor judge before that judge determines whether to resentence the defendant
was sufficient, standing alone, to warrant remand, id. at 253. The Howard Court explained that
“when the original sentencing judge is unavailable, in addition to following the other Crosby
remand requirements, the assigned judge must allow the defendant an opportunity to appear
before the court and be heard before the judge can decide whether he or she would resentence the
defendant.” Id. (emphasis added). Thus, despite that counsel represented defendant and the trial
court sought the views of counsel before denying resentencing in accordance with the proper
procedures for Crosby remands, defendant must be allowed the opportunity to appear before, and
be heard by, the successor judge.4 Because that opportunity was not given to defendant, we must
vacate the trial court’s order and remand for further proceedings. See id.
3
Although Howard was decided after Judge Walker conducted the Crosby remand, this Court’s
decisions are generally given full retroactive effect. People v Parker, 267 Mich App 319, 326;
704 NW2d 734 (2005).
4
The prosecution also argues that defendant cannot establish plain error affecting substantial
rights because he cannot show that the outcome would have been different had he appeared
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We vacate the trial court’s order and remand for further proceedings consistent with this
opinion. We do not retain jurisdiction.
/s/ Colleen A. O’Brien
/s/ Jane M. Beckering
/s/ Anica Letica
before, and been heard by, Judge Walker. The prosecution is correct that our review is for plain
error affecting substantial rights, but plain error affecting substantial rights can be established if
the error seriously affected the fairness, integrity or public reputation of judicial proceedings.
People v Carines, 460 Mich 750, 763-764; 597 NW2d 130 (1999). As explained by this Court in
Howard, 323 Mich App at 252-253, “When a newly assigned judge handles a Crosby remand
without ever encountering the defendant, . . . perceptions of the fairness, integrity, and public
reputation of the judicial proceeding are called into question.”
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