People of Michigan v. Alfred Jamal Ollison ( 2016 )

STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
September 27, 2016
Plaintiff-Appellee,
v No. 327492
Wayne Circuit Court
ALFRED JAMAL OLLISON, LC No. 13-009984-FC
Defendant-Appellant.
Before: BORRELLO, P.J., and MARKEY and RIORDAN, JJ.
PER CURIAM.
A jury convicted defendant of assault with intent to do great bodily harm less than
murder, MCL 750.84, felon in possession of a firearm (felon-in-possession), MCL 750.224f, and
possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b, and
was sentenced to 4 to 10 years’ imprisonment for assault with intent to do great bodily harm less
than murder, 40 months to 5 years’ imprisonment for felon-in-possession, and 2 years’
imprisonment for felony-firearm. Defendant appealed his convictions and sentences as of right,
arguing Prior Record Variable (PRV) 1 was erroneously scored, and this Court entered an order
accepting the prosecutor’s confession of error, vacating defendant’s sentences, and remanding
the matter to the trial court for resentencing.1 Defendant was then resentenced on remand. The
trial court corrected the scoring of PRV 1 and PRV 5, but scored defendant’s guidelines as a
third habitual offender, MCL 769.11. Defendant was then resentenced, under the corrected
guidelines range, to the same sentences: 4 to 10 years’ imprisonment for assault with intent to do
great bodily harm less than murder, 40 months to 5 years’ imprisonment for felon-in-possession,
and 2 years’ imprisonment for felony-firearm. Defendant appeals his sentences as of right. For
the reasons set forth in this opinion, we remand this case for a Crosby2 hearing pursuant to
People v Lockridge, 498 Mich. 358, 394; 870 NW2d 502 (2015).
I. BACKGROUND
1
People v Ollison, unpublished order of the Court of Appeals, entered January 14, 2015 (Docket
No. 321215).
2
United States v Crosby, 397 F3d 103, 117-118 (CA 2, 2005).
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This case arises from a shooting that occurred on July 30, 2013. On that day, Torrance
Glen was walking down the street when defendant pulled up alongside him driving a green truck
and fired an assault rifle at Glen three to four times before fleeing the scene. Glen was hit once
in his lower right leg. On October 22, 2013, defendant was arrested after a traffic stop while
wearing a disguise.
Following his arrest, defendant was charged, as a third habitual offender, with assault
with intent to murder (AWIM), MCL 750.83, assault with intent to do great bodily harm less
than murder, MCL 750.84, felon-in-possession, MCL 750.224f, and felony-firearm, MCL
750.227b, and was found guilty of assault with intent to do great bodily harm less than murder,
felon-in-possession, and felony-firearm after a three day jury trial. Before defendant’s original
sentencing, a Presentence Investigation Report (PSIR) and Sentencing Information Report (SIR)
were completed, and listed defendant’s sentencing guidelines range as 29 to 57 months.
On March 24, 2014, defendant appeared to be sentenced, both parties agreed with the 29
to 57 month guidelines range and defendant was sentenced.3 On April 7, 2014, defendant
appealed his sentences as of right, and on January 14, 2014, this Court entered an order accepting
the prosecutor’s confession of error, vacating defendant’s sentences, and remanding the matter to
the trial court for resentencing.4
On March 12, 2015, defendant was then resentenced on remand. The trial court
acknowledged that it did not have defendant’s file and did not have an updated PSIR or SIR.
The trial court indicated that defendant’s resentencing had been expedited, so the Michigan
Department of Corrections (MDOC) had not had time to complete an updated PSIR. However,
the court stated that an updated PSIR was not required because the facts of defendant’s case
remained the same and defendant’s resentencing was “just a simple correction of the
computation of his guidelines.” Defense counsel objected, and asserted that defendant was
“entitled” to an updated PSIR and SIR because there were “discrepancies about how the
guidelines were scored and how they need to be scored,” and because the existing PSIR did not
reflect defendant’s “adjustment [] during his incarceration.”
The trial court stated it did not “care how [defendant] has adjusted during his
incarceration period, because to [the court] that really doesn’t matter,” as defendant was “not
being resentenced his sentence is being corrected, because he was given an incorrect sentence.”
The trial court then examined the original PSIR, changed the score of PRV 1 from 50 points to
25 points, changed the score of PRV 2 from five points to 10 points, changed the score of PRV 5
from two points to zero points, and concluded that defendant’s total PRV score went from 67 to
45 points, and that his offense variable (OV) score was 40 points, making defendant’s guidelines
range, as a third habitual offender, 19 to 57 months.
3
On July 9, 2014, defendant was resentenced because the court failed to put his felon-in-
possession sentence on the record.
4
People v Ollison, unpublished order of the Court of Appeals, entered January 14, 2015 (Docket
No. 321215).
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Defense counsel agreed that defendant’s guidelines, as a third habitual offender, were 19
to 57 months. However, defense counsel asserted that “[s]ince he’s been incarcerated,
[defendant] has had an exemplary record in the Department of Corrections. Defense counsel
provided the court with documentation from MDOC evidencing these claims, and asked the
court to “consider [defendant’s] successful rehabilitation and to reduce his sentence.”
The court noted that it received letters from defendant’s family members requesting
defendant be sentenced to house arrest, but stated that “in order for the court to do that [it] would
[need] to find a substantial and compelling reason to downward depart from the guidelines” so
“the law doesn’t allow me to do that.” However, the court also stated that, while defendant
maintained his innocence, the court thought defendant “did it,” and noted that the previously
imposed sentence was within the correctly calculated sentencing guidelines range, and thus,
imposed the same sentences.
II. PSIR/SIR
Defendant first argues that the trial court violated his due process rights when it refused
to order the preparation of an updated Sentencing Information Report (SIR) and Presentence
Investigation Report (PSIR) before resentencing him.
“The trial court’s response to a claim of inaccuracies in the presentence investigation
report is reviewed for an abuse of discretion. A court abuses its discretion when it selects an
outcome outside the range of reasonable and principled outcomes.” People v Waclawski, 286
Mich. App. 634, 689; 780 NW2d 321 (2009).
Before a person convicted of a felony is sentenced, the probation officer must prepare a
written PSIR for the court’s use, and the trial court is required to use the PSIR when sentencing a
defendant. MCL 771.14(1); MCR 6.425(A)(1); People v Hemphill, 439 Mich. 576, 579; 487
NW2d 152 (1992); People v Johnson, 203 Mich. App. 579, 587; 513 NW2d 824 (1994). A PSIR
must include a computation of the recommended sentence range under the statutory sentencing
guidelines. MCL 771.14(2)(e). To determine the applicable guidelines range the trial court must
score the OVs and PRVs. MCL 777.21(1)(b). Further, MCR 6.425(D) requires that a
“[p]roposed scoring of the guidelines shall accompany the presentence report.”
Although the trial court is not required to create an updated PSIR whenever a defendant
is resentenced, the PSIR used must be “reasonably updated” and contain “complete, accurate,
and reliable” information. People v Triplett, 407 Mich. 510, 515; 287 NW2d 165 (1980). A
PSIR is not reasonably updated if; 1) it is several years old, 2) it was prepared “in connection
with unrelated offenses,” or 3) there was a significant intervening change of circumstances.
Hemphill, 439 Mich. at 580-581.
A PSIR was prepared for defendant’s original sentencing and included the required SIR.
Each OV and PRV was scored in the SIR, and a recommended sentence range was included.
Accordingly, the SIR complied with the requirements of MCL 777.21(1)(b) and MCR 6.425(D).
While an updated SIR was not prepared for defendant’s resentencing, the trial court indicated
that defendant’s previous OV scores would remain the same, and changed the PRV scores as this
Court directed it to reconsider on the record. Further, at defendant’s resentencing all parties
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agreed on the recalculated sentencing guidelines range. Accordingly, the trial court did not
abuse its discretion when it refused to order an updated SIR before resentencing defendant.
The PSIR prepared for defendant’s original sentencing was prepared about one year
before his resentencing, and was prepared in connection with defendant’s current convictions.
Defendant asserts that his yearlong incarceration and good conduct while in prison was a
significant change of circumstance that was not incorporated into his PSIR, which required the
court to prepare an updated PSIR before resentencing. However, while the original PSIR did not
include information regarding defendant’s good conduct while incarcerated, at his resentencing,
defendant presented the court with information regarding his prison record by providing the
court with the MDOC paperwork. Accordingly, while the PSIR did not contain information
relating to defendant’s conduct while in prison, the court sentenced defendant on complete and
accurate information, and the prior PSIR was “reasonably updated” under the circumstances.
Because the prior PSIR was reasonably updated, the trial court did not abuse its discretion in
refusing to order an updated PSIR before resentencing defendant. Triplet, 407 Mich. at 515.
III. LOCKRIDGE
Next, defendant argues he is entitled to resentencing under Lockridge because the trial
court sentenced him based on the court’s “inaccurate belief that [it] was bound by the sentencing
guidelines range.” In doing so, defendant essentially argues that the sentencing procedure in this
case violated the Sixth Amendment. We agree.
Defendant’s Sixth Amendment challenge is governed by Lockridge, 498 Mich. at 358. In
Lockridge, our Supreme Court held that the sentencing guidelines violated the Sixth Amendment
“[to] the extent to which the guidelines require judicial fact-finding beyond facts admitted by the
defendant or found by the jury to score [OVs] . . . that mandatorily increase the floor of the
guidelines minimum sentence range, i.e. the ‘mandatory minimum’ sentence under Alleyne.” Id.
at 364.
As a remedy, the Lockridge Court made the sentencing guidelines’ advisory only as
opposed to mandatory and struck down the requirement in MCL 769.34(3) “that a sentencing
court that departs from the applicable guidelines range must articulate a substantial and
compelling reason for that departure.” Id. at 364-365. Going forward, “a sentencing court must
determine the applicable guidelines range and take it into account when imposing a sentence ...
[however] a guidelines minimum sentence range ... is advisory only and ... sentences that depart
from that threshold are to be reviewed by appellate courts for reasonableness.” Id. In other
words, under Lockridge, a sentencing court must continue to score the OVs even if the scoring
requires judicial fact finding; however, the recommended minimum sentencing range is no
longer mandatory, but rather advisory only.
In this case, the jury did not find the facts to support the scoring of all of OV 3 beyond a
reasonable doubt; therefore, the sentencing court engaged in judicial fact-finding to score the OV
3. Accordingly, because those facts established the guidelines’ minimum sentencing range, “an
uconstitutional constraint [on the judge’s discretion] actually impaired the defendant’s Sixth
Amendment right,” id. at 395, and defendant is entitled to a Crosby remand. The Lockridge
Court provided the following guidance for Michigan circuit courts on Crosby remands:
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Thus, in accordance with [Crosby’s ] analysis, 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. If the trial court
determines that the answer to that question is yes, the court shall order
resentencing. [Id. at 397 (emphasis added).]
With respect to the specific procedure on a Crosby remand, this Court has explained as
follows:
[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
[MCR 6.425], if it decides to resentence the defendant. Further, in determining
whether the court would have imposed a materially different sentence but for the
unconstitutional constraint, the court should consider only the circumstances
existing at the time of the original sentence. [People v Stokes, 312 Mich. App. 181,
198; 877 NW2d 752 (2015) (quotation marks and citations omitted).]
In sum, because defendant’s sentence was imposed in violation of the Sixth Amendment,
we remand to the trial court for a Crosby hearing.5
IV. JUDICIAL DISQUALIFICATION
Lastly, defendant argues that his case should be remanded to a different judge for
resentencing because the trial court “show[ed] a total disregard for the concept for individualized
sentencing and rehabilitation” and insisted on sentencing defendant to the identical sentence
previously imposed. We disagree.
5
To the extent that defendant argues his sentence did not meet the reasonableness standard in
Lockridge, his argument is misplaced because defendant’s sentences are not subject to a
reasonableness review. Defendant was sentenced within the correctly calculated applicable
sentencing guidelines range. The reasonableness review was established in order to review
departure sentences. See Lockridge, 498 Mich. at 392 (noting that “[a] sentence that departs
from the applicable guidelines range will be reviewed by an appellate court for reasonableness.”)
Moreover, at the time of sentencing, the trial court was not aware of the advisory nature of the
guidelines, or that it was subject to a reasonableness standard of review; therefore, remand for a
Crosby hearing is warranted. See People v Steanhouse, 313 Mich. App. 1, 23; 880 NW2d 297
(2015), lv granted ___ Mich ___ (2016) (Docket No. 152671).
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Because defendant failed to move for disqualification in the trial court, this issue is
unpreserved. See MCR 2.00. Unpreserved errors are reviewed for plain error affecting
substantial rights. People v Callon, 256 Mich. App. 312, 332; 662 NW2d 501 (2003).
In considering whether to remand to a different judge for resentencing, the following
factors are considered:
(1) whether the original judge would reasonably be expected upon remand to have
substantial difficulty in putting out of his or her mind previously-expressed views
or findings determined to be erroneous or based on evidence that must be rejected,
(2) whether reassignment is advisable to preserve the appearance of justice, and
(3) whether reassignment would entail waste and duplication out of proportion to
any gain in preserving the appearance of fairness. [People v Hill, 221 Mich. App.
391, 398; 561 NW2d 862 (1997) (quotation marks and citation omitted).]
Although resentencing before a different judge may be warranted in some occasions,
defendant has not articulated any circumstances that warrant resentencing before a different
judge in this case. First, remand is not necessary in this case because the trial court’s sentences
were not erroneous. The trial court did not abuse its discretion in declining to order a revised
PSIR and the court sentenced defendant according to the governing law at the time of sentencing,
which was pre-Lockridge. Second, the trial court’s comments regarding defendant’s conduct
while incarcerated did not indicate bias or improper considerations. Instead, the court sentenced
defendant in accord with the sentencing guidelines range and indicated that that defendant’s
conduct while incarcerated did not amount to a substantial and compelling reason to depart from
the recommended range. Third, for disqualification to be warranted under MCR 2.003(C)(1)(a),
the trial judge must be shown to be personally and actually biased or prejudiced for or against a
party. Cain v Mich Dep’t of Corrections, 451 Mich. 470, 495-496; 548 NW2d 210 (1996).
Defendant has failed to show that the judge in this case was actually and personally biased
against defendant and there is no indication in the record that the sentences imposed were the
result of any such bias or prejudice. Given these circumstances, defendant is not entitled to
resentencing before a different judge. Hill, 221 Mich. App. at 398.
Remanded for further proceedings consistent with this opinion. We do not retain
jurisdiction.
/s/ Stephen L. Borrello
/s/ Jane E. Markey
/s/ Michael J. Riordan
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