People of Michigan v. Cornelius Ware

STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
June 21, 2018
Plaintiff-Appellee,
v No. 337903
Wayne Circuit Court
CORNELIUS WARE, LC No. 14-000562-01-FH
Defendant-Appellant.
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v No. 337904
Wayne Circuit Court
CORNELIUS WARE, LC No. 14-000563-01-FH
Defendant-Appellant.
Before: SAWYER, P.J., and CAVANAGH and FORT HOOD, JJ.
PER CURIAM.
Defendant appeals as of right the trial court’s order, entered after a Crosby1 remand
hearing, denying his request for resentencing and thereby reaffirming defendant’s original
sentences of 26 to 50 years’ imprisonment for each of his convictions of two counts of sending
or delivering an explosive substance with the intent to injure a person or destroy property, MCL
750.204(2)(b), two counts of second-degree arson, MCL 750.73(1), two counts of assault with
intent to do great bodily harm less than murder, MCL 750.84(1)(a), aggravated stalking, MCL
750.411i(2)(a), and felon in possession of a firearm, MCL 750.224f.2 We affirm.
1
United States v Crosby, 397 F3d 103 (CA 2, 2005).
2
We reject plaintiff’s challenge to this Court’s jurisdiction. MCR 7.203(A) provides that this
Court has jurisdiction of an appeal as of right from a “final order” of the circuit court. MCR
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Defendant’s convictions arise from two separate firebombing incidents at his ex-
girlfriend’s family’s home in Highland Park in September 2013. The trial court scored the
sentencing guidelines for defendant’s conviction of sending or delivering an explosive substance
with the intent to injure a person or destroy property, which is a class B offense. MCL 777.16k.
The court’s scoring decisions resulted in a guidelines range of 117 to 320 months for a fourth-
offense habitual offender under the applicable sentencing grid. MCL 777.63; MCL 777.21(3)(c).
In a prior appeal, this Court affirmed defendant’s convictions, “but remand[ed] to the trial court
to determine the need for resentencing as required by People v Lockridge, 498 Mich. 358; 870
NW2d 502 (2015).” People v Ware, unpublished per curiam opinion of the Court of Appeals,
issued March 22, 2016 (Docket Nos. 323710; 323711).
On remand, defendant filed a motion for resentencing, and the trial court held a hearing.
In addition to expressing their views about resentencing, the parties discussed the parameters of a
Crosby remand, including that the sentencing guidelines were now only advisory. The trial court
declined to resentence defendant, stating, in relevant part:
This was an outrageous case. It was a break-up of a relationship that might in and
of itself be sad, but, however, it escalated to the notion of harassing and menacing
phone calls that were made, threatening to blow up the house.
And on the date of this particular incident, one of the things that I
remember in particular about this case is that there was a small child that was in
the house, who certainly was fairly frightened by all of this, as any adult would be
in this kind of circumstance.
And I’m also mindful of the fact that if I recall correctly, Mr. Ware had 12
prior convictions. Some point the community needs to be protected from those
who over and over and over again commit crimes, particularly the kind of crime
here, which as I said was an outrageous threat to not only those in the house, but
also any time there is an intentional fire set, it can spread and cause danger to the
firefighters who have to come and put out the fire.
There is untold safety concern for the community, not only the direct
victims as those are nearby can potentially be put in harm’s way.
7.202(6)(b)(iv) defines a “final order” as including, in a criminal case, “a sentence imposed, or
order entered, by the trial court following a remand from an appellate court in a prior appeal as
of right.” (Emphasis added.) In defendant’s prior appeal by right, this Court remanded the case
to the trial court for further proceedings under People v Lockridge, 498 Mich. 358; 870 NW2d
502 (2015), and the trial court resolved that remand order by entering an order denying
resentencing. Therefore, the trial court’s order denying resentencing qualifies as a final order
appealable as of right under MCR 7.202(6)(b)(iv). Although plaintiff argues that the issue raised
by defendant is not reviewable because it is beyond the scope of the remand order, that question
only implicates the scope of this Court’s review, it does not affect this Court’s jurisdiction over
the order appealed.
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If Mr. Ware was before me, given the rescoring of the guidelines, it would
be exactly the same sentence.
So consistent with the Court of Appeals and the Supreme Court’s
directive, my ruling is that there is no necessity for resentencing because there
would not be a change in my sentence.
We review a trial court’s denial of a motion for resentencing for an abuse of discretion.
People v Puckett, 178 Mich. App. 224, 227; 443 NW2d 470 (1989). Defendant argues on appeal
that although his 26-year minimum sentence is within the guidelines range as scored by the trial
court, the higher range was improperly based on judicial fact-finding, because the facts used to
score OVs 4 and 14 were found by the court and not by a jury. We disagree. Defendant’s
premise that the trial court was prohibited from considering a guidelines range that was based on
judge-found facts is flawed.
In Lockridge, 498 Mich. at 364, our Supreme Court held that Michigan’s sentencing
guidelines are constitutionally deficient, in violation of the Sixth Amendment, to the extent that
they “require judicial fact-finding beyond facts admitted by the defendant or found by the jury to
score offense variables (OVs) that mandatorily increase the floor of the guidelines minimum
sentence range . . . .” To remedy this deficiency, the Court held that the guidelines are advisory
only. Id. at 365. Under Lockridge, however, trial courts are still required to “continue to consult
the applicable guidelines range and take it into account when imposing a sentence,” and are
permitted to score the OVs using judicially found facts. Id. at 392 n 28. As this Court explained
in People v Biddles, 316 Mich. App. 148, 158; 896 NW2d 461 (2016),
[t]he constitutional evil addressed by the Lockridge Court was not judicial fact-
finding in and of itself; it was judicial fact-finding in conjunction with required
application of those found facts for purposes of increasing a mandatory minimum
sentence range. Lockridge remedied this constitutional violation by making the
guidelines advisory, not by eliminating judicial fact-finding.
More recently, in People v Steanhouse, 500 Mich. 453, 460; 902 NW2d 327 (2017), our Supreme
Court reaffirmed its holding in Lockridge that the sentencing guidelines are advisory only. The
Court articulated that, “[w]hat made the guidelines unconstitutional, in other words, was the
combination of the two mandates of judicial fact-finding and adherence to the guidelines.” Id. at
467. This combination was no longer extant at defendant’s Crosby remand hearing. Although
defendant’s guidelines range was still based in part on judicial fact-finding, the trial court
recognized that, under Lockridge, the guidelines range was only advisory. Therefore, the trial
court did not err when it evaluated defendant’s sentence using a guidelines range that was based
on judicially found facts, given that the court was aware that the guidelines were only advisory.
Affirmed.
/s/ David H. Sawyer
/s/ Mark J. Cavanagh
/s/ Karen M. Fort Hood
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