People of Michigan v. Cortez Wardell Willis

STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
August 18, 2016
Plaintiff-Appellee,
v No. 327487
Wayne Circuit Court
CORTEZ WARDELL WILLIS, LC No. 15-000637-FC
Defendant-Appellant.
Before: MURPHY, P.J., and STEPHENS and BOONSTRA, JJ.
PER CURIAM.
Defendant was convicted following a bench trial of carjacking, MCL 750.529a. On
scoring of the guidelines, his minimum sentence range was 42 to 70 months, and the trial court
imposed a sentence of 42 months to 25 years’ imprisonment. Defendant appeals as of right,
solely challenging his sentence. We affirm.
Defendant was originally sentenced in April 2015, which was prior to our Supreme
Court’s decision in People v Lockridge, 498 Mich 358; 870 NW2d 502 (2015), which declared
that the existing sentencing guidelines were constitutionally deficient under the Sixth
Amendment to the extent that they required judicial fact-finding beyond facts admitted by the
defendant or found by the jury to score the offense variables (OVs), so as to mandatorily increase
the floor of the guidelines minimum sentence range. The Court remedied the constitutional
infringement by holding that guidelines calculated in violation of the Sixth Amendment are
advisory only and that sentencing departures are to be reviewed for reasonableness. Id. at 365.
At the sentencing hearing conducted pre-Lockridge, defendant had implored the trial court to
impose a sentence that departed downward from the guidelines, and the court indicated that
substantial and compelling reasons did not exist in support of a departure. After Lockridge was
issued, defendant filed a motion for resentencing, citing Lockridge and arguing that substantial
and compelling reasons were no longer necessary to impose a departure.
At the hearing on defendant’s motion, Lockridge was thoroughly discussed, including
that part of Lockridge applying plain-error analysis in the context of whether a Crosby1 remand
1
United States v Crosby, 397 F3d 103 (CA 2, 2005).
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should be ordered.2 The trial court noted that it had reviewed defendant’s entire file, including
the presentence investigation report and the guidelines scores, and it ruled that its sentence would
not have been any different under advisory guidelines and the holding in Lockridge.
Accordingly, the trial court denied the motion for resentencing. Effectively, the trial court gave
defendant the full benefit of a Crosby remand. We note that defendant would not have even been
entitled to a Crosby remand, where his total OV score was five points, placing him at OV level I
on the applicable class A grid, MCL 777.62, and where the subtraction of those five points
would not have changed the minimum guidelines range. Lockridge, 498 Mich at 394-399.
Defendant’s sole and cursory contention on appeal is that the plain-error test and Crosby
remand analysis applied in Lockridge are inapplicable here, given that defendant preserved his
constitutional challenge of the sentence by filing the motion for resentencing, while the issue was
unpreserved in Lockridge. Implicit in defendant’s argument is that resentencing and not a
Crosby remand should be ordered when a Sixth Amendment sentencing challenge was
preserved. See People v Biddles, __ Mich App __, __; __ NW2d __ (2016); slip op at 4-5
(distinguishing the remedies of resentencing and a Crosby remand). Defendant’s argument lacks
merit in light of this Court’s ruling in People v Stokes, 312 Mich App 181; 877 NW2d 752
(2015), which addressed a preserved Sixth Amendment sentencing challenge. The Stokes panel
held that the Crosby remand procedure set forth in Lockridge is equally applicable with respect
to preserved errors in the context of harmless-error analysis. Id. at 198-203. This Court
concluded that “our Supreme Court intended the Crosby procedure to apply to both preserved
and unpreserved errors.” Id. at 200. And the panel remanded “the matter to the trial court to
follow the Crosby procedure in the same manner as outlined in Lockridge for unpreserved
errors.” Id. at 203.
Given the Stokes opinion, defendant is simply not entitled to the requested resentencing.
First, as observed earlier, a Crosby remand would not even be implicated in this case, as the
minimum sentence range would not be altered by reducing defendant’s OV score by five points;
any error was harmless. Second, the trial court treated defendant as if he was actually before the
court on a Crosby remand, essentially rendering moot any Crosby-related issue. Third,
2
In Lockridge, 498 Mich at 399, the Supreme Court explained:
To make a threshold showing of plain error that could require
resentencing, a defendant must demonstrate that his or her OV level was
calculated using facts beyond those found by the jury or admitted by the
defendant and that a corresponding reduction in the defendant's OV score to
account for the error would change the applicable guidelines minimum sentence
range. If a defendant makes that threshold showing and was not sentenced to an
upward departure sentence, he or she is entitled to a remand [to] the trial court for
that court to determine whether plain error occurred, i.e., whether the court would
have imposed the same sentence absent the unconstitutional constraint on its
discretion. If the trial court determines that it would not have imposed the same
sentence but for the constraint, it must resentence the defendant.
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defendant does not substantively challenge his sentence. In sum, neither resentencing nor
remand is warranted.
Affirmed.
/s/ William B. Murphy
/s/ Cynthia Diane Stephens
/s/ Mark T. Boonstra
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