            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PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     May 21, 2019
               Plaintiff-Appellee,

v                                                                    No. 344796
                                                                     Wayne Circuit Court
LORENZO BROWN,                                                       LC No. 14-011033-01-FC

               Defendant-Appellant.


Before: STEPHENS, P.J., and GADOLA and LETICA, JJ.

PER CURIAM.

       Defendant appeals as of right the trial court’s order declining to resentence him in light of
People v Lockridge, 498 Mich 358; 870 NW2d 502 (2015), and United States v Crosby, 397 F3d
103 (CA 2, 2005). We affirm.

        Following a jury trial, defendant was convicted of assault with intent to murder, MCL
750.83, carrying a weapon with unlawful intent, MCL 750.226, 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), second offense, MCL 750.227b. Defendant was sentenced, as a fourth
habitual offender, MCL 769.12, to concurrent sentences of 500 to 749 months’ imprisonment for
the assault with intent to commit murder conviction, and 5 to 10 years’ imprisonment each for
the carrying a weapon with unlawful intent and felon-in-possession convictions, to be served
consecutive to a five-year term of imprisonment for the felony-firearm conviction.

        Defendant appealed to this Court, contending that the trial court had violated his right to
public trial by closing the courtroom during his trial. Defendant also challenged his sentence on
constitutional grounds under Lockridge, contending that the trial court impermissibly used
judicial fact-finding to score the sentencing guidelines offense variables (OVs), and further
contending that the notice of habitual offender enhancement had not been timely filed. This
Court, while retaining jurisdiction, remanded defendant’s case to the trial court for further
findings of fact regarding defendant’s right to public trial. People v Brown, unpublished per
curiam opinion of the Court of Appeals, issued November 29, 2016 (Docket Nos. 327734,
327736, 327814), pp 2-6 (Brown I). This Court held in abeyance defendant’s sentencing issues



                                                -1-
regarding the notice of habitual offender enhancement and his constitutional claim under
Lockridge, pending the completion of the proceedings on remand regarding the public trial issue.
Id. at 8-9.

       After the proceedings on remand were completed by the trial court, this Court affirmed
defendant’s convictions and held that his challenge involving the timeliness of the habitual
offender enhancement notice lacked merit, but remanded to the trial court for a determination of
whether resentencing was warranted under Lockridge, 498 Mich at 358, and Crosby, 397 F3d at
103. This Court did not retain jurisdiction. People v Brown (After Remand), unpublished per
curiam opinion of the Court of Appeals, issued April 13, 2017 (Docket Nos. 327734, 327736,
327814), pp 2, 5-9 (Brown II). On remand for the second time, the trial court held a Crosby
hearing, and declined to resentence defendant in light of Lockridge.

        Defendant now again appeals, this time from the order of the trial court declining to
resentence him under Lockridge. Defendant, however, argues for the first time that the trial court
erred in assessing 50 points for OV 6, 50 points for OV 7, and 10 points for OV 19 because the
trial court’s scoring of these offense variables was not supported by a preponderance of the
evidence. Because defendant did not raise these scoring issues in his initial appeal of right, and
because they are outside the scope of the Crosby remand now under review, we decline to
address them and instead affirm the trial court’s determination not to resentence defendant.

        “[W]here an appellate court remands for some limited purpose following an appeal as of
right in a criminal case, a second appeal as of right, limited to the scope of the remand, lies from
the decision on remand.” People v Kincade (On Remand), 206 Mich App 477, 481; 522 NW2d
880 (1994). “ ‘Whether a trial court followed an appellate court’s ruling on remand is a question
of law that this Court reviews de novo.’ ” People v Anderson, ___ Mich App ___, ___; ___
NW2d ___ (2019) (Docket No. 339725), slip op at 2, quoting Schumacher v Dep’t of Natural
Resources (After Remand), 275 Mich App 121, 127; 737 NW2d 782 (2007). The denial of a
motion for resentencing is reviewed for an abuse of discretion. See People v Puckett, 178 Mich
App 224, 227; 443 NW2d 470 (1989). A court abuses its discretion when its decision is outside
the range of principled outcomes. People v Watkins, 491 Mich 450, 467; 818 NW2d 296 (2012).

       In this case, defendant’s argument in this appeal is outside the scope of this Court’s
remand order. During a Crosby remand, the trial court must “determine whether [it] would have
imposed a materially different sentence but for the constitutional error.” Lockridge, 498 Mich at
397. Here, this Court remanded defendant’s case to the trial court for the limited purpose of
determining whether it would have imposed a materially different sentence had it known that the
sentencing guidelines were advisory. Brown II, unpub op at 9. The trial court complied with the
remand order when it determined that it would not have imposed a different sentence. Therefore,
defendant’s argument—that the trial court erred in scoring OVs 6, 7, and 19—is outside the
scope of this Court’s remand order.

       We note that defendant’s argument on appeal disregards the difference between
“evidentiary challenges” and “constitutional challenges.” See People v Biddles, 316 Mich App
148, 156; 896 NW2d 461 (2016). An evidentiary challenge addresses the adequacy of the
evidence supporting the trial court’s scoring of OVs; by contrast, a constitutional challenge under
Lockridge challenges the trial court’s use of judicial fact-finding to score OVs. Id. The remedy

                                                -2-
for a successful evidentiary challenge is an order for resentencing, whereas the remedy for a
successful constitutional challenge is a Crosby remand, which carries the possibility of
resentencing. Id. at 156-157.

         In his earlier appeal, defendant argued that OVs 6, 7, and 19 were scored using judicial
fact-finding in violation of Lockridge. Brown I, unpub op at 8-9; Brown II, unpub op at 6-9.1
Defendant did not advance a challenge to the trial court’s actual scoring of OVs 6, 7, and 19—
i.e., that the scoring of those variables was not supported by a preponderance of the evidence.
This Court, after the initial remand, determined that the trial court’s scoring of the offense
variables was based on facts not found by the jury or admitted by defendant, and were used to
mandatorily increase the floor of the guidelines minimum sentence range. Brown II, unpub op at
6-9. As a result, defendant “demonstrated that an unconstitutional constraint actually impaired
his Sixth Amendment rights,” entitling him to a Crosby remand and the possibility of
resentencing. Brown II, unpub op at 8. The trial court complied with the parameters of the
Crosby remand2 by obtaining the views of the prosecution and defense counsel, holding the
Crosby remand hearing, and stating, on the record, its reasoning for declining to resentence
defendant. The trial court explained that it would not have scored the offense variables
differently, and declined to resentence defendant based on circumstances that existed at the time
of the initial sentence, as required by Lockridge. Therefore, the trial court did not abuse its




1
  Defendant also argued that “the information containing the notice of [his] habitual offender
enhancement was not timely filed, and therefore, the trial court erred in sentencing him as a
habitual offender.” Brown I, unpub op at 8. This Court initially held that issue in abeyance, but
later determined, after remand, that the trial court did not err in sentencing defendant as a fourth
habitual offender. Brown II, unpub op at 6.
2
  “[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. 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.” Lockridge, 498
Mich at 398 (quotation marks and citation omitted).


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discretion in declining to resentence defendant. Watkins, 491 Mich at 467. The trial court
properly discharged its responsibilities on remand, and we find no error in the trial court’s
determination that defendant is not entitled to resentencing.

       Affirmed.



                                                         /s/ Cynthia Diane Stephens
                                                         /s/ Michael F. Gadola
                                                         /s/ Anica Letica




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