            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PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    June 4, 2020
               Plaintiff-Appellee,

v                                                                   No. 348531
                                                                    Jackson Circuit Court
JOSEPHUS ANDERSON,                                                  LC No. 13-005118-FC

               Defendant-Appellant.


Before: RONAYNE KRAUSE, P.J., and SERVITTO and REDFORD, JJ.

PER CURIAM.

        Defendant, Josephus Anderson, appeals as on leave granted the trial court’s order
reaffirming defendant’s sentence. We vacate and remand.

                                       I. BACKGROUND

        This matter has a convoluted history. In 2014, defendant was convicted by a jury of various
offenses that we need not repeat. People v Anderson (Anderson I), unpublished per curiam opinion
of the Court of Appeals, issued December 8, 2015 (Docket No. 323587), unpub at 1-3. In 2015,
we affirmed defendant’s convictions, but remanded to correct errors in his sentence guidelines
scoring, presentence investigation report (PSIR), and judgment of sentence; and possibly to
resentence defendant. Id., unpub at 3-4. While that appeal was pending, defendant agreed to
testify against his brother in exchange for a reduced sentence. Thus, instead of following this
Court’s directions on remand, the trial court entered an amended judgment of sentence reflecting
the agreement between defendant and the prosecutor.1 People v Anderson (Anderson II), 326 Mich
App 747, 750-751; 929 NW2d 835 (2018). That might have been the end of this matter.

       However, in 2017, defendant testified at a motion for a new trial for his brother, claiming
that he had perjured himself at his brother’s trial. See People v Willie Anderson (Willie),


1
 We do not mean to suggest in any way that it was inappropriate for the trial court to do so
under the circumstances and at that time.


                                               -1-
unpublished per curiam opinion of the Court of Appeals, issued October 19, 2017 (Docket No.
331466), unpub at 8-10. This Court nevertheless affirmed the brother’s convictions and sentences,
and the prosecution sought to rescind the sentencing agreement in light of defendant’s perjury.
Id.; Anderson II, 326 Mich App at 751. The trial court granted the prosecutor’s request and
reimposed defendant’s original sentence. On July 18, 2017, the trial court entered an amended
judgment of sentence essentially identical to his original 2014 judgment of sentence other than the
dates the sentences began and the amount of applicable jail credit. We affirmed the rescission.
Anderson II, 326 Mich App at 752-753. However, we remanded for the trial court to follow the
original remand instructions we had given in defendant’s first appeal. Id. at 753-754.

        Unfortunately, it is extremely unclear to us from the record what happened thereafter. We
can find nothing in the record to indicate that defendant’s sentencing guidelines scores or PSIR
were ever corrected. Apparently, some sentencing matters may have been placed on the record in
the Willie case rather than in this case. Defendant’s PSIR contains an addendum, dated August 1,
2017, specifically stating that no changes were made to the original report. The trial court entered
an extremely terse order stating, in its entirety:

              This case was remanded from the Michigan Court of Appeals for a
       determination under People v Lockridge, 498 Mich 358[; 870 NW2d 502] (2015),
       of whether this Court would have imposed a materially different sentence absent
       the unconstitutional restraint on its discretion.

              Considering the circumstances at the time of the original sentencing, this
       Court finds that it would not have imposed a materially different sentence.
       Therefore, the original sentence is REAFFIRMED.

               IT IS SO ORDERED this 5th day of December, 2018.

The last transcript in the record is of the motion to rescind the sentence agreement, dated June 16,
2017.

                                 II. STANDARD OF REVIEW

         “Whether a trial court followed an appellate court’s ruling on remand is a question of law
that this Court reviews de novo.” Schumacher v Dep’t of Natural Resources (After Remand), 275
Mich App 121, 127; 737 NW2d 782 (2007). When a trial court has discretion to resentence
defendant, its decision is reviewed for an abuse of discretion. See People v Babcock, 469 Mich
247, 268-270; 666 NW2d 231 (2003). An abuse of discretion occurs “when the court chooses an
outcome that falls outside the range of principled outcomes.” People v Douglas, 496 Mich 557,
565; 852 NW2d 587 (2014) (quotation marks and citation omitted).

                                       III. JURISDICTION

       The prosecution argues that defendant’s claim of appeal in this matter is untimely. We
agree. However, because the record in unclear as to what transpired below, including how
defendant came to be appointed counsel, and because the matter has already been fully briefed, we
choose to treat defendant’s untimely claim as an application and grant it. See Wardell v Hincka,
297 Mich App 127, 133 n 1; 822 NW2d 278 (2012).


                                                -2-
        Additionally, we recognize that our previous opinion in this matter is pending on
defendant’s application for leave to appeal to our Supreme Court, and has recently been held in
abeyance. People v Anderson (Anderson III), ___ Mich ___; ___ NW2d ___ (2020) (Docket No.
158918, order entered May 1, 2020). Pursuant to MCR 7.215(F)(1)(a), “the Court of Appeals
judgment is effective after the expiration of the time for filing an application for leave to appeal to
the Supreme Court, or, if such an application is filed, after the disposition of the case by the
Supreme Court.” The trial court entered its order regarding resentencing after this Court initially
issued Anderson II as an unpublished opinion, and before defendant had filed his application for
leave to appeal with our Supreme Court. Because the trial court entered its order fewer than 56
days after our previous decision, see MCR 7.305(C)(6)(a), its order was premature. However,
because there was no objection, any such prematurity is a harmless technicality. People v
Washington (On Remand), ___ Mich App ___, ___; ___ NW2d ___ (2019) (Docket No. 336050),
slip op at p 6, lv pending. We find no jurisdictional impediments to the trial court’s actions in this
matter or to our consideration of this matter.

                               IV. CORRECTIONS ON REMAND

       Defendant first argues that he is entitled to a remand for correction of his PSIR, SIR,
judgment of sentence, and sentencing guidelines scores. We agree. However, we recognize that
our opinion Anderson I may not have been sufficiently clear, so we will elaborate.

        Offense Variable (OV) 2 was improperly scored at 10 points instead of 5 points because
the evidence showed that defendant had a long-barreled rifle instead of a short-barreled gun. MCL
777.32. On remand, the trial court shall correct defendant’s sentencing guidelines, PSIR, SIR, and
any other necessary documents to reflect a score of 5 points for OV 2. The trial court shall cause
all such documents to be, as appropriate, filed in the record for this matter and/or to be transmitted
to the Michigan Department of Corrections.

         Offense Variable 9 was scored at 10 points instead of 0 points, because only one person
was technically present for the sentencing offense itself. MCL 777.39; People v McGraw, 484
Mich 120, 135; 771 NW2d 655 (2009). On remand, the trial court shall correct defendant’s
sentencing guidelines, PSIR, SIR, and any other necessary documents to reflect a score of 0 points
for OV 9. The trial court shall cause all such documents to be, as appropriate, filed in the record
for this matter and/or to be transmitted to the Michigan Department of Corrections.

        Offense Variable 4 was scored at 10 points, but the parties agreed that there were no facts
admitted by defendant or necessarily found by the jury to support a finding that the victim had
sustained any psychological injury. MCL 777.34. On remand, the trial court shall correct
defendant’s sentencing guidelines, PSIR, SIR, and any other necessary documents to reflect a score
of 0 points for OV 4. The trial court shall cause all such documents to be, as appropriate, filed in
the record for this matter and/or to be transmitted to the Michigan Department of Corrections.

        Finally, we recognize that our opinion in Anderson I inaccurately referred to a “fleeing and
eluding” conviction. We correct our error: Anderson I should have referred to “resisting and
obstructing.” Furthermore, Anderson I failed to explain that the correction of OVs 2, 4, and 9
results in reducing defendant’s total OV score from 55 points to 30 points, which reduces his OV
Level from III to II. As a consequence, defendant’s minimum guidelines range is reduced from


                                                 -3-
81-135 months to 51-85 months. Defendant’s minimum sentence of 81 months for assault with
intent to rob while armed is therefore still within his corrected guidelines range. However, we
remanded for the trial court to follow the Crosby remand procedure set forth in Lockridge because
the above scoring errors altered defendant’s appropriate guidelines range. See People v Francisco,
474 Mich 82, 89-90; 711 NW2d 44 (2006). On remand, the trial court shall correct defendant’s
judgment of sentence to reflect that his felony-firearm sentences are respectively consecutive to
his home invasion and assault sentences only, and are concurrent with defendant’s resisting and
obstructing sentence. The trial court shall cause the corrected judgment of sentence to be filed in
the record for this matter and transmitted to the Michigan Department of Corrections.

                                             V. HEARING

       Defendant next argues that he is entitled to a hearing. On this record, we are unable to
determine whether defendant is correct.

       As an initial matter, our previous opinion explicitly held that “the trial court is not required
to hold a hearing on remand unless it decides to resentence defendant.” Anderson II, 326 Mich
App at 754. The trial court decided not to resentence defendant, which would obviate any need
for a hearing. However, we also explicitly instructed the trial court to place “an appropriate
explanation” in the record for any decision not to resentence. Id. at 753-754, citing Lockridge, 498
Mich at 398. The trial court’s order does not, under the circumstances, constitute an appropriate
explanation. Importantly, the order was seemingly entered in the context of defendant’s original,
uncorrected, judgment of sentence, SIR, and PSIR. We cannot glean from the order, or from
anything else in the record, whether the trial court understood that defendant’s sentencing
guidelines scores had changed. Finally, the trial court did not follow our direction to follow the
sentencing procedure set forth in Lockridge.

       In Lockridge, 498 Mich at 398, our Supreme Court explained the procedure that a trial
court must follow when an appellate court orders a Crosby2 remand:

                 [A] trial court considering a case on a Crosby remand should first and
         foremost include an opportunity for a defendant to avoid resentencing by promptly
         notifying the [trial] judge that resentencing will not be sought. If the defendant
         does not so notify the court, it should obtain the views of counsel, at least in writing,
         but need not require the presence of the Defendant, in reaching its decision (with
         or without a hearing) whether to resentence. Upon making that decision, the trial
         court shall either place on the record a decision not to resentence, with an
         appropriate explanation, or vacate the sentence and, with the Defendant present,
         resentence in conformity with this opinion.

                 Stated differently, on 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


2
    United States v Crosby, 397 F3d 103 (CA 2, 2005).


                                                   -4-
       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 citations omitted).]

Accordingly, we explicitly instructed the trial court to give defendant the opportunity to inform
the court whether he wished to be resentenced, and if it did not receive any such notification, it
“should obtain the views of counsel on whether the defendant should be resentenced.” Anderson
II, 326 Mich App at 753.

         However, it does not appear that defendant was appointed trial counsel following the
remand. The trial court listed defendant’s appellate counsel (for the second appeal) on the order.
The trial court eventually sent this order to appellate counsel’s correct address, but according to
counsel, her appointment had concluded. In any event, it does not appear that the trial court either
afforded defendant a true opportunity to inform it whether he wished to avoid resentencing, and
we cannot find any indication in the record that the trial court obtained the views of counsel
regarding resentencing. As noted, although the trial court did properly consider the circumstances
at the time of the original sentencing, the record does not show that it recognized that defendant’s
sentencing guidelines had been misscored. The trial court thus failed to inquire “whether
defendant should be resentenced in light of the earlier-noted scoring errors . . . ” Anderson II, 326
Mich App at 754. See Lockridge, 498 Mich at 398 (“Upon making that decision, the trial court
shall either place on the record a decision not to resentence, with an appropriate explanation . . . ”)
(quotation marks and citation omitted). As a result, we remand for the trial court to make all of
the corrections described above and determine whether it would have imposed a difference
sentence, while following the full procedure outlined in Lockridge.

        We vacate the trial court’s order regarding resentencing and remand for further proceedings
consistent with this opinion. We retain jurisdiction.

                                                               /s/ Amy Ronayne Krause
                                                               /s/ Deborah A. Servitto
                                                               /s/ James Robert Redford




                                                 -5-
                              Court of Appeals, State of Michigan

                                                ORDER
                                                                               Amy Ronayne Krause
 People of MI v Josephus Anderson                                                Presiding Judge

 Docket No.     348531                                                         Deborah A. Servitto

 LC No.         13-005118-FC                                                   James Robert Redford
                                                                                 Judges


               Pursuant to the opinion issued concurrently with this order, this case is REMANDED for
further proceedings consistent with the opinion of this Court. We retain jurisdiction.

                Proceedings on remand in this matter shall commence within 21 days of the Clerk’s
certification of this order, and they shall be given priority on remand until they are concluded. As stated
in the accompanying opinion, the trial court shall corect defendant’s sentencing guidelines scores, PSIR,
SIR, and judgment of sentence; the trial court shall also follow the Crosby remand procedure set forth in
People v Lockridge, 498 Mich 358, 398 (2015). The proceedings on remand are limited to this issue.

               The parties shall promptly file with this Court a copy of all papers filed on remand. Within
seven days after entry, appellant shall file with this Court copies of all orders entered on remand.

               The transcript of all proceedings on remand shall be prepared and filed within 21 days after
completion of the proceedings.



                                                            ______________________________
                                                             Presiding Judge




                                June 4, 2020
