                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   June 12, 2018
               Plaintiff-Appellee,

v                                                                  No. 335860
                                                                   Macomb Circuit Court
THOMAS WILLIAM WOOTEN,                                             LC No. 2013-003648-FC

               Defendant-Appellant.


Before: SAWYER, P.J., and CAVANAGH and FORT HOOD, JJ.

PER CURIAM.

         In 2014, a jury convicted defendant of first-degree criminal sexual conduct (CSC-I),
MCL 750.520b(1)(a), and use of a computer to commit a crime, MCL 752.796. In April 2014,
the trial court sentenced defendant to prison terms of 25 to 50 years for the CSC-I conviction and
160 months to 20 years for the unlawful use of a computer conviction, to be served consecutively
with each other and also consecutive to sentences defendant was serving for related federal
convictions. In a prior appeal, this Court affirmed defendant’s convictions and also affirmed his
sentence for CSC-I, but vacated his sentence for unlawful use of a computer and remanded for
resentencing on that offense. People v Wooten, unpublished per curiam opinion of the Court of
Appeals, issued October 29, 2015 (Docket No. 321600) (“Wooten I”). On remand, the trial court
resentenced defendant to a prison term of 72 months to 20 years for the unlawful use of a
computer conviction, and again ordered the sentence to be served consecutive to both the CSC-I
sentence and the federal sentences. Defendant again appeals as of right. We affirm defendant’s
sentence, but remand for amendment of the judgment to sentence to reflect an assessment of
attorney fees in the amount of $5,820, and, if necessary, modification of the imposed late fees
consistent with that amount.

       This Court summarized the relevant facts in Wooten I as follows:
               Defendant was charged with CSC I for having his daughter perform oral
       sex on him in the bathroom of their home. The offense was recorded on a “smart”
       telephone and a male could be heard instructing the child while performing the
       act. Defendant’s face did not appear in the recording and he could not be
       identified based on the body parts that were visible in the video, however
       witnesses identified defendant by his voice on the recording. Defendant was also
       charged with using a computer to commit a crime, namely, production of child
       sexually abusive material. That charge was based on defendant’s use of the smart

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       phone to record the child performing oral sex. The prosecution also offered
       evidence of still photographs that defendant took of the child, which he posted to
       a website in order to gain access to additional child pornography, as well as other
       photographs and recordings of child pornography that defendant had downloaded
       from the Internet.

               The Federal Bureau of Investigations (FBI) initially started an
       investigation when agents in other states discovered that photographs of
       defendant’s daughter had been uploaded to a website, and that activity was traced
       to the home that defendant shared with a roommate in Macomb Township. The
       FBI and local police agencies executed a search warrant at the house, which led to
       the discovery of the smart phone video of the child performing oral sex on an
       adult male penis. Defendant was questioned by authorities and admitted to
       downloading images from the Internet, and agents recovered a thumb drive that
       was hidden in defendant’s bedroom that contained more than 1,500 images and
       200 recordings of child sexually abusive material. The smart phone recording
       was not discovered until after the police concluded their questioning of defendant,
       therefore defendant was not questioned about the video recording. Because the
       male person in the smart phone recording was not visible, this case focused on the
       identification of that individual. The prosecution relied primarily on witnesses
       familiar with defendant to identify him by his voice on the recording. The
       defense conceded that defendant was involved in viewing child pornography,
       however argued that he was not involved with the video recording found on his
       telephone. [Wooten I, unpub op at 1.]

       In Wooten I, this Court affirmed defendant’s convictions, rejecting his arguments that the
evidence was insufficient to support the convictions, and that the convictions were against the
great weight of the evidence. Id. at 2-3. This Court also affirmed the trial court’s decision to
order defendant’s sentences to run consecutive to each other and consecutive to the federal
sentences defendant was already serving. Id. at 3-5. However, this Court noted that the
sentencing guidelines were only scored for defendant’s CSC-I conviction, although the trial court
was required to separately score the guidelines for the unlawful use of a computer conviction
because a consecutive sentence was authorized by MCL 750.520b(3). Id. at 8. Therefore, this
Court remanded the case to the trial court for resentencing on that offense alone. Id.

        On remand, the trial court resentenced defendant to a prison term of 72 months to 20
years for the use of a computer to commit a crime conviction, which was at the low end of the
sentencing guidelines recommended minimum sentence range, but again ordered the sentence to
be served consecutive to both defendant’s CSC-I sentence and his federal sentences.

                               I. CONSECUTIVE SENTENCING

        Defendant raises several issues relating to the trial court’s decision to order his sentence
for using a computer to commit a crime to be served consecutive to both his CSC-I sentence and
his federal sentences. A trial court’s decisions regarding discretionary consecutive sentencing
are reviewed for an abuse of discretion. People v Norfleet, 317 Mich App 649, 664; 897 NW2d
195 (2016). However, questions of law, including whether a trial court has authority to impose

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consecutive sentences, are reviewed de novo. People v Sierb, 456 Mich 519, 522; 581 NW2d
219 (1998). Whether the law of the case doctrine applies to some of defendant’s claims is also
reviewed de novo as a question of law. Duncan v Michigan, 300 Mich App 176, 188; 832
NW2d 761 (2013).

                A. AUTHORITY TO IMPOSE CONSECUTIVE SENTENCES

       Defendant argues that the trial court lacked the authority to order his state sentences for
CSC-I and using a computer to commit a crime to run consecutive to his federal sentences.
Defendant was convicted of six federal crimes involving offenses for production of child
pornography, 18 USC 2251, distribution of child pornography, 18 USC 2252A(a)(2) and (b)(1),
receipt of child pornography, 18 USC 2252A(a)(2) and (b)(1), and possession of child
pornography, 18 USC 2252A(a)(2) and (b)(2). The federal court ordered defendant to serve
concurrent prison terms, the longest being for 30 years.

        Preliminarily, in Wooten I, this Court affirmed defendant’s sentence for CSC-I, including
the trial court’s decision to order the CSC-I sentence to be served consecutive to defendant’s
federal sentences. Consequently, this Court’s decision in Wooten I established the law of the
case with respect to the propriety of consecutive sentencing as between the CSC-I sentence and
defendant’s federal sentences. Indeed, the trial court did not revisit defendant’s CSC-I sentence
on remand. Accordingly, that issue may not be decided differently in this appeal. As explained
in People v Blue, 178 Mich App 537, 539; 444 NW2d 226 (1989):
              It is fundamental law that the last utterance of an appellate court
       determines the law of the case. People v Whisenant, 19 Mich App 182, 189; 172
       NW2d 524 (1969). It is the duty of the trial court, on remand, to comply strictly
       with the mandate of the appellate court according to its true intent and meaning.
       People v Bellanca, 43 Mich App 577, 579; 204 NW2d 547 (1972), lv den 389
       Mich 753 (1972).

        Further, contrary to what defendant argues, this Court also addressed and resolved in
Wooten I the issue whether the trial court had the authority to order both of his sentences in this
case to run consecutive to each other and consecutive to his federal sentences. This Court stated:
              Defendant argues that the trial court lacked the legal authority to order his
       sentences to be served consecutive to each other, and consecutive to his federal
       sentences. We disagree.

              “A consecutive sentence may be imposed only if specifically authorized
       by statute.” People v Lee, 233 Mich App 403, 405; 592 NW2d 779 (1999).
       Whether consecutive sentencing is authorized is a question of law, which this
       Court reviews de novo. Id.; see also People v Denio, 454 Mich 691, 698; 564
       NW2d 13 (1997) (issues of statutory interpretation are reviewed de novo).

              Defendant first argues that MCL 750.520b(3) did not authorize the trial
       court to order his sentences for CSC I and unlawful use of a computer to be
       served consecutively. MCL 750.520b(3) provides:


                                                -3-
              The court may order a term of imprisonment imposed
       under this section to be served consecutively to any term of
       imprisonment imposed for any other criminal offense arising from
       the same transaction.

Defendant argues that his conviction for unlawful use of a computer did not arise
from the same transaction as the CSC I offense. The basis for defendant’s
argument is that there was no evidence that he sent the video recording to
someone else. As previously discussed, defendant’s conviction for unlawful use
of a computer did not require that the video be sent to or shared with another
person. To be authorized to impose consecutive sentences under MCL
750.520b(3), it was only necessary that the two crimes arise from the same
transaction. In People v Ryan, 295 Mich App 388, 402-403; 819 NW2d 55
(2012), this Court explained:

               The term “same transaction” is not statutorily defined;
       however, it has developed a unique legal meaning. Accordingly, it
       is appropriate to examine judicial interpretations of the
       terminology. Flick, 487 Mich at 11; McCormick, 487 Mich at 192;
       Powell, 280 Mich at 703. Two or more separate criminal offenses
       can occur within the “same transaction.” People v Nutt, 469 Mich
       565, 578 n 15; 677 NW2d 1 (2004) (“ ‘It is not of unfrequent
       occurrence, that the same individual, at the same time, and in the
       same transaction, commits two or more distinct crimes . . .’ ”)
       (citation omitted). To find otherwise would be nonsensical, as
       consecutive sentencing provisions such as MCL 750.520b(3),
       MCL 750.110a(8), and MCL 750.529a(3) would be rendered
       meaningless. In the double-jeopardy context, our Supreme Court
       in People v Sturgis, 427 Mich 392, 401; 397 NW2d 783 (1986),
       alluding to the same-transaction test, stated that the test in part
       required the joining of charges that “grew out of a continuous time
       sequence.” Although Nutt, 469 Mich at 568, subsequently rejected
       the same-transaction test in favor of the same-elements test for
       purposes of defining the term “same offense” in our Constitution
       as part of a double-jeopardy analysis, the Sturgis Court’s definition
       that touched on the meaning of “same transaction” remains viable
       and useful in the context of simply defining the term “same
       offense.”

              Additionally, in People v Johnson, 474 Mich 96; 712
       NW2d 703 (2006), the Court construed analogous statutory
       language that concerned acts “arising out of the sentencing
       offense,” as that phrase is used in MCL 777.41(2)(a). MCL 777.41
       governs the scoring of OV-11 under the legislative sentencing
       guidelines. The Johnson Court held:



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                      “[W]e have previously defined ‘arising out of’ to suggest a
               causal connection between two events of a sort that is more than
               incidental. We continue to believe that this sets forth the most
               reasonable definition of ‘arising out of.’ Something that ‘aris[es]
               out of,’ or springs from or results from something else, has a
               connective relationship, a cause and effect relationship, of more
               than an incidental sort with the event out of which it has arisen.
               [Johnson, 474 Mich at 101.]”

              The evidence showed that defendant used a computer (i.e., his smart
       phone) to video record his daughter performing an act of first-degree CSC. This
       evidence clearly demonstrates that defendant’s use of a computer arose from the
       same transaction that involved his commission of CSC I. Accordingly, the trial
       court was authorized to impose consecutive sentences under MCL 750.520b(3).

                Defendant also argues that the trial court erred in ordering his sentences
       in this case run consecutive to his federal sentences. The trial court also relied on
       MCL 750.520b(3) as authority for ordering consecutive sentences. The federal
       sentences were based on convictions arising from defendant’s posting of photos
       of his daughter on a pornographic website. The evidence indicated that defendant
       posted the photos of his daughter to a website to gain access to other child
       pornography online. In the email that included the attachments of his daughter’s
       photos, defendant stated that he would “like to trade,” that he has “a three year old
       that loves the cam,” that he “takes requests,” and that he would love to “share
       private pics.” This evidence demonstrates a connective relationship between
       defendant’s video recording of his daughter’s sexual act and the other
       photographs of his daughter. Accordingly, the trial court did not err in ordering
       that both sentences in this case run consecutive to defendant’s federal sentences.
       [Wooten I, unpub op at 4-5 (emphasis added).]

       This Court’s determination in Wooten I that the trial court was authorized to impose
consecutive sentences and did not err by ordering “that both sentences in this case run
consecutive to defendant’s federal sentence” is binding under the law of the case doctrine. See
Blue, 178 Mich App at 539. Although the law-of-the-case doctrine is not inflexible, we are not
persuaded that refusal to apply the doctrine in this case is justified to avoid an injustice or
because of an intervening change in the law. See People v Phillips (After Second Remand), 227
Mich App 28, 33; 575 NW2d 784 (1997).

       B. DISCRETIONARY DECISION TO IMPOSE A CONSECUTIVE SENTENCE

        Defendant argues that even if the trial court had the authority to impose a consecutive
sentence, the decision to do so remained discretionary with the trial court and the court abused its
discretion by imposing a consecutive sentence on the basis of inaccurate information provided by
the prosecutor at the time of resentencing. Although this Court previously recognized the trial
court’s authority to impose consecutive sentences, it remanded the case for resentencing with
respect to the conviction for using a computer to commit a crime because the trial court had not
scored the guidelines for that offense. This placed the case “in a presentence posture,” allowing

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objections to any part of the new sentence, including whether to again impose a consecutive
sentence. See People v Rosenberg, 477 Mich 1076; 729 NW2d 222 (2007).

        Defendant correctly observes that a defendant is entitled to be sentenced on the basis of
accurate information, see MCL 769.34(10), and that resentencing is warranted when a trial
court’s sentence is based on inaccurate information or a misunderstanding of the applicable law.
People v Francisco, 474 Mich 82, 88-91; 711 NW2d 44 (2006). Defendant argues that the trial
court’s decision to order his sentence for unlawful use of a computer to be served consecutive to
his other sentences was based on the prosecutor’s inaccurate statement that if defendant had been
sentenced first in state court, the federal court would have been required to order consecutive
sentencing.

        Defendant engages in a lengthy discussion of federal law to argue that consecutive
sentencing would not have been mandatory under federal law had he been convicted in state
court first. Regardless of the accuracy of defendant’s argument, defendant has not demonstrated
that it provides a basis for resentencing. First, the prosecutor’s argument was based on a
hypothetical scenario that the parties and the trial court were all aware was not applicable to this
case. Second, the record clearly demonstrates that the trial court understood that its decision
whether to impose a consecutive sentence was discretionary. Indeed, the prosecutor mentioned
at least twice during sentencing that consecutive sentencing was discretionary with the trial
court, and the trial court invited both parties to present their views on whether it should impose a
concurrent or consecutive sentence. Third, although the trial court proceeded to impose a
consecutive sentence shortly after the prosecutor made her argument, it did so only because the
parties had finished addressing the court and it was time to impose sentence. The trial court
never manifested any adoption of or agreement with the prosecutor’s statements. Under these
circumstances, defendant has not demonstrated that the trial court’s decision to impose a
consecutive sentence was based on any misunderstanding or misconception of the law.

                                      C. ARTICULATION

        Relying on Norfleet, 317 Mich App 649, defendant argues that the trial court failed to
articulate reasons for its decision to again impose a consecutive sentence. In Norfleet, this Court
held that “a trial court may not impose multiple consecutive sentences as a single act of
discretion nor explain them as such.” Id. at 665. Rather, “[t]he decision regarding each
consecutive sentence is its own discretionary act and must be separately justified on the record.”
Id. Thus, “trial courts must . . . articulate their rationale for the imposition of each consecutive
sentence so as to allow appellate review.” Id.

         Unlike in Norfleet, the trial court in this case was not imposing multiple consecutive
sentences at one sentencing. Defendant’s federal sentences had already been imposed and this
Court had already affirmed defendant’s CSC-I sentence in Wooten I. The trial court was
sentencing defendant only for his conviction of using a computer to commit a crime. Therefore,
the trial court was required to articulate its rationale only for the imposition of that sentence. In
imposing sentence, in addition to referring to the general factors of disciplining defendant,
protection of society, potential for reformation, and deterrence of others, the trial court
referenced the sentencing guidelines and stated that it was sentencing defendant at the low end of
the guidelines. A trial court’s expressed reliance on the sentencing guidelines is sufficient to

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satisfy the articulation requirement. People v Conley, 270 Mich App 301, 313; 715 NW2d 377
(2006).

        To the extent defendant argues that the trial court’s explanation failed to justify the
proportionality of the resultant sentence, the court’s reliance on the sentencing guidelines was
sufficient to justify the sentence, given that a sentence within the guidelines range is
presumptively proportionate. People v Powell, 278 Mich App 318, 323; 750 NW2d 607 (2008).
Moreover, a sentence within the guidelines range must be affirmed absent a scoring error or
reliance on inaccurate information. MCL 769.34(10); People v Schrauben, 314 Mich App 181,
196; 886 NW2d 173 (2016). Defendant does not allege a scoring error and has not established
that the trial court’s relied on inaccurate information in imposing sentence.

         Defendant seems to suggest that, under Norfleet, the trial court was also required to
justify the decision to impose consecutive sentences, that is, explain why the combined terms of
defendant’s consecutive sentences resulted in proportionate sentences. In Norfleet, however, this
Court noted that “the combined term [of consecutive sentences] is not itself subject to a
proportionality review[.]” Norfleet, 317 Mich App at 664. The trial court is only required to
make “a discretionary decision . . . as to each sentence and not to them all as a group.” Id. at
665. In this case, whether to impose a concurrent or consecutive sentence was a central theme of
sentencing. It was the focus of defense counsel’s remarks, and the trial court interrupted the
prosecutor’s remarks to specifically request that the prosecutor address the issue whether to
impose a consecutive or concurrent sentence. The prosecutor requested a consecutive sentence
and also requested that the court again impose the maximum sentence of 160 to 240 months.
The trial court resentenced defendant to a reduced term of 72 to 240 months, which was at the
low end of the sentencing guidelines range, but ordered the sentence to be served consecutive to
defendant’s CSC-I sentence and his federal sentences. It is apparent that the trial court exercised
its discretion to continue to impose a consecutive sentence, but at a substantially reduced term to
alleviate the effect of consecutive sentencing. Defendant has not demonstrated that the court
abused its discretion.

                                    D. DOUBLE JEOPARDY

       Although conceding that the validity of his convictions for CSC-I and using a computer
to commit a crime are outside the scope1 of this appeal, defendant argues that he should be
permitted to “[c]halleg[e] the validity of multiple punishments in the form of consecutive
sentencing for the same offense” on double jeopardy grounds. The legal premise of defendant’s
argument is that his state convictions are for the “same offense” as one of his federal convictions,
and therefore, his consecutive sentences for those offenses violate the double jeopardy protection
against successive prosecutions or multiple punishments for the same offense. As defendant


1
  See People v Jones, 394 Mich 434, 435-436; 231 NW2d 649 (1975) (the scope of an appeal
after a case has been remanded is limited by the scope of the remand), and People v Kincade (On
Remand), 206 Mich App 477, 481; 522 NW2d 880 (1994) (“where 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”).


                                                -7-
acknowledges, however, in People v Davis, 472 Mich 156, 168; 695 NW2d 45 (2005), our
Supreme Court, relying on Heath v Alabama, 474 US 82; 106 S Ct 433; 88 L Ed 2d 387 (1985),
held that the dual-sovereignty doctrine allows an act denounced as a crime by two sovereigns to
be prosecuted and punished by both of them because they are separate sovereigns deriving their
authority to punish from distinct sources of power. Although defendant contends that Davis was
wrongly decided, and that the United States Supreme Court is poised to revisit the “dual
sovereignty” issue, he acknowledges that “[u]nder the current state of the law, this [issue] does
not constitute a double jeopardy violation.” Accordingly, defendant is not entitled to relief with
respect to this issue.

                                         II. LATE FEES

        Defendant also challenges the trial court’s imposition of a 20-percent late fee on
previously imposed fines, fees, and costs, pursuant to MCL 600.4803(1). Defendant argues that
the imposition of a late fee on indigent incarcerated offenders violates the Due Process and the
Equal Protection Clauses of the federal and state constitutions, US Const, Ams V, XIV; Const
1963, art 1, § 17. This Court recently considered and rejected similar constitutional challenges to
late fees imposed under MCL 600.4803(1). People v Shenoskey, 320 Mich App 80, 86-87; 903
NW2d 212 (2017). Accordingly, on the authority of Shenoskey, we reject this claim of error.

                                     III. ATTORNEY FEES

        Defendant also challenges the trial court’s assessment of attorney fees in the amount of
$6,454.80. Because defendant did not challenge the trial court’s assessment of attorney fees at
either his original or resentencing hearings, this issue is unpreserved. See People v Konopka,
309 Mich App 345, 356; 869 NW2d 651 (2015). Therefore, we review the issue for plain error.
Id. An error is plain if it is clear or obvious. People v Jones, 468 Mich 345, 355; 662 NW2d 376
(2003).

        In the original judgment of sentence, the trial court assessed attorney fees in the amount
of $5,820, pursuant to MCL 769.1k(1)(b)(iv). Defendant did not challenge that assessment in his
prior appeal. When defendant was resentenced, the trial court did not address on the record any
fees, fines, or costs when imposing sentence. In the judgment of sentence issued after
resentencing, however, the court increased the amount of attorney fees to $6,454.80. Plaintiff
concedes that there is nothing in the record to justify the increased amount of attorney fees, and
that the original amount of $5,820 should be reinstated. Accordingly, we remand for amendment
of the judgment of sentence to reinstate the original assessment of $5,820. To the extent that any
late fees were based on the increased amount, the court’s assessment of late fees shall also be
modified consistent with the original assessment of $5,820 for attorney fees.

        To the extent that defendant is also challenging the trial court’s original assessment of
$5,820 for attorney fees, we conclude that this issue is not properly before us. Because
defendant did not challenge the portion of the judgment of sentence assessing attorney fees of
$5,820 in his original appeal, and this Court remanded for the limited purpose of resentencing on
the offense of use of a computer to commit a crime, any challenge to the original assessment of
$5,820 was outside the scope of the remand proceedings and is beyond the scope of this appeal.


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        Affirmed in part and remanded for amendment of the judgment of sentence consistent
with this opinion. We do not retain jurisdiction.



                                                       /s/ David H. Sawyer
                                                       /s/ Mark J. Cavanagh
                                                       /s/ Karen M. Fort Hood




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