                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     FOR PUBLICATION
                                                                     February 27, 2018
                Plaintiff-Appellee,                                  9:10 a.m.

v                                                                    No. 336150
                                                                     Calhoun Circuit Court
JUSTIN DUANE HOWARD,                                                 LC No. 2012-003518-FC

                Defendant-Appellant.


Before: CAVANAGH, P.J., and HOEKSTRA and BECKERING, JJ.

PER CURIAM.

        Defendant, Justin Duane Howard, appeals as of right the circuit court’s order stemming
from a Crosby1 remand, which was ordered because defendant’s within-the-guidelines sentence
was imposed prior to the Michigan Supreme Court’s ruling in People v Lockridge, 498 Mich
358, 870 NW2d 502 (2015).2 Because the sentencing judge was no longer available at the time
of the remand, a newly assigned judge reviewed defendant’s case and ruled that he would not
have imposed a materially different sentence. Therefore, he declined to resentence defendant.
Defendant contends that the trial court failed to follow the proper procedure in a Crosby remand,
and that because the sentencing judge was no longer available, he should either have received a


1
    United States v Crosby, 397 F3d 103 (CA 2, 2005).
2
  Lockridge held that Michigan’s sentencing guidelines violate a defendant’s Sixth Amendment
fundamental right to a jury trial and are deficient to the extent they require judicial fact finding
beyond facts admitted by the defendant or found by a jury to score offense variables that
mandatorily increase the floor of the guidelines minimum sentence range. Lockridge, 498 Mich
at 364, 373-374. The Supreme Court remedied the violation by making the guidelines advisory
only. Id. at 364, 391. It remanded to the trial court cases “in which a defendant’s minimum
sentence was established by application of the sentencing guidelines in a manner that violated the
Sixth Amendment” for a determination of “whether that court would have imposed a materially
different sentence but for the constitutional error.” Id. at 397. “If the trial court determines that
the answer to that question is yes, the court shall order resentencing.” Id. The Supreme Court
adopted a remand procedure as set forth in Crosby, discussed in salient detail in this opinion.



                                                -1-
full resentencing or at least an opportunity to appear before the court and be heard before the
judge made his decision. We agree in part with defendant, and thus, we vacate the trial court’s
order and remand for further proceedings.

                     I. PERTINENT FACTS AND PROCEDURAL HISTORY

        Defendant’s convictions arise out of an October 2012 incident in which defendant and
another man broke into Pearlie Parker’s home in Battle Creek, Michigan, stole money, and
assaulted Parker with a firearm. A jury convicted defendant of armed robbery, MCL 750.529,
first-degree home invasion, MCL 750.110a(2), and assault with a dangerous weapon, MCL
750.82. The trial court sentenced him as a habitual offender, second offense, MCL 769.10, to
concurrent prison terms of 30 to 60 years for armed robbery, 10 to 30 years for first-degree home
invasion, and three to six years for assault with a dangerous weapon.3

        In his initial appeal, defendant challenged his convictions on grounds that he was denied
a speedy trial and that the trial court erred by denying his motion to suppress a witness
identification. This Court affirmed his convictions in an unpublished per curiam opinion,4 and
defendant subsequently applied for leave to appeal in the Michigan Supreme Court. After our
Supreme Court denied defendant’s application, defendant moved for reconsideration, arguing in
part that he was entitled to a Crosby remand and resentencing pursuant to Lockridge, 498 Mich
at 395-398. The Supreme Court vacated its prior order and, in lieu of granting leave, remanded
defendant’s case to the trial court “to determine whether the court would have imposed a
materially different sentence under the sentencing procedure described in [Lockridge].” People v
Howard, 500 Mich 852; 884 NW2d 284 (Mem) (2016). The Supreme Court further instructed,
“On remand, the trial court shall follow the procedure described in Part IV of [Lockridge].” Id.

        The original sentencing judge was unavailable to conduct the Crosby remand, having
retired from the bench and subsequently passed away. The successor judge who replaced him on
the bench had been the prosecutor in the instant case. She entered an order of disqualification
and the case was assigned to a different judge. The newly assigned judge did not appoint an
attorney to represent defendant for the Crosby remand or seek any input from defendant or
defense counsel. In his order on remand, which he entered within days of being assigned the
case, the judge noted that he had reviewed the presentence report, transcripts, and court file from
defendant’s case, as well as the Lockridge opinion, and determined that he would not impose a
materially different sentence. Defendant, acting in propria persona, moved for reconsideration,
arguing that he was denied his constitutional right to counsel and due process pursuant to Const
1963, art 1, § 20, and that the trial court erred by not obtaining the views of defense counsel
before making his determination. The trial court denied defendant’s motion for reconsideration,
which led to this appeal as of right.


3
    All three minimum sentences were within the guidelines range as scored by the trial court.
4
 People v Howard, unpublished per curiam opinion of the Court of Appeals, issued November
17, 2015 (Docket No. 322868).



                                                 -2-
                           II. CROSBY REMAND REQUIREMENTS

       Defendant first argues that the trial court erred by failing to comply with the required
procedure for Crosby remands. We agree.

       The Lockridge Court provided the following instructions for a trial court conducting a
Crosby remand:

       [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. [Lockridge, 498 Mich at 398 (citation
       omitted).]

Defendant contends that the trial court erred by not appointing and obtaining the views of
defense counsel prior to determining whether resentencing was warranted. The prosecution does
not dispute that trial courts must follow the steps outlined in Lockridge for Crosby remands, but
restricts their applicability to situations in which a trial court determines that resentencing is
warranted. In other words, once the trial court determines that it would have imposed a
materially different sentence but for the mandatory nature of the sentencing guidelines, then the
court should give the defendant an opportunity to decline resentencing and should seek the views
of counsel. And if the trial court decides that resentencing is not warranted, none of the other
steps are necessary.

        The prosecution cites no authority for this strained interpretation of the Lockridge Court’s
instructions. In our view, the procedure proposed by the prosecution contrasts with the Supreme
Court’s statement, “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.” Lockridge, 498 Mich at 398 (quotation marks and
citation omitted; emphasis added).5 It also ignores the Supreme Court’s next statement that “[i]f
the defendant does not so notify the court, it ‘should obtain the views of counsel, at least in
writing . . . in ‘reaching its decision . . . whether to resentence.’ ” Id., quoting Crosby 397 F3d at
120. Furthermore, having a trial court review the record and determine whether resentencing is


5
  See also People v Stokes, 312 Mich App 181, 201-202; 877 NW2d 752 (2015) (noting that the
“first step” of the Crosby-remand procedure is to provide the defendant with an opportunity to
avoid resentencing), vacated in part on other grounds, People v Stokes, __ Mich __; 903 NW2d
194 (Mem) (2017); People v Steanhouse, 313 Mich App 1, 48; 880 NW2d 297 (2015) (again
noting that the “first step” in the remand procedure is to provide the defendant with an
opportunity to avoid resentencing), aff’d in part, reversed in part on other grounds, People v
Steanhouse, 500 Mich 453; 902 NW2d 327 (2017).



                                                 -3-
warranted before providing a defendant the opportunity to avoid resentencing constitutes a waste
of judicial resources in those cases where the defendant does not want to risk a harsher sentence.
Thus, we reject the prosecution’s characterization of the order of steps in a Crosby remand and
agree with defendant that before deciding whether to resentence, the trial court was required to
obtain the views of defense counsel.

        The record on remand contains no indication that defendant was given an opportunity to
inform the court that he would not seek resentencing. The record is also devoid of any indication
that the trial court complied with the requirement that it “should obtain the views of counsel.”
Lockridge, 498 Mich at 398. In fact, it appears that defendant did not have an attorney at the
time of the Crosby remand. In a procedure designed to address whether defendant’s sentence
was affected by unconstitutional sentencing constraints and where soliciting input from defense
counsel is specifically required of the trial court, defendant was entitled to representation at the
time of the Crosby remand. See People v Pubrat, 451 Mich 589, 595; 548 NW2d 595 (1996)
(“[s]entencing is a critical stage at which defendant has a right to counsel”). And because the
trial court failed to appoint counsel and obtain the views of that counsel, we conclude that
defendant’s Crosby remand was improperly handled. Thus, we vacate the trial court’s order and
remand for further proceedings. Because we are remanding this matter, it is necessary for us to
consider defendant’s second argument on appeal regarding the impact of a remand to a judge
other than the sentencing judge in a Crosby remand.

            III. IMPACT OF CROSBY REMAND BEFORE A DIFFERENT JUDGE

        Relying on federal caselaw, defendant contends that because his original sentencing
judge is unavailable to conduct the Crosby remand, due process requires that he be entitled to a
full resentencing. In the alternative, he argues that he should at least be entitled to appear before
the judge and have an opportunity to be heard before the court determines whether it would
resentence him under the now-advisory sentencing guidelines. Defendant raises an issue of first
impression for Michigan.

       Federal courts of appeal are divided on the issue of what is required when the sentencing
judge is unavailable to conduct a Crosby remand or similar procedure. Defendant urges us to
adopt the approach set forth by the United States Court of Appeals for the Seventh Circuit. In
United States v Paladino, 401 F3d 471, 483-484 (CA 7, 2005), the Seventh Circuit adopted a
modified Crosby procedure.6 In those cases where the Seventh Circuit could not determine from
the record whether a defendant’s pre-Booker7 sentence constituted prejudicial error, the court


6
  The procedure adopted by the Seventh Circuit differs from Crosby in that the Seventh Circuit
Court of Appeals retains jurisdiction over a case until the district court determines that
resentencing is warranted; at that point, the appeals court vacates the prior sentence and remands
the matter to the district court for resentencing. United States v Paladino, 401 F3d 471, 484
(2005).
7
 In United States v Booker, 543 US 220; 125 S Ct 738; 160 L Ed 2d 621 (2005), the United
States Supreme Court held that the federal sentencing guidelines violated the Sixth Amendment



                                                -4-
would “order a limited remand to permit the sentencing judge to determine whether he would (if
required to resentence) reimpose his original sentence.” Paladino, 401 F3d at 484 (emphasis
added). Later, in United States v Bonner, 440 F3d 414 (CA 7, 2006), the Seventh Circuit faced
the issue of whether a judge other than the “sentencing judge” could conduct a Paladino remand.
In concluding that it could not, the Seventh Circuit reasoned that, in order to be confident that the
sentencing judge would have given the same sentence subsequent to Booker that it gave prior to
Booker, analysis under Paladino had to be conducted by the “original ‘sentencing judge.’ ”
Bonner, 440 F3d at 416. When the sentencing judge was unavailable, there was “no purpose in
restricting the newly assigned judge to comparing the sentence he would impose post-Booker,
armed with the knowledge that the guidelines are advisory, to the sentence initially imposed by a
different judge operating under the assumption that the guidelines were mandatory.” Id. at 417.
Therefore, the Seventh Circuit in Bonner held that where the original sentencing judge was
unavailable to preside over a remand under Paladino, the appeals court would “vacate the
defendant’s sentence and remand for a complete resentencing hearing in order to permit the
successor judge to sentence the defendant in conformity with the mandates of Booker.”8 Id. See
also United States v Sanders, 421 F3d 1044, 1052 (CA 9, 2005) (“We hold that when the original
sentencing judge is not available to conduct a limited remand . . . , the original sentence should
be vacated and the case remanded for a full resentencing hearing.”).

       Unlike a Paladino remand, our Supreme Court in Lockridge did not describe a Crosby
remand as going back to the sentencing judge, but rather, as going back to the “trial court.”
Lockridge, 498 Mich at 398. However, cases on remand in Michigan are always sent back to the
judge who entered the judgment or order, whenever possible, and Lockridge did not address or
appear to contemplate a circumstance where the original sentencing judge is no longer available.

       Assuming we do not agree with defendant’s claim of entitlement to a full resentencing—
which would arguably give somewhat of a windfall to all defendants whose sentencing judges
are no longer available—defendant alternatively urges this Court adopt the analysis set forth in
United States v Garcia, 413 F3d 201 (CA 2, 2005). In Garcia, the United States Court of
Appeals for the Second Circuit expressly addressed the issue of how to handle Crosby remands
where the original sentencing judge is no longer available. The Second Circuit acknowledged


by allowing a court to impose a sentence above the statutory maximum on facts not submitted to
a jury and proved beyond a reasonable doubt or admitted by the defendant. Lockridge, 498 Mich
at 371, citing Booker, 542 US at 226. To remedy the constitutional violation, the High Court
made the guidelines advisory rather than mandatory. Id. at 371-372, citing Booker, 542 US at
245.
8
  The Bonner Court indicated that “[t]he procedure we establish today is applicable whenever the
original sentencing judge is unavailable to carry out a remand from this court in accordance with
the terms set forth in Paladino, regardless of whether the judge is unavailable due to recusal,
retirement, absence, death, sickness or other disability.” Id. at 417. We likewise see no reason
to distinguish among the reasons why a judge different from the sentencing judge is assigned to
the case.



                                                -5-
the language in Crosby that called for review by the “sentencing judge,” but opined that such
language “simply recognizes the practical reality that most Crosby remands . . . will likely be
addressed by the original sentencing judge.” Garcia, 413 F3d at 226. But the Second Circuit
also noted that due to his or her familiarity with the case, the original sentencing judge would be
in the best position to conduct an efficient and reliable analysis under Crosby. Id. at 227.
However, the appeals court determined that when the original sentencing judge is no longer
available, the district court’s ability to provide a reliable response to a Crosby remand does not
abruptly cease:

       The judgment appealed from, after all, is that of the district court, not simply that
       of a particular judge. Thus, the comparative sentence inquiry might properly be
       viewed as between the court’s challenged sentence and the sentence the court
       would have imposed with a proper understanding of the law. Where the original
       sentencing judge is no longer available to speak for the district court on the
       second point, the responsibility for identifying the sentence that the court would
       have imposed under a correct view of the law may properly be reassigned to
       another district judge.

                                               ***

       . . . [T]he fact that all district judges possess direct sentencing experience,
       considered together with their ability to develop factual records, necessarily
       means that such judges can reliably determine, even on reassignment, whether
       there is a nontrivial difference between a challenged original sentence and one
       that would have been imposed with a correct understanding of the law. [Id. at
       227-228.]

        Thus, whereas the Bonner Court stressed the subjectivity of individual judges in
sentencing, the Garcia court stressed that, while district court judges are not fungible, they have
direct sentencing experience and could determine from the record whether the original sentence
was affected by unconstitutional sentencing restraints as identified in Booker. Further, the
Garcia Court made clear that it did not expect a newly assigned judge to do the impossible, “i.e.,
determine what sentence the original judge would have imposed on behalf of the court with a
correct understanding of the law and a fully developed record.” Id. at 228. Rather, the newly
assigned judge was to determine “what sentence he or she would have imposed on behalf of the
court with the benefit of Booker and a full record . . . and then determine whether that lawful
sentence differs in more than a trivial manner from the one that was actually imposed.” Id.

        Nevertheless, the Second Circuit in Garcia did require something more of newly
assigned judges that remained optional for the original sentencing judge under Crosby. When
making its threshold determination regarding whether resentencing is warranted, a newly
assigned judge must order the defendant to appear in court and afford the defendant an
opportunity to be heard. Id. at 230. The Second Circuit gave two reasons for this requirement.
First, because “human insights important to sentencing cannot be gleaned simply from a review
of a cold record,” the Second Circuit deemed the defendant’s appearance and opportunity to be
heard necessary to the district court’s achieving the level of familiarity with the case necessary


                                                -6-
for “a reliable sentencing comparison.” Id. Second, the Second Circuit considered production of
the defendant to be important to the perceived integrity of the resentencing decision, explaining
as follows:

         [A]lthough the production of a defendant may not be essential to the perceived
         integrity of a Crosby remand handled by the original sentencing judge, see United
         States v Crosby, 397 F3d at 120 (holding that defendant’s presence in court is not
         required on remand to decide if sentencing is necessary), when a Crosby remand
         is reassigned to a judge who has never dealt with the defendant, both the parties’
         and the public’s perception of the fairness of the process is enhanced by requiring
         that judge to have some direct contact with the defendant in a formal court
         proceeding before answering the remand inquiry . . . . [Id. at 230]

The Garcia court acknowledged that “a Crosby remand may operate less efficiently when the
original sentencing judge is no longer available,” but it concluded that it would nevertheless
operate “with sufficient reliability that, even in this limited category of cases, we remain
committed to case-by-case review of plain error rather than wholesale assumptions that
substantial rights were affected in no or all such cases.” Id. at 231. Thus, the Second Circuit
upheld the propriety of a Crosby remand in the event of a newly assigned judge, but imposed
additional requirements to ensure that the remand procedure was sufficiently fair and reliable
under the circumstances.

        We find the Second Circuit’s rationale in Garcia to be persuasive and its solution
reasonable. When a newly assigned judge handles a Crosby remand without ever encountering
the defendant, both the personal nature of sentencing, People v Heller, 316 Mich App 314, 319;
891 NW2d 541 (2016),9 and perceptions of the fairness, integrity, and public reputation of the
judicial proceeding are called into question. We conclude that when the original sentencing
judge is unavailable, in addition to following the other Crosby remand requirements10 the
assigned judge must allow the defendant an opportunity to appear before the court and be heard
before the judge can decide whether it would resentence the defendant. Because that opportunity
was not given to defendant in this matter, and because he was deprived of counsel and the input


9
  We ruled in Heller that a trial court may not sentence a defendant via videoconference because
the intensely personal nature of the sentencing process calls for direct contact. People v Heller,
316 Mich App 314, 319-321. The trial court’s initial determination on a Crosby remand is not a
sentencing in the same sense as that addressed in Heller, and if the trial court should decide to
resentence the defendant subsequent to a Crosby remand, the court must have the defendant
present. Lockridge, 498 Mich at 398. However, in those unique and presumably rare situations
where a newly assigned judge conducts a Crosby remand for a defendant that has never appeared
before the trial court, the analysis more closely resembles the type of situation seen in Heller
than where the Crosby remand is conducted by a sentencing judge familiar with the defendant
and the defendant’s case.
10
     See Lockridge, 498 Mich at 398.



                                                 -7-
of counsel at the time of the Crosby remand, we vacate the trial court’s order and remand for
further proceedings.

       We vacate defendant’s sentence and remand for further proceedings consistent with this
opinion. We do not retain jurisdiction.


                                                         /s/ Mark J. Cavanagh
                                                         /s/ Joel P. Hoekstra
                                                         /s/ Jane M. Beckering




                                             -8-
