            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PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     February 26, 2019
               Plaintiff-Appellant,

v                                                                    No. 339800
                                                                     Wayne Circuit Court
LORENZO J. HARRELL,                                                  LC No. 93-007172-01-FC

               Defendant-Appellee.


Before: STEPHENS, P.J., and K. F. KELLY and TUKEL, JJ.

PER CURIAM.

         The prosecution appeals as of right the trial court’s order resentencing defendant, and by
extension, the underlying order granting defendant’s motion for relief from judgment. The
prosecution contends on appeal that the trial court erred in determining that defendant’s motion
for relief from judgment was an initial motion rather than a successive motion governed by MCR
6.502(G). Further, the prosecution contends that even assuming defendant’s motion was not a
successive motion, defendant failed to demonstrate good cause for not having raised the issue
earlier and actual prejudice in the form of an invalid sentence, both of which are necessary to
entitle a defendant to resentencing. For the reasons provided below, we affirm.

                                       I. BACKGROUND

        As a preliminary matter, we note that the lower court record delivered to this Court on
appeal is missing documents, contains other documents that appear to have been erroneously
filed, and that the registers of actions pertaining to both defendant’s and codefendant Jenard
Sharp’s 1993 convictions are in similar disarray.

       Defendant and Sharp were originally convicted by a jury in 1993 of first-degree felony
murder, MCL 750.316, two counts of assault with intent to murder (AWIM), MCL 750.83,
armed robbery, MCL 750.529, and possession of a firearm during the commission of a felony
(felony-firearm), MCL 750.227b. Defendant, who was a juvenile at the time, was sentenced by
Judge Margie R. Braxton to life without the possibility of parole for the first-degree murder
conviction, life with the possibility of parole for the assault with intent to murder convictions as
well as the armed robbery conviction, and the mandatory two years’ imprisonment for the
felony-firearm conviction. In 1994, both defendant and Sharp filed claims of appeal challenging
their convictions on a number of grounds. In 1996, this Court issued an unpublished opinion
holding that it was a violation of double jeopardy to convict defendant and Sharp of felony
murder along with the predicate felony, and thus vacated defendant’s and Sharp’s armed robbery
convictions but left intact all other convictions and sentences. People v Harrell, unpublished per
curiam opinion of the Court of Appeals, issued August 16, 1996 (Docket Nos. 171615 and
172276), pp 1-3.

        This appeal arises out of a motion for relief from judgment filed by defendant in 2017.
After the release of Miller v Alabama, 567 US 460; 132 S Ct 2455; 183 L Ed 2d 407 (2012), and
Montgomery v Louisiana, ___ US ___; 136 S Ct 718; 193 L Ed 2d 599 (2016), which invalidated
mandatory life sentences applied to juveniles, the prosecution filed a notice of intent to seek a
term-of-years sentence for defendant’s first-degree murder conviction. Shortly thereafter,
defendant filed his motion, contending that he should be granted resentencing with respect to his
parolable life sentences as well. The trial court agreed, and defendant was ultimately
resentenced to 25 to 60 years’ imprisonment for his felony-murder conviction, and 17½ to 25
years’ imprisonment for his AWIM convictions.

                                         II. DISCUSSION

     The prosecution contends that defendant never should have been resentenced on the
AWIM convictions. We disagree.

        “We review a trial court’s decision on a motion for relief from judgment for an abuse of
discretion and its findings of facts supporting its decision for clear error.” People v Swain, 288
Mich App 609, 628; 794 NW2d 92 (2010). “A trial court abuses its discretion when its decision
falls outside the range of reasonable and principled outcomes or makes an error of law.” Id.
(citation omitted). “A finding is clearly erroneous if this Court is left with the definite and firm
conviction that a mistake has been made.” People v Allen, 295 Mich App 277, 281; 813 NW2d
806 (2011). “Matters of constitutional and statutory interpretation are reviewed de novo.”
People v Skinner, 502 Mich 89, 99; 917 NW2d 292 (2018). “[W]e review de novo the proper
interpretation and application of court rules.” People v Traver, 502 Mich 23, 31; 917 NW2d 260
(2018). “[W]hen interpreting a court rule, this Court begins with the text of the court rule and
reads the individual words and phrases in their context within the Michigan Court Rules.” Id.

        The prosecution first contends that the trial court never should have considered
defendant’s motion for relief from judgment because it constituted a successive motion that was
limited by the restrictions of MCR 6.502(G). We note that a large portion of the prosecution’s
argument on appeal is that the trial court failed to apply MCR 6.502(G) to defendant’s motion
for relief from judgment. In fact, the trial court determined that defendant’s motion was not a
successive motion, and thus the issue is less about how MCR 6.502(G) applies and more about
whether it applies at all. Although the poorly organized condition of the lower court file
complicates review of the issue on appeal, ultimately, it cannot be said that the trial court clearly
erred when it concluded that defendant’s motion for relief from judgment was not a successive
motion, nor should defendant bear the responsibility for the disorder of the lower court file.



                                                -2-
       The Michigan Court Rules provide that a judgment of conviction and sentence not
subject to appellate review may be reviewed by the circuit court solely upon the filing of a
proper motion for relief from judgment. MCR 6.501; MCR 6.502. MCR 6.502 provides a
number of procedural requirements that must be satisfied prior to the trial court considering the
substance of the motion. MCR 6.502(G) provides the following:

       (G) Successive Motions.

       (1) Except as otherwise provided in subrule (G)(2), regardless of whether a
       defendant has previously filed a motion for relief from judgment, after August 1,
       1995, one and only one motion for relief from judgment may be filed with regard
       to a conviction. The court shall return without filing any successive motions for
       relief from judgment. A defendant may not appeal the denial of a rejection of a
       successive motion.

       (2) A defendant may file a second or subsequent motion based on a retroactive
       change in law that occurred after the first motion for relief from judgment or a
       claim of new evidence that was not discovered before the first such motion. The
       clerk shall refer a successive motion that asserts that one of these exceptions is
       applicable to the judge to whom the case is assigned for a determination whether
       the motion is within one of the exceptions.

The prosecution contends that the trial court never should have considered defendant’s motion
for relief from judgment because it constituted a successive motion that fell under the purview of
MCR 6.502(G)(1), and that defendant failed to establish a change in law or newly uncovered
evidence that would permit consideration of a successive motion. Specifically, the prosecution
claims that defendant filed his initial motion for relief from judgment in 2005 and that the trial
court issued an opinion and order denying the motion on October 24, 2005.

         A full review of the record clearly shows that the motion for relief from judgment
disposed of by the October 24, 2005 order was filed by co-defendant Sharp and not defendant.
The record then reflects continued failure by the trial court to rectify its mistake despite
consistent communication and pleas from defendant for the error to be corrected. On appeal, the
prosecution concedes that, “admittedly, defendant seems to be correct” about the motion, and
that “the body of the order seemed to discuss the issues raised in Sharp’s motion, not defendant’s
motion,” yet contends that defendant should nevertheless have been barred from filing a motion
for relief from judgment because defendant failed to appeal either the October 24, 2005 order, or
the December 7, 2005 order denying defendant’s request for reconsideration. 1

       The argument simultaneously accepts that the October 24, 2005 order was erroneously
captioned and did not pertain to a motion filed by defendant, yet suggests that defendant’s failure


1
 Although titled a “motion for reconsideration,” we note that the motion was a pro se attempt by
defendant to inform the court that the order denying relief from judgment was erroneously
captioned with his name and file number.


                                                -3-
to appeal an order that did not apply to him extinguished his right to file a motion for relief from
judgment in the future. To hold that defendant was clearly not the subject of the October 24,
2005 order and yet that the order should be treated as though it disposed of a motion by
defendant for the purpose of applying MCR 6.502(G) would be entirely inequitable. Such a
holding also would raise complicated issues of whether defendant had standing to appeal an
order which facially applied to him but in fact was not properly directed to his conduct.
Although defendant did not file an appeal from the October 24, 2005 order, and although
defendant did not appeal the December 7, 2005 order denying his motion for reconsideration,
defendant made continual and consistent efforts to enlighten the trial court as to its record-
keeping error and to obtain the alleged February 20, 2004 order that, according to the register of
actions, actually pertained to him. Defendant sought to obtain the February 20, 2004 order for
the purpose of filing an appeal. Defendant’s letters indicate that he was aware of his appellate
rights and that is exactly why he continuously sought to obtain—without success—a copy of the
February 20, 2004 order, as opposed to the October 24, 2005 order.

        Admittedly, and although the prosecution does not discuss the February 20, 2004 order
on appeal, the existence of the order would suggest that defendant did file a motion for relief
from judgment sometime in 2003.2 However, the existence of the order cannot be confirmed, as
the lower court file provided on appeal does not contain the order or any related documents, and
defendant has consistently demonstrated that he has never been provided a copy of the order.
Thus, there is no way to determine, based upon the register of actions alone—which is riddled
with its own errors—that defendant ever actually filed a motion in 2003, or that an order ever
actually was entered or circulated in 2004.

        Through no fault of defendant, it is unclear whether he filed a motion for relief from
judgment in 2003, and it is even more unclear, assuming such a motion was filed, whether the
trial court disposed of the motion. It is clear, however, that the motion for relief from judgment
filed in 2005 was not filed by defendant and that the October 24, 2005 order was erroneously
captioned with defendant’s name. Based upon those facts, we are not left with a definite and
firm conviction that the trial court was mistaken when it determined that, to the extent that
defendant had ever filed a motion for relief from judgment, the motion had never been properly
reviewed and decided. Consequently, it cannot be said that the trial court’s decision to treat
defendant’s motion for relief from judgment as an initial rather than a successive motion was an
abuse of discretion.3



2
 The register of actions suggests that defendant filed the motion on August 12, 2003, another
motion or a supplemental motion on September 17, 2003, and that the trial court denied
defendant’s motion on February 20, 2004.
3
  Because the trial court did not clearly err in determining that defendant’s April 12, 2017 motion
for relief from judgment was an initial motion, we do not consider the prosecution’s arguments
regarding whether the motion would have qualified for consideration notwithstanding its
possible successive status, i.e., whether a retroactive change in law occurred or whether new
evidence was discovered warranting the filing of a successive motion. Such arguments are moot.


                                                -4-
       The prosecution next argues that the trial court abused its discretion when it determined
that good cause and actual prejudice existed to warrant granting defendant’s motion for relief
from judgment. We disagree.

       “MCR 6.508 protects [against] unremedied manifest injustice, preserves professional
independence, conserves judicial resources, and enhances the finality of judgments.” People v
Clark, 274 Mich App 248, 253; 732 NW2d 605 (2007). Subsection D provides the
circumstances under which a motion for relief from judgment may be granted:

       (D) Entitlement to Relief. The defendant has the burden of establishing
       entitlement to the relief requested. The court may not grant relief to the defendant
       if the motion

                                               * * *

           (3) alleges grounds for relief, other than jurisdictional defects, which could
           have been raised on appeal from the conviction and sentence or in a prior
           motion under this subchapter, unless the defendant demonstrates

               (a) good cause for failure to raise such grounds on appeal or in the prior
               motion, and

               (b) actual prejudice from the alleged irregularities that support the claim
               for relief. As used in this subrule, “actual prejudice” means that,

                                               * * *

                   (iv) in the case of a challenge to the sentence, the sentence is invalid.
                   [MCR 6.508(D)(3).]

With regard to the actual prejudice prong, we note that, despite requesting the transcript of
defendant’s original 1993 sentencing hearing, this Court has not been provided it. Thus, there is
nothing for us to review to assess the trial court’s conclusion that the original sentencing judge
failed to exercise discretion when she imposed a parolable life sentence. Without anything to
challenge or assess the trial court’s interpretation of the original sentencing transcript, we are
incapable of disturbing it, as it is impossible for us to reach “a definite and firm conviction that a
mistake has been made.”4 Allen, 295 Mich App at 281. Thus, the only reviewable issue on


4
  This aspect makes the present case distinguishable from this Court’s recent opinion in People v
Williams, ___ Mich App ___; ___ NW2d ___ (2018) (Docket No. 339701). In Williams, the
defendant, like the defendant here, argued that the sentencing court “gave less thoughtful
consideration” to his parolable sentences, given that the court had also sentenced the defendant
to life without the possibility of parole. Id. at ___; slip op at 5. This Court held that the
defendant could not prove that the parolable life sentences at issue in that case constituted an
invalid sentence, i.e., actual prejudice. The Court noted that such an argument rested on
speculation, which “the record does not support.” Id.at ___; slip op at 3, 5. In support of its


                                                 -5-
appeal is whether defendant properly established good cause to support his failure to raise the
argument prior to his motion for relief from judgment.

        A defendant may show good cause by “showing that some external factor prevented
counsel from previously raising the issue.” People v Reed, 449 Mich 375, 378; 535 NW2d 496
(1995) (opinion by BOYLE, J.). “External factors include ‘showing that the factual or legal basis
for a claim was not reasonably available to counsel . . . .’ ” Id. at 385 n 8.

         First, the prosecution concedes that good cause existed for defendant’s failure to raise the
argument that the trial court did not give adequate consideration to defendant’s parolable life
sentences because—prior to Miller and Montgomery—the trial court was under the mistaken
belief that defendant’s life without parole sentence was constitutional and that defendant would
spend the rest of his natural life in prison, regardless of his other non-murder sentences. But at
the same time, the prosecution contends that defendant failed to establish good cause for the
actual reason the trial court granted resentencing—the failure of the sentencing judge to exercise
discretion. The argument is splitting hairs. Based upon the motion hearing transcript, it cannot
be said that, when the trial court implicitly found good cause by granting defendant’s motion for
relief from judgment, the court at all distinguished the lack of adequate consideration based upon
defendant’s then-natural-life sentence from the failure to exercise discretion. That is, a
reasonable interpretation of the trial court’s ruling was that good cause was established by the
sentencing judge’s lack of exercise of discretion based upon her belief that defendant would
spend his natural life in prison.

        Second, perhaps the most obvious external factor that provided good cause for
defendant’s failure to raise the argument that the sentencing judge failed to exercise her
discretion was this Court’s explicit ruling in 1996 that such an argument would have been moot.
In response to arguments made by Sharp in defendant’s and Sharp’s consolidated appeals
challenging Sharp’s lesser sentences, this Court simply held, “Because we do not find that
Sharp’s conviction for felony murder should be reversed, we need not consider his argument that
he should be resentenced on the remaining counts.” Harrell, unpub op at 3. Thus, defendant
would have reasonably believed that he need not and in fact could not raise such sentencing
arguments prior to Miller and Montgomery because they were moot, as this Court had explicitly
confirmed the same. Under the circumstances, the trial court’s finding of good cause for failing




holding, the Court quoted from the original sentencing transcript, which showed that the
sentencing judge had exercised her discretion in sentencing the defendant to life with the
possibility of parole. Id. at ___; slip op at 5. But here, despite this Court’s request, no transcript
of the sentencing hearing can be produced, and the circuit court, who did have a copy of the
sentencing transcript, found that the sentencing judge failed to exercise discretion in imposing
the life with the possibility of parole sentences. As we have already noted, without a copy of that
transcript before us, we cannot evaluate—and, hence, cannot disturb—the circuit court’s
interpretation of that sentencing proceeding. Therefore, Williams is distinguishable and does not
dictate the outcome in this circumstance.


                                                 -6-
to raise the sentencing issues prior to the Supreme Court’s decisions in Miller and Montgomery
was not outside the range of reasonable and principled outcomes.

        Lastly, the prosecution suggests in its brief that reversal is warranted solely because the
trial court failed to explicitly articulate its finding of good cause. The prosecution cites no
caselaw to suggest that the failure to articulate good cause specifically constitutes an abuse of
discretion—particularly where it is clear from the court’s conclusion that it did believe good
cause existed. Regardless, the trial court’s ultimate conclusions—that good cause existed and
that defendant’s parolable sentences were invalid—were apparent from its ruling, and
consequently, the prosecution’s argument is not persuasive.

       Affirmed.

                                                            /s/ Cynthia Diane Stephens
                                                            /s/ Jonathan Tukel




                                                -7-
