                             STATE OF MICHIGAN

                              COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN,                                       UNPUBLISHED
                                                                       December 13, 2018
                  Plaintiff-Appellee,

v                                                                      No. 340954
                                                                       Ingham Circuit Court
SHETOAN DANNARD COATES,                                                LC No. 14-000491-FC

                  Defendant-Appellant.


Before: BOONSTRA, P.J., and JANSEN and GADOLA, JJ.

PER CURIAM.

        Following a jury trial, defendant was found guilty of assault with intent to murder
(AWIM), MCL 750.83, assault with intent to do great bodily harm less than murder (AWIGBH),
MCL 750.84(a), carrying a concealed weapon (CCW), MCL 750.227(2), and possession of a
firearm during the commission of a felony (felony-firearm), MCL 750.227b(1). He was
sentenced to serve concurrent prison terms of 20 to 80 years for the AWIM conviction, 5 to 10
years for the AWIGBH conviction, and two to five years for the CCW conviction, all of which
were to be served consecutively to a two-year term for the felony-firearm conviction.

       This is defendant’s second appeal in this matter. On defendant’s first appeal, this Court
affirmed his convictions but remanded for the ministerial task of correcting the judgment of
sentence to indicate that the felony-firearm sentence was not to be served consecutively to the
sentences imposed for AWIGBH and CCW. People v Coates, unpublished per curiam opinion
of the Court of Appeals, issued September 22, 2016 (Docket Nos. 327501 and 327502).
Additionally, this Court remanded for a Crosby1 proceeding pursuant to People v Lockridge, 498
Mich 358; 870 NW2d 502 (2015). Id.

           On remand, the trial court decided that it would not have sentenced defendant differently,
stating:

           The Court’s obligation on remand is to decide whether the Court, considering
           only the circumstances existing at the time of the original sentence, would have


1
    United States v Crosby, 397 F3d 103 (CA 2, 2005).


                                                  -1-
       imposed a materially different sentence if the Court had known the guidelines are
       only advisory, not mandatory. The answer to that question is no. This Court
       mentioned circumstances it considered when deciding the sentence. Guidelines
       that are advisory instead of mandatory do not change this Court’s previous
       conclusion as to a reasonable and proportionate sentence given the then existent
       circumstances.

The trial court then entered an amended judgment of sentence imposing the same sentences, but
reflecting that the sentence for felony-firearm is “to run consecutive with and preceding” the
sentence imposed for AWIM and concurrently with the sentences imposed for the other offenses.
Defendant appeals as of right. We affirm.

                          I. RELEVANT FACTUAL BACKGROUND

       This case involved drive-by shootings and a high-speed vehicle chase between gang
members. At one point, defendant and two others chased after two rival gang members, one of
whom was the victim in this case. Multiple shots were fired, and both vehicles eventually
crashed. The victim left his vehicle and ran to a nearby car wash. Defendant and one of his
cohorts pursued the victim on foot. At the car wash, the victim fell, and they caught up to him
and beat him severely, kicking him repeatedly and pistol whipping him in the head. The victim
had severe injuries, including multiple skull fractures.

                                         II. ANALYSIS

        Defendant raises two issues on appeal. First, defendant argues that the trial court
erroneously failed to include an updated number of days for which he should have received
credit, which, according to defendant, equals 1,251. Second, defendant argues that the trial court
did not articulate an appropriate explanation under Lockridge for why it chose not to resentence
him. We disagree.

                                        A. JAIL CREDIT

                                  1. STANDARD OF REVIEW

        Issues regarding credit for time served are preserved if they are raised before and
considered by the trial court. People v Conner, 209 Mich App 419, 431; 531 NW2d 734 (1995).
Defendant did not raise the issue of credit for time served before the trial court. Therefore, it is
unpreserved. Generally, this Court reviews de novo questions of whether a defendant is entitled
to jail credit. People v Armisted, 295 Mich App 32, 49; 811 NW2d 47 (2011). However,
unpreserved issues are reviewed for plain error. People v Carines, 460 Mich 750, 764; 597
NW2d 130 (1999). “To avoid forfeiture under the plain error rule, three requirements must be
met: 1) error must have occurred, 2) the error was plain, i.e., clear or obvious, 3) and the plain
error affected substantial rights,” meaning the error must be prejudicial. Id. at 763.

                                        2. DISCUSSION

       Defendant is not entitled to 1,251 credit for time served because the original sentence
remains in effect.
                                                -2-
       MCL 769.11b states in pertinent part:

       Whenever any person is . . . convicted of any crime within this state and has
       served any time in jail prior to sentencing because of being denied or unable to
       furnish bond for the offense of which he is convicted, the trial court . . . shall
       specifically grant credit against the sentence for such time served in jail prior to
       sentencing.

        In People v Lyons, 222 Mich App 319; 564 NW2d 114 (1997), the initial sentence was
incorrect, and, on the first appeal, this Court remanded for resentencing. Id. at 320. The trial
court then resentenced the defendant. Id. The defendant argued on his second appeal that the
trial court improperly calculated his credit for time served. Id. at 321. This Court held that
“when a void sentence is set aside and a new sentence is imposed, any time served with regard to
the void sentence must be credited against the sentence then imposed.” Id. The defendant’s
original sentence had been incorrect and therefore void. Id. at 320. Consequently, if the
defendant had been incarcerated between the original sentencing date and resentencing date, then
the defendant was entitled to credit for that time served. Id. Therefore, this Court remanded in
order to allow the trial court to recalculate defendant’s credit. Id. at 321.

       In the present case, defendant notes that 892 days passed between the original sentencing
date, April 22, 2015, and the date that the amended judgment of sentence issued, October 2,
2017. He was originally sentenced with 359 days’ credit for time served in jail, and 892 plus 359
equals 1,251.

        Defendant’s argument is without merit because the trial court did not void defendant’s
sentence or resentence defendant. Instead, the trial court decided that it would not have
sentenced defendant any differently even if the sentencing guidelines had been advisory. As a
result, the original sentence was not voided but remained in effect. The amended judgment,
although dated October 2, 2107, retained the sentencing date, which was listed as April 22, 2015.
Defendant’s time spent in prison between the original sentencing date and the issuance of the
amended judgment was properly not added to his credit for time served in jail. Rather, this time
simply counted against defendant’s sentence for the underlying crimes. Stated differently, these
days did not count as days that defendant was in jail awaiting trial or sentencing or days that
defendant spent in prison on a sentence later deemed void. Defendant mistakenly believes that
his sentencing date changed to October 2, 2017 when the trial court amended the judgment. This
is incorrect because the court did not alter the original date of the sentence. Defendant’s case is
unlike Lyons, where the original sentence was voided on remand, Lyons, 222 Mich App at 321,
because defendant’s original sentence was not voided. Rather, the trial court chose not to
resentence, keeping the original sentence intact. Therefore, defendant is not entitled to jail credit
for time spent between April 22, 2015, and October 2, 2017, and the trial court did not err in
leaving the credit for time served at the original 359 days.




                                                -3-
                                   B. PEOPLE V LOCKRIDGE

                                  1. 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, 275 Mich App 121,
127; 737 NW2d 782 (2007), as are questions of law generally. People v Denio, 454 Mich 691,
698; 564 NW2d 13 (1997). 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).

                                         2. DISCUSSION

         On remand, the trial court should determine whether it would have imposed a materially
different sentence but for the constitutional error, and if the trial court answers that question in
the affirmative, it must resentence defendant. Lockridge, 498 Mich at 397. In deciding whether
it would have imposed a materially different sentence, the trial court should consider only the
circumstances existing at the time of the original sentence. Id. at 398. While a trial court must
score and consider the sentencing guidelines, the trial court is not compelled to impose a
minimum sentence within the calculated range, as the guidelines are only advisory. Id. at 365.
In determining an appropriate sentence, a court may draw inferences about the defendant’s
behavior from the objective evidence. People v Petri, 279 Mich App 407, 422; 760 NW2d 882
(2008). On remand for a Crosby2 hearing, if a trial court decides not to resentence the defendant,
it must articulate “an appropriate explanation” for its decision on the record. Lockridge, 498
Mich at 398. The articulation is adequate if the trial court expressly relies on the guidelines, or if
it is clear from the context of the court’s remarks that the court relied on them. People v Conley,
270 Mich App 301, 312-313; 715 NW2d 377 (2006).

         Here, defendant does not argue that the trial court failed to comply with the Crosby
remand procedure. Rather, defendant argues that the trial court failed to articulate an appropriate
explanation for why it chose not to resentence him. We disagree. In its order on remand, the
trial court correctly stated that its “obligation on remand [was] to decide whether the Court,
considering only the circumstances existing at the time of the original sentence, would have
imposed a materially different sentence if the Court had known the guidelines [were] advisory,
not mandatory.” See Lockridge, 498 Mich at 398 (holding that “in determining whether the
court would have imposed a materially different sentence . . . the court should consider only the
‘circumstances existing at the time of the original sentence’ ”). Critically, the trial court stated
that it “mentioned circumstances it considered when deciding the sentence. Guidelines that are
advisory instead of mandatory do not change this Court’s previous conclusion as to a reasonable
and proportionate sentence given the then existent circumstances.” (Emphasis added). The trial
court, then, adopted the same reasoning that it gave at the original sentencing hearing.



2
    United States v Crosby, 397 F 3d 103 (CA 2, 2005).


                                                 -4-
          At defendant’s original sentencing hearing, the trial court, prior to passing sentence,
stated:

          [Y]ou’re a young man, and this is conduct that causes anyone to stop and think
          and consider what kind of person are you that you could be involved in this kind
          of activity because, as I said before, this is the kind of violence that cannot be
          tolerated in this community.

                  This was not a video game. These were real people on the streets of
          Lansing who were put at substantial risk by the shooting that went on all around
          them while they were going about their normal daily business. And so I do have
          to consider both aspects of punishment and deterrence in addition to the
          possibility of rehabilitating a young person such as yourself.

                  I think all of that leads me to the conclusion that the recommendation, at
          least as to the most significant charge here, that being the—or most significant
          conviction, that being the assault with intent to murder, the corrections
          department recommendation, I think, is appropriate.

        This reasoning, adopted by the trial court in its order, was an appropriate explanation.
The trial court specifically addressed the severity of the crime, the danger to the public,
deterrence, and the possibility of rehabilitating defendant. These same reasons were why the
trial court concluded that it would not have resentenced defendant to a different sentence even if
the guidelines had been advisory. It believed that the original sentence was “a reasonable and
proportionate sentence given the then existent circumstances.” The trial court did not err
because it gave an appropriate explanation on the record during defendant’s original sentencing
hearing and referenced its explanation in explaining why it was not resentencing defendant.

          Affirmed.


                                                              /s/ Mark T. Boonstra
                                                              /s/ Kathleen Jansen
                                                              /s/ Michael F. Gadola




                                                 -5-
