                          STATE OF MICHIGAN

                           COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   November 15, 2018
               Plaintiff-Appellee,

v                                                                  No. 339725
                                                                   Jackson Circuit Court
JOSEPHUS ANDERSON,                                                 LC No. 13-005118-FC

               Defendant-Appellant.


Before: RIORDAN, P.J., and RONAYNE KRAUSE and SWARTZLE, JJ.

PER CURIAM.

       Defendant, Josephus Anderson, appeals as of right the trial court’s resentencing order.
We affirm the trial court’s rescission of the sentencing agreement, but remand for further
proceedings consistent with this opinion.

                                      I. BACKGROUND

        This is the second time this case had been on appeal in this Court. The underlying facts
are stated in People v Anderson, unpublished per curiam opinion of the Court of Appeals, issued
December 8, 2015 (Docket No. 323587), pp 2-3. Pertinent to this appeal, a jury convicted
defendant of first-degree home invasion, MCL 750.110a(2); assault with the intent to commit
armed robbery (AICAR), MCL 750.89; resisting and obstructing a police officer (obstruction),
MCL 750.81d(1); and two counts of possession of a firearm during the commission of a felony
(felony-firearm), MCL 750.227b. The trial court sentenced defendant to concurrent prison terms
of 51 to 240 months’ imprisonment for the first-degree home-invasion conviction, 81 to 180
months for the AICAR conviction, 330 days in jail for the obstruction conviction, and a
consecutive prison term of 24 months for each felony-firearm conviction. On appeal to this
Court, defendant challenged his convictions and sentences. This Court affirmed defendant’s
conviction, but agreed with the prosecutor that defendant’s sentencing variables were improperly
calculated on the basis of judicially found facts. Anderson, unpub op at 3-4. Therefore, this
Court remanded the case to the trial court for correction of defendant’s presentence investigation
report and judgment of sentence. Id. at 4. Further, the panel instructed the trial court to
determine whether it would have imposed a materially different sentence under the sentencing
procedure described in People v Lockridge, 498 Mich 358; 870 NW2d 502 (2015). Id.



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        While defendant’s first appeal was pending, he entered into an agreement with the
prosecution to testify against his brother, Willie Eddie Anderson II, at Willie’s1 trial in exchange
for a shorter sentence. Defendant testified at Willie’s trial that the plea agreement required him
to testify truthfully that Willie participated in the home invasion for which defendant was
convicted. Defendant then testified that Willie participated in the home invasion, and Willie was
ultimately convicted for that participation.

        Following defendant’s testimony, the trial court in this case entered an amended
judgment of sentence reducing defendant’s sentence to 120 days for the first-degree home-
invasion, AICAR, and obstructing convictions and to 24 months for the felony-firearm
convictions, consistent with the sentence agreement. Subsequently, Willie moved for a new trial
in his case. At a hearing on Willie’s motion, defendant testified that he perjured himself at
Willie’s trial and that Willie was not involved in the home invasion. The trial court ultimately
denied Willie’s motion, and this Court affirmed Willie’s convictions and sentence on appeal.
See People v Anderson, unpublished per curiam opinion of the Court of Appeals, issued October
19, 2017 (Docket No. 331466). Nevertheless, in response to defendant’s testimony that he
perjured himself at Willie’s trial, the prosecutor moved to rescind the sentencing agreement and
resentence defendant. The trial court granted this motion and reimposed defendant’s original
sentence.

         This appeal followed.

                                         II. ANALYSIS

       We review a trial court’s decision on a motion to rescind a sentencing agreement for an
abuse of discretion. See People v Cole, 491 Mich 325, 329-330; 817 NW2d 497 (2012).
“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).

        Rescission of the Sentence Agreement. On appeal, defendant first argues that the trial
court erred by granting the prosecutor’s motion to rescind the plea agreement. We disagree.

        Defendant testified on the record that the sentence agreement required him to provide
truthful testimony in the case against Willie, in exchange for a lesser sentence. By his own
admission, however, defendant perjured himself at Willie’s trial. Thus, defendant’s own
testimony establishes that he breached the sentencing agreement. Moreover, even if defendant is
to be believed that he perjured himself at the hearing on Willie’s motion for a new trial—rather
than at Willie’s trial—defendant still breached the sentencing agreement. According to
defendant’s testimony at Willie’s trial, his sentencing agreement required him to testify truthfully
in the case against Willie, not just at Willie’s trial. Thus, regardless of whether defendant



1
  Because defendant and his brother share a last name, to avoid any confusion, we use Willie’s
first name throughout this opinion.


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perjured himself at Willie’s trial or at the subsequent hearing, the record is clear that defendant
breached the sentencing agreement.

        By submitting a sentence agreement to the trial court, the prosecutor and the defendant
entered into a contractual bargain. Because the defendant and the prosecutor are equally entitled
to benefit from the agreement, when the defendant’s breach prevents the prosecutor from reaping
the benefit of the contractual bargain, the prosecutor has a right to rescind the agreement. See
People v Siebert, 201 Mich App 402, 413-414; 507 NW2d 211 (1993). Thus, because it is clear
that defendant breached his promise to testify truthfully in the case against Willie—either at
Willie’s trial or at the hearing on Willie’s motion for a new trial—the trial court did not abuse its
discretion by granting the prosecutor’s motion to rescind the sentence agreement.

         Defendant’s Resentencing. Because defendant had already been convicted and sentenced
at the time he entered into the sentence agreement, upon rescission of that agreement, the proper
course of action, generally, would be for the trial court to reimpose its original sentence.
Nonetheless, the original sentence in this case was subject to this Court’s remand for
reconsideration of the sentence in light of several scoring errors. The trial court, however, never
had the opportunity to address this Court’s remand order because the parties entered into the
sentencing agreement during the pendency of the first appeal. Thus, after granting the
prosecutor’s motion to rescind the agreement, the trial court was required to address this Court’s
remand instructions before imposing any sentence.

         As noted earlier, in defendant’s first appeal, this Court instructed the trial court to
determine whether it would have imposed a materially different sentence under the sentencing
procedure described in Lockridge, 498 Mich 358. Under this procedure, the trial court must first
grant the defendant an opportunity “to avoid resentencing by promptly notifying the trial judge
that resentencing will not be sought.” Id. at 398 (cleaned up). If the defendant does not so notify
the trial court, the trial court should obtain the views of counsel on whether the defendant should
be resentenced. Id. The defendant’s presence is not required when making this inquiry, and
thus, the trial court need not hold a hearing. Id. Once the trial court has made its decision
whether to resentence the defendant, the trial court must “either place on the record a decision
not to resentence, with an appropriate explanation, or vacate the sentence and, with the defendant
present, resentence” the defendant—again, with an appropriate explanation on the record. Id.
(cleaned up).

        After granting the prosecutor’s motion to rescind the plea agreement, the trial court in
this case reimposed the original sentence without inquiring whether defendant should be
resentenced in light of the earlier-noted scoring errors and without explaining its decision on the
record. Thus, we must remand this case for the trial court to follow the procedure set forth in
Lockridge. Contrary to defendant’s argument on appeal, because his presence is not required to
make the initial determination whether defendant should be resentenced, the trial court is not
required to hold a hearing on remand unless it decides to resentence defendant. Accordingly,
defendant’s claim that his counsel was ineffective for failing to request a hearing with defendant
present is without merit. People v Sabin (On Second Remand), 242 Mich App 656, 660; 620
NW2d 19 (2000). Moreover, because we remand this case for the trial court to follow the
Lockridge-remand procedure, we need not address defendant’s claim that his counsel was
ineffective for failing to request that procedure in the first instance.

                                                -3-
        Thus, we affirm the trial court’s rescission of the sentencing agreement, but remand for
further proceedings consistent with this opinion. We do not retain jurisdiction.



                                                           /s/ Michael J. Riordan
                                                           /s/ Amy Ronayne Krause
                                                           /s/ Brock A. Swartzle




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