                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED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

v                                                                    No. 338850
                                                                     Wayne Circuit Court
WAYNE SEALS,                                                         LC No. 11-009610-01-FC

                Defendant-Appellee.


Before: M. J. KELLY, P.J., and METER and O’BRIEN, JJ.

PER CURIAM.

        Defendant, Wayne Seals, was convicted of second-degree murder, MCL 750.317, assault
with intent to do great bodily harm less than murder, MCL 750.84, and possession of a firearm
during the commission of a felony (felony-firearm), MCL 750.227b. He was sentenced to serve
15 to 25 years’ imprisonment for his second-degree murder conviction, 3 to 10 years’
imprisonment for his assault with intent to do great bodily harm conviction, and two years’
imprisonment for his felony-firearm conviction. This Court affirmed his convictions and
sentences.1 Thereafter, in response to Seals’s motion for relief from judgment, the trial court
held that it would apply People v Lockridge, 498 Mich 358; 870 NW2d 502 (2015) retroactively,
held a Crosby2 hearing, and resentenced Seals to 7 to 15 years for the murder conviction. The
prosecution appeals as of right, and, for the reasons stated in this opinion, we reverse the court’s
order, vacate the amended judgment of sentence, and remand for reinstatement of Seals’s
original judgment of sentence.

        On appeal, the prosecution argues that the trial court erred by applying Lockridge
retroactively and that, by resentencing Seals based on such error, it necessarily abused its
discretion. Generally, “[t]he retroactive effect of a court's decision is a question of law that this
Court reviews de novo.” Johnson v White, 261 Mich App 332, 336; 682 NW2d 505 (2004). The
question of whether Lockridge applies retroactively, however, was recently addressed by our



1
 People v Seals, unpublished per curiam opinion of the Court of Appeals, issued November 13,
2014 (Docket No. 316474).
2
    United States v Crosby, 397 F3d 103 (CA 2, 2005).


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Supreme Court in People v Barnes, 502 Mich 265, 274; 917 NW2d 577 (2018). The Barnes
Court held that “neither Alleyne[3] nor Lockridge qualify for the extraordinary remedy of
retroactive application to cases on collateral review[.]” Consequently, the Supreme Court held
“that Lockridge will be given only prospective application on collateral review.” Id. at 274.
Accordingly, the trial court erred by applying Lockridge retroactively, and the court’s erroneous
retroactive application of Lockridge led it to hold a Crosby hearing and resentence Seals, which
necessarily transformed its resentencing decision into an abuse of discretion. See People v
Swain, 288 Mich App 609, 628; 794 NW2d 92 (2010) (noting that a trial court abuses its
discretion when its decision is premised on an error of law).

        Moreover, we are unpersuaded by Seals’s argument concerning “good cause” under
MCR 6.508(D). A defendant can establish “good cause” for purposes of that rule “by proving
ineffective assistance of appellate counsel, pursuant to the standard set forth in Strickland v
Washington, 466 US 668; 104 S Ct 2052; 80 L Ed 2d 674 (1984),” People v Reed, 449 Mich
375, 378; 535 NW2d 496 (1995), which is what Seals argues here, contending that his appellate
lawyer performed ineffectively by failing to raise a claim of error under Alleyne. However, a
lawyer is not ineffective for failing to argue a meritless position, People v Mack, 265 Mich App
122, 130; 695 NW2d 342 (2005), nor is he or she ineffective for failing to raise a novel legal
argument that is unsupported by existing law, People v Reed, 453 Mich 685, 692; 556 NW2d
858 (1996). Nearly a year before deciding Seals’s first appeal, this Court held that Michigan’s
sentencing guidelines did not run afoul of Alleyne. People v Herron, 303 Mich App 392, 405;
845 NW2d 533 (2013), rev’d in part 498 Mich 901 (2015), and overruled by Lockridge, 498
Mich at 399. Accordingly, at the time that Seals’s lawyer filed an appellate brief on Seals’s
behalf, there was binding precedent unequivocally holding that the sentencing guidelines were
not unconstitutional under Alleyne. Therefore, because Seals cannot demonstrate that his
appellate lawyer performed ineffectively by failing to raise a claim of error that was directly
contradicted by binding precedent at the time in question, his sole argument for “good cause”
under MCR 6.508(D) fails.

       Reversed, vacated, and remanded for reinstatement of Seals’s original judgment of
sentence. We do not retain jurisdiction.

                                                            /s/ Michael J. Kelly
                                                            /s/ Patrick M. Meter
                                                            /s/ Colleen A. O'Brien




3
    Alleyne v United States, 570 US 99; 133 S Ct 2151; 186 L Ed 2d 314 (2013).


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