                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     June 7, 2018
                Plaintiff-Appellee,

v                                                                    No. 337821
                                                                     Macomb Circuit Court
DAVID LEE FARRIS,                                                    LC No. 2014-000433-FC

                Defendant-Appellant.


Before: SAWYER, P.J., and CAVANAGH and FORT HOOD, JJ.

PER CURIAM.

        Defendant appeals as of right from the trial court’s order denying resentencing following
a Crosby1 remand. Following a jury trial, defendant was convicted of three counts of first-degree
criminal sexual conduct (CSC-I), MCL 750.520b(1)(b)(ii). Defendant was sentenced, as a fourth
habitual offender, to 60 to 120 years’ imprisonment for his three CSC-I convictions. In his first
appeal to this Court, this Court affirmed defendant’s convictions, but remanded to the trial court
for a Crosby hearing after determining that impermissible judicial fact-finding affected his
minimum sentence guideline range. People v Farris, unpublished per curiam opinion of the
Court of Appeals, issued March 22, 2016 (Docket No. 324324), p 23. On remand, the trial court
issued an order denying resentencing, concluding that it would not have imposed a materially
different sentence absent the unconstitutional restraint on its sentencing discretion. We affirm.

       The thrust of defendant’s arguments on appeal are that following remand from this Court,
defendant’s case was before the trial court in a “presentence posture” and that the trial court
should have reevaluated its assessment of points for offense variable (OV) 1 and OV 3. We
disagree.

       As an initial matter, we observe that defendant did not raise these arguments in his brief
in support of resentencing in the trial court.2 Therefore, we review defendant’s unpreserved


1
    United States v Crosby, 397 F3d 103 (CA 2, 2005).
2
  In his brief in the trial court, defendant challenged the reasonableness of his sentence and urged
the trial court to review his sentence against the factors set forth in 18 USC 3553(a). Defendant
has not reiterated these arguments on appeal to this Court. Notably, in People v Steanhouse, 500


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arguments for plain error affecting defendant’s substantial rights. People v Carines, 460 Mich
750, 763; 597 NW2d 130 (1999). To the extent that the prosecution contends that the law of the
case doctrine precluded the trial court’s reconsideration of its assessment of points for OV 1 and
OV 3, “[w]hether the law of the case doctrine applies is a question of law that [this Court]
review[s] de novo.” Duncan v Michigan, 300 Mich App 176, 188; 832 NW2d 761 (2013).

        Defendant’s argument that the Crosby remand from this Court placed this case in a
“presentence position” in the trial court is inconsistent with recent authority from both the
Michigan Supreme Court and this Court. For example, in People v Steanhouse, 500 Mich 453,
475; 902 NW2d 327 (2017), the Michigan Supreme Court recognized, with respect to Crosby
remands, that “[t]his Court adopted the Crosby remand procedure for a very specific purpose:
determining whether trial courts that had sentenced defendants under the mandatory sentencing
guidelines had their discretion impermissibly constrained by those guidelines.” Similarly, in
People v Biddles, 316 Mich App 148, 158; 896 NW2d 461 (2016), this Court articulated the
distinction between a defendant’s evidentiary challenge to the assessment of points for pertinent
OVs and a defendant’s constitutional challenge to the trial court’s impermissible judicial fact-
finding with respect to the same OVs.

              Each of defendant’s challenges has its own distinct remedy. With respect
       to the evidentiary challenge, if the trial court clearly erred by finding that a
       preponderance of the evidence supported one or more of the OV scores or
       otherwise erred by applying the facts to the OVs, People v Hardy, 494 Mich 430,
       438; 835 NW2d 340 (2013), and if the scoring error resulted in an alteration of the
       minimum sentence range, he would be entitled to resentencing, People v.
       Francisco, 474 Mich 82, 89; 711 NW2d 44 (2006). On the other hand, a Crosby
       remand under [People v Lockridge, 498 Mich 358; 870 NW2d 502 (2015)] is not
       the same remedy as remanding a case for resentencing because of an error in
       applying the guidelines.

                                             * * *

               Accordingly, a Crosby remand results in the possibility of resentencing,
       whereas, in the context of a successful evidentiary challenge, resentencing is
       actually ordered by the appellate court. Of course, post-Lockridge, any
       resentencing will have to be conducted pursuant to the principles enunciated in
       Lockridge, primarily the directive that the guidelines are now advisory only.
       Lockridge, 498 Mich at 365. When this Court is presented with an evidentiary
       and a constitutional challenge regarding the scoring of the guidelines, the
       evidentiary challenge must initially be entertained, because if it has merit and
       requires resentencing, the constitutional or Lockridge challenge becomes moot—a
       defendant will receive the protections of Lockridge when he or she is resentenced.


Mich 453, 460, 471-472; 902 NW2d 327 (2017), the Michigan Supreme Court expressly
declined to “import the approach to reasonableness review used by the federal courts, including
the factors listed in 18 USC 3553(a), into [this state’s] jurisprudence.”


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       And if an evidentiary challenge does not succeed, then and only then should we
       entertain the constitutional challenge. Therefore, we disagree with any assertion
       that defendant’s evidentiary challenge need not be reached because his
       constitutional challenge under Lockridge is worthy of a Crosby remand. [Biddles,
       316 Mich App at 156-158 (footnotes omitted; emphasis in original).]

       Both Steanhouse and Biddles are consistent with the Michigan Supreme Court’s
quotation of Crosby in Lockridge, where the Lockridge Court recognized that a remand pursuant
to Crosby is “not for the purpose of a required resentencing, but only for the more limited
purpose of permitting the sentencing judge to determine whether to resentence, now fully
informed of the new sentencing regime, and if so, to resentence. . . .” Lockridge, 498 Mich at
396, quoting Crosby, 397 F3d at 117 (emphasis in original).

        Defendant relies on People v Rosenberg, 477 Mich 1076; 729 NW2d 222 (2007) in
support of his argument that the trial court on remand ought to have reconsidered its assessment
of points for OV 1 and OV 3. In Rosenberg, a case where the defendant challenged a $25,000
fine as part of his sentence, the Michigan Supreme Court stated that once the Court of Appeals
remanded to the trial court for resentencing, “the case was before the trial court in a presentence
posture, allowing for objection to any part of the new sentence.” However, Rosenberg is clearly
distinguishable from this case, given that this Court and the Michigan Supreme Court have
clarified that a Crosby remand is made for the limited purpose of allowing the trial court to
determine if it “would have imposed a materially different sentence but for the unconstitutional
constraint [on its sentencing discretion in violation of the Sixth Amendment][.]” Lockridge, 498
Mich at 398.

        We also agree with the prosecution’s contention that the trial court was not permitted to
reconsider the assessment of points for OV 1 and OV 3 because doing so would (1) violate the
law of the case doctrine and (2) result in the trial court acting outside of the scope of this Court’s
remand instructions. “Generally, the law of the case doctrine provides that an appellate court’s
decision will bind a trial court on remand and the appellate court in subsequent appeals.”
Duncan, 300 Mich App at 188-189 (quotation marks omitted). In resolving defendant’s prior
appeal, this Court concluded that the trial court correctly assessed five points for OV 1 and OV 3
respectively. Farris, unpub op at 20. Regarding OV 1, this Court reasoned:

               First, defendant contends that the trial court erred in scoring OV 1 at five
       points because no pistol was involved, and the victim was not certain that
       defendant took the object that resembled a gun to the basement where the alleged
       assault occurred, five [sic] points are assigned if “[a] weapon was displayed or
       implied.” MCL 777.31(1)(e). MCL 77.31(2)(c) instructs the court to “[s]core 5
       points if an offender used an object to suggest the presence of a weapon.” The
       victim testified that defendant entered her room carrying what appeared to be a
       gun, held the object that resembled a gun to the victim’s head, and told her to shut
       up. Defendant then took the victim to the basement, where the assault occurred.
       Although the object was actually a lighter, defendant implied that it was a weapon
       when he held it to the victim’s head. Moreover, even if defendant did not bring
       the object with him to the basement, he obtained the victim’s compliance in going


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       to the basement through the implication of the weapon. Therefore, the trial court
       did not err in assigning five points for OV 1. [Farris, unpub op at 20.]

Similarly, regarding OV 3, this Court stated:

               Next, defendant contends that the trial court improperly assessed five
       points for OV 3 because the SANE nurse testified that the victim had no visible
       injuries and tenderness is not a bodily injury. Under OV 3, five points are
       assessed if “[b]odily injury not requiring medical treatment occurred to a victim.”
       MCL 777.33(1)(e). Although [the SANE nurse] testified that the victim did not
       have any injuries to her lips, the victim testified that she had cuts on her lip and
       [the police officer] observed cuts on the inside of the victim’s lip. Therefore, the
       trial court did not err in assigning five points for OV 3. [Farris, unpub op at 20.]

Therefore, where this Court clearly decided defendant’s evidentiary challenges to OVs 1 and 3 in
the prior appeal, on remand the trial court was bound by this Court’s ruling and was not
permitted to alter its prior assessment of points for OV 1 and OV 3. Duncan, 300 Mich App at
188-189.

        Additionally, the scope of the remand instructions from this Court would not permit the
trial court to reconsider the assessment of points for OV 1 and OV 3. “When an appellate court
remands a case with specific instructions, it is improper for a lower court to exceed the scope of
the [remand] order.” People v Russell, 297 Mich App 707, 714; 825 NW2d 623 (2012). As we
have previously observed, this Court concluded that the trial court properly assessed five points
for both OV 1 and OV 3 respectively. Farris, unpub op at 20. Conversely, this Court ordered
the Crosby remand for the limited and specific purpose of allowing the trial court to determine if
it “would have imposed a materially different sentence but for the constitutional error.”
Lockridge, 498 Mich at 397. The trial court adhered to this Court’s remand order and
determined that it would not have done so. Accordingly, we discern no error in the trial court’s
ruling on remand and defendant’s assertions on appeal to the contrary are unavailing.

       Affirmed.



                                                            /s/ David H. Sawyer
                                                            /s/ Mark J. Cavanagh
                                                            /s/ Karen M. Fort Hood




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