                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   October 10, 2017
                Plaintiff-Appellee,

v                                                                  No. 333192
                                                                   Oakland Circuit Court
RODERICK LAMONT COTTON,                                            LC No. 2010-232925-FC

                Defendant-Appellant.


Before: SAAD, P.J., and CAVANAGH and CAMERON, JJ.

PER CURIAM.

        Defendant appeals as of right an order denying resentencing after a Crosby1 remand for
his first-degree, MCL 750.520b(1)(b)(iii), and fourth-degree, MCL 750.520e(1)(a), criminal
sexual conduct (CSC) convictions. Defendant was originally sentenced on September 2, 2011,
as a second sexual offender, MCL 750.520f, and as a fourth habitual offender, MCL 769.12, to
35 to 60 years’ imprisonment for his first-degree CSC conviction, and 9 to 15 years’
imprisonment for his fourth-degree CSC conviction. We affirm.

        Defendant filed an appeal challenging his convictions and sentences, and this Court
affirmed. See People v Cotton, unpublished opinion per curiam of the Court of Appeals, issued
January 21, 2014 (Docket No. 306454), p 9, rev’d in part 498 Mich 901 (2015). Defendant then
filed an application for leave to appeal in the Michigan Supreme Court, and the Supreme Court
entered an order holding the application in abeyance pending a decision in People v Lockridge,
498 Mich 358; 870 NW2d 502 (2015). People v Cotton, 853 NW2d 368 (2014). After the
Lockridge decision was issued, the Supreme Court entered another order reversing in part the
decision of this Court and remanding the instant matter to the trial court to follow the procedure
set forth in Part VI of Lockridge. People v Cotton, 498 Mich 901 (2015). The order provides, in
relevant part:

         Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we REVERSE
         in part the judgment of the Court of Appeals, and we REMAND this case to the
         Oakland Circuit Court to determine whether the court would have imposed a


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


                                               -1-
       materially different sentence under the sentencing procedure described in
       Lockridge. On remand, the trial court shall follow the procedure described in Part
       VI of our opinion. If the trial court determines that it would have imposed the
       same sentence absent the unconstitutional constraint on its discretion, it may
       reaffirm the original sentence. If, however, the trial court determines that it would
       not have imposed the same sentence absent the unconstitutional constraint on its
       discretion, it shall resentence the defendant. [Id.]

       The trial court held a Crosby remand hearing on February 4, 2016. The trial court
declined defendant’s argument that it consider People v Stokes, 312 Mich App 181; 877 NW2d
752 (2015), because the remand order specifically required the trial court to follow the Lockridge
procedure, and the remand order was “the law of this case.” The trial court provided:

       I’ve reviewed the court’s extensive file in this matter. . . . I’ve reviewed the
       exhausting -- exhaustive sentencing transcript, I reviewed the presentence
       investigative report. I’m confident that the original sentence would have been
       imposed absent the unconstitutional constraint on my discretion, and therefore, I
       reaffirm the original sentence.

The court entered an order “declin[ing] to resentence the defendant for the reasons stated on the
record” on February 4, 2016.

        On May 5, 2016, defendant filed a motion in the trial court for entry of a claim of appeal,
and for an order appointing appellate counsel. Defense counsel clarified that defendant was only
seeking to appeal the Crosby remand and asserted that the trial court made a mistake in not
considering Stokes. The trial court granted defendant’s claim of appeal on the “narrow issue” of
the Crosby remand.

        On appeal, defendant first argues that the trial court, contrary to the procedures outlined
in Part VI of Lockridge, failed to state that it was relying on information and circumstances that
existed at the time of the original sentence. We disagree.

        Defendant preserved his constitutional challenge to the mandatory use of Michigan’s
sentencing guidelines in a sentencing memorandum before the trial court. Stokes, 312 Mich App
at 198. We review preserved Lockridge issues for harmless error beyond a reasonable doubt, and
if a defendant can establish a Lockridge error, he is entitled to a Crosby hearing on remand for
further inquiry regarding whether the error was harmless. Id. Defendant was granted a Crosby
remand, and “[w]hether 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). To the extent the remand order allows the trial court
discretion to resentence defendant, that decision is reviewed for an abuse of discretion, i.e.,
whether the trial court’s decision fell outside the range of reasonable and principled outcomes.
People v Babcock, 469 Mich 247, 268-270; 666 NW2d 231 (2003). “A Sixth Amendment
challenge presents a question of constitutional law that this Court reviews de novo.” See
Lockridge, 498 Mich at 373.




                                                -2-
        The Michigan Supreme Court in Lockridge determined that Michigan’s sentencing
guidelines violated the Sixth Amendment, and therefore, rendered them advisory to remedy the
problem. Id. at 391. Although the guidelines are no longer mandatory, trial courts still have to
score and consider them when sentencing a defendant. Id. Based on Crosby, the Supreme Court
determined that “all defendants (1) who can demonstrate that their guidelines minimum sentence
range was actually constrained by the violation of the Sixth Amendment and (2) whose sentences
were not subject to an upward departure can establish a threshold showing of the potential for
plain error sufficient to warrant a remand to the trial court for further inquiry.” Id. at 395. If the
case is remanded, the trial court must determine whether it would have imposed a “materially
different sentence but for the constitutional error.” Id. at 397. If so, the trial court shall order
resentencing. Id. The procedure for a Crosby remand is set forth in Part VI of the Lockridge
decision:

       [O]n a Crosby remand, a trial court should first allow a defendant an opportunity
       to inform the court that he or she will not seek resentencing. If notification is not
       received in a timely manner, the court (1) should obtain views of counsel in some
       form, (2) may but is not required to hold a hearing on the matter, and (3) need not
       have the defendant present when it decides whether to resentence the defendant,
       but (4) must have the defendant present, as required by law, if it decides to
       resentence the defendant. Further, in determining whether the court would have
       imposed a materially different sentence but for the unconstitutional constraint, the
       court should consider only the “circumstances existing at the time of the original
       sentence.” [Id. at 398, quoting United States v Crosby, 397 F3d 103, 117 (CA 2,
       2005).]

        The trial court properly followed the above procedure pursuant to Lockridge on the
Crosby remand. Although not required by Lockridge, the trial court held a Crosby remand
hearing. There is no indication that defense counsel informed the trial court that defendant
would not seek resentencing. The trial court heard the arguments of both parties. Defendant was
present. Defendant argues that the trial court erred in that it did not make clear that it was only
considering the circumstances that existed at the time of defendant’s original sentencing in
determining whether it would have imposed a materially different sentence absent the
constitutional constraint. However, the trial court stated that it reviewed the court file, the
sentencing transcript, and the presentence investigation report before the court declared that it
was “confident that the original sentence would have been imposed absent the unconstitutional
constraint on [its] discretion.” Thus, the trial court only considered the circumstances that
existed at the time of sentencing, following the procedure set forth in Lockridge and also
required by the Supreme Court’s order. The remand order provided that if the trial court decided
to reaffirm defendant’s original sentence, it “may” resentence defendant. Accordingly, it was
within the trial court’s discretion to resentence defendant, and for the reasons stated, the trial
court did not abuse its discretion when it denied resentencing.

       Defendant also argues that here, unlike in Lockridge, the issue on remand involved
preserved, constitutional sentencing errors, and the trial court’s analysis on remand should have
been different. We disagree.



                                                 -3-
        Defendant asserts that Lockridge did not make a distinction between preserved and
unpreserved errors, but that Stokes suggests that a different procedure should be used when a
constitutional error is preserved. Defendant correctly asserts that the defendant in Stokes, like
this case, preserved his constitutional claim of error by asserting it in the trial court. Stokes, 312
Mich App at 198. In Stokes, however, we expressly concluded the Crosby procedure set forth in
Lockridge applies to both preserved and unpreserved errors. Stokes, 312 Mich App at 200.
Defendant urges this Court follow United States v Lake, 419 F3d 111 (CA 2, 2005), which held
that the Crosby procedure does not apply to preserved sentencing errors. Stokes, 312 Mich App
at 199. However, this Court declined to follow Lake:

       [A]lthough Lockridge concerned an unpreserved claim of error, the portion of the
       Court’s opinion in which the quoted Crosby analysis appears is a section
       explicitly devoted to describing the appropriate procedure to be followed in cases,
       such as this one, involving pre-Lockridge sentencing errors.

                                               * * *

       . . . We see no logical reason why the Crosby remand procedure should apply to
       unpreserved errors, but not to preserved errors. [Stokes, 312 Mich App at 200-
       201.]

Thus, defendant’s argument fails. The trial court followed the Crosby procedure provided in
Lockridge to determine that it would not have imposed a materially different sentence but for the
unconstitutional constraint. This is exactly what the Supreme Court mandated, and this is in line
with our established precedent.

       Affirmed.



                                                              /s/ Henry William Saad
                                                              /s/ Mark J. Cavanagh
                                                              /s/ Thomas C. Cameron




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