                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                  UNPUBLISHED
                                                                  March 20, 2018
                Plaintiff-Appellee,

v                                                                 No. 336675
                                                                  Oakland Circuit Court
ADAM DONALD LUTZ,                                                 LC No. 2013-248152-FC

                Defendant-Appellant.


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

PER CURIAM.

        Following a jury trial, defendant was convicted of assault with intent to murder, MCL
750.83, torture, MCL 750.85, and unlawful imprisonment, MCL 750.349b. The trial court
sentenced him to concurrent sentences of 23 years and 9 months to 80 years for the assault with
intent to murder and torture convictions, and 8 to 15 years for the unlawful imprisonment
conviction. We affirmed defendant’s convictions. People v Lutz, unpublished per curiam
opinion of the Court of Appeals, issued February 25, 2016 (Docket No. 324193). The Michigan
Supreme Court remanded to the trial court for it to determine whether it would have imposed a
materially different sentence in light of People v Lockridge, 498 Mich 358; 870 NW2d 502
(2015).1 On remand, the trial court declined to resentence defendant, determining that it would
have imposed the same sentence. Defendant appeals by right. We affirm.

       In Lockridge, 498 Mich at 373-374, the Supreme Court held that Michigan’s sentencing
guidelines violated a defendant’s Sixth Amendment right to a jury trial “to the extent that
[offense variables (OVs)] scored on the basis of facts not admitted by the defendant or
necessarily found by the jury verdict increase the floor of the guidelines range, i.e., the
defendant’s ‘mandatory minimum’ sentence[.]” The Court remedied the constitutional infirmity
by making the sentencing guidelines advisory only and striking the statutory requirement that a
sentencing court must give a substantial and compelling reason for departing from the guidelines
range. Id. at 364-365. In cases where the “facts admitted by a defendant or found by the jury
verdict were insufficient to assess the minimum number of OV points necessary for the
defendant’s score to fall in the cell of the sentencing grid under which he or she was sentenced


1
    People v Lutz, 500 Mich 876 (2016).


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. . . an unconstitutional constraint actually impaired the defendant’s Sixth Amendment right.” Id.
at 395. In those cases, a defendant is entitled to a remand, see United States v Crosby, 397 F3d
103 (CA 2, 2005), the purpose of which is for the trial court to determine whether it “would have
imposed the same sentence absent the unconstitutional constraint on its discretion.” Lockridge,
498 Mich at 397, 399. “If the trial court determines that the answer to that question is yes, the
court shall order resentencing.” Id. at 397. The Court summarized the remand procedure as
follows:

               Stated differently, on 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 the 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 117; see also
       United States v Ferrell, 485 F3d 687, 688 (CA 2, 2007) (holding that the trial
       court’s failure to consider circumstances as they existed at the time of the
       resentencing hearing, including evidence of the defendant’s post-judgment prison
       rehabilitation, did not violate the defendant’s due process rights). [Id. at 398-399
       (footnote omitted).]

The ultimate inquiry for the trial court is “whether, now aware of the advisory nature of the
guidelines, the court would have imposed a materially different sentence.” People v Jackson (On
Reconsideration), 313 Mich App 409, 435; 884 NW2d 297 (2015).

        Defendant primarily argues that the trial court abused its discretion on remand by not
providing an “evidentiary hearing” or allowing him to submit additional arguments regarding
purportedly mitigating factors to his offenses. Although the trial court had the option of holding
a hearing on remand, a hearing was not required. Lockridge, 498 Mich at 398.

        The trial court expressly noted that, in determining whether it would have imposed a
materially different sentence post-Lockridge, it was only considering the circumstances that
existed at the time of the original sentence. Defendant acknowledges that the trial court was
confined to those circumstances, but appears to maintain that he should have been able to present
additional evidence and argument regarding those circumstances. He contends that even if he
could not introduce new evidence, he should have been allowed to develop new arguments
regarding the existing evidentiary record. On its face, Lockridge’s directive that trial courts
should only consider “ ‘circumstances existing at the time of the original sentence’ ” does not
necessarily preclude a defendant from offering additional arguments regarding the evidentiary
record at the time of sentencing. Lockridge, 498 Mich at 398, quoting Crosby, 397 F3d at 117.
However, a trial court is ultimately determining whether it would have imposed a materially
different sentence knowing that the guidelines are advisory. Jackson (On Reconsideration), 313
Mich App at 435. Factors allegedly mitigating defendant’s behavior do not inform that inquiry.
Nevertheless, as defendant acknowledges, the trial court was apprised of the mitigating factors

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defendant wished to develop in the “views of counsel.” For those reasons, the trial court did not
abuse its discretion in not providing defendant an evidentiary hearing or an opportunity to
present additional argument regarding his sentence. See People v Puckett, 178 Mich App 224,
227; 443 NW2d 470 (1989); People v Unger, 278 Mich App 210, 216-217; 749 NW2d 272
(2008).

        Defendant also contends that he received a disproportionate sentence. Lockridge, 498
Mich at 365, held that sentences that depart from the minimum sentence range “are to be
reviewed by appellate courts for reasonableness.” Recently, the Supreme Court “reaffirm[ed]”
that, when reviewing a sentence for reasonableness, courts should apply “the proportionality
principle adopted in [People v Milbourn, 435 Mich 630; 461 NW2d 1 (1990)] . . . .” People v
Steanhouse, 500 Mich 453, 473; 902 NW2d 327 (2017). But defendant was sentenced within his
minimum sentence range, and this Court has concluded that

       Lockridge did not alter or diminish MCL 769.34(10), which provides, in pertinent
       part, “If a minimum sentence is within the appropriate guidelines sentence range,
       the court of appeals shall affirm that sentence and shall not remand for
       resentencing absent an error in scoring the sentencing guidelines or inaccurate
       information relied upon in determining the defendant’s sentence.” [People v
       Schrauben, 314 Mich App 181, 196 n 1; 886 NW2d 173 (2016).]

 “When a trial court does not depart from the recommended minimum sentencing range, the
minimum sentence must be affirmed unless there was an error in scoring or the trial court relied
on inaccurate information.” Id. at 196.2 Because defendant received a non-departure sentence,
and because his suggestion that the trial court relied on inaccurate information in sentencing him
is undeveloped and unfounded, we must affirm his sentence. MCL 769.34(10); Schrauben, 314
Mich App at 196.

         Finally, defendant asserts that he was denied the effective assistance of counsel by both
his trial and initial appellate counsel.3 “To establish a claim of ineffective assistance of counsel,
a defendant must show both that counsel’s performance was deficient and that counsel’s
deficient performance prejudiced the defense.” People v Riley (After Remand), 468 Mich 135,
140; 659 NW2d 611 (2003). The same test applies to appellate counsel. People v Uphaus, 278
Mich App 174, 186; 748 NW2d 899 (2008). “There is a presumption that counsel was effective,
and a defendant must overcome the strong presumption that counsel’s challenged actions were
sound trial strategy.” People v Cooper, 309 Mich App 74, 80; 867 NW2d 452 (2015).




2
 In Steanhouse, 500 Mich at 471 n 14, the Supreme Court declined to address “whether MCL
769.34(10) . . . survives Lockridge.”
3
  We could consider defendant’s claims of ineffective assistance of counsel abandoned, as they
are outside the scope of the Supreme Court’s remand order. See People v Jones, 394 Mich 434,
435-436; 231 NW2d 649 (1975).


                                                -3-
         Defendant essentially contends that his trial counsel did not provide zealous
representation at sentencing. Defendant identifies several matters that he argues should have
been thoroughly argued by trial counsel. For instance, the victim impact statement was written
by defendant’s sister on behalf of her mother (the victim). Defendant claims he has a strained
relationship with his sister and that trial counsel should have identified that for the trial court.
But trial counsel did explain to the court that defendant has a hostile relationship with his sister
and disputed certain statements made by the sister. Although trial counsel did not note the
sister’s purported “financial bias” against defendant, defendant himself adequately explained that
his criminal behavior was driven by a fear that his sister would ‘write me totally off” of “the
family trust.”

        Similarly, although trial counsel did not argue that defendant’s intoxication during the
offenses should be considered a mitigating factor, defendant told the court that he “was very
intoxicated when this happened” and “if alcohol wouldn’t have been involved this whole thing
would not have happened . . .” But the trial court stated that “whatever the combination was on
that day that caused you to act the way you did is completely unacceptable . . .” We fail to see
how additional comment from trial counsel would have persuaded the trial court. In short, trial
counsel made several arguments in support of his request that defendant receive a sentence
below the top of his guidelines range. “The fact that defense counsel’s strategy may not have
worked does not constitute ineffective assistance of counsel.” People v Stewart (On Remand),
219 Mich App 38, 42; 555 NW2d 715 (1996). For those reasons, defendant has not
demonstrated that trial counsel’s comments at sentencing were deficient or that he was
prejudiced by the comments. Riley (After Remand), 468 Mich at 140.

        It follows that defendant’s appellate counsel was not ineffective for not claiming
ineffective assistance of counsel in the first appeal, as counsel is not required to raise meritless
objections. People v Goodin, 257 Mich App 425, 433; 668 NW2d 392 (2003). Further,
“appellate counsel’s decision to winnow out weaker arguments and focus on those more likely to
prevail is not evidence of ineffective assistance.” People v Reed, 449 Mich 375, 391; 535 NW2d
496 (1995) (opinion by BOYLE, J.), citing Jones v Barnes, 463 US 745, 752; 103 S Ct 3308; 77 L
Ed 2d 987 (1983).

       Affirmed.



                                                             /s/ Christopher M. Murray
                                                             /s/ Mark J. Cavanagh
                                                             /s/ Karen M. Fort Hood




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