                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                 UNPUBLISHED
                                                                 July 24, 2018
                Plaintiff-Appellee,

v                                                                No. 337221
                                                                 Wayne Circuit Court
MICHAEL TERREAL DAVIS,                                           LC No. 13-010643-01-FC

                Defendant-Appellant.


Before: BORRELLO, P.J., and M. J. KELLY and BOONSTRA, JJ.

PER CURIAM.

        Defendant, Michael Davis, was convicted by a jury of second-degree murder, MCL
750.317, two counts of unlawful imprisonment, MCL 750.349b, and possession of a firearm
during the commission of a felony (felony-firearm), MCL 750.227b. Davis was originally
sentenced as a third habitual offender, MCL 769.11, to concurrent terms of 28 to 50 years’
imprisonment for the second-degree murder conviction and 10 to 15 years’ imprisonment for the
two unlawful imprisonment convictions, to be served consecutive to a term of two years’
imprisonment for the felony-firearm conviction. Following a Crosby1 remand from this Court,2
the trial court determined that it would not have imposed a materially different sentence under
the advisory sentencing guidelines, but, considering Davis’s prison record, it nevertheless
determined that it would resentence him to 25 to 50 years for the second-degree murder
conviction. Because the trial court failed to follow the Crosby remand procedure set forth in
People v Lockridge, 498 Mich 358; 870 NW2d 502 (2015), we reverse and remand for further
proceedings.




1
    United States v Crosby, 397 F3d 103 (CA 2, 2005).
2
 People v Davis, unpublished per curiam opinion of the Court of Appeals, issued May 24, 2016
(Docket No. 325565).


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                                        I. BASIC FACTS

        Davis’s convictions arise out of the murder of Delano Applewhite. On October 23, 2012,
Davis accused Applewhite and Applewhite’s girlfriend of selling him heroin that had been mixed
with an additive. He ordered both into the trunk of his vehicle and began driving. Applewhite
managed to open the trunk and jump out. He began running across a vacant field, and Davis’s
girlfriend (who had been following Davis’s vehicle in her own vehicle) attempted to run him
over to keep him from escaping. Applewhite was able to slide over the hood of her vehicle and
continue running; however, as he was fleeing Davis shot him three times and Applewhite died.

        In a prior appeal, this Court affirmed Davis’s convictions, but remanded for a Crosby
proceedings because the trial court used judicial fact-finding when it scored offense variables
(OVs) 5, 7, 8, and 14. On remand, Davis notified the court that he was seeking resentencing, and
a hearing was held on the matter. The trial court stated at the hearing that it did not see anything
that it would “weigh differently,” but it nevertheless resentenced Davis based on his good
behavior in jail. Therefore, it reduced Davis’s sentence for second-degree murder from 28 to 50
months to 25 to 50 months.

         This appeal follows.

                                II. INEFFECTIVE ASSISTANCE

                                 A. STANDARD OF REVIEW

        Davis argues that his lawyer provided ineffective assistance at the Crosby hearing
because he failed to object to the court’s decision to score the sentencing guidelines using
judicial fact-finding. To preserve a claim of ineffective assistance of counsel, a defendant must
move for a new trial or a Ginther3 hearing in the trial court. People v Payne, 285 Mich App 181,
188; 774 NW2d 714 (2009). Because Davis failed to do so, his claim of error is unpreserved and
our review is “limited to mistakes apparent on the record.” See id.

                                         B. ANALYSIS

         In order to establish that his lawyer provided ineffective assistance, Davis must establish
(1) that his lawyer provided deficient assistance, i.e., that his performance “fell below an
objective standard of reasonableness,” and (2) that he was prejudiced by his lawyer’s deficient
performance, i.e. “that there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceedings would have been different.” People v Gioglio (On Remand),
296 Mich App 12, 22; 815 NW2d 589 (2012), remanded for resentencing 493 Mich 864
(quotation marks and citation omitted).




3
    People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).


                                                -2-
       On appeal, Davis argues his lawyer’s performance was deficient because he agreed that
the sentencing guidelines were scored properly. He contends that this decision was erroneous
because under Lockridge the use of judicial fact-finding is impermissible. We disagree.

        Lockridge held that the sentencing guidelines violated the Sixth Amendment only to the
extent that they “require judicial fact-finding beyond facts admitted by the defendant or found by
the jury to score offense variables (OVs) that mandatorily increase the floor of the guidelines
minimum sentence range . . . .” Lockridge, 498 Mich at 364. The Lockridge Court made clear,
however, that its “holding . . . does nothing to undercut the requirement that the highest number
of points possible must be assessed for all OVs, whether using judge-found facts or not.” Id. at
392 n 28 (second emphasis added). Stated differently, the constitutional violation identified in
Lockridge was remedied by making the sentencing guidelines advisory, not by eliminating the
use of judicial fact-finding when scoring the guidelines. People v Steanhouse, 500 Mich 453,
461-462; 902 NW2d 327 (2017). Davis’s claim that his lawyer provided ineffective assistance
because he failed to object to judicial fact-finding is, therefore, without merit. See People v
Ericksen, 288 Mich App 192, 201; 793 NW2d 120 (2010) (stating that a lawyer’s failure to
“advance a meritless argument or raise a futile objection does not constitute ineffective
assistance of counsel”).

        Nevertheless, we conclude that reversal of the trial court’s amended judgment of sentence
is necessary. In Lockridge, our Supreme Court explained:

               To make a threshold showing of plain error that could require
       resentencing, a defendant must demonstrate that his or her OV level was
       calculated using facts beyond those found by the jury or admitted by the
       defendant and that a corresponding reduction in the defendant’s OV score to
       account for the error would change the applicable guidelines minimum sentence
       range. If a defendant makes that threshold showing and was not sentenced to an
       upward departure sentence, he or she is entitled to a remand to the trial court for
       that court to determine whether plain error occurred, i.e., whether the court would
       have imposed the same sentence absent the unconstitutional constraint on its
       decision. If the trial court determines that it would not have imposed the same
       sentence but for the constraint, it must resentence the defendant. [Lockridge, 498
       Mich at 399 (emphasis added).]

However, “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 (citation omitted; emphasis added).

        In this case, the trial court erred by resentencing Davis on the basis of circumstances that
did not exist at the time of the original sentence, i.e., on the basis of his good behavior between
his original sentencing and the Crosby proceedings. Specifically, at the Crosby hearing, the
court stated that it believed it had originally sentenced Davis correctly, and that “on reflection . .
. I didn’t see that there was anything that . . . I didn’t consider that I would weigh differently . . .
.” Because the court concluded that, based on the circumstances that existed when the original
sentence was imposed, it would have not imposed a materially different sentence, it was not
entitled to resentence Davis based on circumstances arising after he was originally sentenced.

                                                  -3-
Thus, the court’s decision to reduce Davis’s minimum sentence by three years based on his good
behavior in prison was improper. Because resentencing was not warranted, we reverse the
amended judgment of sentence and remand for further proceedings. On remand, the trial court
shall enter a judgment of sentence reinstating Davis’s original sentence.

       Reversed and remanded. We do not retain jurisdiction.

                                                         /s/ Stephen L. Borrello
                                                         /s/ Michael J. Kelly
                                                         /s/ Mark T. Boonstra




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