
    PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Justin Duane HOWARD, Defendant-Appellant.
    No. 336150
    Court of Appeals of Michigan.
    Submitted February 13, 2018, at Lansing. Decided February 27, 2018, at 9:10 a.m.
    Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, David E. Gilbert, Prosecuting Attorney, and Jennifer Kay Clark, Assistant Prosecuting Attorney, for the people.
    State Appellate Defender (by Douglas W. Baker and Jason R. Eggert) for defendant.
    Before: Cavanagh, P.J., and Hoekstra and Beckering, JJ.
   Per Curiam.

Defendant, Justin Duane Howard, appeals as of right the circuit court's order stemming from a Crosby remand, which was ordered because defendant's within-the-guidelines sentence was imposed before the Michigan Supreme Court's ruling in People v. Lockridge , 498 Mich. 358, 870 N.W.2d 502 (2015). Because the sentencing judge was no longer available at the time of the remand, a newly assigned judge reviewed defendant's case and ruled that he would not have imposed a materially different sentence. Therefore, he declined to resentence defendant. Defendant contends that the trial court failed to follow the proper procedure in a Crosby remand and that because the sentencing judge was no longer available, defendant either should have received a full resentencing or at least an opportunity to appear before the court and be heard before the judge made his decision. We agree in part with defendant, and thus, we vacate the trial court's order and remand for further proceedings.

I. PERTINENT FACTS AND PROCEDURAL HISTORY

Defendant's convictions arise out of an October 2012 incident in which defendant and another man broke into Pearlie Parker's home in Battle Creek, Michigan, stole money, and assaulted Parker with a firearm. A jury convicted defendant of armed robbery, MCL 750.529, first-degree home invasion, MCL 750.110a(2), and assault with a dangerous weapon, MCL 750.82. The trial court sentenced him as a habitual offender, second offense, MCL 769.10, to concurrent prison terms of 30 to 60 years for armed robbery, 10 to 30 years for first-degree home invasion, and three to six years for assault with a dangerous weapon.

In his initial appeal, defendant challenged his convictions on grounds that he was denied a speedy trial and that the trial court erred by denying his motion to suppress a witness identification. This Court affirmed his convictions in an unpublished per curiam opinion, and defendant subsequently sought leave to appeal in the Michigan Supreme Court. After our Supreme Court denied defendant's application, defendant moved for reconsideration, arguing, in part, that he was entitled to a Crosby remand and resentencing pursuant to Lockridge , 498 Mich. at 395-398, 870 N.W.2d 502. The Supreme Court vacated its prior order and, in lieu of granting leave, remanded defendant's case to the trial court "to determine whether the court would have imposed a materially different sentence under the sentencing procedure described in [ Lockridge ]." People v. Howard , 500 Mich. 852, 884 N.W.2d 284 (2016). The Supreme Court further instructed, "On remand, the trial court shall follow the procedure described in Part IV of [ Lockridge ]." Id .

The original sentencing judge was unavailable to conduct the Crosby remand because he had retired from the bench and subsequently passed away. The successor judge who replaced him on the bench had been the prosecutor in the instant case. She entered an order of disqualification, and the case was assigned to a different judge. The newly assigned judge did not appoint an attorney to represent defendant for the Crosby remand or seek any input from defendant or defense counsel. In his order on remand, which he entered within days of being assigned the case, the judge noted that he had reviewed the presentence report, transcripts, and court file from defendant's case, as well as the Lockridge opinion, and determined that he would not impose a materially different sentence. Defendant, acting in propria persona , moved for reconsideration, arguing that he was denied his constitutional right to counsel and due process pursuant to Const 1963, art 1, § 20, and that the trial court erred by not obtaining the views of defense counsel before making his determination. The trial court denied defendant's motion for reconsideration, which led to this appeal as of right.

II. CROSBY REMAND REQUIREMENTS

Defendant first argues that the trial court erred by failing to comply with the required procedure for Crosby remands. We agree.

The Lockridge Court provided the following instructions for a trial court conducting a Crosby remand:

[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 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. [ Lockridge , 498 Mich. at 398, 870 N.W.2d 502 (citation omitted).]

Defendant contends that the trial court erred by not appointing and obtaining the views of defense counsel prior to determining whether resentencing was warranted. The prosecution does not dispute that trial courts must follow the steps outlined in Lockridge for Crosby remands; however, the prosecution would restrict the applicability of these steps to situations in which a trial court determines that resentencing is warranted. In other words, once the trial court determines that it would have imposed a materially different sentence but for the mandatory nature of the sentencing guidelines, then the court should give the defendant an opportunity to decline resentencing and should seek the views of counsel. And if the trial court decides that resentencing is not warranted, then no further steps are necessary.

The prosecution cites no authority for this strained interpretation of the Lockridge Court's instructions. In our view, the procedure proposed by the prosecution contrasts with the Supreme Court's statement that "a trial court considering a case on a Crosby remand should first and foremost include an opportunity for a defendant to avoid resentencing by promptly notifying the [trial] judge that resentencing will not be sought." Lockridge , 498 Mich. at 398, 870 N.W.2d 502 (quotation marks and citation omitted; emphasis added; alteration by the Lockridge Court). The prosecution's proposed procedure also ignores the Supreme Court's next statement that "[i]f the defendant does not so notify the court, it 'should obtain the views of counsel, at least in writing ...,' in 'reaching its decision ... whether to resentence.' " Id. , quoting Crosby , 397 F.3d at 120. Furthermore, having a trial court review the record and determine whether resentencing is warranted before providing a defendant the opportunity to avoid resentencing constitutes a waste of judicial resources in those cases in which the defendant does not want to risk a harsher sentence. Therefore, we reject the prosecution's characterization of the order of steps in a Crosby remand and agree with defendant that before deciding whether to resentence, the trial court was required to obtain the views of defense counsel.

The record on remand contains no indication that defendant was given an opportunity to inform the court that he would not seek resentencing. The record is also devoid of any indication that the trial court complied with the requirement that it "should obtain the views of counsel." Lockridge , 498 Mich. at 398, 870 N.W.2d 502. In fact, it appears that defendant did not have an attorney at the time of the Crosby remand. In a procedure designed to address whether defendant's sentence was affected by unconstitutional sentencing constraints and where soliciting input from defense counsel is specifically required of the trial court, defendant was entitled to representation at the time of the Crosby remand. See People v. Pubrat , 451 Mich. 589, 594, 548 N.W.2d 595 (1996) ("[S]entencing is a critical stage at which a defendant has a right to counsel."). And because the trial court failed to appoint counsel and obtain the views of that counsel, we conclude that defendant's Crosby remand was improperly handled. Therefore, we vacate the trial court's order and remand for further proceedings. Because we are remanding this matter, it is necessary for us to consider defendant's second argument on appeal regarding the impact of a remand to a judge other than the sentencing judge in a Crosby remand.

III. IMPACT OF CROSBY REMAND BEFORE A DIFFERENT JUDGE

Relying on federal caselaw, defendant contends that because his original sentencing judge is unavailable to conduct the Crosby remand, due process requires that he be entitled to a full resentencing. In the alternative, he argues that he should at least be entitled to appear before the judge and have an opportunity to be heard before the court determines whether it would resentence him under the now-advisory sentencing guidelines. Defendant raises an issue of first impression for Michigan.

Federal courts of appeal are divided on the issue of what is required when the sentencing judge is unavailable to conduct a Crosby remand or similar procedure. Defendant urges us to adopt the approach set forth by the United States Court of Appeals for the Seventh Circuit. In United States v. Paladino , 401 F.3d 471, 483-484 (C.A. 7, 2005), the Seventh Circuit adopted a modified Crosby procedure. In those cases in which the Seventh Circuit could not determine from the record whether a defendant's pre- Booker sentence constituted prejudicial error, the court would "order a limited remand to permit the sentencing judge to determine whether he would (if required to resentence) reimpose his original sentence." Paladino , 401 F.3d at 484 (emphasis added). Later, in United States v. Bonner , 440 F.3d 414 (C.A. 7, 2006), the Seventh Circuit faced the issue of whether a judge other than the "sentencing judge" could conduct a Paladino remand. In concluding that it could not, the Seventh Circuit reasoned that, in order to be confident that the sentencing judge would have given the same sentence subsequent to Booker that it gave prior to Booker , analysis under Paladino had to be conducted by the "original 'sentencing judge.' " Bonner , 440 F.3d at 416. When the sentencing judge was unavailable, there was "no purpose in restricting a newly assigned judge to comparing the sentence he would impose post- Booker , armed with the knowledge that the guidelines are advisory, to the sentence initially imposed by a different judge operating under the assumption that the guidelines were mandatory." Id . at 417. Therefore, the Seventh Circuit in Bonner held that when the original sentencing judge was unavailable to preside over a remand under Paladino , the appeals court would "vacate the defendant's sentence and remand for a complete resentencing hearing in order to permit the successor judge to sentence the defendant in conformity with the mandates of Booker ." Id . See also United States v. Sanders , 421 F.3d 1044, 1052 (C.A. 9, 2005) ("We hold that when the original sentencing judge is not available to conduct a limited remand ..., the original sentence should be vacated and the case remanded for a full resentencing hearing.").

Unlike a Paladino remand, our Supreme Court in Lockridge did not describe a Crosby remand as going back to the sentencing judge but rather as going back to the "trial court." Lockridge , 498 Mich. at 398, 870 N.W.2d 502. However, cases on remand in Michigan are always sent back to the judge who entered the judgment or order, whenever possible, and Lockridge did not address or appear to contemplate a circumstance in which the original sentencing judge is no longer available.

Assuming we do not agree with defendant's claim of entitlement to a full resentencing-which would arguably give somewhat of a windfall to all defendants whose sentencing judges are no longer available-defendant alternatively urges this Court to adopt the analysis set forth in United States v. Garcia , 413 F.3d 201 (C.A. 2, 2005). In Garcia , the United States Court of Appeals for the Second Circuit expressly addressed the issue of how to handle Crosby remands when the original sentencing judge is no longer available. The Second Circuit acknowledged the language in Crosby that called for review by the "sentencing judge" but opined that such language "simply recognizes the practical reality that most Crosby remands ... will likely be addressed by the original sentencing judge." Garcia , 413 F.3d at 226. But the Second Circuit also noted that because of his or her familiarity with the case, the original sentencing judge would be in the best position to conduct an efficient and reliable analysis under Crosby . Id. at 227. However, the appeals court determined that when the original sentencing judge is no longer available, the district court's ability to provide a reliable response to a Crosby remand does not abruptly cease:

The judgment appealed from, after all, is that of the district court, not simply that of a particular judge. Thus, the comparative sentence inquiry might properly be viewed as between the court's challenged sentence and the sentence the court would have imposed with a proper understanding of the law. Where the original sentencing judge is no longer available to speak for the district court on the second point, the responsibility for identifying the sentence that the court would have imposed under a correct view of the law may properly be reassigned to another district judge. ...
... [T]he fact that all district judges possess direct sentencing experience, considered together with their ability to develop factual records, necessarily means that such judges can reliably determine, even on reassignment, whether there is a nontrivial difference between a challenged original sentence and one that would have been imposed with a correct understanding of the law. [ Id . at 227-228.]

Thus, whereas the Bonner court stressed the subjectivity of individual judges in sentencing, the Garcia court stressed that, while district court judges are not fungible, they have direct sentencing experience and could determine from the record whether the original sentence was affected by unconstitutional sentencing restraints as identified in Booker . Further, the Garcia court made clear that it did not expect a newly assigned judge to do the impossible, "i.e., determine what sentence the original judge would have imposed on behalf of the court with a correct understanding of the law and a fully developed record." Id . at 228. Rather, the newly assigned judge was to determine "what sentence he or she would have imposed on behalf of the court with the benefit of Booker and a full record ... [and] then determine whether that lawful sentence differs in a more than trivial manner from the one that was actually imposed." Id .

Nevertheless, the Second Circuit in Garcia did require something more of newly assigned judges that remained optional for the original sentencing judge under Crosby . When making his or her threshold determination regarding whether resentencing is warranted, a newly assigned judge must order the defendant to appear in court and afford the defendant an opportunity to be heard. Id . at 230. The Second Circuit gave two reasons for this requirement. First, because "human insights important to sentencing cannot be gleaned simply from a review of a cold record," the Second Circuit deemed the defendant's appearance and opportunity to be heard necessary to the district court's achieving the level of familiarity with the case necessary for "a reliable sentencing comparison." Id . Second, the Second Circuit considered production of the defendant to be important to the perceived integrity of the resentencing decision, explaining as follows:

[A]lthough the production of a defendant may not be essential to the perceived integrity of a Crosby remand handled by the original sentencing judge, see United States v. Crosby , 397 F.3d at 120 (holding that defendant's presence in court is not required on remand to decide if resentencing is necessary), when a Crosby remand is reassigned to a judge who has never dealt with the defendant, both the parties' and the public's perception of the fairness of the process is enhanced by requiring that judge to have some direct contact with the defendant in a formal court proceeding before answering the remand inquiry.... [ Garcia , 413 F.3d at 230.]

The Garcia court acknowledged that "a Crosby remand may operate less efficiently when the original sentencing judge is no longer available," but it concluded that it would nevertheless operate "with sufficient reliability that, even in this limited category of cases, we remain committed to case-by-case review of plain error rather than wholesale assumptions that substantial rights were affected in no or all such cases," id. at 231. Thus, the Second Circuit upheld the propriety of a Crosby remand in the event of a newly assigned judge but imposed additional requirements to ensure that the remand procedure was sufficiently fair and reliable under the circumstances.

We find the Second Circuit's rationale in Garcia to be persuasive and its solution reasonable. When a newly assigned judge handles a Crosby remand without ever encountering the defendant, both the personal nature of sentencing, People v. Heller , 316 Mich. App. 314, 319, 891 N.W.2d 541 (2016), and perceptions of the fairness, integrity, and public reputation of the judicial proceeding are called into question. We conclude that when the original sentencing judge is unavailable, in addition to following the other Crosby remand requirements, the assigned judge must allow the defendant an opportunity to appear before the court and be heard before the judge can decide whether he or she would resentence the defendant. Because that opportunity was not given to defendant in this matter, and because he was deprived of counsel and the input of counsel at the time of the Crosby remand, we vacate the trial court's order and remand for further proceedings.

We vacate defendant's sentence and remand for further proceedings consistent with this opinion. We do not retain jurisdiction.

CAVANAGH, P.J., and HOEKSTRA and BECKERING, JJ., concurred. 
      
      United States v. Crosby , 397 F.3d 103 (C.A. 2, 2005).
     
      
      Lockridge held that Michigan's sentencing guidelines violate a defendant's Sixth Amendment fundamental right to a jury trial and are deficient to the extent that they require judicial fact-finding beyond facts admitted by the defendant or found by a jury to score offense variables that mandatorily increase the floor of the guidelines minimum sentence range. Lockridge , 498 Mich. at 364, 373-374, 870 N.W.2d 502. The Supreme Court remedied the violation by making the guidelines advisory only. Id . at 364, 391, 870 N.W.2d 502. It remanded to the trial court cases "in which a defendant's minimum sentence was established by application of the sentencing guidelines in a manner that violated the Sixth Amendment" for a determination of "whether that court would have imposed a materially different sentence but for the constitutional error." Id . at 397, 870 N.W.2d 502. "If the trial court determines that the answer to that question is yes, the court shall order resentencing." Id . The Supreme Court adopted a remand procedure as set forth in Crosby , which is discussed in salient detail in this opinion.
     
      
      All three minimum sentences were within the guidelines range as scored by the trial court.
     
      
      People v. Howard , unpublished per curiam opinion of the Court of Appeals, issued November 17, 2015 (Docket No. 322868), 2015 WL 7283436.
     
      
      See also People v. Stokes , 312 Mich. App. 181, 201-202, 877 N.W.2d 752 (2015) (noting that the "first step" of the Crosby remand procedure is to provide the defendant with an opportunity to avoid resentencing), vacated in part on other grounds501 Mich. 918, 903 N.W.2d 194 (2017) ; People v. Steanhouse , 313 Mich. App. 1, 48, 880 N.W.2d 297 (2015) (again noting that the "first step" in the remand procedure is to provide the defendant with an opportunity to avoid resentencing), aff'd in part, reversed in part on other grounds, People v. Steanhouse , 500 Mich. 453, 902 N.W.2d 327 (2017).
     
      
      The procedure adopted by the Seventh Circuit differs from Crosby in that the Seventh Circuit Court of Appeals retains jurisdiction over a case until the district court determines that resentencing is warranted; at that point, the appeals court vacates the prior sentence and remands the matter to the district court for resentencing. Paladino , 401 F.3d at 484.
     
      
      In United States v. Booker , 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the United States Supreme Court held that the federal sentencing guidelines violated the Sixth Amendment by allowing a court to impose a sentence above the statutory maximum on facts not submitted to a jury and proved beyond a reasonable doubt or admitted by the defendant. Lockridge , 498 Mich. at 371, 870 N.W.2d 502, citing Booker , 543 U.S. at 226, 125 S.Ct. 738 (opinion by Stevens, J.). To remedy the constitutional violation, the High Court made the guidelines advisory rather than mandatory. Lockridge, 498 Mich. at 371-372, 870 N.W.2d 502, citing Booker , 543 U.S. at 245, 125 S.Ct. 738 (opinion by Breyer, J.).
     
      
      The Bonner Court indicated that "[t]he procedure we establish today is applicable whenever the original sentencing judge is unavailable to carry out a remand from this court in accordance with the terms set forth in Paladino , regardless of whether the judge is unavailable due to recusal, retirement, absence, death, sickness or other disability." Id. We likewise see no reason to distinguish among the reasons why a judge different from the sentencing judge is assigned to the case.
     
      
      We ruled in Heller that a trial court may not sentence a defendant via videoconference because the intensely personal nature of the sentencing process calls for direct contact. Heller , 316 Mich. App. at 319-321, 891 N.W.2d 541. The trial court's initial determination on a Crosby remand is not a sentencing in the same sense as that addressed in Heller , and if the trial court should decide to resentence the defendant subsequent to a Crosby remand, the court must have the defendant present. Lockridge , 498 Mich. at 398, 870 N.W.2d 502. However, in those unique and presumably rare situations in which a newly assigned judge conducts a Crosby remand for a defendant that has never appeared before the trial court, the analysis more closely resembles the type of situation seen in Heller than when the Crosby remand is conducted by a sentencing judge familiar with the defendant and the defendant's case.
     
      
      See Lockridge , 498 Mich. at 398, 870 N.W.2d 502.
     