Be Careful What You Ask For...

Yesterday, the Michigan Court of Appeals decided that a retroactive application of the Michigan Supreme Court's decision in People v Lockeridge, 498 Mich 358; 870 NW2d 502 (2015), did not violate the ex post facto clauses of the state and federal constitutions, even though the defendant was sentenced to a lengthier term of incarceration when his case was remanded for resentencing.

In People v Steven Aderrick Odom, Docket No. 339027, March 12, 2019 (Meter, PJ), the defendant had previously appealed his 210 to 420-month sentence for armed robbery, claiming that the trial court engaged in judicial fact-finding to increase the then mandatory sentencing guideline range.  The Supreme Court ultimately agreed and ordered the defendant to be resentenced pursuant the reasoning followed in United States v Crosby, 397 F3d 103, 117-118 (CA 2, 2005). 

Back in the trial court, the judge determined that he had been constrained by the mandatory nature of the guidelines and would have imposed a materially different sentence.  The trial court ordered resentencing.  At the same time, the court stated that it did not feel that the original sentence was proportionate to the seriousness of Odom's conduct and that a sentence outside of the guideline range was likely.  Understandably, Odom moved to withdraw his request for resentencing.  In addition, he moved for the appointment of new counsel.  His request for new counsel was granted, but not so his other request.  At resentencing, the trial court upped the sentence to 360 to 720 months.  

Odom appealed, claiming his original attorney was ineffective for failing to advise him that a possible result of a request for resentencing is that the judge could impose a higher sentence and that the imposition of the higher sentence was per se vindictiveness and, therefore, an invalid sentence.  Odom also challenged the lengthier sentence on ex post facto grounds.

As to vindictiveness, the Court held that, because a request for resentencing under Lockeridge places the case in the posture of a de novo sentencing, "starting anew," no presumption of vindictiveness exists.  As to the ex post facto challenge, the Court found no merit.  The bar against punishing a person for conduct that was innocent at the time he committed it rests on the core principles of notice, foreseeability, and, in particular, the right to fair warning.  "Our Supreme Court’s decision to rectify the constitutional infirmity in the mandatory sentencing guidelines by making the guidelines advisory did not alter the maximum penalty applicable to defendant when he committed the crimes at issue. Both offenses were punishable by up to life in prison when committed and remain punishable by up to life in prison under the advisory guidelines."  Therefore, no ex post facto violation occurred here and the Court affirmed the defendant's increased sentence.

The trial court judge was the Honorable Archie C. Brown.  The defendant was represented by Ann Prater of Charlotte, Michigan.  Fawn Montgomery of the Washtenaw County Prosecutor's Office represented the People.