Opinion
No. 338299
06-19-2018
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. FRANK EARL TYSON, Defendant-Appellant.
UNPUBLISHED Oakland Circuit Court
LC No. 2014-249733-FC Before: MURPHY, P.J., and JANSEN and RONAYNE KRAUSE, JJ. PER CURIAM.
Defendant appeals as of right the trial court's order denying resentencing following a Crosby remand. Defendant was convicted by a jury of being a felon in possession of a firearm (felon-in-possession), MCL 750.224f, and possessing a firearm during the commission of a felony (felony-firearm), MCL 750.227b, and sentenced, as a fourth-offense habitual offender, MCL 769.12, to 58 months to 40 years' imprisonment for the felon-in-possession conviction—an upward departure of 10 months—and a consecutive term of five years' imprisonment for the felony-firearm conviction. We affirm.
This is not defendant's first appeal in this matter. As a preliminary matter, we note that defendant raised in his initial appeal as of right a challenge to the reasonableness of his departure sentence. This Court declined to review the issue, instead remanding for a Crosby hearing in light of People v Lockridge, 498 Mich 358, 392; 870 NW2d 502 (2015). People v Tyson, unpublished per curiam opinion of the Court of Appeals, issued June 28, 2016 (Docket No. 325986), p 10. Ordinarily, appeals following a remand are limited to the scope of the remand. See People v Kincade, 206 Mich App 477, 481; 522 NW2d 880 (1994), citing People v Jones, 394 Mich 434; 231 NW2d 649 (1975) ("[W]here an appellate court remands for some limited purpose following an appeal as of right in a criminal case, a second appeal as of right, limited to the scope of the remand, lies from the decision on remand."). A Crosby remand under Lockridge, specifically, is "[a] remand for a determination of whether to resentence." United States v Crosby, 397 F3d 103, 117-118 (CA 2, 2005); see also Lockridge, 498 Mich at 398, quoting Crosby, 397 F3d at 120 ("[T]he trial court shall 'either place on the record a decision not to resentence, with an appropriate explanation, or vacate the sentence, and with the Defendant present, resentence in conformity with' this opinion.").
This Court previously ordered a remand in this case for the limited purpose of determining whether the trial court would have imposed a materially different sentence had it known that the sentencing guidelines were advisory rather than mandatory. See Lockridge, 498 Mich at 398. On remand, the trial court did, in fact, consider whether it would have imposed a materially different sentence had it known the guidelines were advisory only, and concluded that it would not have. Defendant raises no issue with those proceedings. Accordingly, defendant's challenge to the proportionality of his sentence is outside the scope of the remand order, and we decline to address it.
Affirmed.
/s/ William B. Murphy
/s/ Kathleen Jansen
/s/ Amy Ronayne Krause
United States v Crosby, 397 F3d 103 (CA 2, 2005).