People of Michigan v. Israel a Velez ( 2015 )

STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
October 13, 2015
Plaintiff-Appellee,
v No. 315209
Alger Circuit Court
ISRAEL A. VELEZ, LC No. 2012-001997-FC
Defendant-Appellant.
Before: BOONSTRA, P.J., and SAAD and HOEKSTRA, JJ.
BOONSTRA, P.J. (concurring).
I fully concur in the majority opinion. I write separately to offer additional rationale for
affirming defendant’s sentence in this case.
Were we to consider the judicial fact-finding issue raised by defendant (but not included
in defendant’s application for leave to appeal, either in this Court or in the Supreme Court) under
Alleyne v United States, 570 US ___; 133 S. Ct. 2151; 186 L. Ed. 2d 314 (2013), I would find that a
remand under People v Lockridge, ___ Mich ___; ___ NW2d ___ (2015), is not required in this
case.
Whether defendant is entitled to a Crosby1 hearing on remand under Lockridge depends
on whether defendant can satisfy the plain-error standard of People v Carines, 460 Mich. 750,
763-764; 597 NW2d 130 (1999), reh den 461 Mich. 1205 (1999). Lockridge, slip op at 30.
Defendant is entitled to a Crosby hearing only if he can show that the “facts admitted by a
defendant or found by a 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.” Lockridge, slip op at 32-33 (italics in original). In other words, “all
defendants (1) who can demonstrate that their guidelines minimum sentence range was actually
constrained by the violation of the Sixth Amendment and (2) whose sentences were not subject
to an upward departure can establish a threshold showing of the potential for plain error
sufficient to remand to the trial court for further inquiry.” Lockridge, slip op at 33. Under the
circumstances of this case, I would find that defendant has not established plain error and, thus,
has not demonstrated an entitlement to a remand for a Crosby hearing.
1
U.S. v Crosby, 397 F3d 103 (CA 2, 2005).
The trial court sentenced defendant pursuant to a Cobbs2 agreement. Lockridge contains
no express statement that it is overruling Cobbs, and there is nothing in the text of Lockridge that
would preclude a judge from offering a preliminary evaluation of a sentence under Cobbs or that
would restrict the ability of a defendant and a prosecutor to bargain over and agree to a particular
lawful sentence. See generally, People v Killebrew, 416 Mich. 189; 330 NW2d 834 (1982).
Thus, unless and until Cobbs is expressly overruled, there is nothing unlawful about a plea
agreement or a sentence predicated on the sentencing judge’s preliminary evaluation of a
sentence.
Furthermore, Lockridge extended the rule of Alleyne to Michigan’s statutory sentencing
guidelines scheme, concluded that the sentencing guidelines violate the Sixth Amendment
because the sentencing guidelines scheme employs judicial fact-finding in the scoring of the
offense variables, and remedied the constitutional error by declaring that a sentencing judge is no
longer bound to impose a sentence mandated by the sentencing guidelines. Lockridge, slip op at
1-2, 11, 16, 28-29, 36. When a sentencing judge imposes a legal sentence pursuant to the terms
of a plea agreement bargained for and accepted by the defendant, the sentence is not affected by
the judge’s perception of the mandatory or advisory nature of the sentencing guidelines and,
thus, the defendant’s Sixth Amendment jury trial right is not implicated. See United States v
Cieslowski, 410 F3d 353, 356-357, 363-364 (CA 7, 2005), cert den 456 U.S. 1097 (2006). Stated
another way, because defendant agreed to a sentence within the guidelines range, the sentence
imposed by the trial court “arose directly from the plea agreement and was not based on any
facts found only by the trial court.” Amezcue v Almager, unpublished order of the United States
District Court for the Central District of California, issued May 25, 2009 (2009 WL 1513427), p
5, aff’d 577 Fed Appx 699 (CA 9, 2014). Moreover, by expressly and voluntarily bargaining for
and agreeing to a guidelines sentence, defendant voluntarily waived his Sixth Amendment right
and any related concerns. Amezcue, 577 Fed Appx at 700-701. Therefore, on the facts of this
case, there are no Sixth Amendment concerns, and the rule of Alleyne and Lockridge is not
implicated.
/s/ Mark T. Boonstra
2
People v Cobbs, 443 Mich. 276; 505 NW2d 208 (1993).