People v. Washington

• Decision Date: 13 July 2017
• Docket Number: No. 336050,336050
• Citation: 321 Mich.App. 276,908 N.W.2d 924
• Parties: PEOPLE of the State of Michigan, Plaintiff–Appellant, v. Gregory Carl WASHINGTON, Defendant–Appellee.
• Court: Court of Appeal of Michigan — District of US

321 Mich.App. 276

908 N.W.2d 924

PEOPLE of the State of Michigan, Plaintiff–Appellant,

v.Gregory Carl WASHINGTON, Defendant–Appellee.

No. 336050

Court of Appeals of Michigan.

Submitted July 7, 2017, at Detroit.

Decided July 13, 2017

Approved for Publication September 12, 2017, 9:15 a.m.

Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, Kym L. Worthy, Prosecuting Attorney, and Jason W. Williams, Chief of Research, Training, and Appeals, for the people.

John F. Royal for defendant.

Before: O'Brien, P.J., and Jansen and Stephens, JJ.

Per Curiam.

The prosecution appeals by leave granted¹ a November 22, 2016 order granting defendant's second motion for relief from judgment. For the reasons that follow, we affirm.

On November 10, 2004, defendant was convicted after a jury trial of second-degree murder, MCL 750.317, two counts of assault with intent to commit murder (AWIM), MCL 750.83, possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b, and felon in possession of a firearm (felon-in-possession), MCL 750.224f. On December 13, 2004, the trial court sentenced defendant, a second-offense habitual offender, MCL 769.10, to 40 to 60 years' imprisonment for the second-degree murder conviction, life imprisonment for each AWIM conviction, 2 years' imprisonment for the felony-firearm conviction, and 2 to 7½ years' imprisonment for the felon-in-possession conviction. The trial court's sentence for second-degree murder represented a 12–month upward departure from the applicable guidelines range.

On January 7, 2005, defendant appealed as of right his convictions and sentences on a number of grounds.² Relevant here, defendant challenged the propriety of the trial court's upward departure from the sentencing guidelines range for second-degree murder without stating on the record "substantial and compelling reasons" for the departure as required under MCL 769.34(3).³ In a June 13, 2006 unpublished opinion, this Court affirmed defendant's convictions, but agreed that "the trial court did not satisfy MCL 769.34(3) when imposing a sentence outside the prescribed sentencing guidelines range." People v. Washington , unpublished per curiam opinion of the Court of Appeals, issued June 13, 2006 (Docket No. 260155), p. 8, 2006 WL 1626910. This Court remanded for resentencing, directing the trial court to reconsider the propriety of its sentence and articulate substantial and compelling reasons for any departure as required by MCL 769.34(3). Id . at 8–9.

On August 8, 2006, defendant filed an application for leave to appeal in the Michigan Supreme Court. On October 4, 2006, while the application was still pending, the trial court resentenced defendant pursuant to this Court's June 13, 2006 opinion and remand, imposing identical sentences and offering a number of justifications for the departure. The Supreme Court denied defendant's application for leave to appeal on December 28, 2006. People v. Washington , 477 Mich. 973, 725 N.W.2d 20 (2006).

On December 4, 2006, about three weeks before the Supreme Court denied defendant's initial application, defendant filed in this Court a delayed application for leave to appeal the resentencing order, again arguing that the trial court failed to articulate on the record the required "substantial and compelling reasons" for the upward departure from defendant's sentencing guidelines for second-degree murder. This Court denied defendant's application "for lack of merit." People v. Washington , unpublished order of the Court of Appeals, entered May 4, 2007 (Docket No. 274768). Defendant filed an application for leave to appeal in the Michigan Supreme Court on June 28, 2007, which that Court denied. People v. Washington , 480 Mich. 891, 738 N.W.2d 734 (2007).

Several months later, on March 25, 2008, defendant filed a motion for relief from judgment in the trial court pursuant to MCR 6.502, raising claims of (1) insufficient evidence, (2) denial of his right to present an insanity defense, (3) ineffective assistance of trial counsel, and (4) ineffective assistance of appellate counsel. On July 9, 2008, the trial court denied defendant's motion under MCR 6.508(D)(3) for failure to demonstrate good cause for not raising the issues in a prior appeal and failure to show actual prejudice. This Court denied defendant’s July 8, 2009 delayed application for leave to appeal the trial court's decision, People v. Washington , unpublished order of the Court of Appeals, entered October 19, 2009 (Docket No. 292891), and the Michigan Supreme Court denied defendant leave to appeal this Court's denial, People v. Washington , 486 Mich. 1042, 783 N.W.2d 335 (2010).

On June 22, 2016, after exhausting all available postconviction relief, defendant filed his second motion for relief from judgment—the motion giving rise to the instant appeal. Defendant challenged his sentences on jurisdictional grounds, arguing that the trial court's October 4, 2006 order after resentencing was invalid because the court lacked jurisdiction to resentence defendant while his application remained pending before the Michigan Supreme Court. In response, the prosecution argued that defendant's successive motion for relief from judgment was clearly barred by MCR 6.502(G), which prohibits successive motions for relief from judgment unless there has been a retroactive change in the law or new evidence has been discovered. In a November 22, 2016 written order and opinion, the trial court indicated its agreement with the prosecution's argument but noted that the prosecution had failed to address the jurisdictional issue, which "may be raised at any time." The trial court concluded that under MCR 7.215(F)(1)(a), MCR 7.305(C)(6)(a), and relevant caselaw, it had lacked jurisdiction to enter the October 4, 2006 judgment of sentence. The trial court granted defendant's motion, vacated defendant's sentences, and ordered resentencing.⁴ The instant appeal followed.

The prosecution argues that the trial court erred when it granted defendant's motion for relief from judgment because MCR 6.502(G)(1) unequivocally bars successive motions for relief from judgment absent application of an explicit exception. We agree in part.

"We review a trial court's decision on a motion for relief from judgment for an abuse of discretion...." People v. Swain , 288 Mich. App. 609, 628, 794 N.W.2d 92 (2010). An abuse of discretion occurs when a trial court's decision falls outside the range of reasonable and principled outcomes, or when the trial court makes an error of law. Id. at 628–629, 794 N.W.2d 92. The proper interpretation and application of court rules are questions of law reviewed de novo. People v. Buie , 285 Mich. App. 401, 416, 775 N.W.2d 817 (2009).

Motions for relief from judgment are governed by MCR 6.500 et seq . Swain , 288 Mich. App. at 629, 794 N.W.2d 92. MCR 6.502(G)(1) provides, in pertinent part:

Except as provided in subrule (G)(2) ... one and only one motion for relief from judgment may be filed with regard to a conviction. The court shall return without filing any successive motions for relief from judgment.

MCR 6.502(G)(2) provides two exceptions to the general rule against successive motions for relief from judgment, allowing a "second or subsequent motion based on a retroactive change in law that occurred after the first motion for relief from judgment or a claim of new evidence that was not discovered before the first such motion." Any successive motion that does not assert one of these two exceptions must be returned to the defendant and not filed in the court. Swain , 288 Mich. App. at 631, 794 N.W.2d 92, citing MCR 6.502(G)(1).

This Court in Swain , 288 Mich. App. at 632, 794 N.W.2d 92, explicitly held that " MCR 6.502(G)(2) provides the only two exceptions to the prohibition of successive motions." Swain is binding on this Court, as it is on the trial court, MCR 7.215(C)(2), and we discern no ambiguity in the language of MCR 6.502(G) to warrant reconsideration of the issue.

Defendant's successive motion for relief from judgment was predicated on a claimed "jurisdictional defect" that invalidated the October 4, 2006 judgment of sentence. Defendant's successive motion for relief from judgment did not involve a retroactive change in the law or newly discovered evidence. Regardless of the merits of defendant's claim of error, the trial court lacked authority to grant defendant's motion under MCR 6.502.

However, a motion for relief from judgment under MCR 6.502 is merely a procedural vehicle, and our determination that relief under MCR 6.502 was unavailable to defendant does not end our inquiry. We agree that the prosecution has failed to address the substantive issue in defendant's motion for relief from judgment, which, while brought pursuant to an inapplicable court rule, nevertheless constitutes an important and reviewable claim of error.

It is indisputable that the trial court lacked jurisdiction⁵ to resentence defendant when it entered the October 4, 2006 judgment of sentence. MCR 7.305(C) states, in pertinent part:

(6) Effect of Appeal on Decision Remanding Case . If a party appeals a decision that remands for further proceedings as provided in subrule (C)(5)(a), the following provisions apply:

(a) If the Court of Appeals decision is a judgment under MCR 7.215(E)(1),^[6]an application for leave to appeal stays proceedings on remand unless the Court of Appeals or the Supreme Court orders otherwise . [emphasis added.]

Similarly, MCR 7.215(F)(1)(a) provides that a "Court of Appeals judgment is effective after the expiration of the time for filing an application for leave to appeal to the Supreme Court, or, if such an application is filed, after the disposition of the case by the Supreme Court[.]" Neither this Court nor our Supreme Court ordered otherwise, and under the court rules, this Court's June 13, 2006 resentencing order was not effective until after the Supreme Court entered its December 28, 2006 order denying...