At the CDRC, we regularly receive questions from defense attorneys around the state. In this new column, we will reprint our answers to common or interesting questions (with any identifying case details omitted or modified) that might be helpful to a wider audience.

In our inaugural column, we discussed how to handle situations where the trial court attempts to conduct a resentencing pursuant to the relief ordered in a Court of Appeals opinion that is not yet “effective” under the Court Rules. In this column, we address how to initiate a resentencing order by the Court of Appeals or Supreme Court after the judgment becomes final and whether entirely new challenges can be made at the resentencing.

First question: The Court of Appeals affirmed my client’s convictions but granted him a resentencing. We sought leave to appeal his convictions, but the Supreme Court denied our application. Will the trial court notify me when it schedules the resentencing or do I need to do something to initiate the process? 

Second question: The Supreme Court just entered an order vacating my client’s sentence and remanding to the trial court for resentencing. She wants me to object to the description of the offense in her presentence investigation report and to her habitual offender status at the resentencing. Can we even raise these objections? We didn’t raise either issue on appeal, the Supreme Court’s order didn’t mention them, and her trial attorney agreed at the original resentencing that her PSIR was accurate. 

While some trial courts attempt to schedule resentencings before the Court Rules allow them to resentence the defendant, others will not do anything unless and until the defendant asks to be resentenced. Once the appellate court’s order remanding for resentencing becomes effective, defense counsel can usually get the ball rolling on a resentencing by emailing the judge’s clerk a copy of the order or opinion granting resentencing and asking to schedule a resentencing. 

When the clerk doesn’t respond or the court will not place any hearings on its docket without a motion and praecipe, counsel should file a simple motion to enforce the judgment, explaining the procedural background and the appellate court’s decision to grant resentencing, and attaching the opinion or order. 

When scheduling the resentencing—either with the clerk beforehand or with the judge at the motion hearing—counsel should make sure that the court understands that an updated presentence investigation report (PSIR) must be prepared in advance and that the defendant has a right to be physically present. Countless resentencings have been adjourned because an updated PSIR was not ordered, the writ mistakenly provided for the defendant to appear by Zoom, or the court only blocked out ten minutes for the entire hearing. Clarifying early on that resentencing involves the same procedural requirements as an original sentencing will help set the trial judge’s expectations about the nature of the hearing and prevent unnecessary adjournments that can inconvenience and frustrate both the defendant and their loved ones, especially those who have taken off work or traveled long distances to show their support.

If the defendant is presently in prison and there is any realistic possibility that they will be resentenced to a community sanction or that their new sentence will place them past their maximum discharge date, counsel should contact the MDOC’s Time Computation Unit to apprise its staff of this possibility in advance of the resentencing. This will allow the MDOC to run a LEIN clearance check to determine whether there are any detainers or warrants that would prevent the defendant from being released from prison. If this does not happen before the defendant leaves prison to attend the resentencing, then they will be required to ride back to prison in handcuffs even if their new sentence should allow them to walk out of the courthouse a free man or woman. 

“Once the Court of Appeals vacate[s] the defendant’s original sentence and remand[s] for resentencing, the case [i]s before the trial court in a presentence posture, allowing for objection to any part of the new sentence.” People v Rosenberg, 477 Mich 1076 (2007). This means that the defendant is entitled to object to anything that could have been objected to at the original sentencing, such as challenges to the information contained in the PSIR and the scoring of the guidelines, the application of any sentencing enhancement, the imposition of consecutive sentencing, sex offender registration, and lifetime electronic monitoring, and the assessment of restitution, costs and fees. The defendant may raise objections to matters that were not raised during the original sentencing or on appeal, and even to matters that were waived at the original sentencing. Id.

While this presentence posture means that prosecutors are free to make new arguments in support of the imposition of new obligations and a longer sentence, the presumption of vindictiveness limits both the prosecution’s ability to seek and trial judge’s ability to impose a harsher sentence after the defendant has successfully challenged their sentence on appeal. Of course, courts often attempt to overcome this presumption by referencing the defendant’s negative performance in prison following the original sentencing, which is why it is important for counsel to warn their clients about this possibility at the beginning of the appeal. 

Like every other sentencing, at the conclusion of the resentencing, the trial court is required to apprise the defendant of their appellate rights. MCR 6.425(F). Defendants are entitled to the appointment of new appellate counsel and to a new appeal of right if they were convicted at trial. If they were initially convicted by plea, they must again seek leave to appeal. MCR 7.202(6)(b)(iv). Their new direct appeal is limited to the scope of the order granting remand, but when remand is ordered for resentencing, the scope of the remand is the defendant’s sentence and the resentencing procedure, and not simply those issues the appellate court identified in the remand order or opinion. People v Lockmiller, 510 Mich 1085 (2022).

After the resentencing, in addition to ensuring that the defendant understands their appellate rights, including the need to submit their request for appellate review, counsel should also periodically check their client’s page on OTIS until it is updated to reflect their new sentence. The MDOC will not update its records when a defendant is resentenced unless and until it receives the amended judgment of sentence directly from the trial court. If, after a week or two, the information has not been updated, counsel should contact the trial judge’s clerk to ensure that the amended judgment of sentence has been or will be sent to the MDOC’s Time Computation Unit. 

Subscriber Comments

• You must be a subscriber to view comments