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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED May 14, 2015

v No. 322592 Saginaw Circuit Court TOD KEVIN HOUTHOOFD, LC No. 05-025865-FH

Defendant-Appellant.

Before: B OONSTRA , P.J., and S AAD and M URRAY , JJ.

P ER C URIAM

. This case is again before the Court after the trial court rese ntenced defendant to a prison term of 420 to 720 months for his conviction of solicitation to commit murder, MCL 750.157b. Defendant appeals as of right. As the prosecution concedes, be cause the trial court lacked jurisdiction when resentencing de fendant, we vacate his sentenc e and remand for resentencing.

I. FACTS AND PROCEDURAL HISTORY

The case was befo re this Court in People v Houthoofd, unpublished opini on per curiam of the Court of Appeals, issued February 3, 2009 (Docket No. 26950 5) ( Houthoofd I ), rev’d in part and remanded 487 Mich 568 (2010), People v Houthoofd (On Remand) , unpublished opinion per curiam of the Court of Appeals, issued December 2, 2010 (Docket No. 269505) ( Houthoofd II ), and People v Houthoofd , unpublished opinion per curiam of the Court of Appeals, issue d February 18, 2014 (Docket No. 312977) ( Houthoofd III ). Houthoofd III summarized the procedural history of the case:

This case stems from three lower court cases that were consoli dated and tried together in 2006. Following a jury trial, defendant was convicted of obtaining property (tractor, tille r, and trailer) valued over $ 100 by false pretenses, MCL 750.218, witness intimidation, MCL 750.122, and solicitatio n to commit murder, MCL 750.157b. He was sentenced to a term of five to te n years’ imprisonment for the false-pre tenses conviction, ten to 15 year s’ imprisonment for the witness-intimidation conviction, and 40 to 60 years’ im prisonment for the solicitation conviction. Defendant appealed as of right to thi s Court, which affirmed defendant’s convictions and sentences for false preten ses and witness intimidation, but vacated his conviction and sentence for solic itation due to improper venue. However, our Supreme Court determined that ven ue is subject-2- to the harmless error rule and reinstated defendant’s convictio n for solicitation. Additionally, the Court remanded the case to this Court “for co nsideration of whether the trial court failed to articulate substantial and co mpelling reasons for upwardly departing from the guide lines when imposing defendant’ s sentences for the solicitation and witness intimidation convictions.” On rem and, this Court vacated defendant’s sentence for solicitation and remanded for the trial court to determine whether the departure was warranted, and if so, to ex plain its reasoning in accordance with People v Smith , 482 Mich 292; 754 NW2d 284 (2008). This Court did not address defendant’s sentence for the witness-inti midation conviction because defendant did not raise the issue on appeal. Resentencing for defendant’s solicitation conviction was held on September 27, 2 012. The trial court resentenced defendant to a term of 40 to 60 years’ impris onment, which was the same as the original sentence. [ Id. at 1-2 (some citations omitted).]

On appeal after the second rese ntencing, defendant raised a nu mber of issues, including the assignment of retired Judge Lynda Heathscott, who had proce eded over the trial, to conduct the sentencing proceeding on remand. The Court noted that in v acating defendant’s original sentence, it:

expressed awareness that Judge H eathscott had retired and that a new judge would resentence defendant. In a footnote highly pertinent to this a ppeal, this Court made the following observation:

While the prosecution requests that this Court remand any furth er proceedings to the original trial court judge in her retired ca pacity, the prosecution has provided no authority allowing this Court t o do so. A party may not leave it to this Court to search for autho rity to sustain or rej ect its position. [ Id. at 4 (citations omitted).]

The Court explained the procedur e that the trial court had used in reassigning Judge Heathscott to resentence defendant:

On remand to the circuit court, Judge Janet Boes, Judge’s Heat hscott’s successor, was assigned to resent ence defendant. Judge Boes pr omptly disqualified herself. She signed a form created by the State C ourt Administrative Office (SCAO) titled, “Order of Disqualification/Reassignment.” On the form, Judge Boes averred that she disqualified herself from resentenc ing defendant because she “was employed as an assistant prosecutor in the pro secutor’s office, from 1989 to August 2008.”

Rather than randomly selecting another judge to conduct defend ant’s resentencing, the chief judge pro tem of the Saginaw circuit co urt signed and transmitted to SCAO an “Internal Reassignment Request” attestin g that Judge Heathscott “has been chosen by lot or local administrative orde r from the judges not disqualified in this case. I request that this case be rea ssigned to this judge.” On a separate form, a Saginaw ci rcuit court empl oyee stated tha t Judge Heathscott was being assigned to “assist with docket.” When defendant cha llenged Judge Heathscott’s assignment in the circuit court, Chief Judge Rober t Kaczmarek-3- issued a written opinion rebuffing defendant’s motion. Accordi ng to Judge Kaczmarek’s opinion, Michigan’s Constitution allows retired jud ges to perform further judicial services, and Saginaw County’s “heavy caseload ” justified the circuit court’s request that SC AO assign a judge to “assist wit h docket.” Judge Kaczmarek reasoned, “[R]esentencing by a different judge unfami liar with this case would further burden the Tent h Circuit Court bench with re view of the considerable case materials in this matter.”

We do not question Judge Kaczmarek’s conclusions that reassign ment to a different judge would be burdensome for the Saginaw circuit cou rt, or that Michigan’s Constitution permits retired judges to serve as judi cial officers in certain circumstances. Our concern flows from the manner in wh ich the Saginaw circuit court handled the reassi gnment of defendant’s sentencin g to Judge Heathscott. Rigorous adherence to the rules governing the assi gnment and reassignment of judges preserves the public’s confidence in jud icial propriety. Here, the rules were bent. This resulted in a justifiable perc eption that the prosecution obtained the result it wished for and which this Co urt had pointedly refused to award: assignment of Judge Heathscott as the resente ncing judge. [ Id. at 4-5 (alteration i n original).]

This Court again vacated defendant’s sentence for solicitation of murder and remanded for resentencing “before a Saginaw circuit judge assigned by random draw” after concluding that “defendant is justified in compl aining that the procedure emplo yed worked an end-run around this Court’s ruling, and cont ravened the court rule.” Id. at 6.

On remand to the trial court, J udge Janet Boes was again assig ned to resentence defendant and again disqualified herself. She signed the SCAO “Order of Disqualification/Reassignment f orm” and averred that she disqua lified herself from resentencing defendant because she had “been consulted or employed as an att orney in the matter in controversy.” The lower court r ecord contains an “Internal Rea ssignment Request” attesting that Judge Darnell Jackson had then “ been chosen by lot or local adm inistrative orde r from the judges not disqualified in this case.” The chief judge of the circuit court approved the reassignment.

On April 10, 2014, defendant file d an application for leave to appeal this Court’s decision in Houthoofd III

. 1 While that application was pending, defendant moved to disqua lify both Judge Jackson and all of the Sag inaw Circuit Court judges. He asserted that the order of disqualification pertaining to J udge Boes disqualified all of t he Saginaw Circuit Court judges, and that Judge Jackson was disqualified because he had presided over a prisoner reimbursement case brought by the state against defendant and had made commen ts regarding defendant’s earliest release date before sentencing defendant in this matte r. Judge Jackson denied the motion to disqualify, stating i n part as follows:

1 The Supreme Court denied the application on July 29, 2014. People v Houthoofd , 496 Mich 866; 849 NW2d 376 (2014).-4- In terms of your two reasons for me to disqualify myself, that this disqualification reassignment mem o disqualified the entire Tent h Circuit Court, it did not.

In terms of the civil action, why I’ve entered an order saying that the earliest release date, at this point in time as far as this Cou rt is concerned, it still is until he’s resentenced. Therefore, both of your grounds are de nied at this point in time.

II. JURISDICTION TO SENTENCE

Defendant first argues that his sentence must be vacated becau se the trial court did not have jurisdiction to resentence him while his timely leave appl ication to the Supreme Court was pending. Plaintiff agrees that defendant’s application for lea ve to appeal was timely and should have stayed the proceedings on remand.

MCR 7.302(C)(5) provides, in part as follows:

If a party appeals a decision which remands for further procee dings as provided in subrule (C)(4)(a), [2] the following provisions apply:

(a) If the Court of Appeals decision is a judgment under MCR 7.215(E)(1), [3] an application for leave to appeal stays proceedings on remand unless the Court of Appeals or t he Supreme Court orders otherwi se.
MCR 7.215(F)(1)(a) further provides that “the Court of Appeals judgment is effective after the expiration of the time for filing an application for leave to a ppeal to the Supreme Court, or, if such an application is filed, after the disposition of the case by the Supreme Court.”

In People v Swafford , 483 Mich 1, 6 n 5; 762 NW2d 902 (2009), the Supreme Court noted that the defendant’s timely application for leave to appe al this Court’s judgment to the Supreme Court stayed the proceedings on remand and divested the trial court of jurisdiction during the pendency of the appeal to the Supreme Court. “When a court is without jurisdiction of the subject matter, its acts and proceedings are of no force and validity; they are a mere nullity and are void.” People v Clement , 254 Mich App 387, 394; 657 NW2d 172 (2002) (citation and

2 MCR 7.302(C)(4)(a) provides, “If the decision of the Court of Appeals remands the case to a lower court for further proceedings, an application for leave t o appeal may be filed within . . . 56 days in criminal cases, after ( a) the Court of Appeals decision ordering the remand.”

3 “When the Court of Appeals disposes of an original action or a n appeal, whether taken as of right, by leave granted, or by order in lieu of leave being gra nted, its opinion or order is its judgment . . .” MCR 7.215(E)(1).-5- quotation marks omitted). Accordingly, we vacate defendant’s s entence and remand the case to the trial court for resentencing. 4

III. DEFENDANT’S STANDARD 4 BRIEF

A. MOTION TO DISQUALIFY

Defendant also argues that Judge Jackson should have been disq ualified and should not resentence him. Specifically, defendant contends that assignme nt of this case to Judge Jackson for resentencing violated the b lind draw requirement in MCR 8.1 11. In order to preserve a judicial qualification issue for appellate review, a defendant must first move for disqualification before the challenged judge and, if the motion is denied, reque st referral to the chief judge of the circuit court for review of the motion de novo. MCR 2.003(D)(3 )(a)( i ); Sinicropi v Mazurek
, 273 Mich App 149, 176 n 15; 729 NW2d 256 (2006), citing Welch v Dist Court , 215 Mich App 253, 258; 545 NW2d 15 (1996). Defendant failed to seek review by the chief judge of the denial of his motion to disqualify Judge Jackson, so we review defenda nt’s unpreserved claim for plain error affecting substantial rights. People v Danto , 294 Mich App 596, 605; 822 NW2d 600 (2011).

Defendant’s argument is premised on a critical misunderstandin g of the proceedings below. Defendant argues that an order issued by the circuit co urt on March 9, 2011 disqualified all the court’s judges due to bias. On January 31, 2011, Judge Janet M. Boes disqualified herself from presiding over defendant’s resentencing on her own motion because “she was employed as an assistant prosecutor in the prosecutor’s office from 1989 to August 2008.” No other judges were included in the disqualification, and no other judge is me ntioned in the March 9, 2011 order.

MCR 8.111(C)(1), which sets forth the judicial reassignment pr ocedure promulgated by our Supreme Court, provides as follows:

If a judge is disqualified or for other good cause cannot unde rtake an assigned case, the chief judge may reassign it to another judge by a written order stating the reason. To the extent feasible, the alternate judg e should be selected by lot. The chief judge shall file the order with the trial co urt clerk and have the clerk notify the attorneys of reco rd. The chief judge may also designate a judge to act temporarily until a case is reassigned or during a temporar y absence of a judge to whom a case has been assigned.

4 In light of our conclusion, we n eed not address the alternativ e grounds for resentencing that are presented in the brief filed by defendant’s counsel on his beha lf. We note, however, that this Court rejected a challenge under Alleyne v United States , 570 US ___; 133 S Ct 2151; 186 L Ed 2d 314 (2013), in People v Herron , 303 Mich App 393; 845 NW2d (2013), appeal held in abeyance 846 NW2d 924 (2014), an d we are bound by that decision

.-6- Here, the “Internal Reassignmen t Request” attests that Judge Ja ckson “has been chosen by lot or local administrative order from the judges not disqualified in this case.” The court rule was followed and no error is shown. 5

Defendant also raises a number of arguments in support of his contention that Judge Jackson was disqualified due to bias. However, these arguments are not properly before this Court because they involve errors that allegedly occurred durin g a hearing conducted by Judge Jackson in an unrelated civil matter involving defendant. In a ny event, nothing defendant has argued persuades us that Judge J ackson should be disqualified u nder our court rules or the due process clause of the 14th Amendment to the United States Const itution. See Caperton v Massey , 556 US 868; 129 S Ct 7252; 173 L Ed 2d 1208 (2009).

B. TIMELINESS OF RESENTENCING

Defendant argues that the trial court lacked jurisdiction to r esentence him because he was not resentenced within one year of the date that this Court rem anded for resentencing. His argument is premised on MCL 771.1(2) , which provides in relevan t part as follows:

In an action in which the court may place the defendant on pro bation, the
court may delay sentencing the defendant for not more than 1 year to give the defendant an opportunity to prove to the court his or her eligi bility for probation or other leniency compatible with the ends of justice and the d efendant’s rehabilitation, such as particip ation in a drug treatment court . . . . [Emphasis added.]

MCL 771.1(2) is clearly not applicable in this case, which invo lves a resentencing on remand and not a delay in sentencing.

Defendant has also included a number of unsupported arguments that are unrelated to the question presented. These argumen ts are not properly before th is Court because they are not raised in the statement of que stions presented. MCR 7.212(C)(5 ); People v Miller , 238 Mich App 168, 172; 604 NW2d 781 (1999).

C. PRESENTENCE INFORMATI ON REPORT AND ALLOCUTION

Defendant argues that he is entitled to resentencing because c omments made by Judge Jackson during a hearing in an unrelated civil case suggested t hat he “pre-sentenced” defendant in the criminal matter without t he benefit of a presentence inv estigation report (PSIR) and without giving defendant the oppor tunity to allocute before sen tencing. Because we are remanding for resentencing, we need not address this issue. We note, however, that an updated PSIR was prepared before sente ncing, and defendant was given th e opportunity to allocute.

5 When this Court vacated defendant ’s sentence, it contemplated resentencing by a Saginaw Circuit Court judge. Houthoofd III , unpub op at 6 (remanding “for resentencing before a Saginaw Circuit judge ass igned by random draw.”).-7- D. PSIR 6

Defendant argues that he is ent itled to resentencing because t he Michigan Department of Corrections (MDOC) violated its own policy directives and MCR 6 .429(A) by preparing more than one PSIR. Defendant’s reliance on MCR 6.429(A) is misplac ed, as that court rule governs the trial court’s authority to modify a sentence and is not rel evant to the preparation of a PSIR. Further, when a defendant is to b e resentenced for a felony con viction, the sentencing court must obtain an updated PSIR to use in imposing sentence. MCR 6.425; People v Triplett , 407 Mich 510, 511, 515; 287 NW2d 165 (1980).

Defendant also challenges the assessment of 15 points for prio r record variable (PRV) 6. PRV 6 considers an offender’s rel ationship to the criminal just ice system. MCL 777.56. A trial court should score 15 points for PRV 6 when “[t]he offender is incarcerated in jail awaiting adjudication or sentencing on a conviction or probation violati on” at the time the sentencing offense was committed. MCL 777.56(1)(b). Defendant admitted a t the sentencing hearing that he was in jail at the time of the commission of the offense for which he was being sentenced. PRV 6 was properly scored. 7

Defendant’s sentence is vacated and the case is remanded for r esentencing. We do not retain jurisdiction.

/s/ Mark T. Boonstra /s/ Henry William Saad /s/ Christopher M. Murray

6 We address this issue because the issues may arise again on re mand.

7 Defendant also contends that th e scoring of offense variables (OVs) 13 and 14 at zero points and OV 19 at 10 points during the 2006 and 2012 sentencing proc eedings bound Judge Jackson when he resentenced defendant i n 2014. Defendant has abandoned this issue because he fails to cite to any relevant authority. People v Payne , 285 Mich App 181, 195; 774 NW2d 714 (2009). We also decline to address defendant’s arguments that relate to whether venue for the trial was proper in Saginaw County because t he Supreme Court has already decided this issue.