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S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

UNPUBLISHED

July 24, 2018

v No. 337221

Wayne Circuit Court

MICHAEL TERREAL DAVIS, LC No. 13-010643-01-FC

Defendant-Appellant.

Before: BORRELLO, P.J., and M. J. KELLY and BOONSTRA, JJ.

PER CURIAM.

Defendant, Michael Davis, was convicted by a jury of second-degree murder, MCL 

750.317, two counts of unlawful imprisonment, MCL 750.349b, and possession of a firearm 

during the commission of a felony (felony-firearm), MCL 750.227b. Davis was originally 

sentenced as a third habitual offender, MCL 769.11, to concurrent terms of 28 to 50 years’ 

imprisonment for the second-degree murder conviction and 10 to 15 years’ imprisonment for the 

two unlawful imprisonment convictions, to be served consecutive to a term of two years’ 

imprisonment for the felony-firearm conviction. Following a Crosby1 remand from this Court,2

the trial court determined that it would not have imposed a materially different sentence under 

the advisory sentencing guidelines, but, considering Davis’s prison record, it nevertheless 

determined that it would resentence him to 25 to 50 years for the second-degree murder 

conviction. Because the trial court failed to follow the Crosby remand procedure set forth in 

People v Lockridge, 498 Mich 358; 870 NW2d 502 (2015), we reverse and remand for further 

proceedings.

 1 United States v Crosby, 397 F3d 103 (CA 2, 2005).

2 People v Davis, unpublished per curiam opinion of the Court of Appeals, issued May 24, 2016 

(Docket No. 325565).
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I. BASIC FACTS

Davis’s convictions arise out of the murder of Delano Applewhite. On October 23, 2012, 

Davis accused Applewhite and Applewhite’s girlfriend of selling him heroin that had been mixed 

with an additive. He ordered both into the trunk of his vehicle and began driving. Applewhite 

managed to open the trunk and jump out. He began running across a vacant field, and Davis’s 

girlfriend (who had been following Davis’s vehicle in her own vehicle) attempted to run him 

over to keep him from escaping. Applewhite was able to slide over the hood of her vehicle and 

continue running; however, as he was fleeing Davis shot him three times and Applewhite died.

In a prior appeal, this Court affirmed Davis’s convictions, but remanded for a Crosby 

proceedings because the trial court used judicial fact-finding when it scored offense variables 

(OVs) 5, 7, 8, and 14. On remand, Davis notified the court that he was seeking resentencing, and 

a hearing was held on the matter. The trial court stated at the hearing that it did not see anything 

that it would “weigh differently,” but it nevertheless resentenced Davis based on his good 

behavior in jail. Therefore, it reduced Davis’s sentence for second-degree murder from 28 to 50 

months to 25 to 50 months.

This appeal follows.

II. INEFFECTIVE ASSISTANCE

A. STANDARD OF REVIEW

Davis argues that his lawyer provided ineffective assistance at the Crosby hearing 

because he failed to object to the court’s decision to score the sentencing guidelines using 

judicial fact-finding. To preserve a claim of ineffective assistance of counsel, a defendant must 

move for a new trial or a Ginther3 hearing in the trial court. People v Payne, 285 Mich App 181, 

188; 774 NW2d 714 (2009). Because Davis failed to do so, his claim of error is unpreserved and 

our review is “limited to mistakes apparent on the record.” See id.

B. ANALYSIS

In order to establish that his lawyer provided ineffective assistance, Davis must establish 

(1) that his lawyer provided deficient assistance, i.e., that his performance “fell below an 

objective standard of reasonableness,” and (2) that he was prejudiced by his lawyer’s deficient 

performance, i.e. “that there is a reasonable probability that, but for counsel’s unprofessional 

errors, the result of the proceedings would have been different.” People v Gioglio (On Remand), 

296 Mich App 12, 22; 815 NW2d 589 (2012), remanded for resentencing 493 Mich 864 

(quotation marks and citation omitted).

 3 People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
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On appeal, Davis argues his lawyer’s performance was deficient because he agreed that 

the sentencing guidelines were scored properly. He contends that this decision was erroneous 

because under Lockridge the use of judicial fact-finding is impermissible. We disagree.

Lockridge held that the sentencing guidelines violated the Sixth Amendment only to the 

extent that they “require judicial fact-finding beyond facts admitted by the defendant or found by 

the jury to score offense variables (OVs) that mandatorily increase the floor of the guidelines 

minimum sentence range . . . .” Lockridge, 498 Mich at 364. The Lockridge Court made clear, 

however, that its “holding . . . does nothing to undercut the requirement that the highest number 

of points possible must be assessed for all OVs, whether using judge-found facts or not.” Id. at 

392 n 28 (second emphasis added). Stated differently, the constitutional violation identified in 

Lockridge was remedied by making the sentencing guidelines advisory, not by eliminating the 

use of judicial fact-finding when scoring the guidelines. People v Steanhouse, 500 Mich 453, 

461-462; 902 NW2d 327 (2017). Davis’s claim that his lawyer provided ineffective assistance 

because he failed to object to judicial fact-finding is, therefore, without merit. See People v 

Ericksen, 288 Mich App 192, 201; 793 NW2d 120 (2010) (stating that a lawyer’s failure to 

“advance a meritless argument or raise a futile objection does not constitute ineffective 

assistance of counsel”).

Nevertheless, we conclude that reversal of the trial court’s amended judgment of sentence

is necessary. In Lockridge, our Supreme Court explained:

To make a threshold showing of plain error that could require 

resentencing, a defendant must demonstrate that his or her OV level was 

calculated using facts beyond those found by the jury or admitted by the 

defendant and that a corresponding reduction in the defendant’s OV score to 

account for the error would change the applicable guidelines minimum sentence 

range. If a defendant makes that threshold showing and was not sentenced to an 

upward departure sentence, he or she is entitled to a remand to the trial court for 

that court to determine whether plain error occurred, i.e., whether the court would 

have imposed the same sentence absent the unconstitutional constraint on its 

decision. If the trial court determines that it would not have imposed the same 

sentence but for the constraint, it must resentence the defendant. [Lockridge, 498 

Mich at 399 (emphasis added).]

However, “in determining whether the court would have imposed a materially different sentence 

but for the unconstitutional constraint, the court should consider only the ‘circumstances existing 

at the time of the original sentence.’ ” Id. at 398 (citation omitted; emphasis added).

In this case, the trial court erred by resentencing Davis on the basis of circumstances that 

did not exist at the time of the original sentence, i.e., on the basis of his good behavior between 

his original sentencing and the Crosby proceedings. Specifically, at the Crosby hearing, the 

court stated that it believed it had originally sentenced Davis correctly, and that “on reflection . . 

. I didn’t see that there was anything that . . . I didn’t consider that I would weigh differently . . . 

.” Because the court concluded that, based on the circumstances that existed when the original 

sentence was imposed, it would have not imposed a materially different sentence, it was not 

entitled to resentence Davis based on circumstances arising after he was originally sentenced. 
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Thus, the court’s decision to reduce Davis’s minimum sentence by three years based on his good 

behavior in prison was improper. Because resentencing was not warranted, we reverse the 

amended judgment of sentence and remand for further proceedings. On remand, the trial court 

shall enter a judgment of sentence reinstating Davis’s original sentence.

Reversed and remanded. We do not retain jurisdiction.

/s/ Stephen L. Borrello

/s/ Michael J. Kelly

/s/ Mark T. Boonstra