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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UNPUBLISHED

March 20, 2018

v No. 336675

Oakland Circuit Court

ADAM DONALD LUTZ, LC No. 2013-248152-FC

Defendant-Appellant.

Before: MURRAY, P.J., and CAVANAGH and FORT HOOD, JJ.

PER CURIAM.

Following a jury trial, defendant was convicted of assault with intent to murder, MCL 

750.83, torture, MCL 750.85, and unlawful imprisonment, MCL 750.349b. The trial court 

sentenced him to concurrent sentences of 23 years and 9 months to 80 years for the assault with 

intent to murder and torture convictions, and 8 to 15 years for the unlawful imprisonment 

conviction. We affirmed defendant’s convictions. People v Lutz, unpublished per curiam 

opinion of the Court of Appeals, issued February 25, 2016 (Docket No. 324193). The Michigan 

Supreme Court remanded to the trial court for it to determine whether it would have imposed a 

materially different sentence in light of People v Lockridge, 498 Mich 358; 870 NW2d 502 

(2015).1 On remand, the trial court declined to resentence defendant, determining that it would 

have imposed the same sentence. Defendant appeals by right. We affirm.

In Lockridge, 498 Mich at 373-374, the Supreme Court held that Michigan’s sentencing 

guidelines violated a defendant’s Sixth Amendment right to a jury trial “to the extent that 

[offense variables (OVs)] scored on the basis of facts not admitted by the defendant or 

necessarily found by the jury verdict increase the floor of the guidelines range, i.e., the 

defendant’s ‘mandatory minimum’ sentence[.]” The Court remedied the constitutional infirmity 

by making the sentencing guidelines advisory only and striking the statutory requirement that a 

sentencing court must give a substantial and compelling reason for departing from the guidelines 

range. Id. at 364-365. In cases where the “facts admitted by a defendant or found by the 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 

 1 People v Lutz, 500 Mich 876 (2016).
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. . . an unconstitutional constraint actually impaired the defendant’s Sixth Amendment right.” Id. 

at 395. In those cases, a defendant is entitled to a remand, see United States v Crosby, 397 F3d 

103 (CA 2, 2005), the purpose of which is for the trial court to determine whether it “would have 

imposed the same sentence absent the unconstitutional constraint on its discretion.” Lockridge, 

498 Mich at 397, 399. “If the trial court determines that the answer to that question is yes, the 

court shall order resentencing.” Id. at 397. The Court summarized the remand procedure as 

follows:

Stated differently, on a Crosby remand, a trial court should first allow a 

defendant an opportunity to inform the court that he or she will not seek 

resentencing. If notification is not received in a timely manner, the court (1) 

should obtain the views of counsel in some form, (2) may but is not required to 

hold a hearing on the matter, and (3) need not have the defendant present when it 

decides whether to resentence the defendant, but (4) must have the defendant 

present, as required by law, if it decides to resentence the defendant. Further, 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 117; see also 

United States v Ferrell, 485 F3d 687, 688 (CA 2, 2007) (holding that the trial 

court’s failure to consider circumstances as they existed at the time of the 

resentencing hearing, including evidence of the defendant’s post-judgment prison 

rehabilitation, did not violate the defendant’s due process rights). [Id. at 398-399 

(footnote omitted).]

The ultimate inquiry for the trial court is “whether, now aware of the advisory nature of the 

guidelines, the court would have imposed a materially different sentence.” People v Jackson (On 

Reconsideration), 313 Mich App 409, 435; 884 NW2d 297 (2015).

Defendant primarily argues that the trial court abused its discretion on remand by not 

providing an “evidentiary hearing” or allowing him to submit additional arguments regarding 

purportedly mitigating factors to his offenses. Although the trial court had the option of holding 

a hearing on remand, a hearing was not required. Lockridge, 498 Mich at 398.

The trial court expressly noted that, in determining whether it would have imposed a 

materially different sentence post-Lockridge, it was only considering the circumstances that 

existed at the time of the original sentence. Defendant acknowledges that the trial court was 

confined to those circumstances, but appears to maintain that he should have been able to present 

additional evidence and argument regarding those circumstances. He contends that even if he 

could not introduce new evidence, he should have been allowed to develop new arguments 

regarding the existing evidentiary record. On its face, Lockridge’s directive that trial courts 

should only consider “ ‘circumstances existing at the time of the original sentence’ ” does not 

necessarily preclude a defendant from offering additional arguments regarding the evidentiary 

record at the time of sentencing. Lockridge, 498 Mich at 398, quoting Crosby, 397 F3d at 117. 

However, a trial court is ultimately determining whether it would have imposed a materially

different sentence knowing that the guidelines are advisory. Jackson (On Reconsideration), 313 

Mich App at 435. Factors allegedly mitigating defendant’s behavior do not inform that inquiry. 

Nevertheless, as defendant acknowledges, the trial court was apprised of the mitigating factors 
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defendant wished to develop in the “views of counsel.” For those reasons, the trial court did not 

abuse its discretion in not providing defendant an evidentiary hearing or an opportunity to 

present additional argument regarding his sentence. See People v Puckett, 178 Mich App 224, 

227; 443 NW2d 470 (1989); People v Unger, 278 Mich App 210, 216-217; 749 NW2d 272 

(2008).

Defendant also contends that he received a disproportionate sentence. Lockridge, 498 

Mich at 365, held that sentences that depart from the minimum sentence range “are to be 

reviewed by appellate courts for reasonableness.” Recently, the Supreme Court “reaffirm[ed]” 

that, when reviewing a sentence for reasonableness, courts should apply “the proportionality 

principle adopted in [People v Milbourn, 435 Mich 630; 461 NW2d 1 (1990)] . . . .” People v 

Steanhouse, 500 Mich 453, 473; 902 NW2d 327 (2017). But defendant was sentenced within his 

minimum sentence range, and this Court has concluded that 

Lockridge did not alter or diminish MCL 769.34(10), which provides, in pertinent 

part, “If a minimum sentence is within the appropriate guidelines sentence range, 

the court of appeals shall affirm that sentence and shall not remand for 

resentencing absent an error in scoring the sentencing guidelines or inaccurate 

information relied upon in determining the defendant’s sentence.” [People v 

Schrauben, 314 Mich App 181, 196 n 1; 886 NW2d 173 (2016).]

“When a trial court does not depart from the recommended minimum sentencing range, the 

minimum sentence must be affirmed unless there was an error in scoring or the trial court relied 

on inaccurate information.” Id. at 196.

2

 Because defendant received a non-departure sentence, 

and because his suggestion that the trial court relied on inaccurate information in sentencing him 

is undeveloped and unfounded, we must affirm his sentence. MCL 769.34(10); Schrauben, 314 

Mich App at 196.

Finally, defendant asserts that he was denied the effective assistance of counsel by both 

his trial and initial appellate counsel.3 “To establish a claim of ineffective assistance of counsel, 

a defendant must show both that counsel’s performance was deficient and that counsel’s 

deficient performance prejudiced the defense.” People v Riley (After Remand), 468 Mich 135, 

140; 659 NW2d 611 (2003). The same test applies to appellate counsel. People v Uphaus, 278 

Mich App 174, 186; 748 NW2d 899 (2008). “There is a presumption that counsel was effective, 

and a defendant must overcome the strong presumption that counsel’s challenged actions were 

sound trial strategy.” People v Cooper, 309 Mich App 74, 80; 867 NW2d 452 (2015).

 2 In Steanhouse, 500 Mich at 471 n 14, the Supreme Court declined to address “whether MCL 

769.34(10) . . . survives Lockridge.” 

3 We could consider defendant’s claims of ineffective assistance of counsel abandoned, as they 

are outside the scope of the Supreme Court’s remand order. See People v Jones, 394 Mich 434, 

435-436; 231 NW2d 649 (1975).
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Defendant essentially contends that his trial counsel did not provide zealous 

representation at sentencing. Defendant identifies several matters that he argues should have 

been thoroughly argued by trial counsel. For instance, the victim impact statement was written 

by defendant’s sister on behalf of her mother (the victim). Defendant claims he has a strained 

relationship with his sister and that trial counsel should have identified that for the trial court. 

But trial counsel did explain to the court that defendant has a hostile relationship with his sister 

and disputed certain statements made by the sister. Although trial counsel did not note the 

sister’s purported “financial bias” against defendant, defendant himself adequately explained that 

his criminal behavior was driven by a fear that his sister would ‘write me totally off” of “the 

family trust.” 

Similarly, although trial counsel did not argue that defendant’s intoxication during the 

offenses should be considered a mitigating factor, defendant told the court that he “was very 

intoxicated when this happened” and “if alcohol wouldn’t have been involved this whole thing 

would not have happened . . .” But the trial court stated that “whatever the combination was on 

that day that caused you to act the way you did is completely unacceptable . . .” We fail to see 

how additional comment from trial counsel would have persuaded the trial court. In short, trial 

counsel made several arguments in support of his request that defendant receive a sentence

below the top of his guidelines range. “The fact that defense counsel’s strategy may not have 

worked does not constitute ineffective assistance of counsel.” People v Stewart (On Remand), 

219 Mich App 38, 42; 555 NW2d 715 (1996). For those reasons, defendant has not 

demonstrated that trial counsel’s comments at sentencing were deficient or that he was 

prejudiced by the comments. Riley (After Remand), 468 Mich at 140.

It follows that defendant’s appellate counsel was not ineffective for not claiming 

ineffective assistance of counsel in the first appeal, as counsel is not required to raise meritless 

objections. People v Goodin, 257 Mich App 425, 433; 668 NW2d 392 (2003). Further, 

“appellate counsel’s decision to winnow out weaker arguments and focus on those more likely to 

prevail is not evidence of ineffective assistance.” People v Reed, 449 Mich 375, 391; 535 NW2d 

496 (1995) (opinion by BOYLE, J.), citing Jones v Barnes, 463 US 745, 752; 103 S Ct 3308; 77 L 

Ed 2d 987 (1983).

Affirmed.

/s/ Christopher M. Murray 

/s/ Mark J. Cavanagh 

/s/ Karen M. Fort Hood