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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UNPUBLISHED

June 22, 2018

v No. 337317

Wayne Circuit Court

DELMEREY DESHAWN MORRIS, LC No. 11-003373-01-FC

Defendant-Appellant.

Before: BECKERING, P.J., and M. J. KELLY and O’BRIEN, JJ.

PER CURIAM.

Following a jury trial, defendant, Delmerey Morris, was convicted of two counts of 

second-degree murder,1 MCL 750.317, assault with intent to do great bodily harm less than 

murder, MCL 750.84, conspiracy to commit armed robbery, MCL 750.157a; MCL 750.529, and 

possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b. He 

appeals by right the trial court’s amended judgment of sentence in which the trial court 

resentenced him to concurrent prison terms of 35 to 50 years for second-degree murder, 60 to 

220 months for assault with intent to do great bodily harm less than murder, and 20 to 50 years 

for conspiracy to commit armed robbery, to be served consecutive to a two-year term of 

imprisonment for the felony-firearm conviction. We affirm.

I. BASIC FACTS

In November 2011, Morris, Derrico Searcy, and Darnell Hayes were convicted of 

shooting Philden Reid during their planned attempt to rob him of his designer sunglasses and 

money. Morris’s sentencing guidelines range for the second-degree murder conviction was 270 

 1 In a prior appeal, this Court vacated one of Morris’s second-degree murder convictions, 

remanded for correction of the judgment of sentence to reflect only one conviction and sentence 

for second-degree murder and to correct an error in the judgment that referred to a conviction 

and sentence for armed robbery, and affirmed in all other respects. People v 

Searcy/Hayes/Morris, unpublished per curiam opinion of the Court of Appeals, issued March 27, 

2014 (Docket Nos. 308101, 308527 & 311177); unpub op at 17. Our Supreme Court denied 

Morris’s application for leave to appeal. People v Morris, 496 Mich 868 (2014).
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to 450 months, and on November 17, 2011, the trial court sentenced him within the guidelines 

range to serve 35 to 50 years for the second-degree murder conviction. However, on November 

21, 2011, the trial court resentenced Morris to 35 to 60 years for the second-degree murder 

conviction based on its belief that the adjustment was necessary to comply with the two-thirds 

rule in MCL 769.34(2)(b).

Subsequently, on October 23, 2015, Morris filed a motion in circuit court for relief from 

judgment, seeking resentencing. In relevant part, Morris argued that the trial court erroneously 

believed that it was required to increase his maximum sentence for second-degree murder from 

50 years to 60 years to comply with the two-thirds rule. He also argued that the trial court

violated his right of allocution at the second sentencing proceeding when it imposed a greater 

maximum sentence without providing him with an opportunity to address the court. Following 

an evidentiary hearing, the trial court granted Morris’s request for resentencing. On September 

13, 2016, the trial court resentenced Morris to 35 to 50 years for the second-degree murder 

conviction.

II. RESENTENCING

A. STANDARD OF REVIEW

Morris first argues that the trial court failed to exercise its discretion when resentencing 

him because the court erroneously believed that it had to re-impose the 35-year minimum 

sentence it had originally sentenced Morris to serve. Because Morris did not raise this issue on 

resentencing, we review this unpreserved error for plain error affecting his substantial rights. 

People v Carines, 460 Mich 750, 763-764; 597 NW2d 130 (1999).

B. ANALYSIS

To begin, we reject the prosecution’s position that a remand for a Crosby2 proceeding is 

required. Although the sentencing guidelines are advisory following our Supreme Court’s 

decision in People v Lockridge, 498 Mich 358, 365; 870 NW2d 502 (2015), the Lockridge Court 

expressly held that “Crosby remands are warranted only in cases involving sentences imposed on 

or before July 29, 2015,” whereas a defendant sentenced after that date would have his or her

sentence reviewed under “traditional plain-error review from Carines . . . .” Lockridge, 498 

Mich App at 397. Here, Morris was resentenced in September 2016, which is after July 29, 

2015, so we must review his sentence under the plain-error standard from Carines.

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Morris argues that a trial court’s failure to exercise sentencing discretion is grounds for 

resentencing. In support, he directs us to People v Daniels, 69 Mich App 345, 349-350; 244 

NW2d 472 (1976), where this Court held that resentencing was required when a trial judge 

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

3 In addition, we note that Morris is requesting resentencing, not a Crosby remand. Thus, the 

prosecution’s willingness to “concede” that a Crosby remand is necessary is unresponsive to the 

issue actually before this Court.
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erroneously believed that consecutive sentencing was mandatory rather than discretionary. He 

also directs us to People v Mauch, 23 Mich App 723, 730-731; 179 NW2d 184 (1970), where 

this Court held resentencing was required where a judge erroneously believed that enhancement 

under the habitual offender statute was mandatory. Neither opinion is binding as they were both 

issued before November 1, 1990. See MCR 7.215(J). However, even if we were to apply 

Daniels and Mauch, there is nothing on the record supporting Morris’s contention that the trial 

court believed that it had to re-impose the same 35-year minimum sentence. Indeed, the record 

reflects that an updated presentence report was prepared, that the court inquired about whether 

there were challenges to the scoring of the guidelines, and that it considered other sentencing 

issues, such as the imposition of restitution. In the absence of any evidence that the court 

believed it was required to impose a 35-year minimum sentence, we cannot find that there is a 

plain error that affected Morris’s substantial rights. Accordingly, remand for resentencing is not 

warranted.

III. PUBLIC TRIAL

Morris next seeks relief from his original convictions by arguing that the trial court’s 

closure of the courtroom during a witness’s testimony violated his right to a public trial. We 

decline to consider this issue because it is beyond the scope of this appeal. Pursuant to MCR 

7.203(A)(1), this Court has jurisdiction as of right from a final order as defined in MCR 

7.202(6). Morris filed this appeal from the amended judgment of sentence issued on 

resentencing, which qualifies as a “final order” under MCR 7.202(6)(b)(iii) (in a criminal case, a 

final order includes “a sentence imposed following the granting of a motion for resentencing”). 

“An appeal from resentencing is limited to the resentencing proceeding.” People v Gauntlett, 

152 Mich App 397, 400; 394 NW2d 437 (1986). Accordingly, Morris’s issue challenging his 

original convictions is not reviewable in this appeal.

IV. RESTITUTION

Finally, Morris argues that there is no evidence supporting the court’s order that he pay

$5,000 in restitution. The prosecution has the burden of proving the amount of restitution by a 

preponderance of the evidence. People v Fawaz, 299 Mich App 55, 65; 829 NW2d 259 (2012). 

In determining the amount of restitution, “[a] judge is entitled to rely on the information in the 

presentence report, which is presumed to be accurate unless the defendant effectively challenges 

the accuracy of the factual information.” People v Grant, 455 Mich 221, 233-234; 565 NW2d 

389 (1997). At the original sentencing proceeding, the subject of restitution was raised by the 

prosecutor, who stated:

[T]here was a request for restitution for five thousand dollars for burial 

expenses[.] I didn’t want to make that part of the record[.] I’ve instructed [the 

victim’s] mother to submit those documents to the probation department to order 

restitution through the Michigan Department of Corrections for the amount of five 

thousand dollars.

The trial court stated that “each defendant has to pay restitution once that is determined[.]” 

Morris did not request an evidentiary hearing on the issue or otherwise comment on the matter.
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Before Morris’s 2016 resentencing, the trial court granted Morris’s request for an updated 

presentence report. In the updated report, the probation department recommended that 

“restitution be set at $5,000 to be paid to the mother of the victim . . . Restitution should be paid 

jointly and severely with co-defendants . . . .” At the outset of the resentencing proceeding, 

Morris’s lawyer stated that he had reviewed the updated presentence report. Although Morris’s 

lawyer challenged the accuracy of some of the information in the report, there was no objection 

to the amount of restitution. Subsequently, the trial court ordered Morris to pay $5,000 in 

restitution to the victim’s mother. When the trial court proceeded to discuss Morris’s right to 

appeal, the following exchange occurred:

The court: Anything else?

Morris’s lawyer: Yes, your Honor with respect to the restitution I would 

just ask the Court to note that it is to be joint and several with the other two codefendant’s [sic].

The prosecutor: No objection to that, your Honor.

The court: Very well that motion is granted.

Morris’s lawyer: Thank you. [Emphasis added.]

Given this record, there is no basis for challenging the amount of restitution. Because 

Morris did not challenge the accuracy of the restitution amount specified in the updated 

presentence report, the trial court was entitled to rely on that amount. Furthermore, after the trial 

court announced the amount of restitution, Morris’s lawyer acquiesced, only requesting that the 

amount be made joint and several with the codefendants. “A defendant should not be allowed to 

assign error on appeal to something his own counsel deemed proper at trial. To do so would

allow a defendant to harbor error as an appellate parachute.” People v Green, 228 Mich App 

684, 691; 580 NW2d 444 (1998) (citation omitted). By acquiescing to the accuracy of the 

amount of restitution specified in the presentence report and ordered by the trial court, Morris 

waived his right to challenge the amount of restitution. People v Carter, 462 Mich 206, 215; 612 

NW2d 144 (2000). Morris’s waiver extinguishes any error. Id.

Affirmed.

/s/ Jane M. Beckering

/s/ Michael J. Kelly

/s/ Colleen A. O'Brien