STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
September 27, 2016
Plaintiff-Appellee,
v No. 325627
Wayne Circuit Court
FERNANDUS CORTEZ ELLEN, LC No. 14-003019-FC
Defendant-Appellant.
Before: BORRELLO, P.J., and MARKEY and RIORDAN, JJ.
PER CURIAM.
Defendant appeals as of right his jury trial conviction of voluntary manslaughter, MCL
750.321. The trial court sentenced him to 10 to 15 years’ imprisonment, departing from the
minimum range of 36 to 71 months’ imprisonment calculated under sentencing guidelines. We
affirm defendant’s convictions, but remand for further proceedings consistent with this opinion.
I. FACTUAL BACKGROUND
Defendant’s conviction arises from his violent assault of Jonas Johnson, Jr., in Detroit,
Michigan, on August 21, 2013. Eyewitnesses testified that defendant approached Johnson, who
was sitting in front of an apartment building, and repeatedly asked him about a sexual act while
tapping him with his phone. After asking defendant to stop tapping him and to stop
disrespecting him multiple times, Johnson punched defendant in his head or neck. Defendant
then struck Johnson, causing Johnson to fall backward and strike his head on the cement.
Johnson did not move after falling on the ground, but defendant continued to hit, stomp, and kick
his head. Defendant then used a nearby milk crate to strike Johnson’s chest or head several more
times. Johnson sustained severe injuries and never regained consciousness, dying in a medical
rehabilitation facility on October 7, 2013.
The prosecution charged defendant with second-degree murder, MCL 750.317.
Defendant was acquitted of that charge, but convicted of voluntary manslaughter, MCL 750.321,
a lesser included offense of murder.
II. PROSECUTORIAL MISCONDUCT
Defendant contends that the prosecutor violated his right to a fair trial by arguing in her
rebuttal argument that the jury should convict him based on its civic duty. We disagree.
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A. STANDARD OF REVIEW
“Issues of prosecutorial misconduct are reviewed de novo to determine whether the
defendant was denied a fair and impartial trial.” People v Bennett, 290 Mich App 465, 475; 802
NW2d 627 (2010). We review prosecutorial misconduct claims on a case-by-case basis,
examining the prosecutor’s remarks in context. People v Mann, 288 Mich App 114, 119; 792
NW2d 53 (2010); People v Dobek, 274 Mich App 58, 63-64; 732 NW2d 546 (2007).
“Prosecutorial comments must be read as a whole and evaluated in light of defense arguments
and the relationship they bear to the evidence admitted at trial.” People v Brown, 279 Mich App
116, 135; 755 NW2d 664 (2008).
B. ANALYSIS
Defendant is correct that “prosecutors should not resort to civic duty arguments that
appeal to the fears and prejudices of jury members[.]” People v Bahoda, 448 Mich 261, 282;
531 NW2d 659 (1995); see also People v Unger, 278 Mich App 210, 237; 749 NW2d 272
(2008). Here, however, the prosecutor did not “appeal to the jury’s civic duty by injecting issues
broader than guilt or innocence or encouraging jurors to suspend their powers of judgment.”
People v Thomas, 260 Mich App 450, 455-456; 678 NW2d 631 (2004). Rather, the prosecutor’s
rebuttal argument properly responded to arguments raised by the defense.
During his closing argument, defense counsel vigorously attacked the sufficiency of the
prosecution’s proofs. He also maintained, through a variety of approaches, that defendant did
not instigate the altercation and that his repeated blows were a reasonable exercise of self-
defense in response to Johnson’s punch, which started the fight. In discussing defendant’s
behavior, he specifically invoked the jury’s notions of common sense, stating, “And your
commonsense, your commonsense, is that starting a fight? Even if you want to believe that
evidence [regarding defendant’s conduct], is that starting a fight?” Similarly, defense counsel
later stated, “And what’s normal about a fight? What’s reasonable common sense?” Defense
counsel also claimed that the prosecution wanted the jury to believe that defendant was “a bad
actor,” in light of the fact that “he’s come up in the streets,” and convict him on that basis.
During her rebuttal argument, the prosecutor responded to defense counsel’s various
attacks on the adequacy of the proofs and concluded as follows:
[The victim] was not some horrible scary person[;] he was sick. . . .
[T]hey [the defense] described the victim as [a zombie from the Walking Dead].
And by all means this is all his fault. Because how dare you tell me, Mr. 23-year-
old, poor me, hey, hey, look at these photos. How dare you tell me to stop doing
that. How dare you. And if I take a swing because you ain’t getting the
message[,] I get to do whatever I want back to you. This is the best self-defense
case [defense counsel has] ever seen? Ladies. [sic]
And gentlemen [sic] this is your world[;] you’re creating it. This is your
community. You’re deciding what you want is acceptable and not acceptable --
* * *
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You get to decide was [the victim] this big bully, this scary individual, that
[defendant] had to endure this? Defense called this a dog fight[,] that he’s in a
fight for his life. Seriously? Or was this just some animal that created the
situation and when this man old enough to be his dad said you know what little
punk I’m tired of[] this stuff and takes a swing[,] [defendant] relentlessly just beat
this man to the point that he put him in a coma where he languished and died.
You get to decide that and we will respect your decision.
Contrary to defendant’s characterization of the prosecutor’s rebuttal argument, it is
apparent that her statements were directly related to the evidence admitted at trial and that her
arguments, in effect, urged the jurors to rely on their common sense to determine whether
defendant’s behavior was a reasonable means of self-defense under the circumstances. See
Brown, 279 Mich App at 135. Likewise, it is clear that the prosecutor’s references to the jury’s
“world” and “community” and acceptable modes of behavior in those environments were
directly related to defense counsel’s appeal to the jury’s “commonsense” notions of reasonable
conduct during a fight. The prosecutor did not raise “civic duty arguments.” See Bahoda, 448
Mich at 282.
“[W]e do not review the prosecutor’s remarks in . . . a vacuum; the remarks must be read
in context. This scope of review is important because an otherwise improper remark may not
rise to an error requiring reversal when the prosecutor is responding to the defense counsel’s
argument.” People v Kennebrew, 220 Mich App 601, 608; 560 NW2d 354 (1996) (citations
omitted). Given defense counsel’s closing argument, we reject defendant’s claim of
prosecutorial misconduct.
III. EVIDENTIARY CLAIMS
A. STANDARD OF REVIEW
We “review[] for an abuse of discretion the trial court’s decision to admit or exclude
evidence.” People v Lane, 308 Mich App 38, 51; 862 NW2d 446 (2014). “[A] trial court abuses
its discretion when its decision falls outside the range of principled outcomes or when it
erroneously interprets or applies the law.” Id. (footnotes omitted). However, “[w]e review de
novo the preliminary questions of law surrounding the admission of evidence, such as whether a
rule of evidence bars admitting it.” Id.
B. ANALYSIS
1. PRIOR ACT EVIDENCE
Defendant first argues that the trial court erred when it allowed the prosecutor to ask
prosecution witness Ashley Nobles a question regarding defendant’s prior possession of guns.
Although he cites both MRE 404(a) and (b), the gravamen of defendant’s claim is that (1) the
prosecutor’s questioning was improper because it did not fulfill any of the exceptions allowing
the admission of propensity evidence under MRE 404(b), and (2) even if it did, it was unfairly
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prejudicial and should have been excluded under MRE 403.1 Defendant also contends that the
evidence should have been excluded because the prosecution failed to provide pretrial notice as
required under MRE 404(b)(2). We conclude that reversal is not warranted on these grounds.
Under MRE 404(a), “[e]vidence of a person’s character or a trait of character is not
admissible for the purpose of proving action in conformity therewith on a particular occasion”
unless it fulfills one of the enumerated exceptions to the general rule. Likewise, under MRE
404(b), evidence of a defendant’s “other crimes, wrongs, or acts” is generally inadmissible to
demonstrate the defendant’s propensity to act in conformity with those acts. People v Starr, 457
Mich 490, 494; 577 NW2d 673 (1998). However, other-acts evidence may be admissible under
MRE 404(b) for noncharacter purposes, such as to establish “proof of motive, opportunity,
intent, preparation, scheme, plan, or system in doing an act, knowledge, identity, or absence of
mistake or accident when the same is material[.]” MRE 404(b)(1); Starr, 457 Mich at 495-496.
MRE 404(b) is “a rule of inclusion,” and the list of proper, noncharacter purposes under the rule
is nonexclusive. Starr, 457 Mich at 496. See also People v Sabin (After Remand), 463 Mich 43,
55-56; 614 NW2d 888 (2000) (stating the elements for the proper admission of evidence under
MRE 404(b)), citing MRE 104(b), MRE 402, MRE 403, MRE 404(b), and People v VanderVliet,
444 Mich 52, 74-75; 508 NW2d 114 (1993), amended 445 Mich 1205 (1994).
During defense counsel’s cross-examination of Nobles, he elicited testimony that
violence was common in the vicinity of the assault and that Nobles always had to remain “on
guard” “in that neighborhood.” On redirect examination, the prosecutor asked Nobles if she
knew whether defendant had “pulled guns on other people[.]” Defense counsel objected that the
question was improper. The trial court overruled the objection, reasoning that defense counsel
had “opened the door on . . . the kind of neighborhood this was.” The prosecution then
continued to question Nobles as follows:
Q. Do you know whether or not the Defendant pulled guns on other
people, if you know?
A. No, I didn’t know -- I know that my brother had been arrested for a
gun because I was there when the officers arrested my brother and I came out to
see what was going on. I didn’t see the Defendant anywhere around. And my
brother never mentioned and I never knew that[.] I just thought they found a gun
on my brother and that’s what he served his time for, but I never knew it was for
the Defendant.
Q. Do you know what the Defendant’s reputation was in that building?
A. No.
1
MRE 403 provides, “Although relevant, evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading
the jury, or by considerations of undue delay, waste of time, or needless presentation of
cumulative evidence.”
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We agree with defendant that the trial court erred in allowing the prosecutor’s question
regarding defendant’s previous gun-related conduct on the basis that defense counsel had
“opened the door” to the questioning. We also agree that the trial court’s ruling violated MRE
404, as the prosecutor failed to identify a proper basis for admission of the evidence under MRE
404, and it is not clear from the record that the questioning was intended to elicit evidence for a
noncharacter purpose pursuant to MRE 404(a)(1) or (b).
Nevertheless, any error related to the prosecutor’s questioning was harmless. See People
v Whitaker, 465 Mich 422, 426; 635 NW2d 687 (2001). “If the court’s evidentiary error is
nonconstitutional and preserved, then it is presumed not to be a ground for reversal unless it
affirmatively appears that, more probably than not, it was outcome determinative—i.e., that it
undermined the reliability of the verdict.” People v Douglas, 496 Mich 557, 565-566; 852
NW2d 587 (2014) (quotation marks and citation omitted). See also MCL 769.26; MCR
2.613(A); People v Lukity, 460 Mich 484, 495-496; 596 NW2d 607 (1999) (analyzing MCL
769.26).
Nobles denied that she had any knowledge of whether defendant had “pulled guns on
other people” or any knowledge of defendant’s reputation in the apartment building.
Accordingly, the improper questioning did not produce any inadmissible character evidence.
Further, the trial court instructed the jury that the attorneys’ questions did not constitute evidence
and that the jury had to determine the facts solely based on the evidence presented at trial. We
presume that jurors follow their instructions. Unger, 278 Mich App at 235. Additionally,
extensive, properly admitted evidence supported the jury’s verdict, including the testimony of
four eyewitnesses who similarly described defendant’s assault of Johnson.
Therefore, because it does not appear more probable than not that the error was outcome
determinative, the prosecutor’s questioning is not a ground for reversal.
2. SPECULATIVE TESTIMONY
Next, defendant challenges the admission of prosecution witness Nicole Robinson’s
testimony regarding the meaning of the term “head shots.” He contends that her statements were
“inadmissible to prove [defendant’s] state of mind on the particular occasion,” should have been
excluded under MRE 701, and were “highly prejudicial.” We disagree that her testimony
warrants reversal.
At trial, Robinson testified that defendant repeatedly tapped Johnson with his arm while
making remarks about “head shots.” When the prosecutor asked Robinson, “What do you
mean?”, defense counsel objected on the basis of speculation, contending that Robinson could
not “speculate [regarding] what [defendant] meant by head shots.” The trial court ruled that
Robinson’s response was not speculation and asked the prosecutor to “clean this up[.]” In
response to further questioning, Robinson testified that defendant “kept saying head shots.”
When the prosecution asked Robinson to explain her understanding of that term, Robinson
stated, “[H]e wanted him to suck his thing.” Defense counsel objected again, arguing that there
was no foundation for Robinson’s testimony.
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The trial court then discussed defense counsel’s objection outside the presence of the
jury. It noted that the term “head shots” had been used by the parties during opening statements
and rejected defense counsel’s claim that a mistrial was warranted. It also reasoned that
Robinson’s testimony was relevant because “what allegedly provoked Mr. Johnson” was
pertinent to defendant’s theory of self-defense given the fact that Johnson “took the first swing.”
Additionally, the trial court stated, “Now, if you [defense counsel] feel that she’s laid an
inadequate foundation about what a head shot is perhaps she can cure it. This might be some
sort of vernacular that perhaps we can cure[,] but it’s not a basis for a mistrial.” Reiterating its
previous reasoning, the court then concluded, “[Robinson] can testify to what she believes a head
shot is and you’re free to cross examine her[.]” When Robinson continued her testimony, she
again stated that defendant “kept on tapping [Johnson] about some head shots,” and that Johnson
subsequently punched defendant. No additional foundation was laid for her interpretation of
“head shots.”2
On appeal, defendant argues that the prosecutor failed to lay a proper foundation for
Robinson’s knowledge of the definition of “head shots.” As such, defendant contends that
Robinson’s testimony was “merely speculation as to what [defendant] meant by saying
headshots.” He also contends that her testimony was unduly prejudicial and violated MRE 701
because “the central issue of the trial was wholly concerned around what [defendant] did after
Mr. Johnson punched him,” and it was undisputed that Johnson started the fight by punching
defendant. Thus, defendant contends Robinson’s testimony regarding the meaning of the term
“was not helpful to a clear understanding of her testimony or the determination of a fact in issue,
because it was not in issue that Mr. Johnson started the fight.”
MRE 701 provides, “If the witness is not testifying as an expert, the witness’ testimony in
the form of opinions or inferences is limited to those opinions or inferences which are (a)
rationally based on the perception of the witness and (b) helpful to a clear understanding of the
witness’ testimony or the determination of a fact in issue.” Speculative evidence, however, is
inadmissible under MRE 403. Phillips v Deihm, 213 Mich App 389, 401-402; 541 NW2d 566
(1995).
Contrary to defendant’s claims on appeal, Robinson’s explanation of the meaning of
“head shots” provided assistance in understanding her testimony and determining the
circumstances of the crime, which were facts in issue relevant to the prosecution’s case-in-chief
and the viability of defendant’s theory of self-defense.3 But, as defendant contends, although the
2
Later in the trial, Andrea Thompson provided a definition of “head shots” that was nearly
identical to Robinson’s understanding of the term. Defendant does not challenge Thompson’s
testimony on appeal.
3
See MRE 401 (defining “relevant evidence” as “evidence having any tendency to make the
existence of any fact that is of consequence to the determination of the action more probable or
less probable than it would be without the evidence”); MRE 402 (“All relevant evidence is
admissible, except as otherwise provided by the Constitution of the United States, the
Constitution of the State of Michigan, these rules, or other rules adopted by the Supreme Court.
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language apparently is part of accepted street lexicon, the prosecution provided no foundation for
Robinson’s knowledge of the meaning of “head shots.” As such, her statements were not
properly admitted as lay opinion testimony under MRE 701. See MRE 701(a).4
Nevertheless, defendant’s own argument on appeal indicates that the admission of this
testimony was harmless. Defendant claims that “the central issue of the trial was wholly
concerned around what [defendant] did after Mr. Johnson punched him.” Thus, by defendant’s
own admission, Robinson’s testimony regarding the meaning of “head shots” did not relate to the
most critical issue at trial.
We similarly conclude that it is unlikely that Robinson’s testimony concerning street
linguistics was outcome-determinative. See Douglas, 496 Mich at 565-566; Lukity, 460 Mich at
495-496. In light of defendant’s self-defense theory, the evidence admitted at trial and the
parties’ arguments primarily focused on the nature and duration of defendant’s assaultive
conduct and whether defendant’s response to Johnson’s blow was reasonable under the
circumstances. See People v Dupree, 486 Mich 693, 707; 788 NW2d 399 (2010). To the extent
that defendant’s conversation with Johnson prior to Johnson’s punch was relevant to the
prosecution’s case and defendant’s self-defense theory, it is not more probable than not that
Robinson’s testimony was outcome determinative given the additional evidence—independent
from the specific meaning of “head shot”—showing that defendant initiated the conflict by
repeatedly touching Johnson and making statements that offended him, despite Johnson’s
requests that defendant stop, and (2) the overwhelming evidence of defendant’s extended acts of
violence in response to Johnson’s single punch. Further, contrary to defendant’s claim on
appeal, Robinson expressly testified that the definition of “head shots” that she provided was her
own understanding of the term. She never indicated any knowledge that defendant’s use of the
term was consistent with her personal understanding of it.
Evidence which is not relevant is not admissible.”); People v Dupree, 486 Mich 693, 707; 788
NW2d 399 (2010) (indicating that, in general, a defendant does not act in justifiable self-defense
when he uses excessive force or when he is the initial aggressor); People v Townes, 391 Mich
578, 592; 218 NW2d 136 (1974) (noting that a defendant “may only be held legally accountable
as an aggressor for responsive conduct by another that is reasonably attributable to [his] own
conduct”); People v Goecke, 457 Mich 442, 463-464; 579 NW2d 868 (1998) (“The elements of
second-degree murder are: (1) a death, (2) caused by an act of the defendant, (3) with malice, and
(4) without justification or excuse.”); People v Tierney, 266 Mich App 687, 714; 703 NW2d 204
(2005) (stating that voluntary manslaughter requires a finding “(1) the defendant killed in the
heat of passion; (2) the passion was caused by adequate provocation; and (3) there was no lapse
of time during which a reasonable person could have controlled his passions.”).
4
Courts from other jurisdictions applying substantively identical rules of evidence in similar
circumstances have required a party to establish a foundation for how a lay witness learned the
meaning of a slang term through his or her personal experiences, even if only through everyday
means of language acquisition, in order for the evidence to be admitted as lay opinion testimony.
See, e.g., United States v Saulter, 60 F3d 270, 276 (CA 7, 1995); King v United States, 74 A3d
678, 680-684 (DC Ct App, 2013); Chesser v State, 30 So 3d 625, 626-629 (Fla Dist Ct App,
2010) (providing an example of a case, distinct from the instant case, where the error was not
harmless); State v Johnson, 309 NJ Super 237, 262-264; 706 A2d 1160 (1998).
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We find no basis for concluding that the admission of Robinson’s testimony affected the
outcome of the proceeding or undermined the reliability of the jury’s verdict. See MCL 769.26;
MCR 2.613(A); Douglas, 496 Mich at 565-566.
IV. DEFENDANT’S DEPARTURE SENTENCE
Lastly, defendant contends that the trial court improperly departed from the minimum
range calculated under the sentencing guidelines range based on factors already taken into
account by the guidelines, thereby entitling him to resentencing or, at a minimum, a Crosby5
remand pursuant to People v Steanhouse, 313 Mich App 1; 880 NW2d 297 (2015), lv granted
499 Mich 934 (2016), and People v Shank, 313 Mich App 221; 881 NW2d 135 (2015). We
agree that this case must be remanded for further proceedings.
After defendant was sentenced on December 19, 2014, the Michigan Supreme Court
effectuated significant changes to Michigan’s sentencing scheme through People v Lockridge,
498 Mich 358, 364-365, 391-392; 870 NW2d 502 (2015). Lockridge held, inter alia, that the
minimum range calculated under the sentencing guidelines is now advisory, and a trial court is
no longer required to provide a substantial and compelling reason for a departure sentence. Id. at
364-365, 391-392. Additionally, under Lockridge, the proper inquiry on appeal is whether
defendant’s departure sentence is reasonable. Shank, 313 Mich App at 224-225; Steanhouse, 313
Mich App at 42; People v Terrell, 312 Mich App 450, 462; 879 NW2d 294 (2015).
However, the Lockridge Court did not set forth a procedure for reviewing a sentence for
reasonableness. Shank, 313 Mich App at 224; Steanhouse, 313 Mich App at 42. Consequently,
the Steanhouse Court adopted the “principle of proportionality” that was previously in use under
People v Milbourn, 435 Mich 630; 461 NW2d 1 (1990), and “h[e]ld that a sentence that fulfills
the principle of proportionality under Milbourn, and its progeny, constitutes a reasonable
sentence under Lockridge.” Steanhouse, 313 Mich App at 46-48. In addition, the Steanhouse
Court established the following procedure for reviewing a defendant’s departure sentence:
Given our conclusion that the principle of proportionality established under
Milbourn, and its progeny, is now the appropriate standard by which a
defendant’s sentence should be reviewed, we find that the procedure articulated in
Lockridge, which is modeled on the procedure adopted in United States v Crosby,
397 F3d 103, 117-118 (CA 2, 2005), should apply here. Lockridge, 498 Mich at
395-399. As recently stated by this Court in People v Stokes, 312 Mich App 181,
200-201; 877 NW2d 752 (2015), “the purpose of a Crosby remand is to determine
what effect Lockridge would have on the defendant’s sentence so that it may be
determined whether any prejudice resulted from the error.” While the Lockridge
Court did not explicitly hold that the Crosby procedure applies under the
circumstances of this case, we conclude that this is the proper remedy when, as in
this case, the trial court was unaware of, and not expressly bound by, a
5
United States v Crosby, 397 F3d 103 (CA 2, 2005).
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reasonableness standard rooted in the Milbourn principle of proportionality at the
time of sentencing.
“[T]he Crosby procedure offers a measure of protection to a defendant.
As the first step of this procedure, a defendant is provided with an opportunity ‘to
avoid resentencing by promptly notifying the trial judge that resentencing will not
be sought.’ ” Stokes, 312 Mich App at 201, quoting Lockridge, 498 Mich at 398.
Given the possibility that defendant could receive a more severe sentence,
defendant should be provided the opportunity to avoid resentencing if that is his
desire. Stokes, 312 Mich App at 202. Accordingly, we remand this matter to the
trial court to follow the Crosby procedure outlined in Lockridge. Defendant “may
elect to forgo resentencing by providing the trial court with prompt notice of his
intention to do so. If ‘notification is not received in a timely manner,’ the trial
court shall continue with the Crosby remand procedure as explained in
Lockridge.” Stokes, 312 Mich App at 203, quoting Lockridge, 498 Mich at 398.
[Steanhouse, 313 Mich App at 48-49, lv granted 499 Mich 934 (2016); see also
Shank, 313 Mich App at 226.]
As in Steanhouse and Shank, the trial court in this case imposed a departure sentence
without considering the advisory nature of the sentencing guidelines and without an opportunity
to adhere to the standard of reasonableness rooted in the Milbourn principle of proportionality.
Thus, in accordance with Steanhouse, a remand is necessary so that the court may implement the
Crosby remand procedure as articulated in Lockridge.6 See Shank, 313 Mich App at 226;
Steanhouse, 313 Mich App at 48-49.
V. CONCLUSION
Defendant has failed to establish that any of his claims of error on appeal warrant
reversal. However, remand is necessary because the trial court imposed an upward departure
sentence before Lockridge and Steanhouse were decided. As a result, the court must have an
opportunity to consider the fact that the sentencing guidelines are advisory and that sentencing
decisions are now subject to the standard of reasonableness articulated in Steanhouse.
We affirm defendant’s conviction, but remand for further proceedings consistent with this
opinion. We do not retain jurisdiction.
/s/ Stephen L. Borrello
/s/ Jane E. Markey
/s/ Michael J. Riordan
6
The propriety of a remand is especially evident in this case, as it is apparent from the trial
court’s ruling on the record and the sentencing memorandum that it prepared prior to sentencing
that the court sentenced defendant specifically based on the “substantial and compelling reasons”
standard that no longer exists after Lockridge, 498 Mich at 364-365, 391-392.
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