If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
May 14, 2019
Plaintiff-Appellee,
v No. 341421
Wayne Circuit Court
ANDRE VERTIS DENT, LC No. 14-007422-01-FC
Defendant-Appellant.
Before: MURRAY, C.J., and JANSEN and RIORDAN, JJ.
PER CURIAM.
Defendant, following a jury trial, was convicted of assault with intent to do great bodily
harm less than murder, MCL 750.84, carrying a weapon with unlawful intent, MCL 750.226,
felon in possession of a firearm (felon-in-possession), MCL 750.224f, and possession of a
firearm during the commission of a felony (felony-firearm), MCL 750.227b. He was sentenced,
as a fourth habitual offender, MCL 769.12, to 9 to 20 years’ imprisonment for the assault with
intent to do great bodily harm less than murder conviction, the carrying a weapon with unlawful
intent conviction, and the felon-in-possession conviction, all consecutive to a two-year term of
imprisonment for the felony-firearm conviction. On direct appeal, we affirmed defendant’s
convictions, but remanded the case for a determination regarding whether resentencing was
warranted under People v Lockridge, 498 Mich 358; 870 NW2d 502 (2015), and United States v
Crosby, 397 F3d 103 (CA 2, 2005).1
On remand, the trial court held a Crosby hearing, and declined to resentence defendant in
light of Lockridge, 498 Mich at 395-399. After the trial court entered that order, defendant
separately moved the trial court to “correct judgment of sentence and for re-sentencing,” and
argued, for the first time, that the trial court had erred in sentencing him as a fourth-habitual
offender. The trial court also denied that motion, citing its lack of jurisdiction to hear the issue
1
People v Dent, unpublished per curiam opinion of the Court of Appeals, issued May 19, 2016
(Docket No. 325562), pp 6-10.
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because it never was raised in defendant’s original appeal and the trial court was restricted to the
issues in our remand. In this appeal, which defendant filed as of right, defendant solely
challenges the denial of his motion regarding his status as a fourth-habitual defender, arguing
both that the trial court erred in denying it and, for the first time, that his former appellate
counsel was ineffective for failing to raise it during the first appeal.
The order denying that motion, however, is not appealable as of right because it is not a
“final order” pursuant to MCR 7.202(6)(b).2 Nor is it appealable by leave granted because,
pursuant to MCR 7.202(G)(2), “the defendant may not file an application for leave to appeal
from a judgment of conviction and sentence if the defendant has previously taken an appeal from
that judgment by right . . . .” It is undisputed that defendant already exhausted his appeal by
right. Consequently, for the relief requested in this appeal, defendant was required to follow the
procedures set forth for “post-appeal relief” pursuant to MCR 6.500. See MCR 6.501 (“Unless
otherwise specified by these rules, a judgment of conviction and sentence entered by the circuit
court not subject to appellate review under subchapters 7.200 or 7.300 may be reviewed only in
accordance with the provisions of this subchapter.”). Again, it is undisputed that defendant did
not follow those procedures, instead relying on inapplicable court rules.3
The trial court did not err in determining that it did not have jurisdiction to consider that
motion, and we do not have jurisdiction to consider this appeal. If defendant wishes to raise a
novel ground for why his original judgment of sentence is incorrect, he must follow the
2
To compare, we would have jurisdiction as of right to hear an appeal of the trial court’s order
denying defendant’s motion for resentencing on the basis of our previous remand pursuant to
Lockridge. See MCR 7.202(6)(b)(iv) (including within the definition of a final order appealable
by right as “a sentence imposed, or order entered, by the trial court following a remand from an
appellate court in a prior appeal of right . . . .”). However, it is undisputed that defendant is not
challenging the order based upon our previous remand, but rather, is challenging the newly-
raised issue regarding his status as a fourth-habitual offender.
3
To wit, defendant cites MCR 6.435(A), which relates to clerical mistakes in judgments, and
MCR 6.429(B)(2), which provides a time limit for a defendant to move to correct an invalid
sentence during an appeal of right.
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appropriate procedures to do so. This appeal is dismissed.4
/s/ Christopher M. Murray
/s/ Kathleen Jansen
/s/ Michael J. Riordan
4
Nevertheless, even a cursory review of the record shows that defendant’s arguments are
without merit. During the original sentencing, defendant was informed that he was being
sentenced as a fourth-habitual offender based on four previous convictions as provided in the
presentence report, which plainly is permitted by statute. MCL 769.13(5)(d) (“The existence of
the defendant’s prior [] convictions shall be determined by the court, without a jury, at
sentencing . . . [and] may be established by . . . [i]nformation contained in a presentence
report.”). Thus, the sentence is not in error, does not need to be corrected, and defendant’s
original appellate attorney was not ineffective for failing to pursue that futile argument in
defendant’s appeal as of right. People v Henry (After Remand), 305 Mich App 127, 141; 854
NW2d 114 (2014) (“Counsel is not ineffective for failing to advance a meritless position or make
a futile motion.”).
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