PEOPLE OF MI V JOHN LEE HENLEY
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
September 19, 1997
Plaintiff-Appellee,
v
No. 189597
Recorder’s Court
LC No. 89-010126-FC
JOHN LEE HENLEY,
Defendant-Appellant.
Before: Markey, P.J., and Neff and Smolenski, JJ.
MEMORANDUM.
On prior appeal of right, No. 136695, this Court viewed information suggesting that defendant’s
commission of this offense was linked to drug usage as inaccurate. We remanded this case to the trial
court for evaluation of the propriety of resentencing based on whether such purportedly inaccurate
information played a role in the sentencing decision. On remand, the original sentencing judge
contended that the information on which she relied was in fact accurate, but she concluded that she had
indeed taken defendant’s involvement with drugs into account and that she could not put this information
aside for purposes of a resentencing. Accordingly, she granted a resentencing but recused herself,
causing a different judge to be assigned to the case.
The new judge examined the file and determined that in a letter he addressed to the original
sentencing judge, dated prior to the original sentencing and initialed and dated by the sentencing judge
more than a week before the original sentencing, defendant admitted his involvement with drugs as a
contributing factor in the offense. The successor judge therefore concluded that the original sentence
was not based on inaccurate information in any respect and he reinstated that sentence. That generated
the present appeal of right, which is being decided without oral argument pursuant to MCR 7.214(E).
Once the original judge recused herself from the case and a successor or substitute was
appointed, the newly assigned judge had full authority to make any ruling required by the facts of the
case and the applicable law, including revisiting or revising any prior, non-final decision of the original
judge. Huber v Frankenmuth Mutual Ins Co, 160 Mich App 568, 573-574; 408 NW2d 505
(1987); MCR 2.604.
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This result is not precluded by the law of the case doctrine. The law of the case doctrine
applies only when the facts are unchanged on a subsequent appeal. Topps-Toeller, Inc, v City of
Lansing, 47 Mich App 720; 209 NW2d 843 (1973). Here, the “facts” have changed. Additionally,
the law of the case doctrine in criminal cases is not inflexible and will not be applied to create an
injustice. People v Herrera (On Remand), 204 Mich App 333, 340-341; 514 NW2d 543 (1994).
Because, in the absence of inaccurate information underlying the original sentence and rendering it
invalid, separation of powers principles preclude the judiciary from granting a resentencing, Const 1963,
art 3, §2; In re Jenkins, 438 Mich 364; 475 NW2d 279 (1991), the successor judge properly
concluded that as defendant’s original sentence was based on accurate information, it was valid and
should therefore properly be reinstated.
Affirmed.
/s/ Jane E. Markey
/s/ Janet T. Neff
/s/ Michael R. Smolenski
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