Michigan v. Posey (Opinion on Application - Remand to CoA)
Annotate this CaseDefendant Dametrius Posey and a codefendant were tried jointly before a jury on multiple counts of assault with intent to murder; assault with intent to commit great bodily harm less than murder; carrying a weapon with unlawful intent; being a felon in possession of a firearm; and possessing a firearm during the commission of a felony. While the appeal was pending, defendant and the prosecution moved jointly to remand for resentencing because of several errors during the sentencing hearing. The Court of Appeals granted the motion and remanded for resentencing. The trial court ultimately imposed the same minimum sentence as defendant’s original sentence, 264 months, which was within the revised guidelines range. The Court of Appeals then affirmed defendant’s convictions and sentence. The Michigan Supreme Court found this case "unique: Unlike in prior cases, the witness who identified defendant at trial did not identify defendant before trial; the witness’s first recorded identification of defendant as an assailant occurred at trial. In fact, the witness identified different individuals as possible assailants before trial. The Court of Appeals concluded that the reliability criteria could not be applied given that there was no improper law-enforcement activity and no pretrial identification of defendant obtained through an unnecessarily suggestive pretrial process." The Supreme Court disagreed with the appellate court on that point and vacated that portion of its opinion. However, the Court nonetheless affirmed defendant’s convictions because he has not shown plain error affecting his substantial rights. The Court opined on defendant's request for review of his sentence: challenges to within-guidelines sentences may be reviewed for reasonableness. The case was remanded to the appellate court for such reasonableness review. "n all other respects, leave to appeal is denied because we are not persuaded that the questions presented should be reviewed by this Court."
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