People v. Clark

888 N.W.2d 309, 315 Mich. App. 219, 2016 WL 1576922, 2016 Mich. App. LEXIS 779
CourtMichigan Court of Appeals
DecidedApril 19, 2016
DocketDocket 322852
StatusPublished
Cited by85 cases

This text of 888 N.W.2d 309 (People v. Clark) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Clark, 888 N.W.2d 309, 315 Mich. App. 219, 2016 WL 1576922, 2016 Mich. App. LEXIS 779 (Mich. Ct. App. 2016).

Opinions

MARKEY, J.

Defendant appeals by leave granted a judgment of sentence in which the trial court ordered defendant, as a repeat drug offender, MCL 333.7413(2), to serve 38 to 240 months in prison for his plea-based conviction of delivery of less than 50 grams of cocaine, MCL 333.7401(2)(a)(iu). The court ordered the sentence to be served consecutively to a federal sentence he was serving for a previous conviction. Defendant argues that because his federal supervised release did not constitute “parole” under MCL 768.7a(2), the trial court erred by ordering that his sentence in this case run consecutively to the federal sentence. Defendant also asserts the trial court erred by not awarding him credit for the time he served before sentencing. We agree in part and remand for resentencing.

I. SUMMARY OF FACTS AND PROCEEDINGS

As a result of a police investigation between July 2013 and September 2013, defendant was charged with delivering less than 50 grams of cocaine, [222]*222MCL 333.7401(2)(a)(iu), and possession of marijuana, MCL 333.7403(2)(d). The prosecution notified defendant that these charges were subject to second-offense sentence enhancement pursuant to MCL 333.7413(2).

At the time of defendant’s arrest, he was on federal supervised release because of his 2005 conviction for possession of cocaine and being a felon in possession of a firearm. Defendant was sentenced on these federal offenses to 110 months in federal prison followed by a three-year term of supervised release.1 Defendant remained incarcerated until his term of supervised release began on August 16, 2012; the term was scheduled to expire on August 5, 2015.

On February 28, 2014, defendant pleaded guilty in the present case to delivery of less than 50 grams of cocaine, second offense, in exchange for the dismissal of the possession-of-marijuana charge. The prosecutor also agreed to not bring further charges in this case (e.g., fleeing and eluding). In establishing a factual basis for his plea, defendant admitted that he delivered cocaine to another individual on July 2, 2013, and that he had a prior conviction of possession of marijuana. The trial court accepted defendant’s guilty plea.

At his sentencing proceeding on May 14, 2014, defendant admitted that he had been on “parole” at the time he committed the. charged offense. But defendant also stated that he believed the recommended sentence was “absurd” because he was never informed about a “mandatory consecutive sentence.” The trial court explained to defendant that Michigan law required “any [223]*223offense committed while on parole status ... be consecutive to parole.” Thus, when imposing sentence, the trial court explained that the ordered period of imprisonment “begins upon the conclusion of [the sentence for] the crime for which you were on parole.”

On May 23, 2014, defendant moved in propria persona for resentencing on the basis that he was not on parole at the time of sentencing. The trial court denied defendant’s motion on May 29, 2014. In denying the motion, the trial court noted that defendant’s presentence investigation report (PSIR) confirmed that defendant “was on parole status” when he committed this offense. The PSIR also states that defendant was sentenced in federal court to 20 months’ imprisonment as a result of a “parole violation” for his involvement in the instant offense.

Defendant filed a delayed application for leave to appeal in this Court on July 23, 2014. On August 27, 2014, this Court denied leave to appeal “for lack of merit in the grounds presented.” Defendant subsequently filed an application for leave to appeal in the Michigan Supreme Court, which issued an order directing the prosecutor to file an answer to defendant’s application. After plaintiff did so, the Court considered defendant’s application for leave to appeal and remanded to this Court “for consideration as on leave granted.” People v Clark, 498 Mich 880 (2015).

II. ANALYSIS

A. PRESERVATION OF ISSUES

To preserve a sentencing issue for appeal, a defendant must raise the issue “at sentencing, in a proper motion for resentencing, or in a proper motion to remand filed in the court of appeals.” MCR 6.429(C); [224]*224see also People v McLaughlin, 258 Mich App 635, 670; 672 NW2d 860 (2003). In a motion for resentencing, defendant argued that he was not subject to consecutive sentencing because he was not on “parole” at the time the offense was committed. Therefore, this issue is preserved.

However, defendant’s sentence-credit argument is unpreserved because he did not request credit for time served at sentencing or object to the trial court order that denied him sentence credit. See People v Meshell, 265 Mich App 616, 638; 696 NW2d 754 (2005).

B. STANDARD OF REVIEW

A consecutive sentence cannot be imposed under Michigan law in the absence of statutory authority. People v Chambers, 430 Mich 217, 222; 421 NW2d 903 (1988). Therefore, whether a trial court may impose consecutive sentences is a question of statutory interpretation, which is reviewed de novo. People v Gonzalez, 256 Mich App 212, 229; 663 NW2d 499 (2003).

With respect to defendant’s argument regarding sentence credit, this Court’s review is limited to plain error affecting substantial rights because the issue was not preserved. People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). Relief is available only when (1) an error occurred, (2) the error was plain, meaning clear or obvious, and (3) the plain error affected substantial rights, meaning it affected the outcome of the proceedings. Id. Additionally, reversal is warranted only when the plain, forfeited error resulted in the conviction of an actually innocent defendant or when the error seriously affected the fairness, integrity, or public reputation of the judicial proceedings. Id. (quotation marks and citation omitted).

[225]*225c. DISCUSSION

Because we conclude that a federal term of “supervised release” is not the same as “parole” under Michigan’s criminal justice system, we necessarily conclude that MCL 768.7a(2) does not provide statutory authority for defendant’s sentence to run consecutively to the federal sentence for which he was on supervised release when he committed the instant offense. Consequently, we remand this case to the trial court for resentencing. With respect to defendant’s argument that the trial court erred by denying him sentence credit, however, defendant has failed to establish plain error warranting relief.

The PSIR states that defendant was sentenced to “110 months with 3 years SRT” for his federal convictions. A three-year term of supervised release is consistent with the provisions of 18 USC 3583(b). Despite this reference to supervised release, the remainder of the PSIR refers only to defendant’s being on “federal parole.” Likewise, at sentencing, the parties— including defendant—used the term “federal parole,” as opposed to supervised release when discussing his status at the time he committed the instant offense. The parties agree that this was a mischaracterization in that at the time he committed the instant offense, defendant was on federal supervised release with respect to his federal convictions.

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Cite This Page — Counsel Stack

Bluebook (online)
888 N.W.2d 309, 315 Mich. App. 219, 2016 WL 1576922, 2016 Mich. App. LEXIS 779, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-clark-michctapp-2016.