People v. Comer

879 N.W.2d 306, 312 Mich. App. 538, 2015 Mich. App. LEXIS 1850
CourtMichigan Court of Appeals
DecidedOctober 8, 2015
DocketDocket 318854
StatusPublished
Cited by3 cases

This text of 879 N.W.2d 306 (People v. Comer) 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. Comer, 879 N.W.2d 306, 312 Mich. App. 538, 2015 Mich. App. LEXIS 1850 (Mich. Ct. App. 2015).

Opinions

PER CURIAM.

Defendant pleaded guilty to first-degree criminal sexual conduct (CSC-I), MCL 750.520b(l)(c), and first-degree home invasion, MCL 750.110a(3). This Court vacated his original sentences for reasons not germane to this appeal, and new sentences were imposed. Neither the first nor the second CSC-I sentence included a provision for lifetime electronic monitoring as required under MCL 750.520b(2)(d).1 Three and a half months after defendant was resentenced, the Department of Corrections notified the trial court that the judgment of sentence omitted “any specific language ordering lifetime electronic monitoring....” Over defendant’s objection, the trial court resentenced him a third time and imposed lifetime electronic monitoring.

Defendant asserts that he is not subject to lifetime electronic monitoring and that the trial court waited too long before imposing that punishment. Binding caselaw requires us to reject both arguments. Accordingly, we affirm.

I

In 2011, former St. Clair Circuit Court Judge James Adair sentenced defendant to 51 months’ to 18 years’ [541]*541imprisonment for the CSC-I conviction. The judgment of sentence form included a line to be checked by the trial court indicating, “The defendant is subject to lifetime monitoring under MCL 750.520n.” Judge Adair did not place a checkmark on this line or otherwise indicate in the judgment of sentence that defendant was subject to lifetime electronic monitoring.

Defendant sought leave to appeal his sentence, contending that the trial court had improperly scored several offense variables. In lieu of granting leave to appeal, we vacated defendant’s CSC-I sentence and remanded for resentencing. People v Comer, unpublished order of the Court of Appeals, entered June 29, 2012 (Docket No. 309402). On October 8, 2012, Judge Adair resentenced defendant, lowering his minimum sentence for both convictions to 42 months’ imprisonment. The second judgment of sentence form includes the same unchecked line referring to lifetime monitoring and omits any other reference to that punishment.

On January 29, 2013, the Michigan Department of Corrections notified Judge Adair that pursuant to People v Brantley, 296 Mich App 546; 823 NW2d 290 (2012), defendant’s sentence should have included lifetime electronic monitoring. Defendant’s previous appellate counsel, Jacqueline Ouvry, filed an objection, arguing that Brantley did not apply to defendant and that because the prosecution neglected to bring a motion to correct defendant’s sentence, MCR 6.429(B)(3) precluded resentencing. Ms. Ouvrey further contended that the Supreme Court’s opinions in People v Cole, 491 Mich 325; 817 NW2d 497 (2012), and People v Lee, 489 Mich 289; 803 NW2d 165 (2011), prohibited the court from amending defendant’s sentence to add a provision for lifetime electronic monitor[542]*542ing. The prosecution replied that Brantley applied, and that without a provision for lifetime electronic monitoring, defendant’s sentence was invalid. The prosecution insisted that the court had the authority to correct defendant’s sentence by offering him the opportunity to withdraw his previous guilty plea or allowing that plea to stand after being informed of the lifetime electronic monitoring requirement.

At a hearing conducted on April 29, 2013, Judge Michael West, Judge Adair’s successor, found defendant’s guilty plea “defective,” declaring: “I’m not going to proceed further with the plea being defective.” Ms. Ouvrey contended that omission of lifetime electronic monitoring constituted a “substantive mistake” that could be corrected only pursuant to a timely motion to correct an invalid sentence, which the prosecution had failed to file. The court rejected this argument, reasoning: “This is not a question of whether the sentence is invalid. This is a question as to whether the plea was invalid.” Judge West then offered defendant the opportunity to withdraw his guilty plea or to allow the plea to stand while acknowledging that the plea “carries with it. . . lifetime electronic monitoring.” Defendant declined to withdraw his plea. Judge West signed a new judgment of sentence maintaining the term of incarceration previously imposed and adding, “Lifetime GPS upon release from prison.” (Capitalization altered.)

Defendant again sought appellate review of his sentence, and the trial court appointed different counsel. This Court denied defendant’s delayed application for leave to appeal. People v Comer, unpublished order of the Court of Appeals, entered January 27, 2014 (Docket No. 318854). The Supreme Court remanded for consideration as on leave granted. People v Comer, 497 Mich 957 (2015).

[543]*543ii

Defendant first contends that Brantley “did not create a mandate to amend the Judgment of Sentence in every CSC-I case issued since 2006, where lifetime electronic monitoring was not applied.” While we agree that no such “mandate” exists, we reject defendant’s related argument that the law remains “not settled” regarding whether defendants convicted of CSC-I are subject to lifetime electronic monitoring. In Brantley, this Court considered the statutory circumstances under which a defendant convicted of CSC-I must submit to lifetime electronic monitoring. The defendant in that case contended that lifetime electronic monitoring could be imposed only if the defendant was 17 years old or older and the victim was less than 13 years old at the time of the offense. Brantley, 296 Mich at 556. The majority conceded that “the language of MCL 750.520n(l) does seem to indicate that a trial court must order a defendant who is convicted of CSC-I to submit to lifetime electronic monitoring only if the defendant was 17 years old or older, and the victim was less than 13 years old.” Id. at 557. Over a strong dissent by Judge K. F. KELLY, the majority nevertheless determined that “in context” and pursuant to a tool of statutory interpretation known as the last-antecedent rule, defendants convicted of CSC-I under MCL 750.520b(1)(c) are subject to lifetime monitoring under MCL 750.520b(2)(d), regardless of the age of the defendant or the victim. Id. at 557-559.

In People v King, 297 Mich App 465, 487; 824 NW2d 258 (2012), the majority criticized Brantley’s reasoning and called for a conflict panel to resolve which defendants convicted of CSC-I are subject to lifetime electronic monitoring. This Court declined to convene a conflict panel, People v King, 297 Mich App 802 (2012), [544]*544and the Supreme Court denied the defendant’s application for leave to appeal. People v King, 493 Mich 938 (2013). More recently, in People v Johnson, 298 Mich App 128, 135-136; 826 NW2d 170 (2012), we reiterated that MCL 750.520b(2) “requires lifetime electronic monitoring for first-degree criminal sexual conduct convictions when the defendant has not been sentenced to life in prison without the possibility of parole.” We are required to follow Brantley and Johnson, MCR 7.215(J)(1), and conclude that the law is now settled: defendant was subject to lifetime electronic monitoring when he was first sentenced in 2011.

In Cole, 491 Mich at 327, 336, the Supreme Court held that when enacting MCL 750.520n(l), the Legislature intended to make lifetime electronic monitoring part of the sentence itself for CSC-I.

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Bluebook (online)
879 N.W.2d 306, 312 Mich. App. 538, 2015 Mich. App. LEXIS 1850, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-comer-michctapp-2015.