Opinion
No. 351500 No. 351501 No. 351502 No. 351503 No. 351505 No. 351507
12-10-2020
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. FRED JEROME GILBERT, Defendant-Appellant.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Wayne Circuit Court
LC Nos. 2017-008708-01-FH; 2017-008709-01-FH; 2017-008710-01-FH; 2017-008711-01-FH; 2017-008712-01-FH; 2018-001431-01-FH Before: LETICA, P.J., and RIORDAN and CAMERON, JJ. LETICA, P.J., (concurring).
I agree that Gilbert is entitled to resentencing under MCR 6.429(A) because the trial court sua sponte corrected its invalid sentence to impose consecutive terms under MCL 768.7a(2) in these cases without giving the parties an opportunity to be heard.
MCR 6.429(A) provides:
Authority to Modify Sentence. The court may correct an invalid sentence, on its own initiative after giving the parties an opportunity to be heard, or on motion by either party. But the court may not modify a valid sentence after it has been imposed except as provided by law. Any correction of an invalid sentence on the court's own initiative must occur within 6 months of the entry of the judgment of conviction and sentence.
MCL 768.7a(2) states:
If a person is convicted and sentenced to a term of imprisonment for a felony committed while the person was on parole from a sentence for a previous offense, the term of imprisonment imposed for the later offense shall begin to run at the expiration of the remaining portion of the term of imprisonment imposed for the previous offense.
Contrary to the majority's contention that Gilbert failed to preserve his current claims, I conclude that Gilbert's challenges are preserved because he had no opportunity to object to the sentencing court's sua sponte actions. See e.g., People v Holder, 483 Mich 168, 171-172; 767 NW2d 423 (2009). Compare MCR 6.429(C).
MCR 6.429(C) provides:
Preservation of Issues Concerning Sentencing Guidelines Scoring and Information Considered in Sentencing. A party shall not raise on appeal an issue challenging the scoring of the sentencing guidelines or challenging the accuracy of information relied upon in determining a sentence that is within the appropriate guidelines sentence range unless the party has raised the issue at sentencing, in a proper motion for resentencing, or in a proper motion to remand filed in the court of appeals.
"MCL 768.7a(2) requires consecutive sentencing for felonies committed while on parole . . . ." People v Beard, 327 Mich App 702, 707; 935 NW2d 118 (2019). Moreover, a defendant who commits a crime while on parole is not entitled to sentencing credit on his new offense. See MCL 769.11b; People v Idziak, 484 Mich 549; 773 NW2d 616 (2009).
Consequently, the sentencing court's failure here to impose a statutorily mandated punishment required under MCL 768.7a(2) renders Gilbert's post-probation-violation sentences invalid. See People v Comer, 500 Mich 278, 292; 901 NW2d 553 (2017). Therefore, we must decide whether omitting mention of the mandatory consecutive sentence required under MCL 768.7a(2) in the original judgment of sentence was a clerical mistake, correctable by the court sua sponte under MCR 6.435(A).
MCR 6.435 provides:
(A) Clerical Mistakes. Clerical mistakes in judgments, orders, or other parts of the record and errors arising from oversight or omission may be corrected by the court at any time on its own initiative or on motion of a party, and after notice if the court orders it.
(B) Substantive Mistakes. After giving the parties an opportunity to be heard, and provided it has not yet entered judgment in the case, the court may reconsider and modify, correct, or rescind any order it concludes was erroneous.
(C) Correction of Record. If a dispute arises as to whether the record accurately reflects what occurred in the trial court, the court, after giving the parties the opportunity to be heard, must resolve the dispute and, if necessary, order the record to be corrected.
(D) Correction During Appeal. If a claim of appeal has been filed or leave to appeal granted in the case, corrections under this rule are subject to MCR 7.208(A) and (B).
Consistent with Comer, our Supreme Court has previously described a sentencing court's sua sponte imposition of a mandatory consecutive sentence on a parolee after a defendant's in-court sentencing proceeding as a substantive correction under MCR 6.429(A). People v Worthington, 503 Mich 863; 917 NW2d 397 (2018) ("In Comer, we held that correcting an invalid sentence by adding a statutorily mandated term [lifetime electronic monitoring] is a substantive correction that a trial court may make on its own initiative only before judgment is entered. And, in this case, the trial court did not have authority to amend the judgment of sentence after entry to add a provision for consecutive sentencing under MCL 768.7a(2)."); People v Warrick, 501 Mich 920; 903 NW2d 552 (2017) (same); People v Luke, 501 Mich 895; 901 NW2d 892 (2017) (same). After Comer, MCR 6.429(A) was amended to give the trial court the ability to "correct an invalid sentence, on its own initiative," but only "after giving the parties an opportunity to be heard . . . ."
In Comer, the Supreme Court further rejected the contention that omitting a statutorily mandated sentence condition was a clerical mistake. 500 Mich at 293. The Court explained:
[T]he parties do not contend that the failure to sentence [the] defendant to lifetime electronic monitoring was a clerical mistake. Nor could they—the original sentencing judge said nothing about lifetime electronic monitoring at the initial sentencing. Id.The Court's language seems to suggest that if the sentencing court had clearly stated that the judgment of sentence was to include a specific term and that term was not included in the judgment of sentence because of a clerical omission, the sentencing court could correct such an error on its own initiative at any time under MCR 6.435(A). Comer, 500 Mich at 293. See also Worthington, 503 Mich at 863 (VIVIANO, J., concurring; ZAHRA, J., dissenting).
In this case, although the sentencing court mentioned that Gilbert was on parole, it never indicated that it intended to impose a consecutive sentence for that reason. Moreover, although Gilbert's presentence investigation report mentions that Gilbert was on parole when he committed these felonies, it fails to reflect that a consecutive sentence was statutorily required under MCL 768.7a(2). To the contrary, in sentencing Gilbert after he violated his probation, the court was emphatic that the sentences imposed were concurrent, at least with each other, and the May 2019 judgments of sentence reflect that, if the box authorizing consecutive sentencing is not checked, "the sentence is concurrent[.]" See also MCL 769.1h(1) ("A judgment of sentence committing an individual to the jurisdiction of the department of corrections shall specify whether the sentence is to run consecutively to or concurrently with any other sentence the defendant is or will be serving as provided by law."). In these cases, that box was not checked.
The prosecution relies on People v Howell, 300 Mich App 638; 834 NW2d 923 (2013), to support its view that this case involves a clerical error or omission that the court could sua sponte correct under MCR 6.435(A). Although the majority accepts this argument, I find Howell is factually distinguishable. In Howell, "[t]he trial court recognized on the record at the sentencing hearing that Howell was on parole, and Howell's presentence investigation report indicated that Howell's new sentences were to run consecutively to his parole sentence." 300 Mich App at 647 (emphasis added). As just discussed, that is not true in these cases. Instead, it was only after the sentencing court received a letter from the Department of Corrections that it presumably looked back to its earlier judgments of sentence and recognized that it had imposed consecutive sentences when it sentenced Gilbert to probation more than a year earlier in five of these matters. But, when sentencing Gilbert after he violated his probationary sentences, the sentencing court specifically eschewed consecutive sentences in favor of concurrent ones. And, as already discussed, the available initial May 2019 judgments of sentence reflect that, if the box authorizing consecutive sentencing was not checked, "the sentence is concurrent[.]"
In this regard, the sentencing court was mistaken about the March 2018 judgment of sentence and June 2018 amended judgment of sentence in Docket No. 2018-001431-01-FH. Neither of those earlier judgments of sentence reflected a consecutive sentence was required due to Gilbert's status as a parolee. Instead, the court merely recognized that Gilbert would not receive sentencing credit because he was on parole when he committed the charged felony. MCL 769.11b; Idziak, 484 Mich at 552.
According to the 1989 Staff Comment to MCR 6.435(A), a court may correct "an inadvertent error or omission in the record, or in an order or judgment." The purpose of this rule "is to make the lower court record and judgment accurately reflect what was done and decided at the trial level." Central Cartage Co v Fewless, 232 Mich App 517, 536; 591 NW2d 422 (1998) (discussing MCR 2.612(A)(1), which is identical to MCR 6.435(A)) (citation and quotation marks omitted). On this record, I cannot conclude that the sentencing court's imposition of concurrent sentences was a mere clerical mistake or an error arising from oversight or omission under MCR 6.435(A). To the contrary, adding the mandatory consecutive sentence was an impermissible substantive change under MCR 6.435(B). See Worthington, 503 Mich at 863; Warrick, 501 Mich at 920; Luke, 501 Mich at 895; Comer, 500 Mich at 293-294.
Although a staff comment to a court rule is not binding authority, it may be persuasive. Comer, 500 at 298 n 48.
I recognize that this seems a burdensome task in light of the mandatory nature of the consecutive sentence at issue, but it is the result that MCR 6.429(A) and MCR 6.435(B) compel, see e.g., Comer, 500 Mich at 293-294, where the court's omission was not a clerical one under MCR 6.435(A). --------
Nevertheless, I agree with the majority that the trial court improperly imposed mandatory consecutive sentences without affording the parties an opportunity to be heard under MCR 6.429(A). Accordingly, I agree that the amended judgments of sentence must be vacated and these matters remanded for further proceedings.
/s/ Anica Letica