Opinion
SC 166651 COA 361017
10-04-2024
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. JAMIE ANDREW VanKLAVEREN, Defendant-Appellant.
Kent CC: 07-003353-FC 07-003354-FC 07-003356-FC
Elizabeth T. Clement, Chief Justice, Brian K. Zahra, David F. Viviano, Richard H. Bernstein, Megan K. Cavanagh, Elizabeth M. Welch, Kyra H. Bolden, Justices
ORDER
On order of the Court, the application for leave to appeal the September 14, 2022 order of the Court of Appeals and the December 14, 2023 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.
Cavanagh, J. (dissenting).
I dissent from the Court's order denying leave because I would have remanded to the trial court on the basis of the consecutive-sentencing error.
Defendant has clearly demonstrated "actual prejudice" under MCR 6.508(D)(3)(b)(iv). When challenging a sentence in a motion for relief from judgment, a defendant demonstrates "actual prejudice" by showing that "the sentence is invalid." MCR 6.508(D)(3)(b)(iv). As defendant argues, the consecutive sentences that he received are clearly invalid. In 2008, defendant was convicted of multiple counts of criminal sexual conduct (CSC) and the trial court imposed a 25-to-50-year sentence for three of the first-degree CSC convictions, all to be served consecutively. The trial court "may order a term of imprisonment imposed [for CSC-I] to be served consecutively to any term of imprisonment imposed for any other criminal offense arising from the same transaction." MCL 750.520b(3) (emphasis added). However, those three sentences correspond to acts committed in October 2006, December 2006, and February 2007 against three different complainants. In other words, the convictions for which consecutive sentencing was imposed were not part of a continuous time sequence because the incidents involved different complainants and occurred on separate dates in several locations. Therefore, the sentences imposed are invalid because they were based on a misconception of law that consecutive sentences were permitted under MCL 750.520b(3), see People v Miles, 454 Mich. 90, 96 (1997), and defendant has shown actual prejudice, MCR 6.508(D)(3)(b)(iv).
In Case No. 07-03353-FC, defendant was convicted of two counts of CSC-I for abusing JS. In Case No. 07-03354-FC, defendant was convicted of two counts of CSC-I for abusing GW. In Case No. 07-03356-FC, defendant was convicted of two counts of CSC-I for abusing MB.
Further, I believe that defendant's assertion in the trial court that appellate counsel was ineffective for failing to make this argument on direct appeal is sufficient to satisfy good cause, MCR 6.508(D)(3)(a). The argument that the consecutive sentences imposed were not part of a continuous time sequence was available to defendant's counsel in the direct appeal under a straightforward reading of the statute as well as caselaw interpreting the term "same transaction." See People v Nutt, 469 Mich. 565 (2004) (discussing the "same transaction" test in the context of a double-jeopardy claim). Although defendant has arguably not adequately raised this issue on appeal, in the interest of substantial justice, I would find that defendant has met his burden on his motion for relief from judgment. I would therefore reverse the Court of Appeals decision, vacate the erroneous consecutive sentences, and remand to the trial court.
The Court has ordered oral argument on the application in People v Wimberly, 512 Mich. 959 (2024), and directed supplemental briefing on whether, if the consecutively imposed sentences in that case are invalid, "the appropriate remedy is to grant the defendant a new sentencing hearing or to direct the sentencing court to amend the judgment of sentence to reflect concurrent sentences," id. at 960. Given that we are poised to consider the appropriate remedy for invalid consecutive sentences, it suffices to say that I believe that a remand to the trial court is appropriate.
BOLDEN, J., joins the statement of CAVANAGH, J.