Opinion
SC 165229 COA 356052
10-25-2024
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. JEFFREY RICARDO WIMBERLY, Defendant-Appellant.
Calhoun CC: 2017-001453-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 November 22, 2022, judgment of the Court of Appeals is considered and, pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we VACATE the November 22, 2022 judgment of the Court of Appeals and the sentence of the Calhoun Circuit Court, and we REMAND this case to the circuit court for an amendment of the judgment of sentence to reflect concurrent sentencing. The circuit court erred by imposing consecutive sentences because the defendant's crimes occurred before the Legislature amended MCL 750.520b to authorize consecutive sentencing. See People v Porter, 495 Mich. 990 (2014); 2006 PA 169. Because consecutive sentencing was not available when defendant committed the offenses for which he was convicted and consecutive sentencing under MCL 750.520b(3) is a criminal punishment rather than a civil remedy, the application of MCL 750.520b(3) to defendant would retroactively increase the punishment for previously committed crimes. Accordingly, the imposition of consecutive sentencing in this case would violate the ex post facto provisions of the United States and Michigan Constitutions. People v Betts, 507 Mich. 527, 542 (2021). See U.S. Const, art I, § 10; Const 1963, art 1, § 10. In all other respects, leave to appeal is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.
Clement, C.J. (dissenting).
I respectfully dissent from this Court's order vacating the judgment of the Court of Appeals and remanding for amendment of the judgment of sentence to reflect concurrent sentencing. Instead, because I believe that the trial court lacked subject-matter jurisdiction when it resentenced defendant in December 2020, I would have remanded for a full resentencing.
I share the majority's concern that the trial court's imposition of consecutive sentences retroactively increased defendant's punishment in violation of his constitutional ex post facto protections. However, vacating defendant's sentence and remanding for a full resentencing because of the lack of subject-matter jurisdiction would moot the ex post facto violation.
Defendant was convicted by jury trial of two counts of first-degree criminal sexual conduct, and the trial court sentenced defendant as a second-offense habitual offender to two consecutive prison terms of 39 to 60 years. Thereafter, defendant filed a claim of appeal in the Court of Appeals. As this Court has discussed previously, this action divested the trial court of subject-matter jurisdiction over those aspects of the case involved in the appeal and vested it in the Court of Appeals. See People v Washington, 508 Mich. 107, 122-123, 126 (2021).
On November 24, 2020, the Court of Appeals issued its judgment affirming defendant's convictions but holding that defendant was entitled to resentencing. See People v Wimberly, unpublished per curiam opinion of the Court of Appeals, issued November 24, 2020 (Docket No. 342751). This judgment was not effective until "after the expiration of the time for filing an application for leave to appeal in the Supreme Court, or, if such an application is filed, after the disposition of the case by the Supreme Court[.]" MCR 7.215(F)(1)(a). See also MCR 7.305(H)(3). Defendant had 56 days to file an application for leave to appeal in this Court. See MCR 7.305(C)(5)(a). However, on December 18, 2020-before the expiration of this period and after defendant filed a notice of intent to appeal in this Court-the trial court resentenced defendant pursuant to the Court of Appeals judgment. Eventually, defendant timely filed his application for leave to appeal in this Court, and this Court denied leave to appeal. People v Wimberly, 509 Mich. 937 (2022).
On November 27, 2020, after the Court of Appeals opinion in this case was issued, this Court issued Administrative Order No. 2020-21. See AO 2020-21, 506 Mich. lxxxvi (2020). In light of the inhibitory effects of the COVID-19 pandemic on prison inmates' abilities to complete the necessary legal proceedings to proceed with a criminal appeal, AO 2020-21 tolled the 56-day filing period for incarcerated defendants acting in propria persona until June 15, 2021, if they filed a notice of intent to appeal in this Court. See Amended Administrative Order No. 2020-21, 507 Mich. cxxiii, cxxiv (2021). Defendant filed such a notice of intent, and, accordingly, defendant's period to file an application for leave to appeal in this Court actually extended beyond June 15, 2021.
Defendant filed his application for leave to appeal on June 8, 2021. As explained earlier, this filing was considered a timely application for leave to appeal because AO 2020-21 tolled the 56-day window for appeal in MCR 7.305(C)(5)(a).
In my opinion, the trial court lacked subject-matter jurisdiction to resentence defendant in December 2020. As in Washington, 508 Mich. at 126-127, "[w]hen the Court of Appeals rendered its . . . judgment, which included a remand for resentencing, jurisdiction remained with the appellate courts until this Court's disposition of defendant's application for leave to appeal the Court of Appeals' judgment." See also People v George, 399 Mich. 638, 640 (1977). Because the trial court here acted before this Court's resolution of defendant's application for leave to appeal the Court of Appeals' judgment, it acted without subject-matter jurisdiction, rendering defendant's new sentence void ab initio and requiring resentencing. Washington, 508 Mich. at 129.
Perhaps notably, unlike in Washington, defendant had not yet filed his application for leave to appeal in this Court when the trial court resentenced him. However, I do not believe that distinction merits a different result. As in Washington, the trial court here was divested of subject-matter jurisdiction over the aspects of the case involved in appeal upon defendant's filing of his claim of appeal in the Court of Appeals. That jurisdiction remained with the appellate courts until the period for filing an application for leave to appeal in this Court expired without an application having been filed, or until the resolution of a filed application for leave to appeal in this Court. As in Washington, because the period for defendant's application for leave to appeal was ongoing, the Court of Appeals judgment-the authority on which the trial court relied to resentence defendant-was not yet effective. See MCR 7.215(F)(1)(a). And, again as in Washington, at the time the trial court resentenced defendant, this Court still "had the ability to greatly alter the course of the case, including obviating the need for retrial." Washington, 508 Mich. at 125. Accordingly, whether or not an application was filed, subject-matter jurisdiction had not yet returned to the trial court.
MCR 7.215(F)(1)(a) also provides that a Court of Appeals judgment may be made effective at an earlier date by order of the Court of Appeals or Supreme Court, but such an order was not entered here.
As stated, I believe that under Washington a trial court does not regain subject-matter jurisdiction-and the Court of Appeals judgment does not become effective-until the time for filing an application for leave to appeal in this Court has expired, even if a defendant does not pursue an appeal. Here, however, defendant had filed a notice of intent to appeal in this Court before the trial court's resentencing, and he ultimately timely filed his application for leave to appeal in this Court. Those facts make this case more analogous to Washington and further support the conclusion that the trial court lacked subject-matter jurisdiction at resentencing.
By not simply applying Washington, the majority suggests that subject-matter jurisdiction did not remain with the appellate courts until the period for filing an application for leave to appeal in this Court expired or until the resolution of a filed application for leave to appeal. But such a view-i.e., that subject-matter jurisdiction bounces back and forth between appellate courts and a trial court-is needlessly complicated. This view would require us to believe that the Court of Appeals is divested of subject-matter jurisdiction after it issues its judgment and after the resultant 21-day period for a party to file a motion for reconsideration, MCR 7.215(I). Subject-matter jurisdiction would then return to the trial court-although bound not to act by our court rules, MCR 7.215(F)(1)(a)-until such time as a party filed an application for leave to appeal in this Court. Upon filing, the trial court would be again divested of subject-matter jurisdiction and subject-matter jurisdiction would be vested in this Court. It is much easier to understand a rule that a trial court is divested of subject-matter jurisdiction upon a claim of appeal and that subject-matter jurisdiction remains with the appellate courts until the resolution of that appeal.
In sum, as I have opined previously, while requiring a full resentencing here, where this Court ultimately denied defendant's application for leave to appeal anyway, may seem cumbersome, "a general rule that lower courts lose subject-matter jurisdiction over a case while an appeal pends . . . encourages overall efficiency and just makes sense." People v Scott, __Mich __, __(June 3, 2024) (Docket No. 164790) (Clement, C.J., dissenting); slip op at 6. Therefore, I dissent.
Cavanagh and Welch, JJ., join the statement of Clement, C.J.