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People v. Comer

Court of Appeals of Michigan

October 8, 2015

JUSTIN TIMOTHY COMER, Defendant-Appellant

          St. Clair Circuit Court. LC No. 11-001804-FC.

         For PEOPLE OF MI, Plaintiff-Appellee: HILARY GEORGIA, PORT HURON, MI.


         Before: GLEICHER, P.J., and SAWYER and MURPHY, JJ.


Page 307

          [312 Mich.App. 540] Per Curiam.

         Defendant pleaded guilty to first-degree criminal sexual conduct (CSC-I), MCL 750.520b(1)(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.


         In 2011, former St. Clair Circuit Court Judge James Adair sentenced defendant to 51 months' to 18 years' [312 Mich.App. 541] imprisonment 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 People v Comer, unpublished order of the Court of Appeals, entered June 29, 2012 (Docket No. 309402).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

Page 308

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 N.W.2d 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. 324; 817 N.W.2d 497 (2012), and People v Lee, 489 Mich. 289; 803 N.W.2d 165 (2001), prohibited the court from amending defendant's sentence to add a provision for lifetime electronic monitoring. [312 Mich.App. 542] 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; 858 N.W.2d 462 (2015).

         [312 Mich.App. 543] II

         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 ...

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