Clair Circuit Court. LC No. 11-001804-FC.
PEOPLE OF MI, Plaintiff-Appellee: HILARY GEORGIA, PORT HURON,
JUSTIN TIMOTHY COMER, Defendant-Appellant: SUZANNA KOSTOVSKI,
GLEICHER, P.J., and SAWYER and MURPHY, JJ.
Mich.App. 540] Per Curiam.
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). 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.
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.
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.
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People v Comer, unpublished order of the Court of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.
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
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.)
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
Mich.App. 543] II
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 ...