Michigan Supreme Court 

# Order

Lansing, Michigan

January 19, 2007 Clifford W. Taylor,
Chief Justice
128034 (59) Michael F. Cavanagh

Elizabeth A. Weaver Marilyn Kelly Maura D. Corrigan Robert P. Young, Jr. PEOPLE OF THE STATE OF MICHIGAN, Stephen J. Markman, Plaintiff-Appellee, Justices

v SC: 128034 COA: 250580 Muskegon CC: 02-047915-FC SANDY SEAN HOLT, JR., Defendant-Appellant.

________________ _______________ __________/

On order of the Court, the motion to supplement the record is GRANTED.

C ORRIGAN , J., concurs and states as follows:

I concur in the or der granting the prosecution’s mo tion to supplement the record. I write separately to explain the reasons for granting the motion.

This Court ordered oral ar gument on the application for l eave to appeal to consider

whether there was a violation of the 180-day rule, MC L 780.131, in this case in light of People v Williams , 475 Mich 245 (2006), and wheth er the time limitation set forth in MCL 780.131 is subject to waiver or extensi on. 477 Mich 860 ( 2006). The prosecution then moved to supplement th e record to show that it di d not receive written notice of defendant’s imprisonment by certified mail from the Department of Corrections, as required by MCL 780.131(1). Defendant ar gues that the motion should be denied because the prosecution waived the notice issue when it conceded in th e trial court that it

received notice of defendant’s incarceration from th e district court on August 28, 2002. I disagree.

While this case was in the lower courts, MCR 6.004(D) provided in relevant part:

(D) Untried Charges Against State Prisoner.

(1) The 180-Day Rule. Except for crimes exempted by MCL 780.131(2); MSA 28.969(1)(2), the prosecutor must make a good faith2

effort to bring a criminal ch arge to trial w ithin 180 days of either of the following:

(a) the time from which the pros ecutor knows that the person charged with the offense is incarcerated in a state pris on or is detained in a local facility awaiting incar ceration in a state prison , or

(b) the time from which the Department of Co rrections knows or has reason to know that a criminal charg e is pending against a defendant incarcerated in a state prison or deta ined in a local facility awaiting incarceration in a state prison. [Emphasis added.]

Under this version of the co urt rule, the 180-day period commenced when the prosecutor simply knew that defe ndant was incarcerated. In concedin g that it had such notice, the prosecution reasonably relied on the former court rule and stated that the 180-day period commenced on August 28, 2002, the date it had receive d notice of defendant’s

incarceration from the district court.

But as we recognized in Williams, supra at 259, the statutory trigger for commencement of the 180-day p eriod conflicts with the c ourt rule. MCL 780.131(1) provides, in pertinent part:

Whenever the department of corre ctions receives notice that there is pending in this state any untried w arrant, indictment, information, or complaint setting forth against any inma te of a correctional facility of this

state a criminal offense fo r which a prison senten ce might be imposed upon conviction, the inmate shall be brought to trial within 180 days after the department of corrections causes to be delivered to the prosecuting attorney of the coun ty in which the wa rrant, indictment, information, or complaint is pending writte n notice of the place of imprisonment of the inmate and a request for final dis position of the warrant, indictment, information, or complaint . The request shall be accompanied by a statement setting forth the term of co mmitment under whic h the prisoner is being held, the time already served, th e time remaining to be served on the sentence, the amount of good time or disciplinary credits earned, the time of parole eligibility of the prisoner, and any decisions of the parole board relating to the prisoner. The written notice and statem ent shall be delivered by certified mail . [Emphasis added.]

Thus, the 180-day peri od commences only after the Dep artment of Corrections sends a certified letter to the prosecutor giving noti ce of the inmate’s incarceration and a request for final disposition of the charges. Williams, supra at 256. In Williams, supra at 259,

this Court held that the court rule was inva lid to the extent that it improperly deviated from the statutory language. The Williams opinion applies to all cases pending on appeal3

in which the 180-day issue has been preserved. Id. Therefore, Williams applies to the

instant case.

The prosecution’s concession of the no tice issue did not am ount to a waiver because the prosecution did not know, and could not have known, at the time of the

concession that this Court would inva lidate MCR 6.004(D) and enforce the notice requirements listed in the 180-da y statute. A party does not waive error that, because of a change in the law, could no t have been recognized until th e party’s case was pending on appeal. State v Munninger , 209 Ariz 473, 477 (Ariz App, 2005). Waiver requires “the intentional relinquishment or ab andonment of a known right.” People v Carter , 462 Mich 206, 215 (2000) (internal citations and quotation marks omitted). Here, the prosecution did not in tentionally abandon a known right. Under MC L 780.131(1), the prosecution had a right to notice by certifie d mail from the Departme nt of Corrections of defendant’s incarceration and a request for final disposition of the pe nding charges. But the prosecution did not know it had this right at th e time because MCR 6.004(D) improperly provided that the prosecutor need only have notice that the defendant was incarcerated. Thus, the prosecution could not have used its c oncession of the notice issue as an appellate parachute. 1 The prosecution’s concession of the notice issue was based

on the notice of defendant’s incarceration it received from the district court . The prosecution did not concede that it had received the statutorily required notice of defendant’s incarceration from the Department of Corrections by certified mail. If the prosecution had the benefit of the Williams opinion, it would not have conceded the notice issue, because it would have known that the only va lid notice under the 180-day rule is the notice required by statute. Under the law that was in effect at the time, however, the prosecution abandoned the noti ce issue without know ing that it had an existing right to receive proper notice under MCL 780.131(1). Th is is not a waiver. “‘A contrary holding would place an unreasonable burden on [the partie s] to anticipate unforeseen changes in the law and encourage fruitless objections in other situations where [the parties] might hope th at an established rule . . . wo uld be changed on appeal.’” People v Guzman , 40 Cal App 4th 691, 696 (1995) (Premo, Acting P.J., dissenting), quoting People v Kitchens , 46 Cal 2d 260, 263 (1956). 2

1 I reject Justice Kelly’s co ntention that we are allowing the pros ecution to “escape its admissions and waivers because of ignora nce of the law.” When the prosecution conceded the notice issue, it was justifiably rel ying on the law as it existed at the time. Contrary to Justice Kelly’s belief, the pros ecution should not have ignored the language

of the then-valid court rule and the case law applying that rule.

2 Justice Kelly argues that even if the 180-day period did not begin on August 28, 2002, it must have begun at the time of defendant’s arraignment on September 12, 2002. But this misses the point of the Williams opinion. As I have discussed, under Williams, supra at 256, the 180-day period co mmences under MCL 780.131 only after the Department of Corrections sends a certified letter to the pr osecutor giving noti ce of the inmate’s4

C AVANAGH , J., would deny the motion to supplement the record.

K ELLY , J., dissents and states as follows:

I dissent from the majority’s decision to allow the prosecution to supplement the record. It represents an elev enth-hour attempt to change the record an d demonstrate that plaintiff did not have notice of defendant’s incarceration more th an 180 days b efore trial. Earlier, the prosecution conceded that it had notice of defen dant’s incarceration more than 180 days before trial. Given this concession, it waived the issue.

This Court ordered oral ar gument on whether to grant the applica tion or take other peremptory action pursuant to M CR 7.302(G)(1). Specifically, we ordered the parties to

address

whether there was a violation of the 180-day rule , MCL 780.131, [3] in this case in light of People v Williams , 475 Mich 245 (2006), and whether the

incarceration and a request for final disposition of the charges. The prosecution had not received such a letter from the Department of Corrections on September 12, 2002.

3 MCL 780.131 provides:

(1) Whenever the dep artment of corrections receives notice that there is pending in this state any untr ied warrant, indictme nt, information, or complaint setting forth against any inmate of a correctional facility of

this state a criminal offense for which a prison sentence might be imposed upon conviction, the inmate shall be br ought to trial within 180 days after the department of corrections causes to be delivered to the prosecuting attorney of the c ounty in which the warrant, indictment, information, or complaint is pending writte n notice of the place of imprisonment of the inmate and a request for final dis position of the warrant, indictment, information, or complain t. The request shall be accompanied by a statement setting forth the term of commitment under which the prisoner is being held, the time already s erved, the time remaining to be served on the sentence, the amount of good time or disciplinary credits earned, the time of parole eligibility of the prisoner, and any decisions of the parole board relating to the prisoner. The written notice and statement shall be delivered by certified mail.

(2) This section does not apply to a warrant, indictment, information, or complaint arising from either of the following:

(a) A criminal offense committed by an inmate of a state correctional facility while incarcerated in the correctional facility.5

time limitation set forth in MCL 780.13 1 is subject to waiver or extension for any reason, such as prosecutor g ood faith, mutual agreement of the parties, or time attributable to the defendant, including requests for adjournment. [ People v Holt , 477 Mich 860 (2006).]

Later, instead of filing a supplemental brief, the prosecution filed a motion to permit it to supplement the record or for a remand of the case to settle the record. The prosecution

claimed that it had never received written no tice from the Department of Corrections. The claim directly contradicted its past statements.

On the first day of trial, May 21, 2003, defendant raised the issue of a 180-day

rule violation and asked the trial court to dism iss the charges with p rejudice. In response to this motion, the prosecutor sp ecifically stated that the 180 days began to run on August 28, 2002. The prosecution repeatedly stated that it had notice on th at date. It also indicated that, on August 30, 2002, it prepared a writ to cause defendant to be brought to court from a state prison in Jackson. Defe ndant was arraigned on September 12, 2002.

On the first day of trial, the court agreed with the prosecution’s starting date. It ruled that the prosecution had notice on August 28, 2002. 4 The prosecution agreed with this assessment and never app ealed from the determination. In fact, it never even argued

that the determination was errone ous. In his subsequent brief to the Court of Appeals and in his application to this Co urt, defendant made note of the prosecution’s concession that the 180 days began to run on August 28, 2002. Not only did the prosecution not object to these statements, it accepted defendant’s statemen ts of fact without challenging this starting date.

Given the prosecution’s repeated acceptance of the August 28, 2002, starting date,

it is too late now for it to advocate for some other date as the co rrect starting point. The prosecution has waived the argument. “‘One who waives his rights under a rule may not then seek appellate review of a claimed depr ivation of those rights, for his waiver has extinguished any error.’” People v Carter , 462 Mich 206, 215 (2000), quoting United States v Griffin , 84 F3d 912, 924 (CA 7, 1996). Allowing the prosecution to change the date in the course of this appeal would a llow the creation of an appellate parachute. Counsel may not harbor error in the trial court for use as a parachute to save the case in

(b) A criminal offense committed by an inmate of a state correctional facility after the inmate has escaped from the correctional facility and before he or she has been returned to th e custody of the department of corrections.

4 Defendant had been arguing for an earlier starting date . He claimed that the count

should start from the date the prosecution received notice that defendant would be

extradited from incarceration in another state._______________________________________ __ 6

the appellate courts. Carter , 462 Mich 214. In this cas e, if any error exists, it was created by the prosecution’s advocacy for the August 28, 2002, starting date. Because of this, the Court should not now allow the prosecution to change its position.

Justice Corrigan argues that the prosecutio n did not waive this argument because it did not know that the statutory language would contro l. I disagree. A lthough this Court recently invalidated the former version of MCR 6.00 4(D) in part because it conflicted with the language of MCL 780.131, 5 the requirements of the st atutory 180-day rule have never changed. The language of the stat ute has not changed since its amendment in 1989. These requirements were always in existence, regardle ss of the language of MCR 6.004(D).

Given that the prosecution is a sophisti cated party, it should have known that it

was bound to follow the statut es enacted by the Legislature. The prosecution should be

bound to know the law. And it should not be allowed to escape its admissions and waivers because of ignorance of the law. Contrary to Justi ce Corrigan’s contention, the prosecution always knew that it had a right to receive no tice pursuant to MCL 780.131. Because the statute did not change, the pros ecution’s advocacy for th e August 28, 2002, starting date waived any later argument for so me other date. Therefo re, I would deny the prosecution’s motion.

I would also note that, even if the pros ecution is allowed to escape the August 28, 2002, starting date, it certainly had notice of defendant’s incarcerat ion by the arraignment on September 12, 2002. This date is more than 180 days before the start of trial on May 21, 2003. Even giving the prosecution the benefit of this doubt, its motion to supplement the record is untimel y. Therefore, I must dissent from the majority’s decision to grant the motion.

5 Williams , 475 Mich 259.

t0116 I, Corbin R. Davis, Clerk of the Mi chigan Supreme Cour t, certify that the foregoing is a true and complete copy of the order entered at the direction of the Court.

January 19, 2007

Clerk